State v. Franklin

2001 WI 104, 629 N.W.2d 289, 245 Wis. 2d 582, 2001 Wisc. LEXIS 442

• Court: Wisconsin Supreme Court
• Decided: July 11, 2001
• Docket: 99-0743-CR, 99-1282-CR, 99-1283-CR, 99-1284-CR, 99-1285-CR, 99-1286-CR, 99-1287-CR
• Status: Published

Opinions

WILLIAM A. BABLITCH, J.

¶ 1. Defendants Jesse Franklin and Jeffery Huck seek review of two court of appeals' decisions in which the court denied the defendants' claims of ineffective assistance of counsel. The defendants were convicted in separate trials on misdemeanor counts by six-person juries. Both defendants argue that they received ineffective assistance because their trial attorneys failed to object to the six-person juries, even though around the time of their trials the court of appeals certified State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998) to this court and we accepted this certification. The certified issue in Hansford was whether Wis. Stat. § 756.096(3)(am) (1995-96),¹ the statute authorizing six-person juries, was constitutional.

¶ 2. We conclude that the defendants did not receive ineffective assistance because they have failed to show prejudice as required under Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, we affirm the decisions by the court of appeals.

¶ 3. Franklin was convicted of four misdemeanors in two separate trials. One trial occurred on January 14-16, 1998, and the other occurred on May 14-15, 1998. Both trials were conducted in Milwaukee County Circuit Court before six-person juries. Franklin did not object to being fried by a six-person jury in either instance.

¶ 4. Huck was likewise tried by a six-person jury on several misdemeanor counts in Milwaukee County Circuit Court. His trial, which occurred on March 17-19, 1998, resulted in convictions on 11 counts of violating a domestic abuse injunction, two counts of criminal damage to property, and six counts of bail jumping. Like Franklin, Huck also did not object to being tried by a six-person jury.

¶ 5. Both defendants filed post-conviction motions requesting new trials. These motions alleged in part that they were entitled to new trials because they had been denied their constitutional right to a trial by jury of 12 persons and because their trial attorneys had rendered ineffective assistance of counsel by failing to object to juries of fewer than 12 persons.

¶ 6. Both defendants were denied relief by the circuit court. In Franklin's case, the circuit court simply denied his motion as untimely. In Huck's case, in response to his motion alleging ineffective assistance, the circuit court held a hearing pursuant to State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979) and took trial counsel's testimony regarding the absence of an objection to a six-person jury. After the hearing, the court denied the motion, concluding that Huck failed to prove prejudice to support his claim.

¶ 7. On appeal, the defendants again alleged that their trial attorneys were ineffective for failing to object to the six-person juries at their trials. More specifically, they asserted that their attorneys were ineffective for failing to be aware of the court of appeals' certification of Hansford to this court and for failing to offer it in support of a request for trial by a jury of 12. The court of appeals certified Hansford to us on December 11, 1997. The issue on certification was "whether Wis. Stat. § 756.096(3)(am), which provides for six-person juries in criminal misdemeanor cases, violates art. I, § 7 or art. I, § 5 of the Wisconsin Constitution." See Hansford, 219 Wis. 2d at 229 (footnotes omitted). We accepted certification of this issue on January 23, 1998, and issued a decision on June 19, 1998, finding the statute unconstitutional.

¶ 8. In Franklin's case, the court of appeals, in a one-judge decision, affirmed the circuit court's judgments of conviction and order denying Franklin's motion for post-conviction relief. In particular, with respect to his claim for ineffective assistance, the court concluded that Franklin was not entitled to relief because he had failed to allege any error that was committed in the fact-finding process at trial and failed to prove that he suffered any prejudice resulting from his six-person jury trials. The court admitted that it was conceivable that Franklin's chances for acquittal or hung juries may have been greater with 12 jurors than with six. However, the court stated that this assertion was speculative at best and was insufficient to establish prejudice.

¶ 9. The court of appeals also issued a one-judge decision in Huck's case, affirming the circuit court's judgments of conviction and orders denying post-conviction relief. With respect to Huck's ineffective assistance claim, the court held that, because the statute authorizing six-person juries was still good law at the time that Huck was tried, the failure of Huck's counsel to raise the issue at trial did not constitute deficient performance by counsel. Therefore, no claim for ineffective assistance could be established.

