Preview:

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.
September 3, 1997
A party may file with the Supreme Court a
                                                                                          Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                          Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                          of Wisconsin              STATS.
No.                                                                                       97-0130-CR
STATE OF WISCONSIN                                                                        IN COURT OF APPEALS
                                                                                          DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
KENNETH G. HOPKINS,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and an order  of  the circuit court for
Burnett County:   JAMES H. TAYLOR, Judge.   Affirmed.
MYSE, J.     Kenneth G. Hopkins appeals a judgment of conviction
for  two  misdemeanors:  resisting  an  officer  and  disorderly  conduct.    Hopkins
contends that the State failed to prove venue during the trial, that his trial counsel
was ineffective, and that the trial court erred by not granting him sentence credit
for  the  time  he  spent  on  bond under  certain restrictions.    Because  this court
concludes that there is sufficient evidence demonstrating venue, that failure to




NO. 97-0130-CR
request  a  Machner1  hearing  deprives  this  court  of  jurisdiction  to  review  his
allegations  of  inadequate  counsel,  and  that  the  restrictions  on  bond  were
insufficient to amount to confinement, the judgment is affirmed.
This  case  arose  as  a  result  of  an  altercation  occurring  between
Hopkins and two law enforcement officers, officer Christopher Sybers from the
Village of Siren and deputy sheriff Matt Olsen of Burnett County.   As a result of
the altercation, Hopkins was ultimately charged with felony counts of battery to a
police officer and attempt to disarm a police officer, and misdemeanor counts of
resisting an officer and disorderly conduct.   The jury found Hopkins guilty of the
two misdemeanor counts and not guilty of the two felony counts.    During the
course  of  the  trial  and  closing  arguments,  Hopkins’  attorney  had  conceded
Hopkins guilt of the misdemeanor counts.
Following conviction, the trial court sentenced Hopkins to seven
months’ confinement in the county jail, the first thirty days without work release
privileges, and imposed a $1,000 fine plus costs.   The trial court refused Hopkins’
request of credit for time served during his pretrial confinement.
Hopkins  first  challenges  the  sufficiency  of  the  evidence  to
demonstrate venue.   As with other challenges to the sufficiency of evidence, this
court’s review of venue accords great deference to the factfinder.   See, e.g., Widell
v. Tollefson, 158 Wis.2d 674, 684, 462 N.W.2d 910, 913 (Ct. App. 1990).   This
court will search for credible evidence to sustain the jury’s verdict, and accept all
reasonable inferences that may be drawn from it.   See Fehring v. Republic Ins.
Co., 118 Wis.2d 299, 305-06, 347 N.W.2d 595, 598 (1984) overruled on other
1 State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Ct. App.1979), discussed infra.
2




NO. 97-0130-CR
grounds by, DeChant v. Monarch Life Ins. Co., 200 Wis.2d 559, 547 N.W.2d 592
(1996).   Convictions will not be defeated where proof of venue may be inferred
from circumstantial evidence.   Piper v. State, 202 Wis. 58, 61, 231 N.W. 162,
166-67 (1930).
While no witness specifically indicated that the altercation between
Hopkins and the officers occurred in Burnett County, sufficient evidence existed
allowing the jury to make this inference.   The place where the incident occurred
was  described  by  at  least  three  witnesses.    Sybers  testified  that  the  incident
occurred  one  and  one-half  miles  south  of  Webster.    Olson  testified  that  the
incident  occurred  on  Highway  35  about  one  mile  south  of  Webster.    Dean
Sandberg, a witness for the State, testified that the incident occurred just south of
Webster along Highway 35.   The town of Webster is located near the center of
Burnett County, approximately ten miles from both north and south county lines.
Each of these witnesses therefore placed the location of the incident well within
the  boundaries  of  Burnett  County.    This  court  therefore  concludes  that  the
evidence is sufficient to demonstrate that Burnett County was the proper venue for
trial.
Hopkins’  second  contention  is  that  his  attorney  was  ineffective
because he admitted guilt of the misdemeanor charges in his argument to the jury,
failed to call character witnesses as to Hopkins’ reputation for peacefulness, failed
to obtain a psychiatric evaluation, and failed to attack the initial stop of Hopkins’
vehicle as unreasonable.   As proof of these claims, Hopkins relies solely on an
affidavit  executed  by  himself  and  filed  as  part  of  this  appeal.    No  motion
challenging defense trial counsel’s effectiveness was made; no evidentiary hearing
on defense trial counsel’s conduct was held.
3




NO. 97-0130-CR
In asserting a claim for ineffective counsel, Hopkins is obligated to
present evidence, inter alia, demonstrating that counsel’s conduct did not conform
to the standard required.   See State v. Elm, 201 Wis.2d 452, 461-62, 549 N.W.2d
471, 475 (Ct. App. 1996).   To make this demonstration, it is necessary to permit
trial counsel to explain himself so this court can determine whether counsel’s
actions were the result of incompetence or deliberate trial strategies.    State v.
Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979).   It is the
duty of Hopkins to preserve such testimony.   See id.   Because he has failed to do
so, his right to review of this issue has been waived.   State v. Mosley, 201 Wis.2d
36, 547 N.W.2d 806, 812 (Ct. App. 1996).
Hopkins’ final contention is that the conditions of his release on
bond were sufficiently restrictive to constitute constructive custody, and should be
credited  as  time  served.    Hopkins’  bond  conditions  permitted  him  to  travel
between his home and place of business, and eventually to one restaurant.
Sentence credit is authorized under § 973.155(1)(a), STATS., for “all
days spent in custody in connection with the course of conduct for which sentence
was imposed.”    Whether Hopkins is entitled to sentence credit is a matter of
statutory construction which this court reviews as a question of law.   See State v.
Collett,  207 Wis.2d  321,  323,  558 N.W.2d  642,  643  (Ct. App.  1996).    While
electronic monitoring may create circumstances so restrictive as to amount to
confinement, the issue is to be decided based upon the specific facts of each case.
Id. at 324-25, 558 N.W.2d at 644-45.
In  order  to  constitute  confinement,  the  restrictions                               “must  be  so
substantial as to amount to being locked in at night or its equivalent.”   Id. at 327,
558 N.W.2d at 645.   Here, Hopkins was at home, and was allowed to travel to
4




NO. 97-0130-CR
work and to one restaurant.   It cannot be contended that these terms are equivalent
to confinement in the county jail.   Hopkins had complete freedom of movement
within his home and was able to spend an unlimited amount of time tending to his
business affairs at his place of  business.    He was further privileged to move
between  these  two  points  and  the  restaurant  without  restrictions.    This  court
concludes that the trial court did not err by refusing Hopkins credit for time so
served.   For the forgoing reasons, the judgment is affirmed.
By the Court.—Judgment and order affirmed.
This opinion will not be published.  RULE 809.23(1)(b)4, STATS.
5

Download 11962.pdf

Wisconsin Law