Petition for Writ of Certiorari — Garceia Coleman, Petitioner v. Court of Appeals of Wisconsin, District I

Supreme Court briefDec 4, 2017

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OFFICE DF THE CLERK

SME

crnrzin

uprm Ithxr± f

no EAST MAIN STREET, SUITE 215

P.O. Box 1688

MADISON, WI 53701-1688

ZSC

TELEPHONE (608) 266-1880

FACSIMILE (608) 267-0640

Web Site: ww'w.wicourts.gov

October 27, 2010

To:

Hon. Paul R. Van Grunsven

Milwaukee County Circuit Court Judge

901 N. 9th St.

Milwaukee, WI 53233

Michael J. Losse

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

John Barrett

Milwaukee County Clerk of Circuit Court

821 W. State St., Rm. 114

Milwaukee, WI 53233

Colleen Ball

State Public Defenders Office

75 North Water St., #912

Milwaukee, WI 53202

Karen A. Loebel

Asst. District Attorney

821 W. State St.

Milwaukee, WI 53233

.Garceia Coleman 183591

Columbia Con. Inst.

P.O. Box 900

Portage, WI 53901-0900

You are hereby notified that the Court has entered the following order:

No. 2009AP2 143

State v. Coleman L.C.#1990CF902946A

A petition for review pursuant to Wis. Stat. § 808.10 haviiJgiDen filed0n-behaLLQf

defendant-appellant-petitioner, Garceia Coleman, and considered by this court;

ITIS OERED that the petition for review is denied, without costs.

A. John Voelker

Acting Clerk of Supreme Court

OFFICE OF ThE CLERK

•

WISCONSIN COURT OF APPEALS

•

110EAT MAIN STREET, Sum 215

P.O. Box 1688

MADISON, WISCONSrN. 53701-1688

Telephone (608) 266-180

Facsii5ile (608) 267-0640

Web Site: www.wicouth.gov

DISTRICT.

June Z8,2012

•

To:

Hon. David A. Hansher

Circuit Court Judge

Milwaukee County Courthouse.

961-N. 914§t

Milwaukee, WI 53233

•

John. L Chisholm

District Attorney

821 W. State SitMilwaukee, WI 53233

Gregory M. Weber

Assistant Attorney General

P.O. Box 7857

Madison, WI 53 707-7857

John Barrett

Clerk ofCifcuitCourt

Room G-8

901N. 9th Street

Milwaukee, WI 53233

•

Garcia Coleman 183591

Columbia Corr. List

P.O. Box 900

Portage, WI 53901-0900

You are hareby notified that the Court has entered the following ppinion and order:

• 2012AP156-W

•

State of Wisconsinex rel. Garcia Coleman v. Michael Meisner,

Warden (L.C. #1990CF902946A)

Before Fine, Kessler and Brennan, JJ.

Garcia Coleman, pro se, petitions for writ of habeas corpus, arguing that he received

•ineffective assistance from his, appointed appellate lawyer during his no-merit direct appeal over

twenty years ago. See State v Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992). To establish a

claim of ineffective assistance of counsel, a defendant must show both that his lawyer's

performance was deficient and that he was prejudiced by the deficient performance. Strickland

v. Washington, 466 U.S. .68, 687 (1984). To show that a lawyer's performance was deficient,

• the. defendant must show that the lawyer's conduct "fell below an objective standard of

reasonableness," as evidenced by "prevailing professional norms." Strickland,466 U.S. at 687-

No. 201P156-W

To demonstrate prejudice, the defendant must show That there is a reasonable probability'

that, but for his lawyer's unprofessional errors, the 'reü1t of the proceeding would have been

different. Id at 694. We will deny a claim of ineffective assistance of counsel if either showing

is not made. See idL at 697.

Coleman contends that his appellate lawyer should have investigated and interviewed

dozens of witnesses, including personnel who treated the -victim at the scene and at the hospital,

and people who testified at trial or provided information to the police. He also contends his

appellate lawyer should have raised a claim- of ineffective assistance of trial counsel premised on

the same issue. Coleman's: argument is missing a critical component. He does not explain why,

had either of his lawyers conducted these interviews, the result of his jerould have been

different In fact, Coleman. does not explain how these interviews would have impacted his case

at all. Because Coleman has not shown that he was prejudiced by the actions of his attorneys, we

reject his agument that he received ineffective assistance of counsel.

While this petition was pending, Coleman moved to compel firefighters and paramedics

who assisted the victim in 1991 to provide answers to his questions. He also moved. for the

appointment of counsel and for pennission to file fewer coies of his petition than required by

the Rules of Appellate Procedure. We deiiy these rnotic)ns as moot

IT IS ORDERED that the petition for writ of habeas corpus is denied exparte;

•

Diane M Fremgen

Clerk of Court ofAppeals

•

••

•

OFFICE OF THE CLERK

$uprmi 1Ioixri of WitsilansTin

11OEAsTM411 STREET, SUITE 215

P.O. Box 1688

MADISON, WI 537014688

TELEPHONE (608) 266-1880

FACSJMILE (608) 267-0640

Web Site: www.wicourts.gov

September 11, 2017

To:

Hon. David A. Hansher

Milwaukee County Circuit Court Judge

901N. 9th St.