¶ 10. We are presented with one issue on review: whether the misdemeanants in these consolidated cases were denied the right to effective assistance of counsel when their attorneys failed to object to the six-person jury statute which was found unconstitutional in Hansford. We conclude that, because the defendants have failed to prove that any deficient performance prejudiced their defense, the defendants have failed to prove that they were denied effective assistance of counsel. As a result, we affirm the decisions of the court of appeals.

¶ 11. For ineffective assistance of counsel claims, this state has adopted the analysis from Strickland, 466 U.S. 668. In Strickland, the United States Supreme Court noted that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. To this end, the Court developed a two-pronged test to determine whether the assistance was so defective that reversal of conviction is required. Id. ”at 687. Under this test, a defendant must show (1) that his or her counsel's representation was deficient and (2) that this deficient performance resulted in prejudice to the defense. Id.

¶ 12. A claim of ineffective assistance of counsel presents a mixed question of fact and law. State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). The circuit court's findings of fact will not be overturned on appeal unless they are clearly erroneous. Id. Whether the trial counsel's conduct was deficient and whether it was prejudicial to the defendant are questions of law reviewed by this court de novo. Id.; State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985).

¶ 13. Under the deficient performance prong, we examine whether "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The defendants assert that the performances of their attorneys fell below this standard because their attorneys knew or should have known of the court of appeals' certification of Hansford to this court and should have objected to six-person juries in light of this knowledge. We, however, need not address this issue because, even if the attorneys had performed deficiently, the defendants cannot prove prejudice under the second prong of the Strickland analysis. See Strickland, 466 U.S. at 697 (a court need not address both components of the inquiry if the defendant makes an insufficient showing on one).

¶ 14. To prove prejudice, a defendant is required to show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. In other words, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome." Id. at 694. Under this test, a defendant "need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. at 693. However, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. The defendant's burden is to show that counsel's errors "actually had an adverse effect on the defense." Id.

¶ 15. Applying this test, we conclude that the defendants have failed to prove prejudice. In particular, the defendants have not shown that, but for their attorney's failure to object, there was a reasonable probability for a different result in their cases. A six-person jury in and of itself is an insufficient basis for us to conclude that the defendants were deprived of a fair trial whose result is reliable. In State v. Huebner, 2000 WI 59, ¶¶ 17-19, 31, 235 Wis. 2d 486, 611 N.W.2d 727 (3-1-3 decision), it was stated that, in view of our holding in Hansford, a six-person jury does not automatically render the trial invalid or affect the accuracy of the proceeding.

Nothing in Hansford suggests that having a six-person jury trial is equivalent to having no jury trial at all. Hansford did not state that a six-person jury is procedurally unfair or that it is an inherently invalid factfinding mechanism. Hansford only held that a six-person jury trial is not consistent with the historical meaning of the right to a jury trial under art. I, § 7 of the Wisconsin Constitution. The court reached this conclusion based on a careful examination of the history of the Wisconsin Constitution and this court's longstanding interpretation of the right to trial by jury in art. I, §§ 5 and 7.

We find nothing in Hansford to support the conclusion that the difference between a six-person jury trial and a twelve-person jury trial is so fundamental that a six-person jury trial, which was conducted without objection under the express authority of a statute, is automatically invalid.

The use of a six-person jury rather than a twelve-person jury did not undermine the fundamental integrity of Huebner's trial. Rather, "this case concerns the application of a constitutional principle that 'does not affect the basic accuracy of the factfinding process at trial.'"

Id. at ¶¶ 18-19, 31 (citations omitted). We affirm this interpretation of Hansford from Huebner. Indeed, our holding in Hansford was based on information from this state's constitutional conventions and our previous decisions which interpreted a criminal defendant's right to a trial by jury to mean the right to a jury of 12 persons. Hansford, 219 Wis. 2d at 234-43. Our holding, however, was never based on the notion that a jury of less than 12 persons is fundamentally unfair or unjust to a defendant.

¶ 16. While it is conceivable that the chances for acquittal or a hung jury would be greater injuries of 12 than injuries of six, this conclusion alone is insufficient to provide a basis for finding that there was a reasonable probability for a different result. We do not find any reason why six-person juries would undermine the confidence of an otherwise fair and error-free trial. Thus, beyond mere speculation, we cannot conclude that the six-person juries had an actual adverse effect on the defense in the defendants' cases, and therefore, the defendants are not entitled to a reversal of their convictions. Cf. State v. Zivcic, 229 Wis. 2d 119, 125, 598 N.W.2d 565 (Ct. App. 1999) (the court refused to overturn Zivcic's conviction based solely on the fact that he was tried and convicted by a six-person jury to which he did not object).

