State v. Victor L. Yancey, Jr.

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 4, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos.
2022AP1765-CR Cir. Ct. Nos. 2014CF4078
2015CF1796
2022AP1766-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

VICTOR YANCEY, JR.,

DEFENDANT-APPELLANT.

APPEALS from orders of the circuit court for Milwaukee County:
MARK A. SANDERS, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Colón, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2022AP1765-CR
2022AP1766-CR

¶1 PER CURIAM. In this consolidated appeal, Victor Yancey, Jr., pro
se, appeals the orders denying his postconviction motions. On appeal, Yancey
contends that: (1) his constitutional right to a speedy trial was violated; (2) he was
deprived of effective assistance of counsel; (3) prosecutorial misconduct occurred;
(4) he was denied the right to represent himself at trial; and (5) the circuit court
erroneously exercised its discretion by allowing a police officer to testify. For the
reasons discussed below, we affirm.

BACKGROUND

¶2 On August 21, 2014, police responded to a shots fired complaint.
According to the criminal complaint, Larry1 told police that Yancey, who he
knew, came to his house, knocked on his door, and told him to come outside.
Larry opened the door and saw several other people. One of the men, Andrew
Kendle, shot into Larry’s house multiple times. Yancey was charged with
attempted first-degree intentional homicide while using a dangerous weapon and
endangering safety while using a dangerous weapon, both as a party to a crime.

¶3 While Yancey was in jail, he called Larry and offered him $500 not
to go to court to testify. The State charged Yancey in a separate case with
intimidation of a victim as a party to a crime and attempted bribery of a witness.2

1
Pursuant to WIS. STAT. RULE 809.86(4) (2021-22), we use a pseudonym instead of the
victim’s name. All references to the Wisconsin Statutes are to the 2021-22 version unless
otherwise noted.
2
The intimidation of a victim count was originally charged as a felony and later
amended to a misdemeanor.

2
Nos. 2022AP1765-CR
2022AP1766-CR

¶4 A multiple day trial took place. In the afternoon of the third day of
trial, Yancey opted to represent himself. In closing argument, Yancey argued in
relevant part that the photos of the house where the alleged shooting took place did
not show bullet holes, but rather drill holes, and the officers had lied under oath.

¶5 The jury found Yancey guilty of first-degree recklessly endangering
safety while using a dangerous weapon, as a party to the crime, as a lesser
included offense of attempted first-degree intentional homicide. The jury also
found Yancey guilty of endangering safety while using a dangerous weapon, as a
party to the crime, intimidation of a victim, as a party to the crime, and attempted
bribery of a witness.

¶6 Yancey filed a motion for postconviction relief. Yancey’s motion
primarily asserted that: (1) he was denied his constitutional right to a speedy trial;
(2) he was deprived of effective assistance of counsel; (3) prosecutorial
misconduct occurred; (4) he was denied the right to represent himself; and (5) the
circuit court erroneously exercised its discretion by allowing an officer to testify.

¶7 After briefing, the circuit court denied Yancey’s motion without an
evidentiary hearing. The court found that Yancey’s speedy trial claim was
conclusory, unsupported, and failed “to allege how any of the delay was
attributable to the State.” The court next found that Yancey’s ineffective
assistance of counsel allegations failed because he did not demonstrate prejudice
and his theory that police falsified evidence was “completely unsupported.” In
addition, the court found that Yancey’s prosecutorial misconduct and erroneous
exercise of discretion claims were “conclusory, undeveloped, and lacking in any
legal or factual support.” Lastly, the court found that Yancey’s claim that he was
denied the right to represent himself was contradicted by the record.

3
Nos. 2022AP1765-CR
2022AP1766-CR

¶8 Yancey now appeals. Additional relevant facts are referenced
below.

DISCUSSION

I. Speedy Trial

¶9 On appeal, Yancey first renews his claim that his constitutional right
to a speedy trial was violated.

