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State v. Lemberger

Supreme Court of Wisconsin

April 20, 2017

State of Wisconsin, Plaintiff-Respondent,
Gary F. Lemberger, Defendant-Appellant-Petitioner.

          ORAL ARGUMENT: February 17, 2017

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 369 Wis.2d 224, 880 N.W.2d 183 (Ct. App. 2016 - Unpublished)

         Circuit Court Dane County, L.C. No. 2014CT463 William E. Hanrahan Judge

          For the defendant-appellant-petitioner, there was a brief by Robert J. Eddington and Eddington Law Office LLC., Milwaukee, and oral argument by Robert J. Eddington.

          For the plaintiff-respondent the cause was argued by Michael C. Sanders, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.


         ¶1 This is a review of an unpublished decision of the court of appeals, State v. Lemberger, No. 2015AP1452-CR, unpublished slip op. (Wis. Ct. App. Apr. 14, 2016), which affirmed the Dane County circuit court's[1] judgment of conviction of defendant Gary Lemberger ("Lemberger") and order denying Lemberger's motion for postconviction relief.

         ¶2 In 2014 Lemberger was convicted of the crime of operating a motor vehicle while intoxicated--4th offense[2]following a jury trial during which the prosecutor repeatedly referenced the fact that Lemberger had refused to submit to a breathalyzer test following his arrest for drunk driving. Postconviction, Lemberger requested a new trial, arguing that his constitutional right to the effective assistance of counsel had been violated. Lemberger claimed his trial attorney should have objected to the prosecutor's comments because Lemberger possessed a constitutional right to refuse to take a warrantless breathalyzer test such that the prosecutor was not permitted to seek an inference of guilt from the refusal. The circuit court rejected this argument and the court of appeals affirmed.

         ¶3 We conclude that Lemberger did not receive ineffective assistance of counsel. The law was settled at the time of Lemberger's trial that, upon his lawful arrest for drunk driving, Lemberger had no constitutional or statutory right to refuse to take the breathalyzer test, and that the State could comment at trial on Lemberger's improper refusal to take the test. Lemberger's attorney did not render ineffective assistance of counsel in failing to argue contrary to controlling precedent. Consequently, the circuit court did not erroneously exercise its discretion in denying Lemberger's postconviction motion without a hearing. We affirm the decision of the court of appeals.


         ¶4 On April 5, 2014, at about 4:50 p.m., Officer Andrew Naylor ("Officer Naylor") of the City of Madison Police Department responded to multiple reports of an "erratic driver" on a highway in Dane County, "somebody who was yelling and swerving." Officer Naylor located the vehicle that had been described to him and followed it for about two minutes, but did not observe any unusual behavior other than the fact that "the driver had his hand out the window" and the hand "seemed to be moving in a waving manner." Officer Naylor activated his emergency lights and both vehicles pulled to the side of the road.

         ¶5 When Officer Naylor spoke with the vehicle's driver, Lemberger, he "immediately noticed a strong odor of intoxicants coming from [Lemberger's] breath, " "saw that [Lemberger] had bloodshot as well as glassy eyes, " and observed that Lemberger "was speaking with a slurred speech and speaking slowly." Additionally, Lemberger was "belligerent to a certain extent" when speaking about a driver on the road and exhibited a "pattern of up and down, from agitated to compliant one minute to the next minute, " a pattern Officer Naylor "experience[d] with intoxicated people in general." Lemberger performed field sobriety tests in Officer Naylor's presence.

         ¶6 Officer Naylor then concluded on the evidence before him that Lemberger was operating a vehicle while impaired. He arrested Lemberger, placed him in the back of Officer Naylor's vehicle, and read him the Informing the Accused form.[3] "[W]hen asked to submit to a chemical test, " Lemberger responded "[Y]ep." Officer Naylor took Lemberger to "the intoximeter room" at the West District of the City of Madison Police Department. In the intoximeter room, Officer Naylor "conduct[ed] [a] 20-minute observation." He perceived that Lemberger "still had a strong odor of intoxicants coming from his breath" and that Lemberger's speech was slurred. Lemberger stated, contrary to his earlier representation, that "he was not going to submit to a breath test." After the 20-minute observation was complete, Officer Naylor read the Informing the Accused form to Lemberger a second time. Lemberger refused to submit to a breathalyzer test.