Milwaukee, WI 53233

Garceia Coleman 183591

New Lisbon Con. Inst.

P.O. Box 4000

New Lisbon, WI 53950-4000

John Barrett

Clerk of Circuit Court

901 N. 9th SL, Rm. G-8

Milwaukee, WI 53233

Criminal Appeals Unit

Department of Justice

P.O. Box 785.7

Madison, WI 3707-7857

Kevin C. Potter

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

You are hereby notified that the Court has entered the following order:

No. 2017AP1215-W

Coleman v. Court of Appeals, District I L.C.#1990CF902946A

A petition for supervisory writ pursuant to Wis. Stat. § (Rules) 809.71 and 809.51

having been. ffledonbeha1fofpetitioner, Garceia Coleman, and considered by this court;

IT IS ORDERED that the petition for supervisory writ is denied, ex parte.

Diane M. Fremgen

Clerk of Supreme Court

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CIRCUIT COURT

CRIMINAL DIVISION

IrATE OF WISCONSIN

MILWAUKEE COUNTY

Page 1

Plaintiff,

STATE OF WISONSIN,

CRIME(S) OR VIOLATION(S)

Coleman, Garceia .NMN

1900 North 29th Street

Milwaukee, WI

VIOLATED

STA

B&lsewicz, John Henry

1738 North 33rd Street

MilwaUkee, WI

COMPLAINING

Defendant(s)

CASE NUMBER

I, E. MICHAEL NC CANN, DISTRICT ATTORNEY FOR MILWAUKEE COUNTY, WISCONSIN,

HEREBY INFORM THE COURT THAT THE ABOVE NAMED DEFENDANT (S) IN THE COUNTY OF

1ILWAUKEE, STATE OF WISCONSIN,

COUNT 01: FIRST DEGREE INTENTIONAL HOMICIDE-PTAC

on August 24, 1990, at 2173 North 35th Street, City of Milwaukee, as a

party to a crime, did cause the death of another human being, Richard

Terry, with intent to kill that person, contrary to Wisconsin Statutes

section 940.01(l) and 939.05.

OUNT .02: ROBBERY-PTAC

n August 24, 1990, at 35th Street and West North Avenue, City of

4ilwaukee, as a party to a crime, with intent to steal, did take property

Erom the person of Richard Terry, the owner, by using force against the

Derson of the owner with intent thereby to overcome the said owner's

hysica1 resistance or physical power of resistance to the taking and

arrying away of said property, contrary to Wisconsin Statutes section

)43.32(1) (a) and 939.05.

)ATED

E. MICHAEL NC CANN

DISTRICT ATTORNEY

DEPTY/ASST. DISTRICT ATTORNEY

FILED

L DWSO

CRIMI NA

QbF COURTS

RECEIVED

DEC 12 2017

OFFJCF CF THF CLERK

SUPR:M1: C1)ufl U.S.

Adb

for the record?

THE FOREPERSON: My name is Gerald Williquette.

THE COURT,: Has the Jury reached verdicts as to

each count and each defendant.

THE FOREPERSON:

1831

Yes, we have, Your Honor.

THE COURT: Please give the verdicts and the other

materials to the bailiffs. You may be seated. Thank yoi.

Did you leave the blank.verdicts in the juryroom?

THE FOREPERSON: Yes, sir.

THE COURT: Would you go and get those for me,

please?

The clerk will read the verdicts into the record.

THE CLERK: Case Number F902946, State of Wisconsin

versus Garcia Coleman. We the Jury find the defendant

Garcia Coleman guilty of first degree intentional

homicide as party to a crime in manner and form as

charged in Count 1 of the information. Dated this

30th day of May, 1991, signed Gerald Williquette,

foreperson.

Case Number F902946, State of Wisconsin versus

John Henry Balsewicz. We the Jury find the defendant

John Henry Balsewicz guilty of first degree intentional

homicide as party to a crime in manner and form as

charged in Count 1 of the information. Dated this

30th day of May, 1991. Signed Gerald Williquette,

-7-

1b.

25.

THE COURT: Ladies and Gentlemen, on behalf of

the attorneys and the parties and everyone connected

with this case, I extend to you our sincere appreciation

and thanks for serving on this jury. This concludes

your service as jurors. The bailiffs this evening will

make arrangements to transport you back to the hotel

and get your belongings and arrange for your families

and friends to pick you up there. You need not

discuss your deliberations with anyone. Those are your

private property. It is customary and I make a point

of it especially in cases of this type to spend some

time with the jurors after they render their verdicts.

I'll meet with you in my Chambers in a couple minutes.

Thank you very much.

(JURY EXCUSED.)

THE COURT: Motions, Mr. Gahn?

MR. GAHN: The State moves for judgment on the

verdicts.

THE COURT: Mr. Berman?

MR. BERMAN: No objection.

THE COURT: Mr. Campenni?

MR. CAMPENNI: The defense asks for ,a judgment notwithstanding the verdict.

THE COURT: The motion for judgment notwithstanding

the verdict by the defendant Coleman is denied. The

-70-

1&31

Ilk

Court specifically finds that there is ample evidence

in this record to support each verdict as to each

defendant, and the Court on this 30th day of May, 1991

enters judgment of conviction as to each count and each

defendant according to the verdicts rendered by the Jury.