¶10 The Sixth Amendment to the United States Constitution and article I,
section 7 of the Wisconsin Constitution guarantee an accused the right to a speedy
trial. State v. Urdahl, 2005 WI App 191, ¶11, 286 Wis. 2d 476, 704 N.W.2d 324.
If a speedy trial violation has occurred, the charges against the defendant must be
dismissed. Barker v. Wingo, 407 U.S. 514, 522 (1972). Whether a defendant has
been denied the right to a speedy trial is a question of law that we review
independently. Urdahl, 286 Wis. 2d 476, ¶10. We accept any findings of fact
made by the circuit court unless clearly erroneous. Id.

¶11 To determine whether a defendant’s right to a speedy trial has been
violated, we balance four factors: (1) the length of the delay; (2) the reasons for
delay; (3) the defendant’s assertion of the right; and (4) the prejudice to the
defendant. State v. Borhegyi, 222 Wis. 2d 506, 509, 588 N.W.2d 89 (Ct. App.
1998).

¶12 The first factor—the length of the delay—is a “triggering
mechanism used to determine whether the delay is presumptively prejudicial.”
Urdahl, 286 Wis. 2d 476, ¶12. A post-accusation delay is considered to be
presumptively prejudicial when it approaches one year. Id. Here, Yancey appears
to have been initially arrested on September 12, 2014, and his trial commenced on

4
Nos. 2022AP1765-CR
2022AP1766-CR

January 4, 2016.3 As the State concedes, this delay was over a year, which is
presumptively prejudicial. Thus, we review the other three factors.

¶13 The second and third factors—the reasons for the delay and the
assertion of the right—we review together as they are interrelated in this case.
Borhegyi, 222 Wis. 2d at 509.

¶14 As stated above, Yancey was arrested on September 12, 2014. The
criminal complaint for the attempted murder case was filed September 16, 2014.
On November 13, 2014, Yancey was arraigned, and he requested a speedy trial.
According to Yancey, his attorney withdrew his request for a speedy trial on
February 10, 2015, and Yancey wrote to the circuit court objecting to the waiver
of his speedy trial rights. Subsequently, on June 5, 2015, Yancey requested that
the court remove his appointed attorney from his case, which the court granted on
June 22, 2015. On September 23, 2015, Yancey’s second appointed counsel
demanded a speedy trial and agreed that a trial date of December 7, 2015 would
satisfy Yancey’s demand. On November 4, 2015, Yancey’s second appointed
counsel withdrew because Yancey had fired him on a different matter and there
was a breakdown in communication. On November 16, 2015, Yancey waived his
speedy trial demand so that his new attorney had enough time to prepare for trial.
Yancey’s trial began January 4, 2016.

3
We note that the State calculates the delay in this case from the time of the filing of the
complaint to the date the trial began. The State does not explain or cite any authority why the
period of delay should be measured from the date of the complaint rather than the date of
Yancey’s arrest. See State v. Borhegyi, 222 Wis. 2d 506, 511-12, 588 N.W.2d 89 (Ct. App.
1998) (calculating the period of delay from the date of the arrest to the date of the trial where the
State did not explain why the period of delay should be calculated from the date of the
complaint). Accordingly, we measure the delay from the date of Yancey’s arrest to the date of
his trial.

5
Nos. 2022AP1765-CR
2022AP1766-CR

¶15 The record reflects that the majority of the delay in this case was the
result of Yancey’s decision to repeatedly terminate his counsel. A delay caused by
the defendant “is not counted” when considering the reasons for a delay. Urdahl,
286 Wis. 2d 476, ¶26. The remainder of the delay was reasonably attributed to the
ordinary demands of the judicial system. “[D]elays caused by the government’s
negligence or overcrowded courts” are counted, but they “are weighted less
heavily.” Id.

¶16 Further, while Yancey’s first attorney demanded a speedy trial,
according to Yancey, this request was withdrawn, and the record reflects that he
later waived his speedy trial rights. Accordingly, we are not persuaded that the
second or third factor weighs in favor of a finding of a violation of Yancey’s
speedy trial rights. Even if we attributed all of the delay to the State, Yancey does
not demonstrate, nor does the record reflect “[a] deliberate attempt by the
government to delay the trial in order to hamper the defense[.]” Id.

