State v. Casey J. Cameron

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.
December 26, 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 No. 2022AP1989-CR Cir. Ct. No. 2020CF48

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CASEY J. CAMERON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Winnebago County: SCOTT C. WOLDT, Judge. Affirmed.

Before Gundrum, P.J., Grogan and Lazar, JJ.

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).
No. 2022AP1989-CR

¶1 PER CURIAM. Casey J. Cameron appeals from a judgment of
conviction for felony murder and six counts of recklessly endangering safety
entered upon his plea of no contest and from the circuit court’s denial of his
postconviction motion for relief. Cameron contends that the State engaged in
vindictive prosecution by bringing additional charges against him after he refused
to waive his statutory right to a timely filed information. For the following
reasons, we affirm.

¶2 According to the complaint filed against him, Cameron robbed a bar
at gunpoint in the early hours of October 14, 2019. In the course of committing
this robbery, he shot and killed a patron of the bar who was attempting to leave.
There were five other patrons inside the bar at the time, several of whom spoke
with police and provided descriptions of the incident and the robber. Police
identified Cameron as a suspect based on a tip that he shared physical
characteristics of the suspect, was married to an employee of the bar that had been
robbed, had scratches over his eye after the incident (as the perpetrator was
expected to have), and had a roommate whose vehicle matched a description of the
car the perpetrator used to drive away from the scene. An officer followed
Cameron while he was driving, and collected a DNA sample from a cigarette that
Cameron threw out of his car. The DNA matched a sample found on a bandana
left at the scene by the perpetrator and another sample taken from under the
fingernails of the murder victim, who had had a struggle with the perpetrator
before he was shot.

¶3 The State initially charged Cameron with three felony offenses—
first-degree intentional homicide, armed robbery, and first-degree recklessly
endangering safety—but the State failed to file an information within thirty days
of the December 9, 2019 preliminary hearing as required by WIS. STAT.

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No. 2022AP1989-CR

§ 971.01(2) (2021-22).1 Cameron filed a motion to dismiss this case on
January 10, 2020. On January 13, the prosecutor sent an email to Cameron’s
counsel saying, “Before I concede (which I have to), is there any wiggle room
here? It’s just going to be refiled. If that benefits your client, great. But if it’s just
to make a power move, let’s talk.” The prosecutor attested that she spoke directly
with Cameron’s counsel after sending that email, and that the conversation left her
with the impression that the defense was concerned about potential appellate
issues that might result from withdrawing its motion to dismiss. In a subsequent
email, the prosecutor offered that, if Cameron would withdraw the motion, she
would “make a record … as to [his] rationale behind this decision to protect the
appellate record[,] [e]ssentially saying that it is in [Cameron]’s best interest not to
have additional felonies charged, and so [he is] withdrawing the motion.” The
next day, after Cameron did not withdraw his motion, the State moved to dismiss
the original case and filed a new criminal complaint, charging Cameron with the
three originally charged felonies along with four additional felony counts of first-
degree recklessly endangering safety.

¶4 Cameron ultimately pleaded no contest to a reduced charge of felony
murder and six counts of first-degree recklessly endangering safety. The circuit
court accepted his plea and found him guilty. The court later sentenced Cameron
to forty years of initial confinement and fifteen years of extended supervision.

¶5 Cameron filed a postconviction motion for relief asserting that the
State violated his right to due process by engaging in prosecutorial vindictiveness.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP1989-CR

Specifically, he argued that the State “retaliated against him because he exercised
a right protected by WIS. STATS. § 971.01(2),” charging him with additional
felonies “only because [his] motion to dismiss was not withdrawn.” Cameron
further argued that, under State v. Kelty, 2006 WI 101, ¶23, 294 Wis. 2d 62, 716
N.W.2d 886, his claim was not waived by his plea.

¶6 The circuit court denied Cameron’s motion, concluding that he
failed to prove either a presumption of vindictiveness or actual vindictiveness. It
found, as a matter of fact, that “[a]t worst,” from Cameron’s perspective, the State
did not file the additional charges in its original case because it “[did]n’t want to
file a second complaint, go through a second preliminary hearing on this case”; it
filed the additional charges in the new case because it had to “jump through these
hoops” anyway, not out of a desire to punish Cameron for exercising his rights.
“At best, from the defense perspective,” the court concluded that even if Cameron
had established facts leading to a presumption of vindictiveness, “as long as
there’s probable cause to support the offenses charged, then there’s no
vindictiveness” as a matter of law. Cameron appeals, asserting that the court erred
both in its clearly erroneous factual finding and its characterization of the law.