Gentlemen, we'll sentence tomorrow morning at

9:00 as to count 2, the robbery count. A.§.-to Count 1,

the intentional homicide count as to each defendant

tomorrow morning I will order a presentence investigation,

so that I may determine the parole eligibility date that.l.

I must set in that count.

Any objection to that procedure, Mr. Gahn?

MR. GAHN: No, Your Honor.

THE COURT:. Mr. Berman?

MR. BERMAN: No.

THE COURT: Mr. Campenni?

MR. CAMPENNI: Only, Your Honor, that I have two

cases of my ownand two for my partner tomorrow morning.

I will do what I can to simply check in there and be

here at 9:00.

THE COURT: All right, fine. The reason I'm doing it

this way so that both of them can go to the institution

right away than be in this jail. Then I will return them

for careful consideration of the parole eligibility day

based on the presentence. I'll need pretrial incarceratio

-71-

1831

FL E D

DEC 1k 1993

t,-

. .3

MARILYN L. GRAVES,

CLERK OF COURT OF APPEALS

OF WISCONSIN

COURT OF APPEALS

• DECISION

DATED AND RELEASED

NOTICE

DECEMBER 14, 1993

-J

A nasty may. file Wi th the Supreme Court a

petition to review an adverse decision by the

Court of Appeals pursuant to a. 808.10

within 30 days hereof, pursuant to Rule

This opinion is subject to further editing. If

published, the official version will appear in

the bound volume of the Official Reports.

809.62(1).

•:

No. 92-0705-CR-NM

çi••

I....

STATE OF WISCONSIN.

IN COURT O]' APPEALS

DISTRICT I

ciC-.

STATE OF WISCONSIN,

•;.

Plarntiff-Respondent,

•

. .

-2(I

GARCEIA COLEMAN,

Defendant-Appellant

—C

4.,

APPEAL from a judgment of.the circuit court for Milwaukee county:

(

FRANK T. çRIVELLO, Judge. Affirmed.

Before Wedemeyer, P1, Sullivan and Schudsori, JJ,

PER CTJRIAM.

Garceia Coleman has appealed from a judgment

—1. L

0•

convicting him following a jury trial of one count of firs,t-degree intentibnal homicide-p--

in violation of sec. 940.01(1), Stats., and one count of robbery in violation of. sec.

'(~_o

No. 92-0705-CR-NM

943.32(1)(a),, Stats., both counts as party to the crime. The. trial court sentenced

Coleman to ten years in prison on the robbery charge, 'consecutive to any sentence

he was then sierving. The trial court then sentenced him, to life imprisonment on the

homicide charge., consecutive to the robbery sentence. Pursuant to sec. 973.014,

Stats, the trial court also established Coleman's parole eligibility date for the

homicide convictián at January 1, 2065.

Coleman's appellate counsel has filed a no merit report pursuant to Rule

---

•'

809.32, Stats-., and Anders P. California, 386 U.S. 738 (1967). Colemanwas served

with a copy of the report and advised of his'right to file a response. He subsequently

was granted an extension of time for' filing a response and filed a responstJ.a

opposition to the no merit report. Upon-consideration of the report and response and

an independent review of the record, we conclude that there is no arguable merit to

--. .. - .

......-........

amy issue that could be raised on appeal.

In the -no merit report, Col.man's counsel addresses the issue of

whether the evidence was sufficient to support Coleman's. convictions. He also

addresses the issue of whether physical evidence seized at the time of Coleman's

arrest should have been suppressed. We conclude, after a review of the record, that

counsel's analysis of both of these- issues is correct and that they lack - arguable merit.

consequently, no further discussion of these issues will ensue.

-2-

R-Ap.. 105

No. 92-0705-CR-NM

Counsel also addresses the issue of whether the trial

court

misused its

discretion when •it exêluded evidence that the victim, who was'beaten' to death by

Coleman and his- co-defendant, was intoxicated,potenda11y suicidal, and involved in

an altercation in. a bar several hours before he was killed. Coleman's trial counsel

sought to introduce the tstimony on the basis that it would lend credence to a claim

by Coleman that the victim provoked the attack or that Coleman was acting in selfdefense.

Generally, evidence of other crimes,, wrongs; or acts is not admissible

to prove the character of a peison in drder to show that he acfed in conformity

therewith: Sec. 904.04(2), Stats. When, however, the issue of self-defense is raised

in a prosecutidn for assault or homicide and there is. a factual basis to support- a claim

of self-defense, the defendant may establish what the defendant believed to be the

turbulent and violent character of the victim by proving prior spciffc instances of

violence within his knowledge at the time of the incident. M,cMorris v. State, 58

•

Wis.2d 144, 152,,' 20 NW.2d 559, 563 (1973).

When a defendant seeks- to introduce evidence of prior 'yioleñt

acts

of-

the victim to establish his own state of mind at the time of a homicide, it must be

shown that he knew of ,the violent acts of the

victim

prior to the homicide. Id. The

admission of such evidence rests in the sound discretion of the trial court. 16. In thjs

-3-.

P-An 106

No. 92-0705-CR-NM

case, the trial court properly, excluded the eyidence proffered by the defense on the

ground that there was no 'evidence that: Coleman or, his co-defendant knew of the

victim's prior acts - at the time of the robbery and homicide. In upholding this ruling,

we also note that Coleman's trial counsel did not argue that the evidence was

admissible under any of the other exceptions set forth in Sec.. 904.04(2), Stats. No

basis therefore exists for disturbing the trial court's ruling.

