State v. Jonathon M. Mark

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.
May 10, 2023
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2022AP1739-CR Cir. Ct. No. 2019CM178

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JONATHON M. MARK,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Fond du Lac
County: PETER L. GRIMM and LAURA J. LAVEY, Judges. Affirmed.

¶1 GROGAN, J.1 Jonathon M. Mark appeals from a judgment entered
after he pled no contest to resisting or obstructing an officer contrary to WIS.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP1739-CR

STAT. §§ 946.41(1) and 939.51(3)(a). He also appeals from an order denying his
postconviction motion alleging ineffective assistance of counsel. Mark believes
the circuit court erred in denying his suppression motion and that he received
ineffective assistance of counsel for counsel’s failure to introduce evidence at the
suppression hearing. This court affirms.

I. BACKGROUND

¶2 In February 2019, Fond du Lac Police Officer Joseph Belisle was
outside a local Kwik Trip around 10:40 p.m. investigating an unrelated domestic
dispute incident. The officer observed an individual whom he believed to be
someone he recognized from a daily police briefing providing pictures of and
information about individuals with outstanding warrants. Belisle’s first
observation of Mark was a “side view” of him as he walked into the Kwik Trip.
Believing this to be Mark, Belisle radioed for back up because he knew that Mark
was a large man known to be resistive and violent. When Mark exited the
Kwik Trip, Belisle observed a “full frontal view,” which confirmed for the officer
that this individual was Mark—an individual he had seen on the daily police
briefing as someone the detective bureau wanted the patrol officers to know had
an outstanding warrant.

¶3 When Belisle approached Mark and asked for identification, Mark
was uncooperative and refused to give his name or show identification. Mark
asserted the officer did not have reasonable suspicion to stop him and denied that
he had an outstanding warrant. Belisle grabbed Mark, who physically resisted and
ran away. Belisle and the assisting officers were able to catch Mark and arrest
him. The State charged Mark with resisting arrest. He initially pled not guilty and

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filed a motion seeking to suppress on the basis that the officer lacked reasonable
suspicion to stop him.

¶4 Only Belisle testified at the suppression hearing. As material, he
testified that:

 He knew Mark was wanted by their detectives because he had
seen the notice on the “SharePoint” system, and he knew Mark
“had an active probation warrant for his arrest”;

 It was routine department practice to do daily briefings about
individuals with outstanding warrants;

 While at Kwik Trip on a domestic dispute call, he saw Mark
walk past him into the store, and he got a “[g]ood enough look”
to believe this was Mark and call for back up; and

 Belisle also did an in-house check to confirm the individual’s
name;

 When Mark exited Kwik Trip, he “was able to get a frontal view
of him” and confirmed he was Mark.

¶5 Belisle then testified he:

tried stopping [Mark], asking for his ID. He said I had no
reasonable suspicion to stop him, and I explained to him
that he looks like an individual I dealt with in the past, I
just wanted to get his ID and make sure he wasn’t that
person. He again stated he -- that I didn’t have any
reasonable suspicion to stop him. As he was walking away,
I then placed my hand on his left arm, placing him in an
escort hold, informing him that he did have a warrant for
his arrest. He stated that he did not have a warrant. He
then tensed up his arm, squatted down to get a lower center
of gravity, and then pulled his arm away from me and
began running away along the west side of the building.

Belisle confirmed that Mark’s fleeing suggested Mark knew about the warrant.
On cross-examination, when asked if Mark had glasses on that night, Belisle

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No. 2022AP1739-CR

answered, “No.” Belisle also confirmed that Mark had his hood up, and therefore,
Mark’s hair was not visible.

¶6 At the conclusion of the hearing, the circuit court denied the
suppression motion, making the following findings. The circuit court found:
(1) Belisle was credible; (2) he had four years of experience as an officer and had
proper training; (3) Belisle knew the detective bureau had an active warrant out for
Mark; (4) Belisle had seen Mark’s photo, physical description, and information
from daily police briefings that Mark was resistive and violent; (5) Belisle saw this
information via the SharePoint system, which identifies individuals with
outstanding warrants the police should be on the lookout for; (6) Belisle got a
good side-profile look at Mark as he entered the Kwik Trip—a look that was
“good enough” to believe the individual was Mark because it caused Belisle to call
for back up; and (7) Belisle got a “full frontal view” of Mark on his way out of the
Kwik Trip, which confirmed Mark was the individual he believed him to be.
Accordingly, the circuit court held that Belisle had reasonable suspicion to stop
Mark and denied his suppression motion.

¶7 Mark then entered into a plea bargain with the State where he pled
no contest to the resisting charge in exchange for a recommendation that he would
be sentenced to time served with sentence credit for 169 days. The circuit court
accepted the plea, and after imposing sentence, it entered judgment.

