State v. Jerry L. Graveen

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.
September 19, 2023
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. 2022AP1216-CR Cir. Ct. No. 2020CF130

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JERRY L. GRAVEEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Lincoln County: JAY R. TLUSTY, 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).

¶1 PER CURIAM. Jerry Graveen appeals from a judgment convicting
him of two felonies arising out of a high-speed car chase involving multiple law
No. 2022AP1216-CR

enforcement officers, and from an order denying his postconviction motion for
resentencing. The sole issue on appeal is whether Graveen’s trial counsel
provided ineffective assistance by failing to obtain and review a squad car video of
the car chase prior to Graveen’s sentencing hearing. As a result of this failure,
Graveen alleges that his counsel was unable to adequately represent him at the
sentencing hearing. We conclude that Graveen cannot demonstrate prejudice from
his counsel’s alleged failure and therefore affirm.

BACKGROUND

¶2 Graveen pled no contest, as a repeat offender, to one count of a
vehicle operator fleeing or eluding an officer and one count of second-degree
reckless endangerment. The presentence investigation report (PSI) described the
offenses as they were set forth in the criminal complaint. This description
included allegations that: (1) at one point during the pursuit, a law enforcement
officer had to “jump out of the way” of Graveen’s vehicle; (2) at another point,
Graveen’s vehicle “made contact with the passenger side of [the squad car of the
same law enforcement officer]” as the officer was attempting to block Graveen’s
path; and (3) Graveen resisted arrest after his vehicle got stuck in a pond, and he
needed to be electronically shocked before he could be handcuffed.

¶3 In response to the allegations from the complaint, Graveen told the
PSI agent that: (1) he “never came close to hitting an officer with [his] truck;”
(2) a squad car struck Graveen’s vehicle from behind, propelling his vehicle into
making contact with another squad car; and (3) Graveen was not trying to resist
arrest but merely attempting to “hold his cell phone above the water” after the
arresting officers threw him into the water. The PSI also included a law
enforcement officer’s victim statement that he had suffered “an occasional

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nightmare about being run over by cars and not being able to move out of the
way” after Graveen “almost ran [him] over and then intentionally struck [his]
squad car.”

¶4 At the sentencing hearing, the circuit court’s description of the
offense included the facts disputed by Graveen. The court observed that Graveen
was lucky that he had not killed or injured any pedestrians or other motorists
during the extended chase—during which the vehicle driven by Graveen exceeded
115 miles per hour at times; traveled on a U.S. highway, several county highways,
city streets, residential driveways and lawns, and a gravel pit; and failed to stop at
several stop signs.

¶5 The circuit court then noted that it could not recall having sentenced
any defendants with more than Graveen’s seventy-eight prior convictions. The
court placed particular emphasis on Graveen’s two prior convictions for fleeing or
evading an officer, which the court viewed as part of an “undesirable behavior
pattern” very similar to the current offense.

¶6 The circuit court acknowledged that Graveen was hardworking and
had a number of positive character traits. However, given Graveen’s extensive
criminal history and his having absconded or been revoked from prior terms of
supervision, the court concluded that “close rehabilitative control” was necessary.
Taking into account its primary objective of protecting the community and
secondary objective of punishment, the court sentenced Graveen to concurrent
terms of three years’ initial confinement followed by two years’ extended
supervision on the fleeing count and four years’ initial confinement followed by
four years’ extended supervision on the reckless endangerment count.

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¶7 Graveen filed a postconviction motion for resentencing based upon
ineffective assistance of counsel. Graveen alleged, among other things not at issue
in this appeal, that his trial counsel had failed to obtain and review the dashboard
camera video of the car chase. Graveen claimed that had his trial counsel
reviewed the video, he could have presented the circuit court with “relevant
context” and “mitigating actions” Graveen took during the chase. Without doing
so, Graveen further argues, his counsel inadequately represented him at the
sentencing hearing.

¶8 Following an evidentiary hearing during which portions of the
dashboard camera video were viewed by the circuit court and explained by
Graveen, the court made a factual finding that Graveen’s trial counsel had, in fact,
failed to obtain and review the dashboard camera video. However, the court noted
that the PSI already contained Graveen’s version of the vehicle chase, and the
court stated that what Graveen viewed as “inaccuracies” in the complaint and
PSI’s description of the offenses were “essentially differences of opinions of what
occurred.” In addition to observing that the segments of the video regarding those
disputed points were “subject to interpretation,” the court pointed out that the
entirety of the video would have shown “the magnitude” of the lengthy high-speed
chase that endangered the public and law enforcement.

¶9 The circuit court determined there was no reasonable probability that
the outcome of the sentencing would have been different if portions of the
dashboard camera video had been played at the sentencing hearing. The court
therefore concluded that Graveen had failed to demonstrate prejudice on his
ineffective assistance claim, and it denied the postconviction motion. Graveen
now appeals that decision.

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DISCUSSION

¶10 To establish a claim of ineffective assistance, a defendant must
prove two elements: (1) deficient performance by counsel; and (2) prejudice
resulting from that deficient performance. State v. Sholar, 2018 WI 53, ¶32, 381
Wis. 2d 560, 912 N.W.2d 89. We will not set aside the circuit court’s factual
findings about what actions counsel took or the reasons for them unless they are
clearly erroneous. See State v. Balliette, 2011 WI 79, ¶19, 336 Wis. 2d 358, 805
N.W.2d 334. However, whether counsel’s conduct violated the constitutional
standard for effective assistance is ultimately a legal determination that this court
decides de novo. Id. We need not address both elements of the test if the
defendant fails to make a sufficient showing on one of them. See State v.
Swinson, 2003 WI App 45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12.

¶11 Here, we conclude that Graveen cannot demonstrate prejudice. A
defendant proves prejudice by demonstrating there is a reasonable probability that,
but for counsel’s unprofessional conduct, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The
“reasonable probability” standard is tied to the reviewing court’s confidence in the
outcome, and the “likelihood of a different result must be substantial, not just
conceivable.” Sholar, 381 Wis. 2d 560, ¶45; State v. Langlois, 2017 WI App 44,
¶20, 377 Wis. 2d 302, 901 N.W.2d 768. Like the circuit court, we see no
reasonable probability of a different sentencing result if Graveen’s trial counsel
had reviewed the dashboard camera video prior to sentencing.

¶12 First, the dashboard camera video does not establish that any of the
facts about the chase as asserted in the complaint and PSI were actually inaccurate.
The video supports the assertions that Graveen’s vehicle hit the side of a squad car

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No. 2022AP1216-CR

under its own momentum before it was pushed into the bumper of that squad car
and that Graveen resisted arrest. It is not possible to see whether the officer
“jumped” out of the way of Graveen’s vehicle or merely backed away as
Graveen’s vehicle drove around the officer’s squad car because the officer’s legs
are not visible behind the squad car. There is nothing in the video, however, that
would prevent the circuit court from finding the officer’s own account of having
jumped back to be credible.

¶13 Second, the circuit court’s explanation of the reasons for its sentence
did not hinge upon whether the officer had to jump out of the way of Graveen’s
vehicle. Rather, the court emphasized the dangerous nature of the totality of the
vehicle chase, in addition to Graveen’s lengthy criminal record. The video plainly
supports the court’s description of the chase as being high speed and endangering
the public and law enforcement, and there is no dispute as to Graveen’s criminal
record—which included two prior fleeing convictions. We therefore conclude that
the court properly denied Graveen’s motion for resentencing.

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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