State v. Frank J. Kosina

No. �98-3421-CR

STATE OF WISCONSIN

IN COURT OF APPEALS

state of wisconsin,

�� Plaintiff-respondent,

�� v.

frank j. kosina,

�� defendant-appellant.

�� APPEAL from a judgment and an order of the circuit court for Price County:� douglas t. fox, Judge.� Affirmed.�

�� Before Cane, C.J., Myse, P.J., and Hoover, J.�

�� MYSE, P.J.�� Frank J. Kosina appeals a judgment of conviction for misdemeanor disorderly conduct and an order denying postconviction relief.� Kosina�s sole argument is that the circuit court erred by denying his motion to withdraw his guilty plea.[1]� Kosina contends that he was not informed that his conviction would result in a permanent prohibition of firearms possession under 18 U.S.C.A. �� 921 and 922 (1976 & West Supp. 1999).[2]� Kosina argues that because he was not advised of these provisions, his plea was not knowingly and voluntarily entered and that withdrawal was necessary to correct a manifest injustice.� We conclude that the federal statutes� effect is not an automatic consequence of Kosina�s plea because the application of his misdemeanor disorderly conduct conviction to the federal statute�s scope must be resolved before the statute�s restrictions take effect.� Furthermore, even assuming the federal statute applies, we nonetheless conclude the effect of these federal firearms statutes is a collateral consequence of Kosina�s guilty plea because the statute is enforced by a different jurisdiction.� Accordingly, we are satisfied that Kosina�s plea was voluntarily entered and affirm.

�� Kosina was charged with one count of disorderly conduct in violation of � 947.01, Stats. The conviction was based on an incident during which he allegedly struck his wife with a pillow, threw her from the door as she attempted to leave, grabbed her by the armpits and threw her against a stove causing injury to her arm, and pulled the telephone cord out of the wall before she was able to flee.� Kosina appeared pro se at his plea hearing. The trial court conducted an extensive colloquy pursuant to the requirements of � 971.08, Stats., accepted Kosina�s guilty plea, and placed him on probation for one year with the condition that he complete the batterer�s program.� Kosina, now represented by counsel, filed a postconviction motion to withdraw his guilty plea alleging that he entered his plea not knowing his conviction could result in the loss of his right to possess a firearm under federal law.� The circuit court denied postconviction relief and concluded that the effect of the federal firearms statutes was a collateral consequence of Kosina�s guilty plea because a federal tribunal needed to determine the statutes� application.

�� Whether to permit withdrawal of a guilty plea is a discretionary decision for the trial court.�� State ex rel. Warren v. Schwarz, 219 Wis.2d 616, 636, 579 N.W.2d 698, 708 (1998).�� The trial court�s decision will be overturned only if the court erroneously exercised its discretion. Id. In reviewing a discretionary decision, we examine the record to determine if the court logically interpreted the facts, applied the proper legal standard, and used a demonstrated rational process to reach a conclusion that a reasonable judge could reach.� State v. Keith, 216 Wis.2d 61, 69, 573 N.W.2d 888, 892-93 (Ct. App. 1997).

�� Section 971.08(1)(a), Stats., requires the judge taking the plea to �determine that the plea is made voluntarily and with understanding of the nature of the charge and the potential punishment if convicted.�� A plea is not knowingly, voluntarily, and intelligently entered, and a manifest injustice results when a defendant does not know what sentence could actually be imposed.� Warren, 219 Wis.2d at 636-37, 579 N.W.2d at 708.� An understanding of potential punishments or sentences includes knowledge of the direct consequences of the plea, but does not require that a defendant be informed of consequences collateral to the plea.� Id. at 637, 579 N.W.2d at 708.� A defendant who was not informed of the direct consequences of his plea did not enter his plea knowingly, intelligently and voluntarily and is entitled to withdraw it to correct a manifest injustice.� State v. Madison, 120 Wis.2d 150, 159, 353 N.W.2d 835, 840 (Ct. App. 1982).� No manifest injustice occurs, however, when the defendant is not informed of a collateral consequence.�� Id.

�� We are therefore required to determine whether the effect of �� 921 and 922, prohibiting those convicted of a misdemeanor crime of domestic violence from possessing a firearm or ammunition, is a direct or collateral consequence of Kosina�s guilty plea.[3]� A direct consequence of a plea has a definite, immediate, and largely automatic effect on the range of a defendant�s punishment.� State v. James, 176 Wis.2d 230, 238, 500 N.W.2d 345, 348 (Ct. App. 1993).� A collateral consequence, in contrast, does not automatically flow from the plea.� State v. Myers, 199 Wis.2d 391, 394, 544 N.W.2d� 609, 610 (Ct. App. 1996).� In some cases, a particular consequence is deemed �collateral� because it rests in the hands of another government agency or different tribunal.� Torrey v. Estelle, 842 F.2d 234, 236 (9^th Cir. 1988).� It can also be collateral because it depends upon a future proceeding.� Myers, 199 Wis.2d at 394, 544 N.W.2d at 610-11.[4]

�� Kosina argues that � 922 takes effect at the moment the misdemeanor conviction is entered and therefore is a direct, immediate, and automatic consequence of his plea.� We disagree.