¶17 In regards to the fourth factor, prejudice, “[c]ourts consider [this
factor] with reference to the three interests that the right to a speedy trial protects:
prevention of oppressive pretrial incarceration, prevention of anxiety and concern
by the accused, and prevention of impairment of defense.” Id., ¶34. Yancey does
not contend that his pretrial incarceration was oppressive or that he was anxious or
concerned. Rather, Yancey contends that the delay in starting his trial allowed
police time to “add ‘5’ entry holes” to the residence to “frame” him. This also
“stalled [his] case to buy time … for [the] landlord and others to change the vinyl
exterior siding to switch it to aluminum siding. And add ‘5’ entry holes.”

¶18 These allegations are unsupported by the record. During the trial,
Yancey’s attorney explained outside the presence of the jury that he retained an

6
Nos. 2022AP1765-CR
2022AP1766-CR

investigator to look into Yancey’s claim that the house’s siding was changed or
altered in order to frame Yancey. Trial counsel said that “[t]he investigator went
out and talked to the homeowner, who actually lived there. He is the landlord.
And the answer was no. The siding has never been changed. Nothing’s been done
with it whatsoever.” Yancey’s attorney additionally noted that “we found a
neighbor who lives nearby and actually heard the shooting, went over to the event
that evening, [and] saw the bullet holes.” Counsel said that the neighbor “has
lived in the neighborhood about thirteen years, I think she said, and herself knows
that the siding was not changed, tampered with, or whatever.” As the circuit court
found, Yancey’s “beliefs that the police falsified evidence are completely
unsupported.” Thus, the fourth factor does not weigh in favor of a finding of a
violation of Yancey’s speedy trial rights.

¶19 Therefore, examining the totality of circumstances, we conclude that
Yancey’s constitutional right to a speedy trial was not violated and the circuit
court properly denied Yancey relief. Significantly, Yancey’s only claim of
prejudice—that the delay allowed the siding to be changed and holes to be
added—is unsupported.

II. Ineffective Assistance of Counsel

¶20 Yancey next contends that he was deprived of effective assistance of
counsel.

¶21 To establish ineffective assistance of counsel, a defendant must
prove both that counsel’s performance was deficient and that the defendant was
prejudiced by the deficient performance. Strickland v. Washington, 466 U.S.
668, 687 (1984). If the defendant fails to adequately show one prong of the test,
we need not address the second. Id. at 697.

7
Nos. 2022AP1765-CR
2022AP1766-CR

¶22 When deciding whether a defendant is entitled to an evidentiary
hearing based on an ineffective assistance of counsel claim, we independently
determine “whether the motion on its face alleges sufficient material facts that, if
true, would entitle the defendant to relief.” State v. Ruffin, 2022 WI 34, ¶27, 401
Wis. 2d 619, 974 N.W.2d 432. “Whether the record conclusively demonstrates
that the defendant is entitled to no relief is also a question of law we review
independently.” Id. “If the motion does not raise facts sufficient to entitle the
defendant to relief, or if it presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the circuit
court has the discretion to grant or deny a hearing.” Id., ¶28.

¶23 As the circuit court observed, Yancey’s claims of ineffective
assistance of counsel are “difficult to decipher[.]” From what we can discern, in
his motion for postconviction relief, Yancey asserted that his first appointed
attorney was ineffective for not giving him discovery and cancelling his speedy
trial demand.4 Yancey contends that he was prejudiced because his trial was
delayed, which allowed “tampering and fabricating evidence of house siding.”
Relatedly, Yancey also asserted that his third appointed attorney was ineffective
for not investigating his claims that the siding on the house was changed.

