ARGUMENT: February 17, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 369 Wis.2d
224, 880 N.W.2d 183 (Ct. App. 2016 - Unpublished)
Court Dane County, L.C. No. 2014CT463 William E. Hanrahan
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.
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.
ANNETTE KINGSLAND ZIEGLER, J.
This is a review of an unpublished decision of the court of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unpublished slip op.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 judgment of
conviction of defendant Gary Lemberger
("Lemberger") and order denying Lemberger's
motion for postconviction relief.
In 2014 Lemberger was convicted of the crime of operating a
motor vehicle while intoxicated--4th offensefollowing 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
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.
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.
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.
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. "[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.
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.
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.
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.
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."
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.
On May 16, 2016, Lemberger filed a petition for review in
this court. On October 11, 2016, we granted the petition.
STANDARD OF REVIEW
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
"[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.
"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).
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, ...