In the no merit report, counsel 'also addresses the issue of whether the

trial court properly denied a motion by Coleman fcr a mistrial based on the

prosecutor's failure to produce the victim's prior criminal record until the third day

of trial. Coleman's trial counsel argued that a mistrial was warranted because, if the

victim's prior record had been disclosed earlier, investigation of the convictions set

forth in it might have led to evidence supporting a claim of provocation, self-defense,

or other mitigating circumstances.

The, trial court acknowledged that the information probably should have

been turned over to Coleman during pretrial discovery. However, it concluded that

failure to timely disclose the evidence was harmless because, • as with the evidence

regarding the victim's acts earlier in the night of the assault, Coleman made no

showing that he was aware of the victim's prior crimes at the.time of the attack. The

-4-

R-Ap. 107

No. 92-0705-CR-NM

• trial courtl concluded that the evidence of the 'victith's prior record would therefoft

have been inadmissible even'iftifrièly disclosed.

The denial of a motion for a mistrial will be reversed only for a clear

abuse of discretion by the trial court. State Y. Grady, 93Wis.2d 1, 13, 286 N.W.2d

•

607, 612 (Ct. App. 1979). The trial court must determine, in light of the whole

proceeding, whether the claimed error is sufficiently prejudicial as. to warrant a

mistrial.

Id.

Here, the trial court properly determined that, under McMorris,

evidence. of the victim's prior crimes 'was inadmissible to bolster a claim of selfdefense by' Coleman absent evidence that Coleman knew of the.prior.crimes. Since

Coleman's trial counsel offered no other basis for admitting the evidence under the

exceptions set forth in sec. 904.04(2)i Stats no arguable basis exists for challenging

.the trial

court's

determination that 'Coleman suffered no' prejudice' from the

prosecutor's failure to disclose the.victith's record earlier.

-he -find -issu

---

did

u- merit report is whether thetriat

court misused its discretion in sentencing Coleman. Because the record Supports

counsel's determination" that the trial, court 'properly, ,exercised its discretion in

sentencing Coleman 'onthe robbery conviction, we conclude that'any challenge to the,

robbery sentence has no arguable merit. Similarly, counsel has correctly analyzed

the issue of whether the trial court properly exercised its discretion in sentencing

-5-

R-Ap. 108

•

No. 92-0705--CR-NM

Coleman oP the first-degree intentional homicide, charge. However,, because this

sentence renders Coleman ineligible for parole until the year 2065, we will address

it at greater length than the sentencing issue related to the robbery conviction.:

When, as here, a trial court sentences a person to life imprisonment for

a crime committed after July 1, 1988, it may also establish a parole eligibility date

for that person which is later. than the date that would otherwise apply pursuant to

sec. 304.06(1), Stats. See sec. 973.014, Stats. The Wisconsin Supreme Court has

determined that sec. 973.014 is constitutional, rejecting claims that it violates the

separation of powers doctrine, due process protections, effective assistance of counsel'

assurances, prohibitions against cruel and unusual punishment, and the right to a

meaningful appeal. State v. Borrell, 167 Wis.2d 749, 759, 482 N.W.2d 883, 886

(1992). As with other sentencing decisions, parole eligibility date determinations are

reviewable under an abuse of discretion standard. Id. at 778, 482 N.W.2d at 894.

The factors that a trial court must, consider in determining a parole

eligibility date are the same factors that apply in imposing sentence. Id. at 773-74,

482 N.W.2d at 892. Theprimary. factors that a trial court must consider are the.

gravity of the offense, the character of the offender, and the need to protect the

public. Id. at 773, 482 N.W.2d at 892. As part of these primary factors, the trial

court may consider: the vicious or aggravated natuie of the crime; the defendant's

R-Ap. 109

No. 92-0705-CR-NM

past record' of criminal offenses; any history of undesirable behavior patterns; the

defendant's personality, character and social traits; the results of a presentence

investigation; the degree of the defendant's culpability; the defendant's demeanor at

trial;, the defendant's age, educational background, and employment record; the

defendant's remorse, repentance and cooperativeness; the defendant's need for

rehabilitative control; the rights of the public; and the length of pretrial detention.

Id. at 773-74, 482 N.W.2d at 892.

Sentencing decisions, including parole eligibility determinations, are

generally afforded a strong presumption of reasonability because the trial court is best

suited to consider the relevant factors and demeanor of the defendant. Id. at 781-82,.

482 N.W.2d at 895. The defendant must show an unreasonable or unjustified basis

in the record for the sentence imposed. Id. at 782, 482 N.W.2d at 895. An abuse

of discretion is demonstrated when the record shows that no discretion was exercised

by the trial court, a decision was made without the underpinnings of explained judicial

reasoning, the sentence was based on clearly irrelevant or improper factors, or when

the sentence is so disproportionate to the crime as to shock the public sentiment.

State v. Wicks'trom, 118 Wis.2d 339,354-55, 348 N.W.2d 183, 191 (Ct. App. 1984).

In sentencing 'Coleman, the term of life imprisonment was mandatory.