¶24 The circuit court found that Yancey failed to sufficiently explain,
why, even if true, his allegations “would have been reasonably probable to change

4
On appeal, Yancey raises two additional ineffective assistance of counsel arguments
with respect to his first attorney—that his attorney was ineffective for advising him to contact
Larry, and not filing a motion to compel discovery. Yancey did not raise these claims in his
motion, and thus, they are not before us on appeal. See State v. Allen, 2004 WI 106, ¶27, 274
Wis. 2d 568, 682 N.W.2d 433 (stating that an appellate court reviews “only the allegations
contained in the four corners of [the defendant’s] postconviction motion, and not any additional
allegations that are contained in [the defendant’s brief]”).

8
Nos. 2022AP1765-CR
2022AP1766-CR

the outcome of the trial[.]” We agree. Further, as the circuit court observed,
Yancey’s “beliefs that the police falsified evidence are completely unsupported,”
and his “claims about the exterior of the house appearing to have changed in
different photographic exhibits completely ignore more plausible explanations[.]”
As discussed above, Yancey’s attorney told the court that he hired an investigator
to look into Yancey’s claim about the house being re-sided, and the investigator
learned from the landlord and a neighbor that the siding had not been changed. In
addition, the neighbor witnessed the bullet holes shortly after the shooting.

¶25 Yancey also appears to argue that his third attorney failed to
interview and call a witness, Craig Ford, to testify. He asserts that his attorney
should have asked Ford if he planted four bullets at the scene. Yancey, however,
points to no evidence that Ford planted four bullets at the scene, why Ford would
have done so, or that Ford would have confessed to doing so had he testified at
trial.

¶26 Lastly, Yancey appears to argue that his third attorney was
ineffective in multiple other respects, including: not moving to get police memo
books; not seeking mental health records; not investigating a news report about the
shooting; not having a forensic pathologist and a ballistics expert view the scene;
not filing a Denny motion;5 conceding his guilt; not moving to strike two jurors
for cause; not questioning the owner of the house; not objecting to various things
at trial; and, not allowing Yancey to participate in voir dire.

5
State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984).

9
Nos. 2022AP1765-CR
2022AP1766-CR

¶27 These claims are conclusory and undeveloped. For example, as the
State observes, Yancey does not explain how the police memo books or mental
health records would have mattered; how investigating the news report would
have mattered; what a forensic pathologist or ballistics expert would have found or
testified to; who counsel would have alleged committed the crimes if he had filed
a Denny motion; how exactly Yancey believed his attorney conceded his guilt; or
why the jurors were biased. Thus, we decline address these claims further. State
v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶28 In sum, we conclude that the circuit court properly denied Yancey’s
ineffective assistance of counsel claims without an evidentiary hearing.

III. Prosecutorial Misconduct

¶29 Yancey next alleges that he is entitled to relief based on
prosecutorial misconduct.

¶30 “Prosecutorial misconduct ‘can rise to such a level that the defendant
is denied his or her due process right to a fair trial.’” State v. Lettice, 205 Wis. 2d
347, 352, 556 N.W.2d 376 (Ct. App. 1996) (citation omitted). However, reversing
a conviction on the basis of prosecutorial misconduct is a “drastic step,” State v.
Ruiz, 118 Wis. 2d 177, 202, 347 N.W.2d 352 (1984), and is reserved for cases
where the misconduct “poison[ed] the entire atmosphere of the trial,” Lettice, 205
Wis. 2d at 352 (citation omitted). “The determination of whether prosecutorial
misconduct occurred and whether such conduct requires a new trial is within the
[circuit] court’s discretion.” Id. This requires a balancing of multiple factors,
including:

the defendant’s interest in being tried on evidence validly
before the jury; the public’s interest in having the guilty

10
Nos. 2022AP1765-CR
2022AP1766-CR

punished; the public’s interest in not burdening the
administration of justice with undue financial or
administrative costs; the public’s interest that the judicial
process shall both appear fair and be fair in fact; and the
interest of the individuals involved—the witnesses and
family of the victim—not to be subjected to undue trauma,
embarrassment or inconvenience.

Ruiz, 118 Wis. 2d at 202.