¶8 Although Mark initially proceeded to file a direct appeal, this court
subsequently granted Mark’s motion to dismiss the appeal to allow him to file a
postconviction motion. Mark’s motion alleged ineffective assistance of counsel
on the basis that his trial counsel failed to introduce evidence at the suppression
hearing that he claims may have changed the result. Specifically, Mark claimed

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No. 2022AP1739-CR

the squad camera video, which trial counsel had obtained prior to the hearing,
should have been introduced and that trial counsel should have called Mark to
testify that he was wearing glasses on the night in question.

¶9 The circuit court2 held a Machner3 hearing where both Mark and his
trial counsel testified. The circuit court also viewed the squad camera video. At
the conclusion of the hearing, the circuit court found that Mark failed to establish
his trial counsel gave him ineffective assistance. The circuit court found that the
squad video would have actually bolstered the decision to deny the suppression
motion, and although Mark’s testimony that he was wearing glasses may have
been a contrary fact, it would not have changed the suppression ruling. Mark now
appeals.

II. DISCUSSION

¶10 Mark makes two arguments on appeal. First, he contends the circuit
court erred in denying his suppression motion. He claims there is insufficient
evidence to show the officer had reasonable suspicion to stop him. Second, he
contends the circuit court erred in denying his postconviction motion in which he
asserted he received ineffective assistance. He argues that if trial counsel had
introduced the squad video and Mark’s testimony about wearing glasses, the
suppression motion would have been granted. This court rejects both arguments.

2
The Honorable Laura J. Lavey handled the postconviction proceedings because the
Honorable Peter L. Grimm had retired.
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2022AP1739-CR

¶11 An order granting or denying a motion to suppress evidence presents
a question of constitutional fact, which requires a two-step analysis on appellate
review. State v. Asboth, 2017 WI 76, ¶10, 376 Wis. 2d 644, 898 N.W.2d 541.
“First, we review the circuit court’s findings of historical fact under a deferential
standard, upholding them unless they are clearly erroneous. Second, we
independently apply constitutional principles to those facts.” State v. Robinson,
2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463 (citations omitted).

¶12 The Fourth Amendment to the United States Constitution provides
that “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated” and that
“no Warrants shall issue, but upon probable cause[.]” U.S. CONST. amend. IV.
Article I, section 11 of the Wisconsin Constitution likewise provides that “[t]he
right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated” and that “no warrant
shall issue but upon probable cause[.]” WIS. CONST. art. I, § 11. The “ultimate
touchstone of the Fourth Amendment is ‘reasonableness[.]’” Brigham City v.
Stuart, 547 U.S. 398, 403 (2006).

¶13 “A criminal defendant has the constitutional right to effective
assistance of counsel.” State v. Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912
N.W.2d 89. A defendant is denied that right when counsel performs deficiently,
and the deficiency is prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). “An
ineffective assistance of counsel claim presents a mixed question of fact and law.”
State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914 N.W.2d 95. “Findings of
fact include ‘the circumstances of the case and the counsel’s conduct and
strategy[,]’” and those findings will not be disturbed unless clearly erroneous.

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No. 2022AP1739-CR

State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d 305 (citation
omitted). Whether counsel’s performance was deficient and whether the deficient
performance was prejudicial are questions of law we review de novo. State v.
Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 (1996). A defendant must satisfy
both prongs to establish ineffective assistance of counsel. State v. Carter, 2010
WI 40, ¶21, 324 Wis. 2d 640, 782 N.W.2d 695.

A. Suppression

¶14 Mark believes the circuit court erred when it denied his motion to
suppress. He contends that the officer’s testimony is insufficient to show the
officer had reasonable suspicion to stop Mark. Specifically, Mark says the officer
did not testify about any physical descriptors; he had Mark’s name wrong
initially;4 it was dark, and Mark had his hood up and did not look directly at the
officer; the officer did not have any prior personal contact with Mark; and under
all these circumstances, it is improbable that the officer could accurately identify
Mark as the individual with the outstanding warrant. The problem with Mark’s
argument is that the circuit court weighed these assertions against the officer’s
testimony, which the court heard firsthand, and believed the officer.

¶15 This court will not overturn a circuit court’s factual findings unless
they are clearly erroneous, and this court is not convinced that any of the circuit
court’s findings are clearly erroneous. Each of those findings was based on the
officer’s testimony, which the circuit court found credible. The circuit court is

4
Officer Belisle testified that when he first saw Mark, he could not recall Mark’s name.
He called in an “in-house check” for “Mark King,” indicating he had seen him on the SharePoint
briefing as “wanted by the detective bureau.” Another officer responded to the in-house name
check that the person’s name was Jonathon Mark.

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No. 2022AP1739-CR

“the ultimate arbiter of the credibility of the witnesses and the weight to be given
to each witness’s testimony.” State v. Peppertree Resort Villas, Inc., 2002 WI
App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345. This court accepts those
credibility determinations. See State v. Quarzenski, 2007 WI App 212, ¶19, 305
Wis. 2d 525, 739 N.W.2d 844.

