State v. Lawrence J. Turner

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.
November 5, 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. 2022AP469 Cir. Ct. No. 2009CF695

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LAWRENCE J. TURNER,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
TAMMY JO HOCK, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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. 2022AP469

¶1 PER CURIAM. Lawrence Turner appeals from a circuit court order
denying his WIS. STAT. § 974.06 (2021-22)1 motion for postconviction relief. On
appeal, he argues that the court erred by denying both his judicial substitution
motion and his postconviction motion. In the alternative, Turner contends that he
is entitled to a new trial in the interest of justice.2 For the reasons that follow, we
affirm the court’s order.

BACKGROUND

¶2 In 2010, Turner was convicted, following a bench trial, of one count
of first-degree sexual assault of a child under the age of thirteen and two counts of
misdemeanor battery as acts of domestic abuse. The circuit court found Turner
guilty based on evidence that Turner sexually assaulted Ruth and physically
abused Sadie, Ruth’s mother.3 Turner was found not guilty on two
counts: strangulation and suffocation and felony intimidation of a victim, each as
an act of domestic abuse.

¶3 In 2011, Turner filed a postconviction motion in the circuit court
pursuant to WIS. STAT. § 974.02, in which his postconviction counsel argued three
issues. In a written order, the court denied the motion. Turner appealed, and, in a

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
Turner’s appellate briefs fail to comply with WIS. STAT. RULE 809.19(8)(bm), which
states that “[a] brief … must have page numbers centered in the bottom margin using Arabic
numerals with sequential numbering starting at ‘1’ on the cover.” Our supreme court explained in
a comment, when it amended the rule in 2021, that the pagination requirements avoid “the
confusion of having two different page numbers” on certain pages of an electronically filed brief.
S. CT. ORDER 20-07, 2021 WI 37, 397 Wis. 2d xiii, cmt. at xl. (eff. July 1, 2021).
3
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4), we use pseudonyms
when referring to the victims in this case.

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per curiam opinion, this court affirmed the judgment of conviction and order
denying postconviction relief. See State v. Turner, No. 2011AP746-CR,
unpublished slip op. ¶1 (WI App Jan. 31, 2012). Our state supreme court denied
Turner’s petition for review of that decision.

¶4 In December 2020, Turner filed a WIS. STAT. § 974.06 motion for
postconviction relief, asserting three issues, each different from the issues raised in
his first postconviction motion. First, Turner argued that his 2011 postconviction
counsel were ineffective by failing to challenge the validity of Turner’s jury
waiver.4 Second, Turner asserted that newly discovered evidence—in the form of
Sadie’s posttrial statements threatening the father of some of her children that she
would “coach” those children into making false claims of sexual impropriety
against him—warranted a new trial. Third, Turner argued that he was entitled to a
new trial in the interest of justice.

¶5 In February 2021, a new judge was assigned to the case.5
Approximately three months later, and citing WIS. STAT. § 971.20, Turner filed a
motion for substitution of judge. The circuit court denied that motion after finding
it was untimely.

4
Turner was separately represented by two attorneys during the course of his 2011
postconviction proceedings, both of whom worked at the same law firm. The first attorney
stepped down as Turner’s counsel following her departure from the firm, at which point the
second attorney began representing Turner.
5
The Honorable J.D. McKay, Brown County Circuit Court Branch VI, presided over
Turner’s bench trial. Following Judge McKay’s retirement, the Honorable John Zakowski
became the judge in Branch VI. Because Judge Zakowski was the district attorney for Brown
County during the trial phase of Turner’s case, Judge Zakowski sought to have a different judge
assigned to the case. The Honorable Tammy Jo Hock was then assigned the case.