See secs. 939.50(3)(a) and 940.01(1), Stats. However, the. trial court had discretion

-7-

P-An. '111)

No. 92-0705-CR-N1'1

in setting the parole eligibility date and consideredd proper factors in doing so. It

considered the facts surrounding the homicide, concluding that it was one of the most

aggravated :cases it had seen: It considered Coleman's lack of remorse, his demeanor

in proceedings before the court, and the lack of any mitigating factors. After

discussing the brutality of the offense and Coleman's lack of remorse, it concluded

that Coleman would remain a danger to the public all his life. It concluded, that the

imposition of a life sentence without setting a parole eligibility date would be

inadequate, and that a parole eligibility date of January 1, 2065, was necessary to

protect thô public and ensure that Coleman was unable to commit criminal acts again.

The trial court thus considered the primary sentencing factors related

to the gravity of the offense, the character of the offender, and the need for protection.

of the public. Because the trial court set forth its reasoning, and based its parole

eligibility determination upon proper legal standards and the facts of record, any

claim that the trial court misused its discretion in sentencing Coleman on the homicide

charge. would be without arguable merit.

In concluding that no , arguable basis. exists to challenge Coleman's

sentence, we have, also considered whether the sentence could be deemed a misuse

of discretion on the ground that it is so disproportionate to the, crime as to shock the

public sentiment. In addition, we have, considered whether Coleman's sentene

-8-

R-Ap. 111

No. 92-0705-CR-NM

constitutes cruel and unusual punishment. vithin the 'meaning of the Eighth

The Eighth Amendment prohibits sentences that are grossly

Amendment.

disproportionate to the severity of the crime.

Borrelt, 167 Wis.2d at 775, 482

N.W2d at 893.

•

We find no disproportionality sufficient to shock the public sentiment

and constitute a misuse of discretion. Moreover, as discussed in Borrell, if the

mandatory imposition of life imprisonment without the possibility of parole for

possession of cocaine doe not give rise to an inference of gross disproportionality

within the meaning of the Eighth Amendment, then, as here, the imposition of a life

sentence with the- possibility of parole in the year 2065 for first-degree intentional

homicide is permissible.. See id. at 777, 482 N.W2d at 893-94.

Coleman's response raises several issues which we will discuss briefly.

His first arg.t is that the frial court misused its discretion when it. denied his

motion for a mistrial based on the prosecutor's failure to produce the victim's prior

criminal record until the third day of trial. As previously discussed, this issue was

addressed by appellate counsel in his no merit report and has no arguable-merit.

Coleman also objects to the jury instructions on first degree intentional

homicide given by the trial court and to the prosecutor's- reference to those

instructions in closing argument. He apparently believes that the instructions.

R-Ap: 112

No. 9l-07OS-CR-N14

impermissibly shifted the burden .'. of proof at trial by

presumption concerning the element of intent to kill.

rating. a mandatory

The Jury, however, was

instructed as provided in Wis J I--Criminal 1010, whlóh permits the jury to infer

intent to kill from the facts in evidence but does not require it to do so. Because the

1)'

trial court's 'instruction thus correctly stated the law, and because the prosecutor did

no more than refer to that instruction in his closing argument, Coleman's objections

•

have no merit.

•

Coleman also ar ues that he was denied effective assistance ,of trial

ly-

counsel because his attorney failed to conduct an adequate investigation mto the cause

of death of the victim, failed to move for a mistrial when prejudicial testimony was

•

presented, and failed to

.' request an instruction on felony murder and intoxication. To

establish a claim of ineffective assistance of counsel a defendant must show that trial

counsel's performance was deficient and that the deficient performance prejudiced the

•

defense.

State-Y. Brooks; 124 Wis.2d 349, 352 369 N.W.2d 183, 184 (Ct. App.

1985).

The appropriate measure of attorney performance is reasonableness,

considering all the circumstances. Id.

•

In arguing that trial counsel was ineffective for failing to adequately

•

investigate the victim's cause of death, Coleman contends that a medical report in the

•

record indicates that the victim was intoxicated shortly before his death and may have

-10-

R-Ap. 113

No. 920705-CR-NM

taken or possessed some kind of medication He also argues that his counsel should

have obtained a defense expert. to chaflenge the testimony of the county medical

examiner who performed an autopsy on the.victim. The medical examiner, who was

a forensic pathologist, testified that the victim died from head injuries causd by blunt

force trauma. He based his opinion on the fact that. the victim's skull and face had

been fractured in severalpiaces, and that be had suffered severe brain swelling and

hemorrhaging as a result of the blows to his head.

While the medical report r1iedon by Colenian indicates that the victim

was intoxicated on the night of his murder, it does not clearly Indicate whetherhe had

taken, any kind of medication. In any vent, evidence that the victim was taking

medication or was intoxicated some hours before he was beaten by Coleman and his

co-defendant, without more, provides no reasonable basis for suspecting or concluding

that he died from injuries other than those resulting.from the beating. Consequently,

this argument does not present an issue of arguable merit concerning trial counsel's

investigative efforts and is insufficient to require a remand for an videntiary hearing

on ineffective assistance.

