State v. Nicholas J. Nero, 2023AP543, District III, 6/10/25 (one-judge decision; ineligible for publication); case activity
The COA found that law enforcement had probable cause that Nicholas Nero was driving under the influence, independent from his compelled statement to his probation officer and un-Mirandized statement to a deputy sheriff, and therefore affirmed the circuit court’s order denying his motion to suppress the results of his blood draw. The COA also found that Nero’s claims for ineffective assistance of counsel at trial were conclusory and undeveloped.
According to testimony from the evidentiary hearings and trial, Nero spent an October night near Menomonie proving every killjoy’s mantra that nothing good ever happens between 2 and 5 a.m. After dropping off friends, Nero planned to spend the night in his car in a Wal-Mart parking lot, but got lost and drove onto a paving plant’s property, where he damaged a PVC pipe and concrete barrier. He returned to the road, but drove into a bean field for approximately one-half mile until his vehicle got stuck. Nero abandoned the vehicle, called his friends to pick him up, and they went to smoke methamphetamine. (¶¶ 2-3). Hours later, Nero’s friends dropped him off at the paving plant to look for his car. Around 3:30 a.m., Nero knocked on the foreman’s trailer; the foreman testified that although it was cold outside, Nero was wearing a t-shirt, not wearing shoes or socks, and was wet. Nero told the foreman he was lost, scared, and hungry. When the foreman asked Nero if he knew their location, Nero said Green Bay. Because he believed Nero was under the influence, the foreman called police. (¶ 4).
A Dunn County sheriff’s deputy arrived around 4 a.m., who observed that Nero was disoriented and confused. Nero told the deputy that he was coming from Hudson and going to Hudson in the same statement. The deputy noticed tire tracks on Monarch’s property and observed damage to the property. When the deputy learned that Nero’s driving privilege was revoked for an OWI offense, he arrested Nero for operating after revocation and criminal damage to property. (¶ 6).
Nero was transported to the Dunn County Jail and met with a probation agent because he was on probation in another county. Nero made a statement regarding the incident to the probation officer and consented to a urinalysis test, which was positive for three controlled substances. A second sheriff’s deputy approached Nero to request a blood draw; Nero told the deputy he had hypodermic needles in his car and that he used methamphetamine five days earlier. The deputy did not advise Nero of his Miranda rights, but read to him the Informing the Accused form to obtain a blood draw, to which Nero consented. The blood test was positive for methamphetamine. (¶¶ 7-8).
The second deputy submitted an affidavit in support of a search warrant for Nero’s vehicle, which included Nero’s non-Mirandized statements and his statements to the probation officer. The warrant was issued and the deputy seized syringes, gem packs with cocaine residue, and cotton swabs. Nero was charged with possessing cocaine, criminal damage to property, operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood, OWI, operating after revocation, and possessing drug paraphernalia. (¶¶ 9-10).
Nero moved to suppress the items seized from his vehicle, his statements, and the results of the urinalysis and blood tests. The circuit court suppressed Nero’s statements to the probation officer and to the deputy and the physical evidence obtained from Nero’s vehicle because the search warrant was a fruit of those statements. (¶ 11). The circuit court did not suppress the results of Nero’s blood test because the deputy had probable cause to ask Nero to submit to a blood test. (¶ 12). Nero was convicted at trial of criminal damage to property, operating a motor vehicle with a restricted controlled substance in his blood, and operating after revocation. (¶ 15).
Postconviction counsel filed a no-merit notice of appeal, which was rejected because the COA found Nero was entitled to resentencing. Postconviction counsel then filed a postconviction motion for resentencing; the circuit court granted the motion, but resentenced Nero to the same sentence. (¶ 16).
A second postconviction attorney was appointed, who filed a postconviction motion asking the circuit court to reconsider its decision regarding suppressing Nero’s blood test results and requesting a new trial because trial counsel was ineffective. The motion was denied and Nero appealed. (¶¶ 18-19).
On appeal, Nero argued that his blood test results should have been suppressed as the fruit of compelled statements and that trial counsel was ineffective for failing to present evidence to corroborate Nero’s theory of defense.
The Court first addressed the State’s argument that Nero’s claims were barred by Escalona-Naranjo because they could have been brought in his first postconviction motion, which sought only resentencing. The Court noted that Nero did not present any reason for failing to present all of his claims in the first postconviction motion, but recognized that he did not have an opportunity for a direct appeal of his judgment of conviction after resentencing because the postconviction motion was granted. The Court therefore assumed without deciding that Nero’s claims were not barred by Escalona-Naranjo. (¶ 22).
Regarding the motion to suppress the blood test results, the Court found that the following evidence was sufficient to request a blood test independent from Nero’s compelled statements: 1) the second deputy knew that the first deputy saw that Nero was disoriented and confused in the middle of the night and showed signs of being under the influence; 2) Nero did not know where he left his car; and 3) the second deputy knew that the first deputy was aware that Nero drove erratically at the paving plant and drove into a bean field for one-half mile. (¶¶ 27-28).
As for Nero’s IAC claims, Nero argued that trial counsel’s performance was deficient because he did not elicit testimony from Nero’s friends “corroborating his testimony” and trial counsel did not present evidence that Nero’s car still had gas in the tank. The Court considered Nero’s claims “conclusory and undeveloped” because Nero did not identify what friends trial counsel should have called or what his friends would have said. (¶ 38). Nor did Nero allege why or how whether he had gas in his car prejudiced his trial. (¶ 39).