State v. Harley Allen Garrigan III

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.
August 27, 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. 2022AP174-CR Cir. Ct. No. 2017CF429

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

HARLEY ALLEN GARRIGAN III,

DEFENDANT-APPELLANT.

APPEAL from a judgment and 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. 2022AP174-CR

¶1 PER CURIAM. Harley Allen Garrigan III appeals a judgment,
entered upon his Alford1 plea, convicting him of one count of possession of child
pornography. He also appeals an order denying his postconviction motion for plea
withdrawal. Garrigan argues that his plea was not knowing, intelligent, and
voluntary because his counsel misinformed him that he could appeal the denial of
his pretrial motions to dismiss the charges against him. Garrigan also claims that
his trial counsel was ineffective by misinforming him in this regard. We reject
Garrigan’s arguments and affirm the judgment and order.

BACKGROUND

¶2 The State charged Garrigan with ten counts of possession of child
pornography. The charges arose from an investigation that began in August 2011,
when an agent from the Wisconsin Department of Justice identified an IP address
in Green Bay that was offering to share videos containing child pornography via a
peer-to-peer internet file-sharing network. Investigators were eventually able to
trace the IP address to Garrigan’s apartment. During the execution of a search
warrant for Garrigan’s apartment, law enforcement recovered a laptop computer
with an operating system that had been deleted and reinstalled days earlier. No
images of child pornography were found on the laptop at that time, but several video
files containing “known child pornography” were discovered during a full forensic
analysis of the laptop.

1
An Alford plea is a guilty or no-contest plea in which the defendant either maintains
innocence or does not admit to the commission of the crime. State ex rel. Jacobus v. State, 208
Wis. 2d 39, 45 n.5, 559 N.W.2d 900 (1997); see also North Carolina v. Alford, 400 U.S. 25
(1970).

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No. 2022AP174-CR

¶3 Relevant to this appeal, Garrigan filed pretrial motions to dismiss
based on: (1) the roughly five-year delay between the execution of the search
warrant and the State filing charges; and (2) the State’s alleged inability to prove
that Garrigan knowingly possessed child pornography during the relevant time
periods. At a hearing on the first motion, the circuit court acknowledged that a
defendant seeking dismissal based on pre-charging delay must show both that he or
she suffered actual prejudice because of the delay and that the delay “arose from an
improper notice or purpose such as to gain a tactical advantage” over the defendant.
See State v. Wilson, 149 Wis. 2d 878, 904-05, 440 N.W.2d 534 (1989). The court
denied the motion, concluding that Garrigan failed to satisfy either criteria.

¶4 With respect to his other motion to dismiss, Garrigan argued that
although child pornography was found on his computer, he could not have possessed
it because it was found in the “unallocated space” of the computer, which cannot be
accessed without forensic software. At a motion hearing, a forensic analyst
explained that unallocated space is the area on a hard drive where new files can be
stored, while allocated space is the area where files already reside. The analyst
further explained that when a file is deleted from a computer, it does not “go away.”
Rather, the space that contained the file “just becomes available space for the
computer to save new files,” i.e., it goes from allocated space to unallocated space.
The analyst found “over 100” video clips of “confirmed” child pornography in the
computer’s unallocated space. The analyst testified that because the unallocated
space of Garrigan’s computer contained video clips of child pornography, those
clips were once saved to the computer’s allocated space. The analyst added that a
comparison of the file-sharing network’s download report containing Garrigan’s IP
address with the files and text data contained on Garrigan’s computer would show
when the child pornography videos were downloaded to Garrigan’s computer. The

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circuit court denied Garrigan’s motion, concluding that the State met its burden to
show “sufficient evidence” that Garrigan could have possessed child pornography
during the charged period.

¶5 After consulting with his own forensic computer expert, Garrigan
entered into a plea agreement with the State. In exchange for his Alford plea to one
count of possessing child pornography, the State agreed to recommend that the
circuit court dismiss and read in the remaining counts. The court imposed a
seven-year sentence, consisting of three years of initial confinement followed by
four years of extended supervision.