¶ 17. The defendants argue, however, that prejudice should not be strictly defined according to Strickland in their cases. Strickland's definition, they assert, cannot reach every situation where an attorney's ineffective assistance has prejudiced the defense. Instead, they contend that we should define prejudice according to whether their attorneys' deficient performances denied them a fundamental constitutional right that rendered their trials unfair. When viewed in this manner, they assert that prejudice was established when they were deprived of their right to a 12-person jury. This denial made the trial unfair because it gave the prosecution an advantage in proving its case to only six jurors instead of 12.

¶ 18. The defendants' argument relies primarily on our holding in State v. Smith, 207 Wis. 2d 258, 558 (1997).² In Smith, the prosecutor breached his plea agreement with Smith by recommending a sentence during Smith's sentencing hearing even though he had agreed not to make any such recommendation. Id. at 262. Smith argued that he received ineffective assistance because his attorney failed to object to the prosecutor's breach and this conduct resulted in prejudice to him. Id. at 268. Smith's prejudice argument, however, did not assert that, but for his attorney's deficient performance, a different result was probable. Instead, his argument alleged that he was prejudiced because he failed to receive the plea agreement promised to him by the State. Id. at 267-68. Smith asserted, however, that prejudice could be presumed in his case in light of his attorney's deficient performance. Id. at 264.

¶ 19. In examining Smith's arguments, we noted that the Strickland Court highlighted certain unique instances where a court must presume prejudice, stating:

"In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel's assistance. Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for. the government to prevent."

Id. at 278 (quoting Strickland, 466 U.S. at 692). We then listed specific cases where either we or the United States Supreme Court have concluded that prejudice should be presumed. Id. at 278-80; See also Erickson, 227 Wis. 2d at 770-71 (describing three different categories in which the court presumes prejudice).

¶ 20. In our analysis in Smith, however, we never directly addressed whether such breaches of plea agreements were encompassed within one of the presumption categories. Instead, we concluded that prejudice automatically occurs in such cases based on Santobello v. New York, 404 U.S. 257 (1971), a case similar to Smith's case in which the prosecutor had also breached a plea agreement. Smith, 207 Wis. 2d at 281-82. In Santobello, the Court held that, based on the interests of justice and on the duty of a prosecutor to keep promises to a defendant, any breach would result in remand to the circuit court, either for specific performance under the agreement or to permit the defendant to withdraw his plea. Santobello, 404 U.S. at 262-63. In Smith, we recognized Santobello as holding that a defendant has a substantive right to the prosecution's fulfillment of the terms of a plea agreement and that a breach, unobjected to by defense counsel, constituted a deprivation of that substantive right. Smith, 207 Wis. 2d at 278. Although Santobello was decided before Strickland, we noted that it relied on similar principles of fairness. Id. at 276.

¶ 21. In our conclusion in Smith, we stated as follows:

[W]e conclude that when a prosecutor agrees to make no sentence recommendation but instead recommends a significant prison term, such conduct is a material and substantial breach of the plea agreement. Such a breach of the State's agreement on sentencing is a "manifest injustice" and always results in prejudice to the defendant. The breach of a material and substantial term of a plea agreement by the prosecutor deprives the defendant of a sentencing proceeding whose result is fair and reliable. Our conclusion precludes any need to consider what the sentencing judge would have done if the defense counsel had objected to the breach by the district attorney. Rather, our conclusion is premised on the rule of Santobello, that when a negotiated plea rests in any significant degree on a promise or agreement of the prosecutor, such promise must be fulfilled.

Id. at 281 (citations and footnote omitted). Thus, this case established a per se rule of prejudice in all instances where the prosecutor committed a material and substantial breach of the plea agreement. Id. at 282.

¶ 22. The defendants urge us to follow the holding in Smith and to conclude that the denial of a 12-person jury, without objection of counsel, is always prejudicial to defendants in ineffective assistance of counsel claims. They argue that, as in Smith, the interests of justice require such a holding because the defendants have been denied their right to a jury trial as required by Hansford. For several reasons, however, we conclude that such a finding of automatic prejudice is unwarranted in six-person jury cases.

¶ 23. First and foremost, as we noted above, six-person juries do not lead us to the conclusion that the result of the trial was automatically unfair or unreliable or that the fundamental integrity of the trial was undermined. Indeed, as in a prosecutor's breach of a plea agreement, the harmful effects of a six-person jury are difficult to measure. However, in contrast to a prosecutor's breach, six-person juries do not invoke interests of justice factors which require an automatic finding of prejudice. Breaches of plea agreements by prosecutors not only adversely affect the integrity of the proceeding and undermine the outcome, but also impair the defendant's and the public's faith in the fairness of the criminal justice system. We do not find anything inherent in a six-person jury that results in similar concerns.