¶7 The circuit court did not reach the question of whether Cameron’s
plea relinquished his right to appeal based on an alleged vindictive prosecution,
determining that the State waived that issue. This court, however, may affirm
based “on a theory or on reasoning not presented to the [circuit] court,” State v.
Amrine, 157 Wis. 2d 778, 783, 460 N.W.2d 826 (Ct. App. 1990), and we conclude
that Cameron did indeed give up his right to appeal the issue by entering a plea of
no contest. We analyze this legal issue independently. See Kelty, 294 Wis. 2d 62,
¶¶13, 18. Generally, a guilty plea—or a no contest plea—waives all

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No. 2022AP1989-CR

nonjurisdictional claims, including constitutional claims. Id., ¶18. This is known
as the guilty-plea-waiver rule.2

¶8 There is an exception to the rule established by Blackledge v. Perry,
417 U.S. 21 (1974), and its progeny, including Kelty—but we conclude that
exception has no application here. In Blackledge, a defendant who appealed his
conviction for a misdemeanor was then charged with a felony based on the same
conduct underlying the misdemeanor for which he was originally tried and
convicted. 417 U.S. at 23. Although he pleaded guilty to the felony, id., the
United States Supreme Court determined that he retained the right to appeal the
felony conviction, holding that his “plea did not foreclose him from attacking his
conviction” when “the right that he assert[ed] … is the right not to be haled into
court at all upon the felony charge,” a claim that “went to the very power of the
State to bring the defendant into court,” id. at 30-31. A year later, in Menna v.
New York, 423 U.S. 61 (1975), the supreme court again held that a guilty plea did
not bar a defendant’s double jeopardy claim, explaining that “a plea of guilty to a
charge does not waive a claim that judged on its face the charge is one which the
State may not constitutionally prosecute.” 423 U.S. at 62 n.2 (emphasis added).

¶9 A subsequent case, United States v. Broce, 488 U.S. 563, 575
(1989), made the United States Supreme Court’s rule clear. The guilty-plea-
waiver rule did not apply in Blackledge or Menna because “the determination that
the second indictment could not go forward should have been made by the

2
As has been pointed out multiple times, this rule does not necessarily implicate
“waiver,” the intentional giving up of a known right, so much as “forfeiture,” the failure to timely
assert a right; a better label would arguably be the “guilty-plea-forfeiture” rule. See State v.
Kelty, 2006 WI 101, ¶18 n.11, 294 Wis. 2d 62, 716 N.W.2d 886.

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No. 2022AP1989-CR

presiding judge at the time the plea was entered on the basis of the existing
record.” (Emphasis added). In contrast, the defendants in Broce pleaded guilty to
indictments that were constitutional on their face. See id. at 576. The guilty-plea-
waiver rule applied to bar the claims brought on appeal, which required “further
proceedings at which to expand the record with new evidence.” Id. at 575-76.

¶10 This is the rule our state supreme court adopted in Kelty with respect
to double jeopardy violations: “[I]f a court cannot determine, based on the record,
whether there is a double jeopardy violation, a guilty plea will relinquish a
defendant’s opportunity to have her double jeopardy claim resolved on the
merits.” 294 Wis. 2d 62, ¶¶ 26-27. Like courts in other states, we conclude that
this rationale extends to appeals following a plea of no contest or guilty based on
claims of vindictive prosecution. See, e.g., People v. Taylor, 478 N.E.2d 755, 757
(N.Y. 1985) (noting that an allegation of vindictive prosecution is one that may be
forfeited by a guilty plea); Foy v. State, 515 P.3d 659, 663 (Alaska Ct. App. 2022)
(affirming denial of postconviction relief where defendant “filed his application
for post-conviction relief precisely so that he could try to supplement the record
and litigate a prosecutorial vindictiveness claim that he failed to raise prior to his
guilty plea”), aff’d on reh’g, No. A-13454, 2023 WL 3000819 (Alaska Ct. App.
Apr. 18, 2023).

¶11 Cameron attempts to distinguish the federal holding in Broce from
our supreme court’s holding in Kelty, arguing that he can still meet the Kelty
standard because “the violation of Cameron’s due process is evident from the
postconviction and appellate record on its face” and “[t]he Kelty court did not
specifically hold that ‘judged on its face’ and ‘judged on the record at the time the
plea was entered’ are synonymous.” In view of Kelty’s full-throated endorsement
of Broce as being “consistent with Wisconsin case law and properly balanc[ing]

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No. 2022AP1989-CR

the public’s interest in efficient judicial administration with a defendant’s …
rights” and its explicit statement that “[w]hat [the court’s adoption of the Broce
rule] means is that a court will consider the merits of a defendant’s … challenge if
it can be resolved on the record as it existed at the time the defendant pled,” we
reject this argument. See Kelty, 294 Wis. 2d 62, ¶¶ 27, 38. Cameron’s claim of
vindictive prosecution was forfeited by his no contest plea.