¶6 Garrigan filed a postconviction motion for plea withdrawal, alleging
that his Alford plea was not knowing, intelligent, and voluntary because he
misunderstood his appellate rights. Specifically, Garrigan claimed that his trial
counsel misinformed him that he could appeal “anything” when, in fact, the guilty-
plea-waiver rule barred him from raising most issues.2 Garrigan also argued that
his trial counsel was ineffective for “misadvising” him that his Alford plea did not
prohibit him from appealing the denial of his pretrial motions to dismiss.3 Garrigan

2
“The general rule is that a guilty, no contest, or Alford plea ‘waives all nonjurisdictional
defects, including constitutional claims[.]’” State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716
N.W.2d 886 (alterations in original; footnote omitted; citation omitted). WISCONSIN STAT.
§ 971.31(10) (2021-22) provides an exception to the guilty-plea-waiver rule for orders “denying a
motion to suppress evidence or a motion challenging the admissibility of a statement of a
defendant,” but that exception does not apply here.
3
The postconviction motion also alleged that Garrigan’s trial counsel was ineffective by
failing to timely notify Garrigan that a new judge had been assigned to the case, thus preventing
Garrigan from exercising his right to substitution of the judge. The circuit court rejected this
ineffective assistance claim, and Garrigan does not challenge that ruling on appeal. Therefore, we
deem this claim abandoned. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588
N.W.2d 285 (Ct. App. 1998) (holding that issues raised before the circuit court but not raised on
appeal are deemed abandoned).

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No. 2022AP174-CR

claimed that he would not have entered an Alford plea had he known that his plea
would bar him from appealing the denial of his pretrial motions. Garrigan’s plea
withdrawal motion was denied after a Machner4 hearing, and this appeal follows.

DISCUSSION

¶7 A defendant seeking to withdraw a plea after sentencing on grounds
other than a defective plea colloquy must demonstrate by clear and convincing
evidence that refusal to allow plea withdrawal would result in a “manifest injustice,”
raising “serious questions affecting the fundamental integrity of the plea.” State v.
Dillard, 2014 WI 123, ¶83, 358 Wis. 2d 543, 859 N.W.2d 44 (citation omitted). A
defendant may establish the existence of manifest injustice in several ways.
Id., ¶37. As relevant here, a defendant may demonstrate manifest injustice by
showing that his or her plea was not knowing, intelligent, and voluntary or by
showing that his or her trial attorney was constitutionally ineffective. See id., ¶¶37,
84. Both of those inquiries present questions of constitutional fact. Id., ¶¶38, 86.
As such, under both inquiries, we will uphold the circuit court’s factual findings
unless they are clearly erroneous, but we independently review the application of
constitutional principles to the facts. See id.

¶8 “[A]ffirmative misinformation about the law provided by the
prosecutor and defense counsel can support a holding that withdrawal of a plea of
guilty or no contest must be permitted because the plea is uninformed and its
voluntariness is compromised.” Id., ¶39. To determine whether misinformation
warrants plea withdrawal, a court must review the totality of the circumstances,
including the record of the postconviction hearing. Id., ¶40. A defendant is entitled

4
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2022AP174-CR

to plea withdrawal based on misinformation that he or she received if the defendant
presents a “persuasive account” of why, absent the misinformation, he or she would
not have entered a plea and would have instead gone to trial. Id., ¶52.

¶9 On appeal, Garrigan argues that his plea was not knowingly,
intelligently, and voluntarily entered because he was misinformed about his ability
to appeal the denial of his pretrial motions. He also contends that his
“mis-advice-based misunderstanding was his key motivation for accepting the
State’s plea offer.” At the Machner hearing, trial counsel acknowledged sending
Garrigan a letter describing, in part, what would happen if Garrigan accepted the
plea deal. The letter included the statement: “I believe you could still appeal the
prior rulings from the [c]ourt on the motions previously filed by the defense.” In
the same letter, trial counsel also informed Garrigan that if he accepted the plea deal,
his exposure to custody time would be substantially reduced, as he faced the
possibility of consecutive sentences if he was ultimately convicted on multiple
counts. Trial counsel added that there was a “substantial risk” of a conviction at
trial because the jury would be shown “the child pornographic images” and there
would be testimony about such searches on Garrigan’s computer.