¶ 24. Second, even assuming that the defendants were deprived of a specific right as a result of their attorneys' failure to object, the denial of a right does not automatically require us to presume prejudice or find actual prejudice. Cf. Erickson, 227 Wis. 2d at 769-74 (declining to presume or find actual prejudice even though the counsel's conduct effectively deprived the defendant of a statutorily-required right to peremptory challenges). Indeed, we have noted that prejudice will not result unless a counsel's deficient performance deprives the defendant of a substantive or procedural right. Smith, 207 Wis. 2d at 278. However, we have held that, when not falling within one of the three presumptions enumerated in Strickland, prejudice will only result when the counsel's errors have deprived the defendant of a fair trial whose result is reliable. See, e.g., Erickson, 227 Wis. 2d at 773-74; Pitsch, 124 Wis. 2d at 646. We have provided for only a few limited exceptions. See, e.g., Smith, 207 Wis. 2d at 271. The defendants have not proven that any errors committed by their attorneys lead to such prejudice.

¶ 25. Third and finally, none of the presumptions enumerated under Strickland apply. We defined these "rare" instances in Erickson, stating that a court will presume prejudice (1) "when the effective assistance of counsel has been eviscerated by forces unrelated to the actual performance of the defendant's attorney"; (2) "when, although the defendant is actually given counsel, 'the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate'"; or (3) when "[i]n other, more limited, circumstances the actual assistance rendered by a particular attorney has been deemed so outside the bounds necessary for effective counsel that a court has presumed prejudice." Erickson, 227 Wis. 2d at 770-71 (citation omitted). In short, the defendants' cases do not fit within any of these limited circumstances.

¶ 26. The defendants have clearly presented their claims as ineffective assistance in this case. We proceed under this claim, and according to Strickland, regardless of the potential for other consequences if this case had been presented differently. Cf. State v. Damaske, 212 Wis. 2d 169, 200, 567 N.W.2d 905 (Ct. App. 1997) ("[T]here is a significant distinction between the consequences on appeal of trial-court error and the consequences of that same error when it is raised in an ineffective-assistance-of-counsel context."). Under Strickland, we conclude prejudice has not been proven.

I — I h-i HH

¶ 27. In sum, we conclude that the defendants have not established claims for ineffective assistance of counsel because they have failed to show prejudice as required under Strickland. Accordingly, we affirm the court of appeals' decisions. The defendants are not entitled to reversals of their convictions.

By the Court. — The decisions of the court of appeals are affirmed.

1 Wisconsin Stat. § 756.096(3)(am) (1995-96) provided that "[a] jury in misdemeanor cases shall consist of 6 persons." The legislature enacted Wis. Stat. § 756.096(3)(am) pursuant to 1995 Wisconsin Act 427. This statute was later repealed by ¡ Supreme Court Order 96-08, effective July 1, 1997; however, pursuant to this order, the language providing for six-person juries in misdemeanor cases was recreated under Wis. Stat. § 756.06(2)(am) (1997-98), also effective July 1,1997. See S.Ct. Order 96-08, 207 Wis. 2d xv, xxiv-xxv.

2 The defendants also cite State v. Ludwig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985), and State v. Fritz, 212 Wis. 2d 284, 569 N.W.2d 48 (Ct. App. 1997), to support their argument that the court may find prejudice without relying on the Strickland, "reasonable probability of a different result" standard. Strickland v. Washington, 466 U.S. 668 (1984). Similar to State v. Smith, 207 Wis. 2d 258, 558 N.W.2d 379 (1997), Fritz also involved an attorney's deficient performance (advising the defendant Fritz to commit perjury) resulting in the loss of a plea bargain. Fritz relied on Smith in concluding that Fritz did not have to demonstrate the probability of a different result to prove prejudice. See Fritz, 212 Wis. 2d at 297. In light of this reliance, we will not analyze this case separately.

Ludwig also involved an attorney's deficient performance (failing to inform the defendant Ludwig of a plea offer) resulting in the loss of a plea offer. We conclude, however, that Ludwig does not warrant separate analysis because we interpret its holding as consistent with the Strickland standard for prejudice. See Ludwig, 124 Wis. 2d at 609-12.