Coleman a10 contends that his trial counsel should have moved for a

mistrial when a witness testified that Coleman yelled out the initials "B.O.S. when

-11-

R-Ao. 114

No. 92-0705-CR-NM

leaving the scene of the murder.. The witness testified that he believed "B.O.S.'

stood. for a gang called "Brother of Struggle."

Coleman apparently views this evidence as an unconstitutional attempt

to penalize him for his abstract, beliefs or associations as discussed in Dawsoiz .v.

Delaware, 503 U.S.

117 L. Ed.2d 309 (1992). We do not construe the evidence

in this manner. Contrary to Coleman's argument, the evidence merely related what

Coleman said at the scene of the crime and what: The witness believed the letters

meant. It did not indicate, facially or inferentially, that Coleman should be penalized

based solely on his abstract beliefs or associations. Coleman's claim that ,his trial

counsel should have moved for a mistrial on this ground therefore lacks arguable

We also reject Coleman's argument that his trial counsel was ineffective

for failing to request instructions on felony murder and the defense of intoxication.

Section 940.03, Stats., the felony murder statute, applies when a defendant causes the

death of another while committing or attempting to commit certain crimes specified

within that statute. Since none of those specified crimes was charged or involved

here, no basis existed in law for giving the felony murder instruction.

In contending that trial counsel should have requested an intoxication

instruction, Coleman cites to a portion of the record indicating that he and his co-12-

R-Ap. 115

0 4

•

•0

No. 92-07O5-CR--N?v

defendant had been drinking before the offenses. However, evidene of intoxication

511

0•

is not enough to relieve a defendant of criminal respon

sibility or to warrant an

instruction on the intoxication defense. State -v. Strege, 116 Wis.2d.477, 484,

343

& d N.W.2d 100, 104 (1984). To- merit an intoxication instruction in a first-degree

a intentional homicide case, the defendant must point to some eviden

kk'

ce of mental

impairment due to the consumption of intoxicants sufficient to negate the existen

of the intent to kill. Id. at 486,343 N.W.2d a1 105.. Because Coleman's genera

allegations regarding drinking and intoxication do not remotely meet this standard,

•

L 61. -ILIbasis exists to conclude that his trial counsel was arguably ineffective for

rjrequest an instruction regarding intoxication.

failing to

•

--4

Our review of the record discloses no other issues of merit for appeal.

Consequently, we affirm the judgment and.relieve Attorney MattheWHuppert2 of

her representation of Coleman on this appeal.

any

• 0

- - By the Court. --Judgment affirmed.

S...

•.

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-13-

•

P-An 11

--.

COURT OFAPPEALS

DECISION

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.

NOTICE

May 11, 2010

David R. Sciiankcr

Clerk.of Court ofAppeals -

•

Appeal No.

2009AP2143

A pàrtymay file with the Supreme Court a

petition to review an adverse decision by the

Court of Appeals. See Wrs. STAT. 808.10

and RULE 809.62.

IN COURT OF APPEALS

DISTRICT J

.•

all

.•

Cir. Ct. No. I990CF902946A

STATE OF WISCONSIN

0...

STATE OF WISCONSIN,

PLAJNTrFF-RESPONDENT,

- GARCEIA COLEMAN,

.DEFENDANT-APPELLANT.

--S

I.•

•

V)-.

•-

•

APPEAL from an order of the circuit court for Milwaukee County:

PAUL R VAN GRUNSVEN, Judge. Affirmed.

•

Before Curley, P.5., Fine and Brennan, 51.

•

denying his Wrs. STAT. § 974.06 (200708)l motion for a new trial. Th6 circuit

.7---

PER CURIAM. Garceia Coleman, pro se, appeals from an order

•

noted.-

All references to the Wisconsin Statutes are to the 206108 version unless otherwise

•

••3

No. 2009Ay2143

-i'-

court determined that the motion was procedurally barred by State v. Tillman

•

2005 WI App 1, 281 Wis.,2d 157, 696 N.W.2d 574, because Coleman failed to

•

raise the issues in his motion in response to a prior no-merit report Coleman

contends Tillman is iiapplicb1e because, in the no-merit process, appellate'

•

•:'

'•

counsel and this court. missed the issues he now raises. Coleman thus believes

•:.

that, under State v., Earlier,' 2006 WI App 11, 289 Wis. 2d 179, 709 N.W.2d 893,

he has a valid reason for not raising the issues previously and can escape the

procdural'bar. Wa reject Coleman's argument- and affirm the circuit court,

In 1990, Coleman and co-defendant John Balsewicz were charged

with 'and tried jointly on charges of first-degree intentioii.al homicide and robbery,

as parties to a crime.. A jury convicted the duo in May 1991. Coleman was

sentenced to life imprisonment with a parole e1gibiity, date in 2065. for the

.".

homicide, with an additional ten years' imprisonment, consecutive, for the'

robbery. Coleman appealed.

counsel filed a thirty-three-page 'no-merit report in August 1992, to

-41

which Coleman responded. Counsel raised multiple. issues, including sufficiency

•

of. the evidence, while Coleman raised issues that included a complaint of

ineffective assistance of trial counsel. We concluded, upon our independent

review of the record, that no other' issues of arguable merit existed, and we

affinned Coleman's judgment of conviction in December 1993.

c•

Coleman took no further action until July 2009,. when he filed a

pro se motion for a new' trial under WIS-. STAT. § 974.06. His essential claim is

— t___—

.that.triaLcounsel :was ineffective for fáilin. to call foui witnesses to testify and

postconviction counsel was inéffectiie for faiin 'to preserve the isu. As noted,

•

j çJ4

No. 2009AP2143

noted

the circuit court rejected the" motion as barred by Tillman. The court also

that the motion was too

to. merit relief. Colenian appeals.

