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State v. Sholar

Supreme Court of Wisconsin

May 18, 2018

State of Wisconsin, Plaintiff-Respondent,
v.
Lamont Donnell Sholar, Defendant-Appellant-Petitioner.

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 377 Wis.2d 337, 900 N.W.2d 872 (2017 - unpublished)

          REVIEW of a decision of the Court of Appeals Circuit Court Milwaukee County L.C. No. 2011CF4807 Rebecca F. Dallet and Thomas J. McAdams Judge.

          For the defendant-appellant-petitioner, there were briefs filed by and an oral argument by Hannah Schieber Jurrs, assistant state public defender.

          For the plaintiff-respondent, there was a brief filed by Lisa E.F. Kumfer, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Lisa E.F. Kumfer.

          REBECCA GRASSL BRADLEY, J.

         ¶1 Lamont Donnell Sholar seeks review of the court of appeals decision[1] affirming the circuit court's[2] order ruling that his trial counsel's failure to object to an exhibit sent to the jury during deliberations constituted ineffective assistance only with respect to one of the six counts for which he was convicted. He contends that his trial counsel's ineffective assistance should result in vacatur of all six of his convictions. He also asserts the State forfeited its right to argue the prejudice prong of the ineffective assistance test at his Machner hearing because the State did not petition this court for review after the court of appeals' original decision remanding for a Machner hearing.[3] We affirm.

         ¶2 We hold that circuit courts reviewing claims of ineffective assistance of counsel following multiple-count trials may conclude that deficient performance prejudiced only one of the multiple convictions. Strickland v. Washington, 466 U.S. 668, 695-96 (1984), clearly contemplates such a result and does not require reversal on all counts when the prejudice proven affected only a single count. We further hold the State did not forfeit its right to challenge the prejudice prong of the ineffective assistance test when it did not petition this court for review following the court of appeals' decision in Sholar I. The issue decided adversely to the State in Sholar I was not whether prejudice existed, but whether Sholar was entitled to a Machner hearing. If the State wanted to challenge whether a Machner hearing should occur at all, it would have needed to petition this court for review, but no petition was needed to contest prejudice. Finally, we reiterate that the Strickland prejudice test is distinct from a sufficiency of the evidence test. I. BACKGROUND

         ¶3 In late September 2011, Sholar and his life-long friend, Shawnrell Simmons, were arrested after two victims, E.C. and S.G., separately reported to police that they had been victims of sex trafficking by Sholar (and that other girls had been trafficked by Simmons) out of several motel rooms near the Milwaukee airport, including the Econolodge on 13th Street. The State charged both men, but their cases proceeded separately. The State charged Sholar with six counts: (1) trafficking a child (victim E.C. who was 17 years old at the time); (2) soliciting a child for prostitution (E.C); (3) pandering/pimping (E.C); (4) human trafficking (victim S.G., who was 21 years old at the time); (5) second-degree sexual assault, use of force (S.G.); and (6) pandering/pimping (S.G.).[4]

         ¶4 Sholar pled not guilty, and in April 2012 his case went to trial. Both victims testified. During E.C.'s testimony, the jury heard:

• E.C. met Simmons through a mutual friend after which he pressured her to work for him as a prostitute. She initially refused, but, after two of her friends went to work for Simmons, and because she was desperate for money, she called Simmons. He sent her to work for Sholar because Simmons already had enough girls prostituting for him.
• Sholar picked up E.C. and her 13-year-old friend and both girls went to work for Sholar.
• Sholar, other girls, or E.C. would take "half-naked" pictures, which Sholar posted on the "Backpage" website to solicit customers.[5] In the pictures, E.C. wore lingerie or a bra and underwear.
• E.C. identified six Backpage ads, each of which had multiple pictures, depicting the girls Sholar and Simmons were trafficking-including several ads with pictures of E.C. and S.G. The ads had titles such as "Chula Ready For You-19, " "Fun And Sexy Red-22, " "Let's Sparkle Dazzle You-21, " and "Roxy Limited Time Only Specials-19." The ads listed a contact phone number.