¶31 Yancey contends that the initial prosecutor involved in his attempted
murder case committed misconduct when he “signed off” on the criminal
complaint. Yancey also contends that the prosecutor who tried his cases sought
“sympathy for jury to obtain [a] conviction for nephew [sic].”

¶32 The circuit court denied these claims, concluding that they were
“conclusory, undeveloped, and lacking in any legal or factual support.” We agree.
Yancey’s prosecutorial misconduct claims in his postconviction motion are
conclusory and undeveloped. Accordingly, we decline to address them. Pettit,
171 Wis. 2d at 646-47. We will not develop arguments for a party. Id. at 647
(stating that “[w]e cannot serve as both advocate and judge”).

IV. Right to Self-Representation

¶33 Yancey additionally argues that he was denied his right to represent
himself at trial.

¶34 A defendant has the right to conduct his or her defense under both
the Sixth Amendment of the United States Constitution and article I, section 7 of
the Wisconsin Constitution. State v. Klessig, 211 Wis. 2d 194, 203, 564 N.W.2d
716 (1997). “A defendant who wishes to invoke the right to self-representation
must ‘clearly and unequivocally’ inform the [circuit] court of this decision.” State
v. Egerson, 2018 WI App 49, ¶11, 383 Wis. 2d 718, 916 N.W.2d 833 (citation

11
Nos. 2022AP1765-CR
2022AP1766-CR

omitted). Whether a defendant’s right to self-representation is violated is a
question of law that we review independently. Id., ¶10.

¶35 Yancey contends that the circuit court violated his request to
represent himself during trial, which prevented him from questioning Larry and
Larry’s girlfriend’s mother, who was present at the time of the shooting. Yancey’s
claim is disproven by the record. While Yancey initially requested to represent
himself prior to the testimony of Larry and Larry’s girlfriend’s mother, ultimately
Yancey chose to proceed with counsel. When Larry and Larry’s girlfriend’s
mother were cross-examined by defense counsel, Yancey had already withdrawn
his request to represent himself.

¶36 Subsequently, after Larry and Larry’s girlfriend’s mother testified,
Yancey again told the circuit court he wanted to represent himself, which the court
granted. After the court granted Yancey’s request to represent himself, Yancey
chose to only call one witness, Officer Michelle Angiolo. The court had
previously advised Yancey that he could recall any witnesses if necessary.
Yancey does not claim that he attempted to call Larry or Larry’s girlfriend’s
mother and the court refused. Yancey’s claim therefore is insufficient to entitle
him to a hearing.

V. Erroneous Exercise of Discretion

¶37 Lastly, Yancey contends that the circuit court erroneously exercised
its discretion by allowing Officer Patrick Elm to testify. At trial, Officer Elm
testified that he specializes in fugitive apprehension, and in September 2014, he
was looking for Yancey. When Yancey saw Officer Elm in a marked squad car,
he immediately walked away. In Yancey’s postconviction motion, he argued that
Officer Elm’s testimony was prejudicial because Officer Elm could not explain

12
Nos. 2022AP1765-CR
2022AP1766-CR

why Yancey walked away without disclosing that Yancey had open warrants or
“illegal items.”

¶38 On appeal, Yancey abandons the argument he made in his
postconviction motion.6 Instead, Yancey contends that the person who identified
himself as Officer Patrick Elm at trial was not in fact Officer Elm. Yancey alleges
that there was an Officer Elm talking to someone from Fox 6 News, and that was
not the Patrick Elm who testified. Yancey, however, does not present any
evidence demonstrating the person who identified himself as Officer Patrick Elm
at trial is not really Officer Patrick Elm. Thus, Yancey is not entitled to relief on
this claim.

CONCLUSION

¶39 Therefore, for all of the reasons above, we conclude that the
postconviction court properly denied Yancey’s motions without a hearing and we
affirm. Yancey’s claims are conclusory, undeveloped, or disproved by the record.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

6
See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct.
App. 1998) (concluding issues raised in the circuit court but not raised on appeal are deemed
abandoned).

13