State v. Timothy G. Vandervere

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.
July 24, 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. 2022AP655-CR Cir. Ct. No. 2019CF375

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TIMOTHY G. VANDERVERE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2022AP655-CR

¶1 PER CURIAM. Timothy G. Vandervere pled guilty to three felony
counts of homicide by use of a motor vehicle while operating with a prohibited
alcohol concentration (PAC) and one count of causing great bodily harm by
operating a motor vehicle with a PAC. See WIS. STAT. §§ 940.09(1)(b),
940.25(1)(b) (2021-22).1 Nine other counts, including three counts of first-degree
reckless homicide, were dismissed and read in. Vandervere appeals from the
judgment entered upon his pleas and from the denial of his postconviction motion.
He raises a number of issues on appeal, arguing that he is entitled to withdraw his
guilty pleas or, in the alternative, resentencing. For the reasons set forth below,
we reject Vandervere’s arguments. We therefore affirm the judgment of
conviction and the order denying his motion for postconviction relief.

BACKGROUND

¶2 In April 2019, law enforcement responded to a report of a collision
between two vehicles that had both ended up in a ditch—a white pickup truck and
a black jeep. A witness reported that the pickup had rear-ended the jeep, causing
the jeep to roll over. Of the four occupants in the jeep, all members of the same
family, only the driver survived the serious crash. Although he survived, the
jeep’s driver did suffer from serious injuries, including rib fractures, head injuries,
bruised lungs, and blood around his heart.

¶3 Vandervere, whose operating privileges were still revoked due to a
2005 alcohol-related offense, was the driver and sole occupant of the pickup.
Prior to the accident, several witnesses saw Vandervere driving recklessly and at

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

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No. 2022AP655-CR

speeds well above the posted limits. At least one of the witnesses called 911 to
report Vandervere’s dangerous driving in the minutes before the collision.

¶4 At the scene of the accident, a deputy observed that Vandervere’s
eyes were visibly glassy as he regained consciousness and began to babble
incoherently. Additionally, medical personnel assisting Vandervere at the scene
stated that he smelled of intoxicants. Vandervere’s brother later told police that
Vandervere was possibly drinking at the brother’s home right before the accident.
Vandervere’s blood was drawn at the hospital after the accident and later tested,
revealing a .316 g/mL blood alcohol concentration.

¶5 The State charged Vandervere with thirteen criminal offenses as a
result of the accident. Vandervere reached an agreement with the State in which
he pled guilty to the three counts of homicide while operating a motor vehicle with
a PAC and to one count of injury by intoxicated use of a motor vehicle. The State
agreed to dismiss and read in the remaining nine counts, which carried over 200
years of potential imprisonment. The circuit court later imposed consecutive
prison sentences for his four convictions, totaling thirty-two years of initial
confinement and seventeen years of extended supervision.

¶6 Vandervere filed a motion for postconviction relief, arguing that he
was entitled to withdraw his pleas both because his attorney was ineffective in
several ways and because he claimed to possess newly discovered evidence.
Alternatively, Vandervere sought resentencing on the grounds that the court relied
on inaccurate information at sentencing, erroneously exercised its sentencing
discretion, and improperly denied Vandervere his right to allocution. After
conducting a postconviction evidentiary hearing spanning several days, the court

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No. 2022AP655-CR

rejected each of Vandervere’s arguments in an oral ruling. Vandervere now
appeals.

¶7 We include additional facts as necessary to the discussion below.

DISCUSSION

1. Plea Withdrawal

¶8 Vandervere first argues he is entitled to withdraw his guilty pleas
because his trial counsel was ineffective in several respects, and there is newly
discovered evidence establishing “manifest injustice” in Vandervere’s convictions.

¶9 “To withdraw a guilty plea after sentencing, a defendant must show
by clear and convincing evidence that a refusal to allow withdrawal of the plea
would result in manifest injustice.” State v. Dillard, 2014 WI 123, ¶83, 358
Wis. 2d 543, 859 N.W.2d 44. “One way to demonstrate manifest injustice is to
establish that the defendant received ineffective assistance of counsel.” Id., ¶84.
To prevail in an ineffective assistance of counsel claim, a defendant must prove
both “that counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). “If the defendant fails to adequately show one prong of the
Strickland test, we need not address the [other].” State v. Elm, 201 Wis. 2d 452,
462, 549 N.W.2d 471 (Ct. App. 1996).