         The jury learned through other witnesses that the contact phone number appearing in the ads matched the phone Sholar had in his possession when he was arrested.

         ¶5 E.C.'s testimony also revealed:

• There were more Backpage ads in addition to the six previously discussed and the two additional ones E.C. identified depicting Simmons' trafficking victims, "Nicki, "[6] and another girl whose name E.C. could not remember.
• An "out-call" involved Sholar driving her to a customer who would pay her for sex while an "in-call" meant the customer would come to her motel room and pay her for sex.
• Simmons and Sholar worked together at times to transport girls to out-calls.
• Sholar gave E.C. a cell phone to use for the customer calls and to set up appointments. When the customer arrived, he would text her phone and she would either meet him and bring him to her motel room or send him her room number.
• During every appointment, which she estimated at possibly 200, she had sexual intercourse with the customer for money. She got the money upfront, $80-$100 for half-an-hour, $150-$200 for an hour. She would hide the money, give the man a condom that Sholar supplied, and have sex. When the man left, she texted Sholar so he could come back to the room and take the money.
• Some nights she only had one or two calls, but could have as many as seven to ten.
• One time she worked a party with two girls working for Simmons after which Sholar and Simmons split the money.
• When S.G. started working for Sholar, E.C. took pictures of S.G. that Sholar posted on Backpage.
• E.C. was afraid of Sholar and the way he looked at her and screamed at her. Sometimes he punched her, which left bruises. A picture of one of her bruises was shown to the jury. He threatened her and told her she could not leave. She testified she wanted to stop prostituting "[r]ight away" but she did not have anywhere to go and she was scared. She told Sholar that she wanted to stop but he said he would find her if she tried to leave. He sent her threatening texts if he could not find her. He showed up at various places kicking and banging on doors looking for her.
• Sholar "was prostituting girls every age. The lowest age was 13." She saw three other girls who stayed at the motel-S.G., Roxy, and Nicki-also give Sholar money. Depending on the month, Sholar had up to four or five girls working for him.

         ¶6 E.C. testified that her work as Sholar's trafficking victim ended when E.C. borrowed her friend A.F.'s car and Sholar suggested instead of returning the car, they should sell it. E.C. said Sholar asked her if A.F. had anything else they could sell and E.C. told him about a 50-inch television she had seen in A.F.'s apartment. Sholar, E.C., and another man known as Cookie drove to A.F.'s home in Sholar's red car. E.C. waited in the car and Sholar and Cookie brought down the television, and some hats and shoes stolen from A.F.'s apartment. They put the television in the back seat and the other items in the trunk. Sholar went back into the apartment to steal a smaller television, but A.F. came home, caught Sholar in the act, and called police.

         ¶7 E.C. testified that before police arrived, she drove Sholar's car with the stolen goods to the house where "Chrissy, " the mother of Sholar's child, resided. When E.C. arrived, Chrissy told her where to park the car, and then E.C. headed back to the Econolodge because Nicki (one of Simmons' trafficking victims) called her and said the police were at the motel threatening to take Nicki's children if E.C. did not come back.

         ¶8 E.C. told the jury that when she returned to the Econolodge, the police had left, but the desk clerk gave her a police business card with a detective's number. E.C. called the number, but the detective was not available. The next day, the police came to the Econolodge and arrested E.C. for the burglary. She told them where Sholar's car was parked with the stolen television. The prosecutor then asked E.C. to look at several photographs, which E.C. identified as pictures of Sholar's red car with the stolen television in the back seat, and the stolen hats and shoes in the trunk. E.C. next explained that she told Detective Barbara O'Leary about working as Sholar's prostitute. When asked why E.C. never called police for help to leave Sholar, E.C. said she was scared. She said that even if Sholar was in jail, Simmons could still hurt her. She testified Simmons previously hurt her: he "smacked" and "choked" her, "spit on [her] face, " and held a gun to her head. She also disclosed that Simmons sexually assaulted her. She explained that Sholar also had sex with her but that was expected because she worked for him. E.C. testified that Sholar had sex with her almost every day.