All grounds for relief under Wis. SrAT. § 974.06 inust be raised in a

petitioner's original, supplemental, or amended fnotion State v Escalona15

Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 1.7 (1994). Issues that could

have been, but were not, raised in an earlier motion may not be raised in .a later

motion absent a • "sufficient" reason for failing to raise them. Id. An earlier

motion includes a prior direct appeal. liZ at 181: Whether the Escalona

procedural bar applies is a question. of law which we review denovo: State v.

Tolefree, 209 Wis. 2d 42115 424, 563 N.W.2d 175 (Ct. App. 1997).

When a defendant's direct appeal is decided through the no-merit

procedure, see Wis.. STAT. RuLE 809.32, that appeal "may serve as a procedural

bar to a subsequent postconviction motion and ensuing appeal which raises

issues that could have been previously raised." Tillman, 281 Wis. 2d 157, 127.

When reviewing whether ..theEscatona .bat a"lies Thilowing no-mèrit appeal,

we "must pay close attention to whether the no merit procedures were in fact

followed." Tillman, 281 Wis. 2d 157, 120. If 'e discover that appellate counsel

and this court missed an issue ofargiiable merit, the Escalorni/Tiliman bar is

inapplicable because the defendant has'- been -deprived :of .4 -cQlnplete examination

of the record to which be or she. is entitled. Fórtier, 289 Wis. 2d 179, 127. This

deprivation constitutes a "sufficient reason' for failing to raise an isue previously.

Id.

The:practical effect oTillman. arid 1'ortiër is that, -in determining

whether Escalona operates as aprocdural bar fo.11dwing a no-merit appal; we

must attempt to review the merits of the underlying motion. Here, Coleman's

•

No. 2009AP2143

'.•.•

•.

Wis. STAT § 974-06 motion alleges a Cdl of my constitutional right to

111

representation by competent cOunsel[,j" the "abridgement of a right guaranteed by £' '

- the cônstitutionorlawsofthis state[,]"and:

•

•.

•

rpostconviction counsel when

Ineffective assistance

postconviction counsel jled. ta..

a claim of.

.ineffectiveassistance of trial .counsel when he failed to

discover/notice that trial :cdnsel failed to investigate or tall

to. trial to testify witness[es] James C. Blank,' Detective

Dennis. Murphy, John H. Ba1sewiz,' Detective Edward

Liebrecht, and failed_J submit their statements,

reports/records as evidence; in ss. 974.02 motion before/

C 41

•.

•_

•thetriaicourt.

A potconviction motion must set fbrth, material facts that would:

allow the review*

-/1

•

court to Ccmen of1ll

.Vtafg'i, -.H

(L—"'

pfiridnt" clilmQ

assess"

•.

_•'

••"

•

Allen, 2004 WI 06,111-8- 21-22,274 Wis. 2d 568, 682 N.W.2d 433. Coleman's

C4T

motion does not identify what inforniation the uncalled witnesses could have or

would have testified to or why that testimony would have Ieen important to his

case. He thus fails to demonstrate any prejudice from counsel's failure to call

L--

these individuals. See Stricklcindv. Washington, 466 U.S. 668, 687(1984).

JtIç

Although Coleman attempts to: elaborate on- his claim in his brief,'

)

our review ofthe postconv iction motion is confined to the four corners' of the

- -------

.____-----------.- ----.-__..__,,,,

motion See State v Love, 2005 WI 116, ¶27, 284 Wis 2d 111, 700 NW2d 62(

-I

f4i

J.&c1ted

•

(..

•

..... UUI IJ1I.dUULL ILl LU

pUSWOUV1LLIQU

motion. These include poor cro.ss-examination by trial counsel and deprivation of the

presumptionof innocence through counsel's attempt to .convince.the jury to convict on a lesserincluded offense. We gemerally do not consider issues raised for the first time on appeal, Wirth V.

Elily, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980), and we see nore on rot m-Affe from that

•1

•

U1 LVI_i U)

iai

____.!_4o__

UULL1IJL1[ i,si.tc

rule here.

•

C-

OFFICE OF THE CLERK

pruu (Imxr± of Pisranoin

TM E

110 EAST MAIN STREET, SUITE 215

P.O. Box 1688

MADISON, WI 537014688

ScO

•

TELEPHONE (608) 266-1880

FACSIMILE (608) 267-0640

Web Site: 'ww'w.wicourts.gov

October 27, 2010

174

Hon. Paul R. Van Grunsven

Milwaukee County Circuit Court Judge

901 N. 9th St.

Milwaukee, WI 53233

Michael J. Losse

John Barrett

Milwaukee County Clerk of Circuit Court

821 W. State St., Rm. 114

Milwaukee, WI 53233

Colleen Ball

State Public Defender's Office

75 North Water St., #912

Milwaukee, WI 53202

Karen A. Loebel

Asst. District Attorney

821 W. State St.

Milwaukee, WI 53233

•Garceia Coleman 183591

Columbia Con. Inst.

