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COURT OF APPEALS DECISION DATED AND RELEASED JULY 2, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3484-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GORDON A. ALEXANDER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for St. Croix County:
CONRAD A. RICHARDS, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Gordon Alexander appeals a judgment convicting him of
theft by fraud. He argues that the trial
court improperly exercised its discretion when it refused to allow him to
withdraw his guilty plea before sentencing.
We reject this argument and affirm the judgment.
Alexander was charged
with obtaining a bank loan for his automobile dealership by fraudulently
representing his interest in two cars that served as collateral. One of the cars had already been sold, and
the other had been totally destroyed in an accident. Pursuant to a plea agreement, the State dismissed one count of
felony issuance of bad checks and also agreed not to charge Alexander with two
counts of felony bail jumping.
Alexander pled guilty to one count of theft by fraud. At the sentencing hearing, the bank
president asked to delay sentencing to allow additional time for Alexander to
clear up some matters. Six days later,
the bank president signed an affidavit stating that he had reviewed and was
familiar with the floor plan note signed by Alexander on or around April 10,
1991, and that "when Mr. Alexander signed the Note on behalf of St.
Croix Falls Ford-Mercury, the description portion of the document was blank was
due to the fact that it was a renewal of previous notes." On the basis of that affidavit, Alexander
filed a motion to withdraw his guilty plea.
The bank president then wrote a letter[1]
to the district attorney regarding the affidavit stating:
This affidavit was originally prepared by
Mr. Alexander and retyped by the Bank with significant changes. I previously explained to you that #5 [the
clause stating that description portion of the document was blank when
Alexander signed it] was suppose to have been deleted. What is correct about #5 is the fact that it
was renewal of previous notes. I have
no knowledge of Mr. Alexander signing a bank note.
The
trial court denied Alexander's motion to withdraw his plea.
Before sentencing, a
defendant may withdraw a guilty plea for any fair and just reason. See State v. Canedy,
161 Wis.2d 565, 581-82, 469 N.W.2d 163, 170 (1991). While trial courts are encouraged to freely allow withdrawal of
pleas before sentencing, "freely" does not mean
"automatically." Id. The defendant must offer some reason other
than a desire to have a trial. See
State v. Libke, 60 Wis.2d 121, 127, 208 N.W.2d 331, 334
(1973). Some of the relevant factors to
consider in determining whether a defendant has met his burden of showing a
fair and just reason for withdrawing his plea are: (1) a swift change of heart; (2) an assertion of
innocence; (3) a genuine misunderstanding of the guilty plea's
consequence; (4) a hasty or confused entry of a plea; and (5) a
showing of coercive tactics by defense counsel. See State v. Shanks, 152 Wis.2d 284, 290,
448 N.W.2d 264, 266-67 (Ct. App. 1989).
The trial court properly
exercised its discretion when it refused to allow Alexander to withdraw his
guilty plea on the basis of the bank president's affidavit. He recanted the key paragraph of the
affidavit before the hearing on Alexander's motion to withdraw the plea. The affidavit does not state that the bank
president had personal knowledge that Alexander signed a blank form. The bank president did not testify at the
preliminary hearing. Rather, another
bank employee testified that she went through the note "line by line"
with Alexander before he signed it. The
recanted affidavit does not undermine the factual basis for Alexander's
plea. Rather, it appears that it
momentarily provided an excuse for Alexander to attempt to back out of a plea
agreement after he learned that the presentence report recommended substantial
prison time.
Alexander established
none of the factors set out in Shanks. He did not attempt to withdraw his plea until three months after
he entered the plea. He has not
asserted innocence or established a genuine misunderstanding of a guilty plea's
consequences. He has not provided
evidence that the plea was hasty or entered as a result of confusion or coercion. Rather, he relies entirely on the prospect
of impeaching the bank president with the recanted affidavit. The trial court properly rejected the motion
to withdraw the plea based only on unpersuasive potential impeachment of an
insignificant witness.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.