State v. Quinton J. Smith

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 8, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP135-CR Cir. Ct. No. 2017CF257

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

QUINTON J. SMITH,

DEFENDANT-APPELLANT.

APPEAL from judgments and an order of the circuit court for
Racine County: MARK F. NIELSEN, Judge. Affirmed.

Before Neubauer, Grogan and Kornblum, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP135-CR

¶1 PER CURIAM. Quinton Smith appeals from judgments convicting
him of multiple drug offenses on his no contest pleas and from an order rejecting
his challenge to his sentence and his motion to withdraw his pleas due to
ineffective assistance of trial counsel. We affirm.

¶2 “To withdraw a plea after sentencing, a defendant must show by
clear and convincing evidence that a refusal to allow withdrawal of the plea would
result in a manifest injustice.” State v. Dillard, 2014 WI 123, ¶36, 358 Wis. 2d
543, 859 N.W.2d 44. A defendant may demonstrate manifest injustice by
establishing that counsel was ineffective, i.e., that counsel’s performance was
deficient and that the deficient performance prejudiced the defendant. Id., ¶¶84-
85. Both deficient performance and prejudice present mixed questions of fact and
law. State v. Jeannie M.P., 2005 WI App 183, ¶6, 286 Wis. 2d 721, 703 N.W.2d
694. We will uphold the circuit court’s factual findings unless they are clearly
erroneous. Id. However, we review de novo whether counsel’s performance was
deficient or prejudicial. Id. In the absence of deficient performance, we need not
consider whether trial counsel’s performance was prejudicial. See State v. Mayo,
2007 WI 78, ¶61, 301 Wis. 2d 642, 734 N.W.2d 115.

¶3 In evaluating counsel’s performance, we are highly deferential to
counsel’s strategic decisions. State v. Balliette, 2011 WI 79, ¶26, 336 Wis. 2d
358, 805 N.W.2d 334. “A strategic trial decision rationally based on the facts and
the law will not support a claim of ineffective assistance of counsel.” State v.
Elm, 201 Wis. 2d 452, 464-65, 549 N.W.2d 471 (Ct. App. 1996).

¶4 We make a preliminary observation. Smith’s appellant’s brief does
not confront the circuit court’s findings of fact at the postconviction motion
hearing. As stated above, we are bound by the circuit court’s findings as long as

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they are not clearly erroneous based on the record. We do not reweigh the
evidence before the circuit court or reassess the credibility of the witnesses.
Dickman v. Vollmer, 2007 WI App 141, ¶14, 303 Wis. 2d 241, 736 N.W.2d 202.

¶5 Smith sought to withdraw his no contest pleas because his trial
counsel was ineffective. Smith alleged that trial counsel should have filed a
motion to suppress drugs and weapons found in his home during the execution of a
search warrant that was based on information provided by a confidential
informant. Smith further alleged that trial counsel should have requested
additional information about the confidential informant as part of an effective
representation.

¶6 The circuit court held an evidentiary hearing on Smith’s motion.
The circuit court was the “ultimate arbiter of the credibility of the witnesses and
the weight to be given to each witness’s testimony.” State v. Peppertree Resort
Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345 (citation
omitted). To the extent the circuit court did not make explicit credibility findings,
“we assume it made implicit findings on a witness’s credibility” as it analyzed the
evidence. State v. Quarzenski, 2007 WI App 212, ¶19, 305 Wis. 2d 525, 739
N.W.2d 844.

¶7 At the evidentiary hearing on Smith’s postconviction motion, trial
counsel testified that because Smith entered pleas before the case was set for trial,
counsel’s discovery requests, which included a request for information relating to
the confidential informant, were not responded to by the State. Counsel was
aware that Smith thought the affidavit in support of the search warrant application
“was bogus” because the confidential informant reported observing powdered
cocaine at a time when Smith only had hard (or crack) cocaine on the premises.

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Counsel and Smith discussed challenging the search. Counsel was of the opinion
that a challenge on this basis bore a significant risk because it would implicate
Smith in a crime (possession of cocaine). Counsel believed that Smith agreed with
a strategy to forego a motion to suppress. Had Smith insisted on a motion to
suppress, counsel would have filed the motion along with a motion seeking more
information about the confidential informant.

¶8 The circuit court found that counsel’s decision not to file a motion to
suppress was reasonable under the circumstances, and counsel reasonably
understood that Smith agreed not to pursue such a motion. The court’s findings
are based on credibility determinations, and they are not clearly erroneous. We
agree that counsel’s strategic decision was based on the facts and the law, see Elm,
201 Wis. 2d at 464-65, and counsel did not perform deficiently.