¶10 Newly discovered evidence may also be sufficient to establish
manifest injustice. State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707
(1997). The defendant first must prove that: (1) the evidence was discovered after
conviction; (2) he or she was not negligent in seeking evidence; (3) the evidence is
material to an issue in the case; and (4) the evidence is not merely cumulative. Id.

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No. 2022AP655-CR

If he or she does so, the circuit court then must determine whether a reasonable
probability exists that a trial would yield a different result. Id. Plea withdrawal
rests in the circuit court’s discretion, and we will reverse only if the court has
erroneously exercised its discretion in denying the request. Id.

¶11 Vandervere argues that this court should allow him to withdraw his
pleas based on ineffective assistance of his trial counsel. While focusing most of
his efforts on counsel’s failure to consult with experts to challenge the blood test
results, Vandervere also argues that counsel was ineffective in failing to object to
the circuit court’s limitation as to who could speak at sentencing and in failing to
correct inaccuracies made by the writer of the presentence investigation (PSI). We
address and reject each argument in turn below.

¶12 The court held several hearings on the postconviction motion where
Vandervere, his trial counsel, Vandervere’s sister, several experts for the defense
and the State, and a Wisconsin attorney specializing in OWI defense testified. As
Vandervere observes, the proffered defense experts testified that they had
concerns regarding the unreliability of the testing protocol, instruments, blood
vials, and Vandervere’s ultimate blood alcohol results. However, neither of the
defense’s proffered experts were able to testify that Vandervere’s blood alcohol
concentration was below .08 when the accident occurred.

¶13 The State’s experts addressed each of the concerns raised by the
defense and testified that the blood sample was not contaminated, that standard
testing protocol was followed, and that the lab and testing facility were certified at
the time of Vandervere’s blood draw, with all testing equipment in proper working
order. After weighing the competing testimony and making credibility
determinations, the circuit court determined that the proper procedures were

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No. 2022AP655-CR

followed when drawing and analyzing Vandervere’s blood sample, and even if
not, it would have made no difference in the outcome.

¶14 On appeal, Vandervere renews his argument that trial counsel was
ineffective for failing to consult an expert to evaluate the reliability of the blood
test. Even assuming, arguendo, that we were to conclude that counsel’s
performance was deficient, the record sufficiently establishes that Vandervere was
not prejudiced by his counsel’s failure to present the expert testimony proffered in
his postconviction motion. The circuit court did not credit Vandervere’s
postconviction testimony, nor that of his family members and others who testified
on his behalf. His expert witnesses would not have changed this.

¶15 Although Vandervere’s experts might have presented evidence to
discredit his blood test results, he has not shown how such testimony would refute
the State’s contention that Vandervere’s blood test results were above the legal
limit. As previously stated, neither of Vandervere’s proffered experts were able to
testify that the blood alcohol concentration was below .08 when the accident
occurred. In addition, as the circuit court noted, those experts, at best, offered
“supposition” about the blood test results and how certain factors could have or
might have affected them.

¶16 Moreover, even if the proffered experts were allowed to testify at a
trial, they would not have been able to refute the eyewitness testimony that
Vandervere was driving recklessly before the accident, that he swerved down the
road, tailgated other vehicles, narrowly missed striking mailboxes and street signs,
and eventually slammed into the jeep at nearly double the highway speed limit,
causing death to three family members and serious injury to a fourth. Nor could
the experts explain away the testimony of law enforcement and medical personnel

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No. 2022AP655-CR

that Vandervere smelled of intoxicants, had glassy eyes, and was babbling in the
period immediately following the accident. The evidence that Vandervere claims
his counsel was ineffective for omitting would not have tipped the scales of
credibility away from the State’s witnesses and in his direction.

¶17 For all these reasons, we conclude that there is not a reasonable
probability that the outcome of a trial would have been different had Vandervere
presented the proffered expert evidence, and he was not prejudiced by his
counsel’s alleged error. See Strickland, 466 U.S. at 694. The circuit court,
therefore, did not erroneously exercise its discretion in denying the motion for plea
withdrawal on this ground.