¶16 The officer’s credible testimony supports the reasonable suspicion
finding. The officer had seen Mark’s picture in multiple briefings and was told to
be on the lookout for Mark because he had an outstanding warrant for a violent
crime. The officer then saw Mark walk into the Kwik Trip, and although he only
saw him from the side view with his hood up, this view was “[g]ood enough” for
the officer to think it was Mark. The officer’s identification of Mark was
confirmed when he saw Mark exit the Kwik Trip, allowing a “full frontal view” of
Mark.

¶17 Our supreme court held that “an officer may in appropriate
circumstances temporarily detain a suspicious person for investigative
questioning.” State v. Jackson, 147 Wis. 2d 824, 830, 434 N.W.2d 386 (1989).

The Fourth Amendment does not require a policeman who
lacks the precise level of information necessary for
probable cause to arrest to simply shrug his shoulders and
allow a crime to occur or a criminal to escape. On the
contrary, Terry[5] recognizes that it may be the essence of
good police work to adopt an intermediate response. A
brief stop of a suspicious individual, in order to determine
his identity or to maintain the status quo momentarily while
obtaining more information, may be most reasonable in
light of the facts known to the officer at the time.

5
Terry v. Ohio, 392 U.S. 1, 22 (1968).

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No. 2022AP1739-CR

Adams v. Williams, 407 U.S. 143, 145-46 (1972) (emphases added; citation
omitted). Our supreme court “stressed that the focus of a Terry type stop is on
reasonableness. It is a common sense question, which strikes a balance between
the interests of society in solving crime and the members of that society to be free
from unreasonable intrusions. The essential question is whether the action of the
law enforcement officer was reasonable under all the facts and circumstances
present.” Jackson, 147 Wis. 2d at 831 (emphasis added).

¶18 What Officer Belisle did here was unquestionably reasonable. He
saw someone whom he believed to be someone with an outstanding arrest warrant
and known to be violent. He did not act immediately but waited to confirm that
Mark was in fact that individual. This was not an unreasonable intrusion. In fact,
it is the textbook example of good police work. The law does not compel an
officer in these circumstances to simply “shrug his shoulders” and let a criminal
walk away. See Adams, 407 U.S. at 145. Had Belisle been wrong about
recognizing this individual as Mark, the interaction would have ended when the
person clarified that he in fact was not Mark. Of course, that was not what
happened, and Belisle’s reasonable actions resulted in arresting a person with an
outstanding warrant who was known to be violent.

¶19 Mark’s reliance on State v. Harris, 206 Wis. 2d 243, 557 N.W.2d
245 (1996) is misplaced because that case is distinguishable. Harris did not
involve an identified person whose name and photo were known to the officer and
who was wanted on an outstanding warrant. The circuit court did not err in
denying Mark’s suppression motion.

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No. 2022AP1739-CR

B. Ineffective Assistance

¶20 Mark’s second argument is that the circuit court erred in denying his
postconviction motion, wherein he alleged his trial counsel provided ineffective
assistance. Specifically, he faulted his trial counsel because he did not introduce
at the suppression hearing either the squad video or testimony from Mark that he
was wearing glasses on the night of his arrest. This court rejects his argument.

¶21 Neither the video nor Mark’s glasses testimony would have changed
the outcome of the suppression hearing and therefore cannot satisfy the second
prong of the Strickland test. See Strickland, 466 U.S. at 687; Carter, 324 Wis. 2d
640, ¶21 (defendant must prove both deficient performance and prejudice). This
court agrees with the circuit court’s assessment that using the video at the
suppression hearing would not have helped Mark. The video shows the close
proximity within which Mark walked past the officer. The video would have
bolstered the credibility of the officer’s testimony. There is certainly nothing on
the video that alters the circuit court’s finding that the officer’s testimony was
credible. This court agrees with the postconviction court’s assessment that
introducing the video would have only further supported the suppression ruling.

¶22 As far as not putting Mark on the stand to testify that he was wearing
glasses, this court cannot conclude that alone establishes ineffective assistance. It
would have been an additional factor for the circuit court to consider, but as stated
above, the police officer’s actions here were imminently reasonable and therefore
did not violate the Fourth Amendment. See Jackson, 147 Wis. 2d at 831. Mark’s
testimony that he was wearing glasses would not have changed the conclusion that
the officer acted reasonably, and therefore his trial counsel’s failure to introduce

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No. 2022AP1739-CR

this testimony could not have prejudiced him. See Strickland, 466 U.S. at 687;
Carter, 324 Wis. 2d 640, ¶21.

¶23 This court concludes that Mark failed to establish that his trial
counsel provided ineffective assistance, and therefore the circuit court did not err
in denying his postconviction motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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