¶10 In turn, Garrigan testified that although there were a number of factors
that led him to enter an Alford plea, trial counsel’s assurance that he could still
appeal the denial of his pretrial motions was “the deciding factor.” The circuit court,
however, implicitly found this claim to be incredible. See State v. Quarzenski, 2007
WI App 212, ¶19, 305 Wis. 2d 525, 739 N.W.2d 844 (stating that when a court fails
to make express credibility findings, “we assume it made implicit findings on a
witness’s credibility when analyzing the evidence”); see also State v. Peppertree
Resort Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345
(holding that, when acting as fact finder, the circuit court is the ultimate arbiter of

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No. 2022AP174-CR

witness credibility and of the weight to be given to their testimony). The court
determined that, taken together, the testimony of Garrigan and trial counsel, along
with counsel’s letter, suggest that the focus of their discussions was on trial issues
and the plea deal—not on appeals. Simply claiming that the misinformation was
the deciding factor does not make it so.

¶11 Garrigan nevertheless contends that he is entitled to plea withdrawal
under the holdings of both Dillard and State v. Riekkoff, 112 Wis. 2d 119, 332
N.W.2d 744 (1983). We disagree, as both cases are materially distinguishable on
their facts.

¶12 In Dillard, the parties and the circuit court proceeded with a plea
hearing under the mistaken belief that a persistent repeater enhancer applied to a
charged offense and the defendant could have faced a mandatory life sentence had
he not accepted the State’s plea offer. Dillard, 358 Wis. 2d 543, ¶6. Dillard’s
counsel testified that “the dropped persistent repeater enhancer [was] ‘the most
significant factor’ contributing to [Dillard’s] decision” to plead. Id., ¶54. In
concluding that Dillard’s plea was not knowing, intelligent, and voluntary, our
supreme court determined that because the enhancer was a legal impossibility, the
State’s offer to drop the enhancer provided an illusory benefit to Dillard. Id., ¶79.
Here, nothing in the terms of the plea offer itself created an illusory benefit to
Garrigan, and to the extent he claims that misinformation from his counsel was the
deciding factor in accepting the plea offer, the record, as discussed above, does not
support this assertion.

¶13 In Riekkoff, the defendant and the State structured the plea agreement
so that Riekkoff could preserve an evidentiary issue on appeal, and the circuit court
accepted the plea with that understanding. Riekkoff, 112 Wis. 2d at 121-22. In

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No. 2022AP174-CR

concluding that Riekkoff’s plea was “neither knowing nor voluntary,” our supreme
court stated, “One thing … clearly stands out from the record, and that is that
Riekkoff pleaded guilty believing that he was entitled to an appellate review of the
reserved issue.” Id. at 128. Here, in contrast to Riekkoff, Garrigan’s plea was not
structured to allow him the ability to challenge the denial of his pretrial motions,
nor does the record establish that misinformation about his appeal rights was a
“deciding factor” in entering the plea agreement.

¶14 Looking at the totality of the circumstances, we conclude that
Garrigan failed to present a “persuasive account” of why, absent the misinformation,
he would not have entered a plea and would have instead gone to trial, especially in
light of trial counsel’s assessment of the strength of the State’s case, the favorable
plea deal, and the maximum possible 250-year sentence exposure he was avoiding.
Because Garrigan failed to establish that his plea was not knowingly, voluntarily,
and intelligently entered, the circuit court properly determined he was not entitled
to plea withdrawal on this basis.

¶15 To prevail on an ineffective assistance claim, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
prove deficient performance, the defendant must point to specific acts or omissions
by counsel that are “outside the wide range of professionally competent assistance.”
Id. at 690. To prove prejudice, a defendant seeking to withdraw his or her plea must
establish a reasonable probability that, but for counsel’s errors, he or she would not
have pled guilty and would have insisted on going to trial. State v. Bentley, 201
Wis. 2d 303, 312, 548 N.W.2d 50 (1996). A defendant, however, must do more
than merely allege that he or she would have pleaded differently but for the alleged
deficient performance. State v. Hampton, 2004 WI 107, ¶60, 274 Wis. 2d 379,

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No. 2022AP174-CR

683 N.W.2d 14. The defendant must support that allegation with “objective factual
assertions.” Id. (citation omitted). If a defendant fails to make a sufficient showing
on one prong of the Strickland test, we need not address the other. Strickland, 466
U.S. at 697.