P.O. Box 900

Portage, WI 53901-0900

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857-

You are hereby notified that the Court has entered the following order:

No. 2009AP2 143

State v. Coleman L.C.#1990CF902946A

A petition for review pursuant to Wis. Stat. § 808.10 having been filed on behalf of

defendant-appellant-petitioner, Garceia Coleman, and considered by this court;

IT IS ORDERED that the petition for review is denied, without costs.

A. John Voelker

Acting Clerk of Supreme Court

•

OFFICE OF TEE 'CLERK

WISCONSIN COURT OF APPEALS

1IO EAST MAIN STREET, SUTrE215

•

1?.O.Boxl688"

MADISON,WISCONSIN. 53701-1688

Telephone (608) 266-180

Facsiñiile (608) 267-064.0

Web Site: www.wicourtsgov

•

To:

DISTRICT I

June 28, 2012

Hon. David A. Hansher

Circuit Court Judge

Milwaukee County Courthouse.

9N. 9th St

Milwaukee, WI 53233

John Barrett

Clerk of Circuit Court

Room G-8

901 N. 9th Street

Milwaukee, WI 53233

John L Chisholm

District Attorney

821 W. State St

Milwaukee, WI 53233

Gregory Mi Weber

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

Garcia Cólenaau. 183591

Columbia Corr. Inst

P.O. Box 900

Portage, WI, 53901-0900

You are hereby notified that the Court has entered the follo'wing opinion and order:

20 12AP 156-W

Stale of'Wisconsjnex rel. Garcia Coleman v. Michael Meisner,

Warden (L.C.#1990CF902946A)

Before Fine, Kessler and Brennan, JJ.

Garcia Coleman, pro se, petitions for writ of habeas-corpus, arguing that he receive

ineffective assistance from his, appointed appellate lawyer during his no-merit direct

appeal over

twenty years ago. See Süztev. Knight, 168 Wis. 2d 09, 484 N.W.2d 540 (1992). To establis

claim of ineffective assistance of counsel, a defendant must show both that his

lawyer's

performance was deficient and that he was prejudiced by the deficient perfonnance. Strickla

v. Washing/on, 466 U.S. .68, 687 (1984). To show that a lawyer's perfothiance was

the defenidant must show that the lawyer's conduct "fell belbw an objective

reasonableness," as evidenced by "prevailing professional norms." Strickland,

deficient,

standard of

466 U.S. at 687-

No. 201P156

88 To demonstrate Prejudice, the defendant must show that there is a reasonable probabihtY

that, but for his lawyer's unprofessional euos, the reiilt of the proceeding would have been

different I at 694 We will deny a claim of ineffective assistance of counsel if either shong

is not made. See id. at 697.

Coleman contends that his appellate lawyer should have investigated and interviewed

dozens of witnesses, including personnel who treated the victim at the scene and at the hospital,

and people who testified at trial or provided information to the police. He also contends his

appellate lawyer should haye raised a claim- of ineffective assistance of trial counsel premised on

•

the same issue. Coleinan's argument is missing a critical component. He does not explain why,

had either of his lawyers conducted these interviews, the result of his appeould have been

different. In fact, Coleman. does not explain how these interviews would have impacted his case

at all. Because Coleman has not shown that he was prejudiced by the actions of his attorneys, we

reject his argument that he received ineffective assistance of counsel.

While this petition was pending, Coleman jnovedto compel firefighters and paramedics

who assisted the victim in 1991 to provide .answers to his cjueslicins. He also moved for the

appointment of counsel and for permission to file fewer copies of his Petition than required by'

the Ru1es of Appellate Procedure. We deny these motins as moot

•

IT IS ORDERED that the petition for writ of habeas corpu.' is denied exparte:

•

Diww M Fremgen

Clerk of Court of AppeaLs

(T.

.•

•

•---

OFFICE OF THE CLERK

uprim ixur±

off

cLnt%ht

110 EAST MAIN STREET, SUITE 215

P.O. Box 1688

MADISON, WI 53701-1688

wo'

TELEPHONE (608) 266-1880

FACSIMILE (608) 267-0640

Web Site: www.wicourts.gov

September 11, 2017

To:

Hon. David A.. Hansher

Milwaukee County Circuit Court Judge

901 N. 9th St.

Milwaukee, WI 53233

Garceia Coleman 183591

New Lisbon Con. Inst.

P.O. Box 4000

New Lisbon, WI 539504000

John Barrett

Clerk of Circuit Court

901 N. 9th St., Rm. G-8

Milwaukee, WI 53233

Criminal Appeals Unit

Department of Justice

P.O. Box 785.7

Madison, WI 53707-7857

Kevin C. Potter

Assistant Attorney General

P.O. Box 7857

Madison, WI 53707-7857

You are hereby notified that the Court has entered the following order:

No. 2017AP1215-W

Coleman v. Court of Appeals, District I L.C.41990CF902946A

A petition for supervisory writ pursuant to Wis. Stat. § § (Rules) 809.71 and 809.51

having been filed on behalf of petitioner, Garceia Coleman, and considered by this court;

IT IS ORDERED that the petition for supervisory writ is denied, ex parte.

Diane M. Fremgen

Clerk of Supreme Court

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.