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State v. Marshall2/5/2002
. Donald D. Marshall appeals from a judgment entered after he pled guilty to one count of operating a motor vehicle while intoxicated (OWI) (fifth offense), contrary to Wis. Stat. § 346.63(1)(a) (1999-2000). Marshall also appeals from the trial court's order denying his post-conviction motion. Marshall claims that: (1) his trial counsel was ineffective for failing to move to suppress the blood alcohol evidence, which he alleges was obtained in violation of Wis. Stat. § 343.305(9)(a); and (2) two "new factors" establish grounds for modification of his sentence. We disagree and affirm.
I. Background.
. On February 18, 2000, City of Cudahy Police Officer Mark Bozeil responded to a complaint of a "potential drunk driver" operating a four-door Honda vehicle. Officer Bozeil located the Honda and immediately followed the vehicle. After approximately two blocks, the driver stopped at a stop sign. After stopping for an unusually long period of time, the driver of the Honda started to pull into the intersection but quickly stopped when his vehicle was almost struck by a westbound vehicle which did not have a stop sign. The officer activated his emergency lights and the driver of the Honda, Marshall, pulled to the curb.
. Upon approaching Marshall's vehicle and leaning his head down to the open car window, the officer detected a strong odor of alcohol. He also observed that Marshall's speech was slurred and his eyes were red and glassy. Marshall soon admitted that he had consumed about "three beers or so." The officer attempted to have Marshall perform field sobriety tests, but Marshall was unable to stand without assistance. After failing a preliminary breathalyzer, Marshall was placed under arrest.
. Marshall was then transported to St. Luke's Hospital where he was read the "Informing the Accused" form. Marshall refused to submit to a voluntary blood draw, stating that the police would have to "restrain him." Marshall stated in an affidavit that subsequent to his refusal, that a captain or lieutenant of the Cudahy Police Department came into the room where he was seated, showed him a big bag of colored straps, and told him that he was either going to submit to the blood draw or he and other police officers were going to physically strap him down and take his blood regardless of his wishes. Marshall then consented to the blood draw and to an intoximeter test of his breath. These tests revealed a blood alcohol content of .224% by weight of alcohol in Marshall's blood, and .17 grams of alcohol in 210 liters of Marshall's breath, both well above the legal limit. On April 24, 2000, Marshall, without filing any motions to suppress the evidence, entered a guilty plea to operating a motor vehicle while intoxicated (fifth offense).
II. Analysis.
A. Marshall's trial counsel was not ineffective.
. The familiar two-pronged test for ineffective assistance of counsel claims requires defendants to prove: (1) deficient performance, and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bentley, 201 Wis. 2d 303, 311-12, 548 N.W.2d 50 (1996). To prove deficient performance, a defendant must show specific acts or omissions of counsel that were "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. To prove prejudice, a defendant must show that counsel's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. See id. at 687. In other words, " he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
. Ineffective
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