¶18 We also reject Vandervere’s position that he is entitled to withdraw
his pleas based on trial counsel’s alleged ineffectiveness related to the sentencing
hearing. As we explain in more detail in our discussion of Vandervere’s
resentencing argument, trial counsel was not deficient for failing to object to the
circuit court’s limitation as to who could speak at sentencing because the statutes
allow such limitations. See WIS. STAT. § 972.14. Further, as explained in our
discussion below, we conclude that Vandervere was not prejudiced by counsel’s
failure to object to portions of the PSI.

¶19 This leaves only Vandervere’s final argument for plea withdrawal;
namely, that the proffered expert testimony questioning his blood results was
“newly discovered” evidence. Newly discovered evidence does not include a new
appreciation of the importance of evidence previously known but not used. State
v. Fosnow, 2001 WI App 2, ¶9, 240 Wis. 2d 699, 624 N.W.2d 883. Whether an
item falls within the scope of newly appreciated evidence is a question of law we
review de novo. Id., ¶12.

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No. 2022AP655-CR

¶20 Vandervere asserts that his proffered experts’ opinions criticizing the
laboratory’s blood results are newly discovered evidence. We have repeatedly
rejected the argument that newly retained experts’ analyses of evidence that
existed before a plea or trial is newly discovered evidence. See, e.g., id., ¶9; State
v. Coogan, 154 Wis. 2d 387, 403, 453 N.W.2d 186 (Ct. App. 1990); State v.
Bembenek, 140 Wis. 2d 248, 256, 409 N.W.2d 432 (Ct. App. 1987). In keeping
with this precedent, we conclude that Vandervere’s argument is nothing more than
a new take on evidence he knew about before entering his guilty pleas. Because
the evidence would offer only a “new appreciation of the importance of evidence
previously known but not used[,]” the circuit court did not err in denying the plea
withdrawal motion when it concluded that the evidence at issue is not newly
discovered, but merely newly appreciated. See Fosnow, 240 Wis. 2d 699, ¶9.

2. Resentencing

¶21 Because we conclude that plea withdrawal is not warranted,
Vandervere argues, in the alternative, that he is entitled to be resentenced. He
asserts that: (1) he was denied his right to allocution, and his attorney was
ineffective for failing to object; (2) the court relied on inaccurate information from
the PSI that his attorney was ineffective for failing to contest; and (3) the court
erroneously exercised its sentencing discretion.

¶22 In support of his position regarding resentencing, Vandervere first
cites to limitations the circuit court set as to who could speak at his sentencing.
Vandervere asserts that his right to allocution was violated by the court’s
sentencing practice of allowing only the attorneys, the defendant, and members of
the victims’ family to speak at sentencing.

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No. 2022AP655-CR

¶23 While a defendant possesses no constitutional right to allocution,
Wisconsin law recognizes a statutory right, with some limitations. WIS. STAT.
§ 972.14(2). Specifically, before a court imposes a sentence, it must “allow the
district attorney, defense counsel and defendant an opportunity to make a
statement with respect to any matter relevant to the sentence.” Id. A court must
also “determine whether a victim of a crime considered at sentencing wants to
make a statement to the court,” and if so, “allow the victim to make a statement in
court or to submit a written statement to be read in court.” Sec. 972.14(3)(a).
Finally, a court “may allow any other person to make or submit a statement under
this paragraph.” Id.

¶24 There is no question that the circuit court acted within the law in
choosing not to allow certain groups of people to speak on Vandervere’s behalf at
sentencing. The court instead considered all written statements on Vandervere’s
behalf. As shown above, the court’s practice is permissible under the statutes.
Therefore, as stated above, trial counsel was not deficient in failing to object to the
court’s practice because the court acted within the confines of the law.
Vandervere’s resentencing argument on this ground fails.

¶25 Next, Vandervere argues that resentencing is warranted because the
circuit court allegedly relied on inaccurate information from the PSI that trial
counsel failed to correct. A court also has authority to vacate a sentence and
resentence the defendant if the court relied on inaccurate information at the
original sentencing. State v. Harbor, 2011 WI 28, ¶35 & n.8, 333 Wis. 2d 53, 797
N.W.2d 828. Our review of the record confirms the circuit court’s conclusion that
this situation did not occur.

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No. 2022AP655-CR

¶26 Vandervere effectively demonstrates a violation of his right to be
sentenced on accurate information: the circuit court acknowledged that it
reviewed the PSI, which inaccurately claimed that Vandervere’s 2006 municipal
court conviction for causing injury while operating a motor vehicle while under
the influence remained unreversed after his appeal. But Vandervere’s argument
that this entitles him to resentencing fails because he cannot show that the court
relied on the inaccurate information at sentencing.