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¶6 The circuit court granted a Machner6 hearing on Turner’s ineffective
assistance of postconviction counsel claim, at which both of his 2011
postconviction counsel testified. The court denied the motion following the
hearing, concluding that the jury waiver claim was not “clearly stronger” than the
claims pursued immediately following Turner’s conviction. In addition, the court
found that Turner’s postconviction counsel chose not to pursue the jury waiver
claim as part of a “legitimate strategy” of not subjecting Turner to a potentially
more severe sentence upon remand from a successful appeal. The court denied
Turner’s remaining claims without a hearing. Turner now appeals.

DISCUSSION

I. Substitution

¶7 Turner argues that the circuit court erred by denying his motion for
judicial substitution made under WIS. STAT. § 971.20. This issue requires us to
interpret and apply § 971.20 and WIS. STAT. § 801.58, which presents a question
of law that we review de novo using well-settled legal principles. See State v.
Gramza, 2020 WI App 81, ¶15, 395 Wis. 2d 215, 952 N.W.2d 836; State v. Jones,
2021 WI App 15, ¶19, 396 Wis. 2d 602, 957 N.W.2d 551.

¶8 In civil actions, judicial substitution requests are governed by WIS.
STAT. § 801.58, which dictates that a substitution request must be made within ten
days “of receipt of notice of assignment” “[i]f a new judge is assigned.”
Sec. 801.58(1). Conversely, WIS. STAT. § 971.20 governs a defendant’s right to
substitution in “any criminal action.” Sec. 971.20(2). An “action” under that

6
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2022AP469

section “means all proceedings before a court from the filing of a complaint to
final disposition at the trial level.” Sec. 971.20(1).

¶9 Proceedings under WIS. STAT. § 974.06 are “civil in nature,” despite
the fact that a motion under that section “is a part of the original criminal action.”
See § 974.06(2), (6); State ex rel. Krieger v. Borgen, 2004 WI App 163, ¶11, 276
Wis. 2d 96, 687 N.W.2d 79. Moreover, WIS. STAT. § 971.20 cannot apply to
§ 974.06 proceedings because an “action” under § 971.20 ends at the final
disposition of the criminal case at the trial level. See § 971.20(1).

¶10 Therefore, Turner’s judicial substitution request was governed by
WIS. STAT. § 801.58. Judge Hock was appointed to the case in February 2021.
Turner did not file his substitution request until May 2021. Accordingly, the
circuit court properly denied his substitution motion as untimely.

II. Ineffective assistance of counsel

¶11 Next, Turner argues that the circuit court erred by concluding that
his 2011 postconviction counsel were not constitutionally ineffective when they
failed to challenge the validity of Turner’s waiver of his right to a jury. In the
2011 postconviction motion, Turner’s postconviction counsel raised three grounds
for a new trial: (1) the circuit court erroneously admitted an audiovisual recording
containing statements by Ruth; (2) the court erroneously denied Turner’s request
for an in camera review of Ruth’s confidential records; and (3) Turner’s trial
counsel was constitutionally ineffective by failing to request a mistrial—or have
Ruth’s testimony stricken—after someone was alleged to have coached Ruth from
the gallery during her trial testimony.

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¶12 To succeed on a claim for ineffective assistance of postconviction
counsel based upon counsel’s failure to raise an available issue in an earlier
motion or on direct appeal, a petitioner must show that his or her counsel
performed deficiently and that the deficient performance prejudiced his or her
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.
Romero-Georgana, 2014 WI 83, ¶36, 360 Wis. 2d 522, 849 N.W.2d 668. As part
of the deficiency prong, the petitioner must show that “a particular nonfrivolous
issue” is “clearly stronger than” the issues postconviction counsel did present.
Romero-Georgana, 360 Wis. 2d 522, ¶¶45-46 (citation omitted).