         ¶7 On May 6, 2014, a criminal complaint was filed against Lemberger in Dane County circuit court charging him with operating a motor vehicle while intoxicated--4th offense, contrary to Wis.Stat. §§ 346.63(1)(a). On November 5, 2014, a refusal hearing occurred. At the end of the hearing, the circuit court concluded as follows:

I find that the officer had probable cause to arrest the defendant and to request submission to the primary method by which this type of evidence is gathered: the breath test. The officer read the Informing the Accused . . . in the police squad car. The defendant answered in the affirmative that he would take the test. However, after he was transported to the district station, he had a change of heart after the Informing the Accused was read verbatim a second time . . . .
I find that under those circumstances the officer complied with what's required, that the refusal to take the test offered by the officer was improper, and the State may comment upon that during the course of trial.

         ¶8 Immediately following the refusal hearing, Lemberger's case was tried before a jury. During the trial the State repeatedly informed the jury that Lemberger had refused to take a breath test, arguing that Lemberger's refusal stemmed from "a guilty conscience" and constituted "proof positive that he knew he had been drinking." The circuit court also instructed the jury as to how it should consider Lemberger's refusal:

Testimony has been received that the defendant refused to furnish a breath sample for chemical analysis. You should consider this evidence along with all other evidence in this case, giving to it the weight you decide that it's entitled to receive.[4]

         The jury ultimately rendered a guilty verdict later that day. Lemberger's sentence included 12 months in jail, a 36-month revocation period, a fine, and costs. On November 6, 2014, a judgment of conviction was entered.[5]

         ¶9 On June 5, 2015, Lemberger filed a postconviction motion for a new trial. Lemberger contended that the State "violated [his] constitutional rights at trial by seeking an inference of guilt on an element of the offense charged based on [his] exercise of his constitutional right to refuse a warrantless search in the form of a breathalyzer test" and that Lemberger "received ineffective assistance of counsel, as evident from trial counsel's failure to object to the State's comments and arguments on [his] refusal."

         ¶10 On June 26, 2015, the circuit court denied Lemberger's motion without a hearing, characterizing Lemberger's claim that the State had violated Lemberger's constitutional rights as "wholly unsupported by Wisconsin law." With regard to the postconviction motion itself, the circuit court added that defense counsel's "fail[ure] to address controlling legal authority" on the issue presented was "[b]reathtaking[]." On July 16, 2015, Lemberger filed a notice of appeal. On April 14, 2016, the court of appeals affirmed. Lemberger, unpublished slip op. at ¶1. The court of appeals noted that "this time, unlike in the circuit court, Lemberger briefly addresse[d] the authority identified by the circuit court as controlling on the breathalyzer issue." Id., ¶5. Nevertheless, the court of appeals concluded that Lemberger had forfeited these arguments "by failing to preserve them before the circuit court." Id., ¶6.[6]

         ¶11 On May 16, 2016, Lemberger filed a petition for review in this court. On October 11, 2016, we granted the petition.


         ¶12 This case involves a circuit court's denial, without a hearing, of a defendant's postconviction motion asserting an ineffective assistance of counsel claim. Lemberger asks this court to reverse the decision of the court of appeals and remand the case to the circuit court for a Machner hearing.[7]

         ¶13 "[I]f the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing." State v. Allen, 2004 WI 106, ¶9, 274 Wis.2d 568, 682 N.W.2d 433. Whether the record conclusively demonstrates that the defendant is not entitled to relief is a question of law for our independent review. State v. Sulla, 2016 WI 46, ¶23, 369 Wis.2d 225, 880 N.W.2d 659. But "[w]e review a circuit court's discretionary decisions under the deferential erroneous exercise of discretion standard." Allen, 274 Wis.2d 568, ¶9.

         ¶14 "A claim of ineffective assistance of counsel is a mixed question of fact and law. We will uphold the circuit court's findings of fact unless they are clearly erroneous, " but "the ultimate determination of whether counsel's assistance was ineffective is a question of law, which we review de novo." State v. Carter, 2010 WI 40, ¶19, 324 Wis.2d 640, 782 N.W.2d 695 (citations omitted).

         ¶15 Finally, we "review[] constitutional questions, both state and federal, de novo." State v. Lagrone,2016 WI 26, ¶18, 368 Wis.2d 1, 878 N.W.2d 636 (quoting State v. Schaefer,2008 WI 25, ...

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