State v. Gregory F. Atwater

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.
November 10, 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. 2021AP1256-CR Cir. Ct. No. 2013CF374

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GREGORY F. ATWATER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dodge
County: JOHN R. STORCK and MARTIN J. DE VRIES, Judges. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Graham, 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. 2021AP1256-CR

¶1 PER CURIAM. Gregory Atwater appeals a judgment of conviction
and a circuit court order denying his postconviction motion for plea withdrawal.
Atwater argues that counsel was ineffective by failing to pursue an investigation
into Atwater’s case prior to his guilty plea. Atwater also seeks plea withdrawal in
the interest of justice. We conclude that Atwater has not established that counsel
was ineffective or that plea withdrawal in the interest of justice is warranted.
Accordingly, we affirm.

Background

¶2 Atwater was charged with two counts of battery by a prisoner as a
repeater based on an incident involving several correctional officers. According to
the complaint allegations, Atwater punched one officer, and another officer was
thrown into a wall as Atwater was resisting officers’ efforts to restrain him.

¶3 Pursuant to a plea agreement, Atwater pled guilty to one of the two
battery counts, and the other count was dismissed and read in. 1 The repeater
allegations were also dismissed. In addition, the parties agreed to jointly
recommend a withheld sentence with two years of probation, ninety days of
conditional jail time, and a $2,000 fine. The circuit court adopted the parties’
recommendation except that the court imposed and stayed a thirty-month prison
sentence instead of withholding sentence.

¶4 Atwater filed a postconviction motion seeking plea withdrawal and
alleging ineffective assistance of counsel. He alleged that counsel performed
deficiently by: (1) failing to investigate exculpatory information provided to

1
The judgment of conviction and plea questionnaire indicate that Atwater pled no contest,
but the plea hearing transcript states that Atwater pled guilty. We refer to Atwater’s plea as a guilty
plea based on the transcript. Whether Atwater pled no contest or guilty does not affect our analysis.

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No. 2021AP1256-CR

counsel by a correctional officer named Maxwell, and (2) failing to investigate
potential eyewitnesses. Atwater alleged that he was prejudiced because, if counsel
had conducted a sufficient investigation, he would have insisted on going to trial.
Atwater also requested plea withdrawal in the interest of justice.

¶5 The circuit court held an evidentiary hearing pursuant to State v.
Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). 2 The witnesses
included Atwater, his counsel, and Maxwell.

¶6 Atwater’s counsel’s testimony and Maxwell’s testimony established
that Maxwell had contacted counsel and provided counsel with information in
advance of Atwater’s guilty plea. To summarize the information, Maxwell told
counsel that: (1) Maxwell was not present for the altercation involving Atwater and
other correctional officers, but she viewed video footage of the incident;
(2) Maxwell believed that the officers involved in the altercation handled the
incident incorrectly, including by failing to follow protocol and violating a policy
that prohibited officers from putting an inmate’s back against a wall; (3) one of the
officers involved in the altercation had a poor attitude or demeanor toward the
inmates in general; and (4) an internal report on the altercation had been edited from
its original version. In addition, Maxwell testified that there was video footage of
the incident from multiple angles, and her testimony appeared to imply that the
defense had not been provided with some of the footage.

¶7 As discussed further below, counsel testified at the Machner hearing
that she believed that she did not follow up on the information from Maxwell

2
We have omitted procedural history that is not relevant to our analysis. Additional
procedural history is summarized in this court’s opinion in Atwater’s previous appeal. See State v.
Atwater, 2021 WI App 16, ¶3 n.3, ¶¶4-10, 396 Wis. 2d 535, 958 N.W.2d 533.

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No. 2021AP1256-CR

because Atwater “decided not to do anything further with the information.” Atwater
testified to the contrary.

¶8 Regarding potential eyewitnesses, counsel and Atwater each testified
that Atwater told counsel about one potential eyewitness, an inmate named Woods.
Additionally, Atwater testified that he told counsel that there were other
eyewitnesses whose names he did not know. Counsel testified that she did not
believe that she ended up contacting Woods and that she did not interview any other
witnesses. She testified that if she had proceeded with further investigation, the
State’s plea offer would have expired.

