COURT OF APPEALS

DECISION

DATED AND FILED

September 19, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

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 
No. 2022AP1216-CR

3

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. 
No. 2022AP1216-CR

4

¶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. 
No. 2022AP1216-CR

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No. 2022AP1216-CR

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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 
No. 2022AP1216-CR

7

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).