¶16 Garrigan argues that his trial counsel performed deficiently by
misinforming him about his ability to challenge the denial of his pretrial motions on
appeal. Although Garrigan’s trial counsel could be deemed deficient for
misinforming Garrigan in this regard, we are not persuaded that Garrigan was
prejudiced by this deficiency. The State argues that Garrigan cannot establish
prejudice because the evidence against him was overwhelming.

¶17 As Garrigan points out, however, “there is more to consider than
simply likelihood of success at trial.” See Lee v. United States, 582 U.S. 357, 367
(2017). “The decision whether to plead guilty also involves assessing the respective
consequences of a conviction after trial and by plea.” Id. In determining whether a
defendant would have insisted on going to trial but for counsel’s error, we focus “on
a defendant’s decisionmaking, which may not turn solely on the likelihood of
conviction after trial.” Id. The Lee Court further explained:

A defendant without any viable defense will be highly likely
to lose at trial. And a defendant facing such long odds will
rarely be able to show prejudice from accepting a guilty plea
that offers him a better resolution than would be likely after
trial. But that is not because the prejudice inquiry in this
context looks to the probability of a conviction for its own
sake. It is instead because defendants obviously weigh their
prospects at trial in deciding whether to accept a plea.

Id. As this passage indicates, while generally a defendant will change his or her
plea only if there is a reasonable probability of success on the merits, there may be

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No. 2022AP174-CR

other particularized circumstances that may cause the defendant to change his or her
plea.

¶18 The Lee Court added that, “[a]s a general matter, it makes sense that
a defendant who has no realistic defense to a charge supported by sufficient
evidence will be unable to carry his [or her] burden of showing prejudice from
accepting a guilty plea.” Id. at 366-67. Further, the Court stated that “[c]ourts
should not upset a plea solely because of post hoc assertions from a defendant about
how he [or she] would have pleaded but for his [or her] attorney’s deficiencies.
Judges should instead look to contemporaneous evidence to substantiate a
defendant’s expressed preferences.” Id. at 369.

¶19 Therefore, “to show prejudice from accepting a plea, the defendant
has two independently sufficient options to prove that he or she would have not
pleaded guilty and would have instead proceeded to trial.” State v. Savage, 2020
WI 93, ¶35, 395 Wis. 2d 1, 951 N.W.2d 838. First, a defendant can demonstrate,
based on “contemporaneous evidence,” that counsel’s deficient performance so
offended “expressed preferences” that the defendant would not have pleaded guilty.
Id. (citation omitted). Second, the defendant can demonstrate that the defense
would have likely succeeded at trial. Id.

¶20 Garrigan argues that he was committed to pursuing certain issues on
appeal after raising them unsuccessfully at the trial level and, therefore, it is
“reasonably probable that commitment would have led him to trial had he known
about the guilty-plea-waiver rule.” Garrigan’s post hoc claim that he would have
gone to trial but for trial counsel’s misinformation is not supported by any
contemporaneous evidence of the same. As the circuit court noted in its decision

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No. 2022AP174-CR

denying Garrigan’s postconviction motion, the focus of discussions between
Garrigan and his attorney was on trial issues and the plea deal—not on appeals.

¶21 As the State alleges, over 100 video clips of confirmed child
pornography were found in the unallocated space of Garrigan’s computer. The State
further alleges that by comparing the file-sharing network’s download report with
the files and text data contained on Garrigan’s computer, agents could determine
when the child pornography videos were downloaded to Garrigan’s computer.
According to the State, it could also show that Garrigan did not accidentally
download child pornography onto his computer, as a forensic analysis revealed that
Garrigan searched the internet using the key word “Lolita,” which is associated with
child pornography. Garrigan’s trial counsel advised him in a letter days before trial
that there was a “substantial risk” of conviction if he proceeded to trial because the
jury would be shown the child pornographic images and there would be testimony
about the “Lolita searches” on his computer. In fact, at the plea hearing, Garrigan
agreed that by entering an Alford plea, he was conceding that the State had strong
evidence of guilt against him.

¶22 Given the absence of contemporaneous evidence to support
Garrigan’s claim that he would have proceeded to trial but for his trial counsel’s
deficiency, combined with the evidence of his guilt and the benefits of his plea, we
are not persuaded that Garrigan has demonstrated prejudice. Therefore, we
conclude the circuit court properly determined that Garrigan was not entitled to plea
withdrawal on the basis of ineffective assistance of trial counsel.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

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