Petition for Writ of Certiorari — Spencer P. Peace, Petitioner v. Wisconsin

No.______

________________________________________________________________________

In the

Supreme Court of the United States

________________________________________________________________________

Spencer P. Peace,

Petitioner

v.

State of Wisconsin

Respondent

On Petition for Wit of Certiorari to the Wisconsin Court of

Appeals District 3

________________________________________________________________________

Appendix

________________________________________________________________________

Steven Roy

Counsel of Record

1310 O’Keeffe Ave. #315

Sun Prairie, WI 53590

608.571.4732

steven@stevenroylaw.com

Table of Contents

A. State of Wisconsin v. Spencer P. Peace, 2023 Wis. App. LEXIS

823(Wis. Ct. App. 2023) (opinion affirming the judgement of

conviction)

B. State of Wisconsin v. Spencer P. Peace 2024 WI 5 (Wis. 2024)(Order

denying review)

Appendix A

Positive

As of: March 11, 2024 4:46 PM Z

State v. Peace

Court of Appeals of Wisconsin, District Three

July 25, 2023, Decided

2022AP624-CR

Reporter

2023 Wisc. App. LEXIS 823 *; 2023 WL 4736579

State of Wisconsin v. Spencer P. Peace

Notice: THIS OPINION IS SUBJECT TO

FURTHER EDITING. IF PUBLISHED, THE

OFFICIAL VERSION WILL APPEAR IN THE

BOUND VOLUME OF THE OFFICIAL

REPORTS.

THIS OPINION WILL NOT BE PUBLISHED.

SEE WIS. STAT. RULE 809.23(1)(B)(4).

Subsequent History: Review denied by State v.

Peace, 2024 WI 5, 2023 Wisc. LEXIS 589 (Dec.

12, 2023)

Prior History: [*1] (L. C. No. 2018CF191).

Judges: Before Stark, P.J., Hruz and Neubauer, JJ.

Opinion

Summary disposition orders 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).

Spencer Peace appeals from a judgment convicting

him of two felonies. He claims he is entitled to a

new trial due to violations of his constitutional

rights to a speedy trial and to confront the witnesses

against him. Based upon our review of the briefs

and record, we conclude at conference that this case

is appropriate for summary disposition. See WIS.

STAT. RULE 809.21 (2021-22).1 We affirm on the

1 All references to the Wisconsin Statutes are to the 2021-22 version

basis that Peace has failed to preserve his issues for

appellate review.

The State charged Peace with one count of firstdegree reckless homicide by delivery of a

controlled substance and one count of delivering

heroin, each based on allegations that a man died

from an overdose of fentanyl-laced heroin that

Peace had supplied. Although Peace filed a series

of speedy trial demands, he was in jail for over

three years before his case came to trial. During

that time, a series of attorneys appointed to

represent Peace withdrew, requiring the

appointment of new attorneys of whom Peace did

not approve. At trial, [*2] the State presented the

testimony of two forensic toxicologists remotely—

with the agreement of Peace's trial counsel, but

without any colloquy to ascertain whether Peace

knowingly, voluntarily, and intelligently waived his

right to confrontation.

Following his conviction on both charges, Peace

filed a notice of appeal without first filing a

postconviction motion. Peace now argues to this

court for the first time that: (1) the balancing test

for evaluating speedy trial claims set forth by the

United States Supreme Court in Barker v. Wingo,

407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101

(1972), should be overturned; (2) Peace's right to a

speedy trial was violated even under the Barker

test; and (3) the relinquishment of a defendant's

Sixth Amendment right to confrontation requires a

personal colloquy.

unless otherwise noted.

2023 Wisc. App. LEXIS 823, *2

The Rules of Appellate Procedure provide that a

defendant in a criminal appeal "shall file a motion

for postconviction or postdisposition relief before a

notice of appeal is filed unless the grounds for

seeking relief are sufficiency of the evidence or

issues previously raised." WIS. STAT. RULE

809.30(2)(h) (emphasis added). This provision

advances the policy that "it is better to give the

circuit court, which is familiar with the facts and

issues, an opportunity to correct any error it has

made before requiring [*3] an appellate court to

expend its resources in review." State v. Walker,

2006 WI 82, ¶30, 292 Wis. 2d 326, 716 N.W.2d

498. Furthermore, raising an issue in the circuit

court provides the opposing party with an

opportunity to provide factual submissions that may

refute the claim. See Gruber v. Village of N. Fond

du Lac, 2003 WI App 217, ¶27, 267 Wis. 2d 368,

671 N.W.2d 692. Accordingly, this court will deem

forfeited and need not address any issue other than

the sufficiency of the evidence that has not been

preserved in the circuit court. See State v. Hayes,

167 Wis. 2d 423, 425-26, 481 N.W.2d 699 (Ct.

App. 1992).