¶27 First, the prosecutor who appeared at the sentencing hearing
provided the accurate information to the court regarding the status of Vandervere’s
earlier drunk-driving conviction. The prosecutor explained that Vandervere was
merely “arrested for operating while intoxicated and refusing,” that an unlawful
refusal was entered, and that he was ultimately only convicted of “a reckless
driving ticket.” Further, the court itself acknowledged in its ruling on the
postconviction motion that it was aware of the inaccurate information in the PSI,
but was aware of the accurate information at sentencing. The court explained as
follows: “I understood what the facts were, and it was argument, and I have a
pretty wide scope of what’s permitted. I knew what the true facts were …. He
had an OWI citation, he got convicted, and then he got it fixed up ….” Thus, even
though Vandervere successfully shows that the PSI contained inaccurate
information regarding a prior conviction, he fails to show that the court relied on
that inaccurate information at sentencing. He is not entitled to resentencing on this
ground.

¶28 The final issue Vandervere raises is whether the circuit court
erroneously exercised its sentencing discretion. See State v. Gallion, 2004 WI 42,
¶17, 270 Wis. 2d 535, 678 N.W.2d 197. At sentencing, a court must consider the
principal objectives of sentencing, including the protection of the community, the

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No. 2022AP655-CR

punishment and rehabilitation of the defendant, and deterrence to others, State v.
Ziegler, 2006 WI App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76, and determine
which objective or objectives are of greatest importance, see Gallion, 270 Wis. 2d
535, ¶41. In seeking to fulfill the sentencing objectives, the court should consider
a variety of factors, including the gravity of the offense, the character of the
offender, and the protection of the public, and may consider several subfactors.
See State v. Odom, 2006 WI App 145, ¶7, 294 Wis. 2d 844, 720 N.W.2d 695.

¶29 The weight to be given to each factor is committed to the circuit
court’s discretion. See Ziegler, 289 Wis. 2d 594, ¶23. “When the circuit court has
not explicitly identified any of the three required factors that it used in exercising
its discretion, the appellate court must search the record to determine whether the
circuit court considered each of the required factors in its ‘exercise of proper
discretion.’” State v. Bolstad, 2021 WI App 81, ¶19, 399 Wis. 2d 815, 967
N.W.2d 164 (citation omitted).

¶30 Our review of the record supports the conclusion that the circuit
court properly considered all of the required sentencing factors. It is clear from
the court’s comments that it was primarily concerned with the seriousness of the
offense and the need to protect the public from accidents like the one Vandervere
caused. The court commented on the “gruesome ghastly outcome” Vandervere
caused after deciding to drive “when he had no business doing so,” and despite the
risk he presented by getting behind the wheel. But it also considered Vandervere’s
positive character traits, noting his responsible work history and his lack of prior
drunk-driving convictions. And it stressed the need to protect the public, citing to
the need for deterrence and a lengthy prison sentence commensurate with “this
kind of behavior.”

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No. 2022AP655-CR

¶31 The circuit court properly exercised its discretion in sentencing
Vandervere. The sentence was not excessive, especially given Vandervere’s
potential exposure. For the four counts to which he pled guilty, Vandervere faced
a total of 132.5 years in prison and $325,000 in fines. However, the court
sentenced him to only a total of thirty-two years of initial confinement and
seventeen years of extended supervision. In addition to the crimes to which
Vandervere pled, the court was entitled to consider the nine dismissed and read-in
offenses, which carried over 200 years of potential imprisonment in the aggregate.
Vandervere fails to demonstrate to this court that the circuit court erroneously
exercised its discretion at sentencing.

CONCLUSION

¶32 For all the reasons set forth above, Vandervere has failed to persuade
us that he is entitled to either plea withdrawal or resentencing. None of trial
counsel’s alleged errors amount to ineffective assistance of counsel. As to each
arguable error, Vandervere has failed to establish either deficient performance,
prejudice, or both. He has similarly failed to establish that he is entitled to
resentencing. The record does not support his assertions that he was denied his
right to allocution, that the court relied on inaccurate information at sentencing, or
that the court erroneously exercised its sentencing discretion. Thus, we affirm
Vandervere’s judgment of conviction and the order denying postconviction relief.

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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