¶9 Woods did not testify at the Machner hearing. Two other inmates
testified. They testified that they witnessed the altercation between Atwater and the
correctional officers from about ten feet away and that they did not see Atwater
punch an officer. One of the inmates testified that he saw a guard tackle Atwater,
and the other inmate testified that he saw Atwater on the ground with a correctional
officer on Atwater’s back.

¶10 The circuit court concluded that Atwater failed to establish that
counsel performed deficiently. It also rejected Atwater’s argument for plea
withdrawal in the interest of justice. The court therefore denied Atwater’s
postconviction motion.

Discussion

¶11 On appeal, Atwater renews his argument that counsel was ineffective
and his argument for plea withdrawal in the interest of justice. We address each in
turn.

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No. 2021AP1256-CR

A. Ineffective Assistance of Counsel

¶12 Whether counsel’s performance satisfies the constitutional standard
for ineffective assistance of counsel is a question of law that appellate courts review
de novo. State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d 305.
However, we uphold the circuit court’s underlying factual findings unless those
findings are clearly erroneous, id., and we defer to the circuit court’s credibility
findings, Noble v. Noble, 2005 WI App 227, ¶27, 287 Wis. 2d 699, 706 N.W.2d 166
(stating that “we must accept the trial court’s credibility determination”).

¶13 To establish ineffective assistance of counsel, the defendant must
show both that counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). We need not address both prongs of this test if the defendant makes an
inadequate showing on one. See id. at 697.

¶14 Here, for the reasons we now explain, we agree with the circuit court
that Atwater failed to establish deficient performance. We therefore do not address
prejudice.

¶15 “Establishing that counsel’s performance was deficient requires
showing that counsel made errors so serious that counsel was not functioning as the
counsel guaranteed … by the Sixth Amendment.” State v. Savage, 2020 WI 93,
¶28, 395 Wis. 2d 1, 951 N.W.2d 838 (quoted source and internal quotations
omitted). “Stated another way, when evaluating whether counsel performed
deficiently, a defendant must demonstrate that counsel’s performance fell below ‘an
objective standard of reasonableness.’” Id. (quoted sources omitted). In order to
satisfy this objective standard, “[c]ounsel must either reasonably investigate the law
and facts or make a reasonable strategic decision that makes any further

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No. 2021AP1256-CR

investigation unnecessary.” State v. Domke, 2011 WI 95, ¶41, 337 Wis. 2d 268,
805 N.W.2d 364.

¶16 “Courts afford great deference to trial counsel’s conduct, presuming
that it ‘falls within the wide range of reasonable professional assistance.’” Savage,
395 Wis. 2d 1, ¶28 (quoted source omitted). “Moreover, in analyzing whether
performance was deficient, ‘every effort [should] be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate from counsel’s perspective at the time.’” Id. (quoted
source omitted). When the defendant has entered into a plea bargain to resolve a
criminal case, there is a “particular risk that an after-the-fact assessment will run
counter to the deference that must be accorded counsel’s judgment and perspective
when the plea was negotiated, offered, and entered.” See Premo v. Moore, 562 U.S.
115, 126 (2011).

¶17 Atwater contends that counsel performed deficiently by failing to
investigate the information provided to counsel by officer Maxwell and by failing
to investigate potential eyewitnesses. He argues that “[t]he fundamental problem
with trial counsel failing to pursue this investigation is that the failure directly
impacted [counsel’s] ability to adequately advise [him] on the crucial decision of
entering a plea or going to trial.” See State v. Dillard, 2014 WI 123, ¶90, 358
Wis. 2d 543, 859 N.W.2d 44 (stating that the decision whether to plead guilty “is
generally the most important decision to be made in a criminal case” and that the
defendant “should have the benefit of an attorney’s advice on this crucial decision”).
Atwater also argues that, with further investigation, counsel “could have assessed
an arguable self-defense claim.”

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No. 2021AP1256-CR

¶18 Atwater does not persuade us that counsel’s conduct fell below an
objective standard of reasonableness. Rather, for three main reasons, we are
satisfied that counsel’s conduct fell within the wide range of reasonable professional
assistance in connection with Atwater’s guilty plea.