appellate issues to [*4] be forfeited.2

This court retains the authority to review forfeited

claims under the framework of ineffective

assistance of counsel or our discretionary reversal

power under WIS. STAT. § 752.35. State v. Klapps,

2021 WI App 5, ¶28, 395 Wis. 2d 743, 954 N.W.2d

38 (2020). Peace, however, has not advanced any

claim of ineffective assistance of counsel. Nor

could this court consider such a claim absent the

testimony of trial counsel at an evidentiary hearing.

See State v. Machner, 92 Wis 2d 797, 804, 285

N.W.2d 905 (Ct. App. 1979).

As to our discretionary reversal power, WIS.

STAT. § 752.35 allows this court to reverse a

judgment by the circuit court "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." In order to establish that the

real controversy has not been fully tried, a party

must show "that the jury was precluded from

considering important testimony that bore on an

important issue or that certain evidence which was

improperly received clouded a crucial issue in the

In order to preserve an issue, a party must raise it case." State v. Darcy N.K., 218 Wis. 2d 640, 667,

"with sufficient prominence such that the trial court 581 N.W.2d 567 (Ct. App. 1998) (citations

understands that it is called upon to make a ruling." omitted). To establish a miscarriage of justice, there

Schwittay v. Sheboygan Falls Mut. Ins. Co., 2001 must be "a substantial degree of probability that a

WI App 140, ¶16 n.3, 246 Wis. 2d 385, 630 new trial would produce a different result." Id.

N.W.2d 772. Peace did not raise the speedy trial (citation omitted). In either case, however, we will

and confrontation issues he presents on appeal by exercise our discretionary reversal power only

either pretrial or postconviction motions in the sparingly. [*5] Vollmer v. Luety, 156 Wis. 2d 1,

circuit court. Merely making a speedy trial demand 11, 456 N.W.2d 797 (1990).

is not the same as requesting relief based upon an Peace asserts that this court should address the

alleged constitutional violation. And, although merits of his claim notwithstanding any forfeiture

Peace raised an initial objection to the State's due to the "extraordinary circumstance" that he

request to present the testimony of the forensic "lost his attorney [of choice] due to the State's

toxicologists

remotely,

his

trial

counsel delays." That allegation is completely undeveloped.

subsequently advised the court at the final pretrial

conference that the parties had resolved the issue,

so that the court was never called upon to make a 2 Peace cites several cases in his reply brief for the proposition that

ruling. We therefore deem Peace's asserted the waiver of a constitutional right requires an intentional

relinquishment by the defendant. These cases are not on point

because the procedural bar we are discussing is the forfeiture of the

right to raise an issue on appeal, not a waiver of the underlying

constitutional right.

2023 Wisc. App. LEXIS 823, *5

At a minimum, Peace fails to show how that factor

provides any basis for us to conclude that a

substantial degree of probability exists that a new

trial would produce a difference result. Nor does

Peace explain why the alleged loss of his counsel of

choice resulted in the real controversy not being

fully tried. We therefore conclude that Peace's

argument does not satisfy this court's criteria for

discretionary reversal.

Upon the foregoing,

IT IS ORDERED that the judgment of conviction is

summarily affirmed. WIS. STAT. RULE 809.21.

IT IS FURTHER ORDERED that this summary

disposition order will not be published.

End of Document

Appendix B

Neutral

As of: March 11, 2024 4:46 PM Z

State v. Peace

Supreme Court of Wisconsin

December 12, 2023, Decided

2022AP000624-CR

Reporter

2024 WI 5 *; 2023 Wisc. LEXIS 589 **

State v. Spencer P. Peace

Notice: DECISION

OPINION

WITHOUT

PUBLISHED

Prior History: State v. Peace, 2023 Wisc. App.

LEXIS 823 (Wis. Ct. App., July 25, 2023)

Opinion

[*P1] [**1] Petition for review denied.

End of Document