¶12 This leaves Cameron with an ineffective assistance of counsel claim
as his only potential avenue to withdrawal of his plea and a new trial. See id., ¶43
(“A guilty plea waives constitutional trial rights, but does not waive … the Sixth
Amendment right to counsel.”). Indeed, in his postconviction motion, Cameron
requested a Machner3 hearing if the circuit court deemed his claim barred by the
guilty-plea-waiver rule. He renews that argument before this court, but he falls far
short of his burden to show both the deficient performance and resulting prejudice
to him necessary to merit granting a hearing on this issue. See Strickland v.
Washington, 466 U.S. 668, 687 (1984) (holding that serious errors by counsel and
resulting prejudice are the two prongs necessary to show constitutionally
ineffective assistance of counsel). Cameron’s argument related to prejudice in his
postconviction motion is totally conclusory, amounting to little more than the
undeveloped, unsupported statement that counsel’s “performance was prejudicial
because there is a reasonable probability that there would have been a different
outcome in this case if [a] motion [to dismiss the case prior to the plea] had been
filed.” If a postconviction “motion does not raise facts sufficient to entitle the
defendant to relief, or if it presents only conclusory allegations,” then it may be

3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2022AP1989-CR

denied without a hearing. State v. Ruffin, 2022 WI 34, ¶28, 401 Wis. 2d 619, 974
N.W.2d 432.

¶13 Finally, we note that even if Cameron had not given up his right to
attack his conviction by entering a no contest plea, we could not determine that he
was a victim of vindictive prosecution based on the Record before us; we would
affirm the circuit court’s denial of Cameron’s postconviction motion on that
ground as well. Prosecutorial vindictiveness (and a violation of due process)
occurs “when the state retaliates against a person ‘for exercising a protected
statutory or constitutional right.’” State v. Johnson, 2000 WI 12, ¶20, 232
Wis. 2d 679, 605 N.W.2d 846 (quoting United States v. Goodwin, 457 U.S. 368,
372 (1982)). We review the legal principles related to prosecutorial vindictiveness
de novo while we review the circuit court’s factual findings related to this issue for
clear error. State v. Cameron, 2012 WI App 93, ¶11, 344 Wis. 2d 101, 820
N.W.2d 433.

¶14 Vindictive prosecution can be proved by establishing either a
presumption of vindictiveness—as in a case where a defendant successfully
appeals a conviction and the government then brings more serious charges against
him, Goodwin, 457 U.S. at 376—or actual vindictiveness. Cameron points to no
authority, and we are aware of none, recognizing a presumption of vindictiveness
arising from early pretrial conduct. See, e.g., United States v. Schwalb, 83 F.3d
1039, 1040 (8th Cir. 1996) (per curiam) (holding there was no presumption of
vindictiveness when the government responded to defendant’s pretrial motion to
dismiss by filing expanded charges in a superseding indictment). Cameron instead
focuses on the emails between his trial counsel and the prosecutor, including the
latter’s offer to not add additional charges if he would withdraw his motion to
dismiss based on the State’s failure to file a timely information, as “objective

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No. 2022AP1989-CR

evidence that a prosecutor acted in order to punish the defendant for standing on
his legal rights,” or of actual vindictiveness. See Johnson, 232 Wis. 2d 679, ¶17.

¶15 The State concedes that the circuit court erred in determining that, as
a matter of law, there could be no vindictiveness so long as there was probable
cause for the charges filed. Nor does the State argue that the court was correct in
finding as a matter of fact that the conduct at issue was motivated by the State’s
desire to avoid having to “jump through the hoops” of filing an indictment and
conducting a preliminary hearing twice. But the prosecutor attested, in her
affidavit attached to the State’s response to Cameron’s postconviction motion, that
she had been considering adding the additional charges of first-degree reckless
endangerment even before learning of Cameron’s motion to dismiss. The charges
had been referred by law enforcement before the preliminary hearing in the
original case. The emails upon which Cameron relies were part of pretrial
negotiations that took place amidst discussions with the victims and further
consideration of the facts and evidence. They were part of the normal back-and-
forth between the State and the accused during the early stages of a prosecution—
not evidence of vindictiveness. See Bordenkircher v. Hayes, 434 U.S. 357, 363
(1978) (“[I]n the ‘give-and-take’ of plea bargaining, there is no such element of
punishment or retaliation so long as the accused is free to accept or reject the
prosecution’s offer.”). As the State persuasively argues, the Record shows that
Cameron’s motion to dismiss did little more than delay the inevitable; it did not
motivate the State to punish him with additional charges.

By the Court.—Judgment and order affirmed.

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

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