         ¶9 S.G. also testified. When she first took the stand, she was scared and the transcript indicates she was crying. She said she was afraid that Sholar would harm her or her family because she was testifying against him. The prosecutor had to ask her background questions to calm her. After regaining composure, S.G. told the jury:

• She met Sholar, whom she called "L, " when he came to help her roommate move out. Sholar seemed "very nice" and "was continuously complimenting" her and her friend. After that meeting, they started texting. At the end of July 2011, Sholar came over to "hang out for a little bit" at her place.
• Sholar started telling her and her friend about how "he had some girls that would, you know, go and do stuff for money" and that "he was a pimp." S.G. said they thought he was joking. She felt comfortable with Sholar because he was acting like a good friend, popping up when she needed a ride, and helping out "kind of like Superman." As a result, she "confided in him about where [her] family stayed, " about the struggles she had experienced in life, and about how she had worked as an exotic dancer in the past.
• After getting close to Sholar, he started telling her she could make $300 if she gave private half-hour dances for people he knew. She thought this would be an easy way to make a lot of money and agreed to the dancing. Her first job went smoothly and was just dancing. Later, however, Sholar took pictures of her at Econolodge with his cell phone and posted them on Backpage. Sholar gave her a cell phone and she started getting texts and calls from men who saw her Backpage ads and wanted to pay her to have sex.
• Sonya was the name S.G. had used when she danced. S.G. identified two Backpage ads, one depicting her and E.C. together, titled "Satin & Silk-21" and an ad with multiple pictures of S.G. labeled "Miss Fiery Sonya-21."
• She was shocked and told Sholar she did not want to do this, but he threatened her, saying he would harm her family, harm her, and get her evicted. Sholar told her he had broken the jaw of a girl who tried to get away from him.
• Sholar was controlling and mean and if she did not listen to him, he threatened to kill her and her family. He would remind her he knew where her family lived. He showed up at her parents' home looking for S.G. and threatened her mother.
• Sholar set the price men paid to have sex with her, and she had sex with 10-15 men a night at $300/hour. These encounters were usually at the Econolodge, but sometimes Sholar took her to the men for "out-calls." She did this for about two weeks. She would take the money when the man arrived, hide it, and then have sexual intercourse with the man. Sometimes the man wanted to fulfill "weird fantasies" and that would require S.G. to call Sholar, who would tell her how much extra money the man needed to pay to complete those requests.
• Sholar gave S.G. food, drugs, alcohol, and clothes. She testified he provided her with Ecstasy, which she took because she could not have done "any kind of that stuff" sober.
• Occasionally, she and another girl would work together and have sex with the same man. She did this once with E.C. and once with Nicki, who worked for Simmons.
• Although S.G. did not want to have sex with Sholar, this happened "[p]retty often." She testified about one particular night when Sholar wanted to have sex with her, but she was tired. She tried to go to the bathroom to avoid it, but Sholar grabbed her arm "[i]n a way that made me not want to fight back, " pushed her onto the bed, and forced penis-to-vagina sex on her. After that time, she did not fight Sholar when he wanted to have sex with her.
• When S.G.'s boyfriend got out of jail, she tried to leave Sholar, but Sholar threatened to tell S.G.'s boyfriend how she "was sleeping with so many men." S.G. said she agreed to come back to Sholar because she did not want her boyfriend to know what she was doing. Sholar agreed to tell her boyfriend that Sholar was selling drugs for S.G., so S.G. would not have to sell them herself.
• Then one day, S.G. left the cell phone Sholar had given her with a friend thinking Sholar would be so mad, it would give S.G. a way out of the situation. S.G. went home and fell asleep. While she was asleep, Sholar called her repeatedly, leaving threatening voicemails, said he was going to set her house on fire, went to her roommate's place of work, threatened to get the roommate fired, and told the roommate she should kick S.G. out of the house or Sholar would get them both evicted and set the house on fire. Sholar came back to S.G.'s house and pounded on her ...

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