¶19 First, this is not a case in which counsel conducted no investigation.
Counsel’s testimony—which the circuit court found “very credible”—established
that counsel reviewed all of the discovery provided by the State, including police
reports, video footage, photographs, and statements from correctional officers. Her
testimony also established that she spoke with Atwater about his recollection of the
circumstances surrounding the altercation. Finally, counsel testified that she
believed that she attempted to locate the potential eyewitness whom Atwater had
identified, but that she was unsure if that witness was still in prison at the time.

¶20 Second, counsel’s testimony and Atwater’s testimony established that
counsel used the information available in advance of Atwater’s plea—including the
discovery and the information from Maxwell and Atwater—to assess Atwater’s case
and to advise Atwater on the State’s plea offer. Counsel testified that, based on her
review, she concluded that a reasonable juror could determine that Atwater lacked
a defense, at least for the charge to which Atwater ultimately pled guilty. In
addition, counsel’s testimony established that she conveyed her assessment of the
State’s plea offer to Atwater. During Atwater’s testimony, he agreed that counsel
told him about the information from Maxwell. In addition, Atwater agreed that he
had access to the “whole file” and all of the State’s evidence against him.

¶21 Third, counsel’s testimony established that there was insufficient time
to pursue further investigation prior to the expiration of the State’s plea offer.
Counsel testified that the plea offer had “time constraints” and that the offer would

7
No. 2021AP1256-CR

have expired if she had proceeded with further investigation. Counsel also testified
that she informed Atwater that if she investigated further, Atwater would miss the
opportunity to accept the offer. Finally, counsel testified that she believed she had
no further contact with Maxwell because Atwater “decided not to do anything
further” with the information Maxwell provided.

¶22 “The reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or actions.” Strickland,
466 U.S. at 691. Here, Counsel’s decision not to investigate further was reasonable
given Atwater’s decision to accept the State’s time-limited plea offer.

¶23 During Atwater’s testimony at the Machner hearing, Atwater denied
telling counsel not to further investigate the information from Maxell. He testified
that he told counsel to pursue an investigation and that he “for sure wanted to go to
trial,” or in the alternative that he would consider a plea deal for a misdemeanor.
However, the circuit court’s findings show that the court credited counsel’s
testimony over any inconsistent testimony by Atwater. We defer to those findings,
see Noble, 287 Wis. 2d 699, ¶27, and we therefore accept counsel’s version of
events as true.

¶24 There appears to be no dispute that Atwater had difficulty deciding
whether to accept the State’s time-limited plea offer. Counsel testified that Atwater
struggled with whether to accept the offer because he did not want to plead to a
felony, and counsel also testified that Atwater’s decision whether to accept the plea
was “all the way down to the wire.” Atwater testified that he felt “kind of forced”
because of the time-limited nature of the State’s plea offer. However, any pressure
Atwater may have felt due to the time-limited nature of the offer does not establish
deficient performance by counsel under the circumstances here.

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No. 2021AP1256-CR

B. Interest of Justice

¶25 We turn to Atwater’s argument for plea withdrawal in the interest of
justice. Atwater relies on our discretionary authority to reverse in the interest of
justice pursuant to WIS. STAT. § 752.35 (2019-20).3 He argues that we may exercise
this authority when, due to counsel’s errors, there is a significant legal issue that
was not properly tried. Atwater contends that counsel’s errors here prevented him
from uncovering a potential claim for self-defense.

¶26 Based on our conclusion that Atwater has not established that counsel
performed deficiently, we reject Atwater’s interest of justice argument. Atwater
does not persuade us that this argument has merit over and above his claim for
ineffective assistance of counsel.

By the Court.—Judgment and order affirmed.

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

3
WISCONSIN STAT. § 752.35 provides:

In an appeal to the court of appeals, if it appears from the
record that the real controversy has not been fully tried, or that it
is probable that justice has for any reason miscarried, the court
may reverse the judgment or order appealed from, regardless of
whether the proper motion or objection appears in the record and
may direct the entry of the proper judgment or remit the case to
the trial court for entry of the proper judgment or for a new trial,
and direct the making of such amendments in the pleadings and
the adoption of such procedure in that court, not inconsistent with
statutes or rules, as are necessary to accomplish the ends of justice.

9