¶13 Whether postconviction counsel was ineffective presents a mixed
question of fact and law. State v. Maday, 2017 WI 28, ¶25, 374 Wis. 2d 164, 892
N.W.2d 611. We will accept a circuit court’s findings of fact unless they are
clearly erroneous. Id. “‘[T]he circumstances of the case and the counsel’s
conduct and strategy’ are considered findings of fact.” Id. (alteration in original;
citation omitted). We “will not second-guess a reasonable trial strategy, [unless] it
was based on an irrational trial tactic or based upon caprice rather than upon
judgment.” State v. Breitzman, 2017 WI 100, ¶75, 378 Wis. 2d 431, 904 N.W.2d
93 (alteration in original; citation omitted). “[W]here a lower court determines
that counsel had a reasonable trial strategy, the strategy ‘is virtually unassailable in
an ineffective assistance of counsel analysis.’” Id. (citation omitted). “A finding
of fact is clearly erroneous if it is against the great weight and clear preponderance
of the evidence.” State v. Anderson, 2019 WI 97, ¶20, 389 Wis. 2d 106, 935
N.W.2d 285. Whether counsel’s performance was ineffective is a question of law
we review do novo. Maday, 374 Wis. 2d 164, ¶25.

¶14 At the Machner hearing, both of Turner’s 2011 postconviction
counsel testified. Neither attorney had a specific recollection of Turner’s case by

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No. 2022AP469

the time they testified at the 2021 hearing. However, both attorneys testified that,
in general, one of the key considerations when appealing is to choose issues that
will put a defendant in the best position for a new trial upon a successful outcome.
Turner’s first postconviction attorney explained this strategy, stating:

But if you do take someone back to trial and you don’t
change the outcome of the trial, that’s not going to help
them very much, and sometimes it can open them up to
being in a situation where, for a variety of reasons, they
could potentially face a more serious sentence, either
because of things they’ve done in the meantime or
additional information that comes into play. So if you get
them a new trial, you want to have them in a position where
they are going to have a better chance.

So, I mean, if the option is, okay, just get them a new trial
and hope versus get them a new trial in a better position,
you are always going to go with the better argument[, to]
get them in a new trial in a better position.

¶15 In addition, Turner’s first 2011 postconviction attorney stated that
she always met with clients in person prior to filing a postconviction motion.
During these meetings, she and the client would discuss what the client’s goals
were with the appeal, what issues were available to raise, what she thought would
be the “smart path,” and, ultimately, which issues, if any, the client wanted to
raise. The second postconviction attorney was able to confirm through firm
records that the first attorney had actually met in person with Turner for over an
hour.

¶16 With respect to the strategy in this case, Turner’s first 2011
postconviction attorney stated:

[E]verything in [the 2011 postconviction motion] is
directed toward[] a particular witness, and for me, looking
at that, and knowing the way I think, and knowing the
conversations that I would have had with [Turner’s second
postconviction attorney], and knowing the way that he

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thinks from having worked with him for so many years,
that would have been a strategic decision aimed at ensuring
that Mr. Turner was in the best position possible for a trial
coming out.

According to the first attorney, pursuing the jury trial waiver issue may have
obtained Turner a new trial, but it would not have changed the circumstances
surrounding the trial—namely, the defense’s ability to challenge Ruth’s testimony
and credibility. Turner’s first attorney added that had she successfully challenged
Turner’s jury trial waiver, a second trial before a twelve-member jury would not
have been preferable to Turner’s defense “[b]ecause then you potentially have a
child witness in front of a jury, and that is really not pretty. That has got the
potential to blow up in someone’s face very badly.”

¶17 Turner’s second 2011 postconviction attorney testified that he
thought that the jury trial waiver claim was not raised in the 2011 postconviction
motion because either Turner validly waived his right to a jury trial “or,
strategically, we thought that” the issue did not “help us much.” As to the latter
reasoning, the second attorney testified that he and the first attorney attacked the
issues related to Ruth because, “if there’s a next time, we don’t want the jury
seeing the video, for instance. We want the child [who] was confused to be
confused in front of the jury if there’s a jury trial next time.”

