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State v. Jeninga

Court of Appeals of Wisconsin, District II

February 21, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Simon E. Jeninga, Defendant-Appellant.

          APPEAL from a judgment and an order of the circuit court for Walworth County Nos. 2016CF62 2016CF162: DAVID M. REDDY, Judge. Affirmed.

          Before Blanchard, Kloppenburg and Fitzpatrick, JJ.

          FITZPATRICK, J.

         ¶1 Simon Jeninga appeals a judgment of conviction and an order denying postconviction relief entered by the Walworth County Circuit Court. Jeninga was convicted of one count of second-degree sexual assault of a child and one count of possession of child pornography pursuant to his guilty pleas to those charges. Jeninga filed a postconviction motion to withdraw his plea, alleging that his trial counsel was constitutionally ineffective for not filing a motion to suppress evidence that was found on his cell phone. Following a Machner[1] hearing, the court denied Jeninga's postconviction motion. We affirm based on our conclusion that Jeninga has not adequately supported his allegation that, absent trial counsel's ineffective assistance, he would not have entered any plea and, instead, would have gone to trial. BACKGROUND

         ¶2 The following undisputed facts are gleaned from the record. We discuss only those facts necessary to place in context Jeninga's argument that he would not have entered any plea and, instead, would have gone to trial had the evidence from his cell phone been suppressed.[2]

         ¶3 As part of an investigation into an alleged sexual assault of a child by Jeninga, police seized Jeninga's cell phone and obtained a search warrant to search its contents. Forensic analysis of Jeninga's cell phone revealed evidence of child pornography.

         ¶4 Jeninga was charged with one count of repeated sexual assault of a child and ten counts of possession of child pornography. The State moved to join the two cases. Jeninga's trial counsel filed an opposition to the joinder. The circuit court granted the State's motion. Jeninga's trial counsel did not file a motion to suppress the evidence of child pornography obtained from Jeninga's cell phone.

         ¶5 Jeninga and the State negotiated a plea agreement, pursuant to which Jeninga pled guilty to an amended charge of second-degree sexual assault of a child under the age of sixteen and one count of possession of child pornography. The nine other counts of possession of child pornography were dismissed but read in to the record for sentencing purposes. The State agreed to recommended sentences for the two counts that would result in a total of ten years of initial confinement followed by ten years of extended supervision. The defense remained free to argue for any sentence. The circuit court accepted Jeninga's pleas and followed the State's recommendation, sentencing Jeninga to ten years of initial confinement followed by ten years of extended supervision on the second-degree sexual assault count, and a concurrent term of three years of initial confinement followed by three years of extended supervision on the child pornography count.

         ¶6 Jeninga filed a motion for postconviction relief contending that his trial counsel was constitutionally ineffective for failing to file a motion to suppress the evidence found on Jeninga's phone. The postconviction motion alleged that, had trial counsel filed a motion to suppress and had the evidence been excluded, Jeninga would not have entered any plea but, instead, would have gone to trial. In the motion, Jeninga's postconviction counsel stated that, at a Machner hearing, Jeninga "will testify" that, had a suppression motion been filed and the evidence suppressed, "he would not have entered any plea" and would have gone to trial. Jeninga did not submit an affidavit in support of his postconviction motion.

         ¶7 The circuit court granted Jeninga's request for a Machner hearing, at which his trial counsel gave the following pertinent testimony:

Q: Would you agree that the joinder [of the sexual assault and child pornography cases] weakened Mr. Jeninga's chances of success on the sexual assault charge?
A: Yes, which is why I fought the j oinder motion.
Q: And did the joinder decision affect Mr. Jeninga's decision on whether to go to trial or to take pleas?
A: I believe it did.
Q: And did it affect your advice as to ...

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