�� We first conclude that the effect of � 922 is not an automatic consequence of Kosina�s plea because the application of his misdemeanor disorderly conduct conviction to the federal statutes� scope remains open and must be resolved before the statute�s firearm prohibition takes effect.� The restrictions of � 922 only apply to persons convicted of a misdemeanor crime of domestic violence.� Kosina was convicted of misdemeanor disorderly conduct in violation of � 947.01, Stats.� We observe, however, that the trial court made no explicit factual determination that Kosina�s disorderly conduct conviction was related to domestic violence.� Accordingly, we are confronted with the question whether the federal statute prohibiting firearm possession applies automatically to a state disorderly conduct conviction absent a state court finding that the conviction involves domestic violence. Under these circumstances, the question of the state disorderly conduct conviction�s application to the federal statute�s scope must be determined before the federal statute�s consequences can take effect.� We conclude that because Kosina can, as a preliminary matter, contest the federal statute�s applicability to his state conviction, the operation of the federal firearm prohibition is not automatic.� If it is determined that Kosina�s conviction does not fall within � 922�s scope, then the federal statute does not apply and its restrictions do not have an automatic effect on Kosina�s range of punishment.� Because the application of the federal statute to Kosina�s conviction can still be contested, the federal statute�s effects are not automatic in time or impact on Kosina�s conviction.[5]

�� Even assuming, however, that the federal statute applies to the disorderly conduct conviction because it involves domestic violence, we conclude that its effect is a collateral consequence of Kosina�s plea. We recognize that the federal statute would apply to Kosina as soon as he was convicted of disorderly conduct because upon conviction Kosina would be restricted from possessing a firearm or ammunition in or affecting commerce.� However, that restriction is not a direct consequence of his plea because a direct consequence must have a direct, immediate, and automatic effect on the range of Kosina�s punishment for disorderly conduct.�

�� The federal statute�s consequences arise under the authority of federal law and are imposed by a federal tribunal. Because the prohibition to possessing firearms arises from a body of law that is collateral to the state court proceedings, any consequence arising under that law must also be collateral.�� Whether Kosina experiences the effect of the federal statute is not a decision in which the trial court participates.� Conversely, Kosina�s punishment for disorderly conduct is established by state law.� Therefore, the firearm prohibition is a separate, peripheral consequence and does not have an immediate or automatic effect on the range of punishment imposed under state law by the trial court accepting the plea.� See Torrey, 842 F.2d at 236 (a particular consequence is deemed collateral because it rests in the hands of another tribunal).

�� The application of Kosina�s misdemeanor disorderly conduct conviction to the scope of �� 921 and 922 is unresolved, and therefore the effect of these federal statutes is not automatic. In addition, even if the misdemeanor disorderly conduct conviction falls within the scope of �� 921 and 922, the federal statutes� effect is a collateral consequence of Kosina�s guilty plea and cannot form the basis of a claim of manifest injustice requiring plea withdrawal.� Defendants do not have a due process right to be informed of consequences that are merely collateral to their pleas.� See State v. Santos, 136 Wis.2d 528, 531, 401 N.W.2d 856, 858 (Ct. App. 1987).� Accordingly, we conclude that the trial court was not required to inform Kosina of the effect of �� 921 and 922 and that it properly exercised its discretion by denying Kosina�s motion for plea withdrawal.� Accordingly, we affirm.

�� By the Court.�Judgment and order affirmed.

�

[1] This opinion was decided by a 3-judge panel pursuant to the court�s November 27, 1998, order.

[2] These statutes prohibit one convicted of a misdemeanor involving domestic violence from possessing firearms or ammunition.

[3] 18 U.S.C.A. � 922(g)(9) (West Supp. 1999), provides in relevant part:

(g) It shall be unlawful for any person�

(9) �who has been convicted in any court of a misdemeanor crime of domestic violence, to � possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C.A. � 921(a)(33)(A)(i) and (ii) (West Supp. 1999), defines �misdemeanor crime of domestic violence� as an offense that

(i) is a misdemeanor under Federal or State law; and

(ii) �has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse � by a person who is cohabiting with or has cohabited with the victim as a spouse �.

(iii)

[4] In Myers, for example, we concluded that the potential for Myers to be committed as a sexual predator following his sexual assault conviction was a collateral consequence because his commitment as a sexual predator was contingent on a future commitment hearing.� State v. Myers, 199 Wis.2d 391, 394, 544 N.W.2d 609, 610-11 (Ct. App. 1996).

[5] Our conclusion is confined to the question whether � 922 applies automatically when the trial court does not make a domestic violence determination.� A different case is presented where the trial court makes a factual determination that a misdemeanor disorderly conduct conviction is related to domestic violence.� That case, however, is not before us.� We do not address the consequences of a trial court making a factual determination that disorderly conduct is related to domestic violence and including in its judgment that the conviction is domestic violence related.