¶18 Furthermore, Turner’s second 2011 postconviction attorney noted
that Turner was acquitted of two charges by the circuit court. In his experience as
a defense attorney, had Turner been given a second trial under the same
circumstances as the first—i.e., if Turner had a limited ability to impeach Ruth—
and been convicted by a jury, Turner would have likely received a “harsher
sentenc[e].”

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¶19 In a written order, the circuit court rejected Turner’s argument that
postconviction counsel, when considering which issues to raise on appeal, cannot
consider the risks a new trial would bring to a defendant upon a successful appeal.
Moreover, the court found that Turner’s 2011 postconviction counsel had “a clear
and objectively reasonable strategy throughout their handling of Turner’s” 2011
postconviction motion and appeal. That strategy included obtaining Turner a new
trial while placing him in a better position for an acquittal. The court noted that
Turner’s postconviction counsel were aware that obtaining a new trial—without
changing the evidence before a jury—could result in Turner receiving a harsher
sentence.

¶20 On appeal, Turner contends that ineffective assistance of counsel
claims made under WIS. STAT. § 974.06 must be analyzed under the “clearly
stronger” standard. Thus, according to Turner, the circuit court erred by analyzing
whether his 2011 postconviction counsels’ strategy was reasonable. We disagree.
Our state supreme court has explained that “the clearly stronger standard may not
be adequate when [postconviction] counsel ha[d] valid reasons for choosing one
set of arguments over another. These reasons may include the preferences, even
the directives, of the defendant.” Romero-Georgana, 360 Wis. 2d 522, ¶46.
Based on these statements, the deficiency prong’s analysis under the traditional
Strickland test may apply to a motion made under § 974.06.

¶21 Turner also contends that the circuit court’s findings regarding the
reasonableness of his 2011 postconviction counsels’ strategy are clearly erroneous.
According to Turner, if postconviction counsel “had successfully pursued the
[jury trial waiver issue], the remedy would have been identical” to the ineffective
assistance claim raised in the 2011 postconviction motion.

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¶22 The circuit court found that Turner’s first 2011 postconviction
attorney met with Turner and discussed his postconviction options prior to filing
the 2011 motion. Turner has not met his burden to show this finding is clearly
erroneous. All three issues raised by postconviction counsel related to Ruth and
would have likely placed Turner in a better position upon retrial by: (1) excluding
Ruth’s recorded interview; (2) introducing impeachment evidence against Ruth
through her confidential records; and (3) undermining Ruth’s credibility by
showing that she was “coached” throughout her trial testimony. Postconviction
counsel were cognizant of the fact that all three issues were interrelated, and they
purposefully pursued those issues to place Turner in a better position upon remand
for a new trial. The jury trial waiver issue was unrelated and, as Turner’s first
attorney testified at the Machner hearing, raising too many issues on appeal may
detract from the strength of other issues. See State v. Echols, 175 Wis. 2d 653,
672, 499 N.W.2d 631 (1993) (“An implicit finding of fact is sufficient when the
facts of record support the decision of the [circuit] court.”). This strategy is
particularly compelling where the issues actually raised in a postconviction motion
are interrelated.

¶23 In addition, Turner challenges the circuit court’s reasonableness
findings on the ground that the court “failed to consider that any postconviction
victory might favor Mr. Turner on remand.” In support of this argument, Turner
contends that had his 2011 postconviction counsel successfully raised the jury trial
waiver claim, he would have had a different fact finder on remand, “any appellate
victory would have strengthened Mr. Turner’s bargaining position at retrial,” and
double jeopardy would have prevented him from being retried on the two counts
of which he was acquitted.