¶9 Smith next alleged that his trial counsel had a conflict of interest
because she represented Sheldon Higgenbottom, his co-defendant, at
Higgenbottom’s initial appearance. The circuit court did not expressly decide this
issue, but the record supports the circuit court’s rejection of it. At the
postconviction motion hearing, counsel described the initial appearance as a time
during which it is not possible to have a private, confidential conversation with a
defendant because the conversation would be overheard. Counsel adhered to her
practice and that of the State Public Defender to forego substantive discussions
with Higgenbottom about his case, and she did not discuss the charges with
Higgenbottom or any aspect of Smith’s involvement in the case against
Higgenbottom. The record before this court does not support the existence of an
actual conflict of interest. State v. Franklin, 111 Wis. 2d 681, 686, 331 N.W.2d
633 (Ct. App. 1983). We agree that this ineffective assistance of trial counsel
claim lacks merit.

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No. 2021AP135-CR

¶10 Smith alleged that his trial counsel was ineffective when she
guaranteed a sentence when she told him that the circuit court never adopted the
State’s recommendation and always imposed a lower sentence than the State
recommended. Counsel’s guarantee led Smith to enter his no contest pleas, and he
would not have done so had counsel not made this guarantee. Counsel did not
recall making any promises to Smith about the circuit court’s forthcoming
sentence. The circuit court found that counsel did not make any such guarantee.
This finding is not clearly erroneous based on this record. Smith did not establish
the factual basis for this ineffective assistance of trial counsel claim.

¶11 We turn to Smith’s challenge to his sentence as unduly harsh and
disproportionate in relation to the sentence received by his co-defendant,
Higgenbottom. Smith received a sentence amounting to eight and one-half years
of initial confinement and ten years of extended supervision plus one year in jail
for a misdemeanor drug conviction; Higgenbottom received a ten-year sentence
(five years of initial confinement and five years of extended supervision). The
circuit court rejected Smith’s challenge without stating reasons for doing so.
Nevertheless, we conclude that the record supports rejecting the sentence
challenge because Smith’s sentence resulted from a proper exercise of sentencing
discretion and was neither unduly harsh nor disproportionate.

¶12 At sentencing, the circuit court considered the maximum penalties
available, the parties’ recommendations, the presentence investigation report, the
gravity of the offenses, and the need to protect the public. The court noted
Smith’s history of criminal offenses, including prior drug offenses, and his
admission to law enforcement officers that he sold drugs. The court considered
Smith’s characteristics and personal history, including his drug use, his ability to
be employed, his decision to engage in the drug trade to generate income, and his

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No. 2021AP135-CR

previous failures on supervision. While Smith was prohibited from possessing a
firearm, law enforcement found a loaded firearm at floor level and a large amount
of ammunition in Smith’s bedroom. The court deemed these discoveries
particularly grave given the presence of young children in the residence.

¶13 We conclude that the circuit court engaged in a proper exercise of
sentencing discretion after considering various sentencing factors. State v.
Gallion, 2004 WI 42, ¶76, 270 Wis. 2d 535, 678 N.W.2d 197 (we review the
sentence for a misuse of discretion); State v. Ziegler, 2006 WI App 49, ¶23, 289
Wis. 2d 594, 712 N.W.2d 76 (sentencing objectives and factors discussed). The
weight of the sentencing factors was within the circuit court’s discretion. State v.
Stenzel, 2004 WI App 181, ¶16, 276 Wis. 2d 224, 688 N.W.2d 20.

¶14 We turn to Smith’s claim that his sentence was unduly harsh.
Smith’s sentence did not exceed the statutory maximum for his multiple crimes of
conviction. A sentence well within the limits of the maximum sentence is
presumptively not unduly harsh or unconscionable. State v. Grindemann, 2002
WI App 106, ¶31, 255 Wis. 2d 632, 648 N.W.2d 507.

¶15 Finally, we consider whether Smith’s sentence was disproportionate
to his co-defendant’s sentence. Smith’s challenge ignores the facts upon which
the circuit court relied to sentence each defendant. The transcript of
Higgenbottom’s sentencing accompanied Smith’s postconviction motion.
Higgenbottom was sentenced for four drug offenses. Among other considerations,
the court considered his culpability, his prior criminal offense history which the
court characterized as “not that extensive,” and his character. Notably, the court
did not make any finding, as it did with Smith, that Higgenbottom possessed a
firearm and kept it in the same dangerous circumstances.

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No. 2021AP135-CR

¶16 The disparity between the sentences imposed on Smith and
Higgenbottom was warranted based upon the circuit court’s consideration of the
facts, sentencing factors and objectives in each case. We reject all of Smith’s
challenges to his sentence.

By the Court.—Judgments and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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