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¶24 However, as the State argues, “[i]t was not unreasonable for
[Turner’s 2011] postconviction counsel to decide that the risk of an increased
sentence” upon remand “was not worth raising the jury [trial] waiver issue,
especially given that counsel did not appear to believe [that] Turner had much
likelihood of succeeding in a new trial absent being placed in a better position than
the first trial.” Moreover, Turner still could have faced a longer sentence upon
remand for a new trial if he were convicted of the charges he faced—especially,
and most importantly, the one count of first-degree sexual assault of a child under
the age of thirteen, which carried a maximum possible sentence of sixty years. See
State v. Naydihor, 2004 WI 43, ¶77, 270 Wis. 2d 585, 678 N.W.2d 220
(concluding that a defendant can be given a harsher sentence upon remand if there
exists “objective information … justifying a sentence increase,” which can include
a victim’s “deteriorated” “condition … since the original sentence proceeding”);
WIS. STAT. §§ 948.02(1)(e), 939.50(3)(b). Accordingly, the circuit court properly
denied Turner’s ineffective assistance of postconviction counsel claim.

III. Newly discovered evidence

¶25 Turner also challenges the circuit court’s denial, without a hearing,
of his present postconviction motion for a new trial based on newly discovered
evidence. Turner’s postconviction motion cited statements made by Sadie during
a court-ordered Child Protective Services meeting in 2018, many years after
Turner’s trial and conviction. During the meeting, Sadie threatened the father of
some of her children that she would “coach” her children into making false claims
of sexual impropriety against the father. Turner also cited other statements
allegedly made by Sadie, in which she accused the father and his then-romantic
partner of sexual impropriety toward one of Sadie’s other children.

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¶26 In order to set aside a judgment of conviction based on newly
discovered evidence, a defendant must first “prove by clear and convincing
evidence that the proffered evidence is in fact ‘newly[ ]discovered evidence,’”
using four prerequisites identified by our state supreme court. State v. Watkins,
2021 WI App 37, ¶¶42-43, 398 Wis. 2d 558, 961 N.W.2d 884 (citation omitted).
Critically, implicit in the four prerequisites is that newly discovered evidence
“must generally be of a fact that is true at the time of trial.” Id., ¶¶48-49. If the
defendant shows that the proffered evidence is newly discovered, “[t]he circuit
court then moves to the second step and determines … ‘whether a jury would find
that the newly[ ]discovered evidence had a sufficient impact on other evidence
presented at trial that a jury would have a reasonable doubt as to the defendant’s
guilt.’” Id., ¶43 (citation omitted).

¶27 Whether a defendant’s postconviction motion for a new trial is
sufficient to entitle him or her to an evidentiary hearing based on newly
discovered evidence presents a two-step standard of review. First, “‘we determine
whether the motion on its face alleges sufficient facts that, if true, would entitle the
defendant to relief.’ We review this question of law, independently, based on the
specific factual allegations made and the record as a whole.” State v. McAlister,
2018 WI 34, ¶25, 380 Wis. 2d 684, 911 N.W.2d 77 (citation omitted). “Second,
‘if the motion does not raise facts sufficient to entitle the movant to relief, or
presents only conclusory allegations, or if the record conclusively demonstrates
that the defendant is not entitled to relief,’ the decision to grant or deny a hearing
is within the circuit court’s discretion.” Id., ¶26 (citation omitted).

¶28 Turner failed to allege sufficient facts in his present postconviction
motion to be entitled to relief on his claim of newly discovered evidence. In
Watkins, this court concluded that evidence of a State witness’s posttrial arrests

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and convictions for impersonating an officer was not newly discovered because
the arrests and convictions occurred after the defendant’s trial. Watkins, 398
Wis. 2d 558, ¶¶2, 48-52.

¶29 The holding in Watkins dictates the outcome of Turner’s newly
discovered evidence claim. Turner does not dispute that Sadie’s alleged threats
made to another individual occurred well after his 2010 trial. As Sadie’s alleged
threats occurred years after Turner’s trial, under Watkins, that evidence cannot be
considered newly discovered. We, therefore, need not address whether Turner
sufficiently alleged facts in his present postconviction motion to meet his burden
to establish the other prerequisites for newly discovered evidence.

¶30 Turner, however, argues that the evidence of Sadie’s alleged
posttrial threats should nevertheless be considered newly discovered because the
evidence “strongly suggest[s] that specific acts of perjury or witness tampering
occurred in Mr. Turner’s trial” and that Sadie made a pretrial decision to “coach”
Ruth. In other words, Turner appears to argue that evidence of Sadie’s posttrial
threats to another could lead a reasonable fact finder to conclude that the same
thing happened in his trial—Ruth testified falsely because her mother instructed
her to do so. Further, Turner contends that this evidence would cause a trier of
fact to question Ruth’s credibility. According to Turner, evidence bearing on
credibility is always material, and the circuit court relied upon Ruth’s testimony to
convict Turner. Thus, Turner argues, the newly discovered evidence would cause
a reasonable doubt as to Turner’s guilt.

¶31 However, none of the evidence put forth by Turner in his present
postconviction motion demonstrates that Sadie made threats against Turner or
coached Ruth to perjure herself. The alleged posttrial threats were made against

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No. 2022AP469

another individual, and there is no evidence suggesting that the threats were ever
acted upon. Moreover, Turner does not argue that the circuit court erroneously
exercised its discretion by denying his postconviction motion on this claim
without a hearing. In all, the court did not err by denying Turner’s motion based
upon claimed newly discovered evidence.

IV. Interest of justice

¶32 Lastly, Turner asks this court to grant him a new trial in the interest
of justice pursuant to WIS. STAT. § 752.35 because “the credibility” of Ruth “has
not been fully tried.” Under § 752.35, we have the discretion to reverse and
remand for a new trial “if it appears from the record that the real controversy has
not been fully tried.” “[T]he real controversy has not been tried if the jury was not
given the opportunity to hear and examine evidence that bears on a significant
issue in the case, even if this occurred because the evidence or testimony did not
exist at the time of trial.” State v. Davis, 2011 WI App 147, ¶16, 337 Wis. 2d 688,
808 N.W.2d 130 (alteration in original; citation omitted). To grant relief because a
matter was not fully tried, “[w]e need not determine that a new trial would likely
result in a different outcome.” State v. Williams, 2006 WI App 212, ¶36, 296
Wis. 2d 834, 723 N.W.2d 719. However, discretionary reversal “should be
exercised sparingly and with great caution.” Id.

¶33 Turner’s argument that the real controversy was not fully tried is
essentially an attempt to relitigate issues raised in 2011 and addressed in our 2012
opinion. Further, we have already concluded in this opinion that Sadie’s alleged
threats, as outlined in the present postconviction motion, occurred after Turner’s
2010 trial and are of little significance to Turner because they did not involve him
and were apparently never acted upon. Therefore, the evidence does not “bear[]

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on a significant issue” in Turner’s case. See Davis, 337 Wis. 2d 688, ¶16 (citation
omitted).

¶34 Moreover, Judge McKay stated at Turner’s sentencing that he did
not think that Ruth “made this all up” and that he “personally believe[d] that this
happened. I found you guilty of it because I believed that it happened.” Indeed,
Turner was convicted after the allegation of coaching arose and after Ruth and
Sadie were questioned under oath on the topic.7 We also note that this court
previously addressed the coaching issue in our decision affirming Turner’s
conviction, concluding that “[t]here is no evidence that the coaching occurred.”
See Turner, No. 2011AP746-CR, ¶8. We decline to exercise our discretionary
reversal authority in this case.

By the Court.—Order affirmed.

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

7
Turner suggests on appeal that the circuit court “clearly distrusted the testimony of
[Sadie]” because it acquitted Turner of the charges related to “alleged physical violence against
[Sadie].” However, Turner appears to ignore the fact that the court found Turner guilty of two
counts of misdemeanor battery as acts of domestic abuse against Sadie.

15