PUBLISHED OPINION
Case No.: 95-3494-CR
†Petition for
review filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BRIAN J. SALENTINE,
Defendant-Appellant.†
Submitted on Briefs: October 15, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: November 13, 1996
Opinion Filed: November 13, 1996
Source of APPEAL Appeal
from a judgment and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If "Special", JUDGE: Kathryn W. Foster
so indicate)
JUDGES: Anderson,
P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the briefs of Charles
Bennett Vetzner, assistant state public defender.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and Sharon Ruhly, assistant attorney
general.
COURT OF APPEALS DECISION DATED AND RELEASED November 13, 1996 |
NOTICE |
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. 95-3494-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BRIAN J. SALENTINE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Waukesha County: KATHRYN W. FOSTER, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
BROWN, J. Brian
J. Salentine has a developmental disability and an IQ of 69. The trial court nonetheless concluded that
he competently submitted an Alford[1]
plea to charges that he sexually assaulted his six-year-old niece. In this appeal, Salentine argues that the
trial court should have permitted him to withdraw his plea.
Salentine raises four
specific claims. First, he contends
that the plea proceedings were invalid as a matter of law because he only
stated that he was offering an Alford plea, which is not one of
the enumerated pleas that a trial court may accept under §§ 971.06 and
972.13(1), Stats. Next, Salentine argues that he presented the
trial court with three “fair and just” reasons to set aside his plea. See State v. Canedy, 161
Wis.2d 565, 582, 469 N.W.2d 163, 170 (1991).
One, noting his disability, he claims that he did not fully comprehend
the plea proceedings. Two, Salentine
contends that he did not consider the possibility of long-term commitment as a
sexual predator under ch. 980, Stats. And three, Salentine contends that he
discovered new evidence about a juvenile who previously assaulted the victim
and that this evidence would have impacted his decision to enter a plea. While Salentine has not reviewed the
contents of these sealed juvenile records, he claims that he was denied the
right to effective appellate counsel because he was not permitted to review the
records and gauge if the trial court erred in its in camera review. We reject all of his claims and affirm his
conviction.
We will begin with a
recitation of the facts supporting Salentine's conviction and a brief
description of the pretrial proceedings.
Further facts will be forthcoming as necessary.
The police interrogated
Salentine after the victim's mother, who is also Brian's sister, told police
that she thought Salentine had sexually assaulted her daughter. Salentine eventually admitted to the police
that the assault occurred on June 11, 1994, when he was left to babysit his
niece and two nephews. That evening, he
gave his niece a bath and became sexually aroused while he was drying her off;
he then put his pinky finger into her vagina a few times. The victim's mother became suspicious two
days later when she noticed that her daughter's genitalia were red and appeared
irritated.
After pretrial
proceedings, including Salentine's failure to persuade the court to suppress
his statements to the police, Salentine filed with the trial court a Request to
Enter Plea and Waiver of Rights. This
six-page form was filled out by Salentine and his attorney. It contained information about Salentine's
educational history (he has completed eleven years of school) and work history. The form also verified that he was willing
to waive his trial-related constitutional rights and explained that he wanted
to enter an Alford plea to the charges. Cf. State v. Moederndorfer, 141 Wis.2d 823, 416
N.W.2d 627 (Ct. App. 1987). The trial
court subsequently held a hearing and accepted Salentine's plea.
We turn to the first of
Salentine's appellate claims and inquire into whether the court made a legal
error when it accepted his Alford plea.[2] In support, Salentine cites § 971.06, Stats., which provides in pertinent
part:
(1) A defendant charged with a criminal offense may
plead as follows:
(a) Guilty.
(b) Not guilty.
(c)No
contest, subject to the approval of the court.
(d)Not guilty by reason of mental disease
or defect.
Salentine
also notes how § 972.13(1), Stats.,
demands that a “judgment of conviction shall be entered upon ... a plea of
guilty or no contest.”
Salentine asserts that
the plea procedures did not meet the requirements of the above statutes. He points to the following sections of the
plea transcript:
THE COURT: All right Mr. Salentine let
me start out with reminding you of the charge in the information .... To that charge sir what plea do you now wish
to enter.
SALENTINE: Alford plea.
THE COURT: Is that Alford plea of guilty or no contest?
COUNSEL:
Let's use no contest Judge.
THE COURT: Do you understand that by entering the special plea of no contest
that the court would in all likelihood find you guilty today.
SALENTINE: Yes.
Salentine
argues that the plea proceedings fail to meet the requirements of the above
statutes because he did not personally enter a “no contest” plea. Rather, he characterizes the transcript to
reveal only that “he agreed with the trial court's characterization of that
situation.” He claims that the
language in § 971.06, Stats.,
which says that a defendant “may plead ... no contest,” imposed a duty on this
trial court to have again asked Salentine: “Sir, what plea do you now wish to
enter?” when Salentine said only that he was offering an “Alford
plea.” He further suggests that the
trial court should have then asked him to verbalize whether it was an “Alford
plea guilty” or an “Alford plea no contest.”
The State responds that
a trial court gauges whether a defendant has offered a proper plea through the
personal colloquy required under § 971.08(1), Stats., and decisions such as State v. Bangert,
131 Wis.2d 246, 389 N.W.2d 12 (1986), not by prompting the defendant to use the
right words. The State argues that the
best way for a trial court to determine if the defendant is offering the plea
knowingly, intelligently and voluntarily is to ask the defendant. See id. at 268, 389 N.W.2d at
23-24. The State cautions that adopting
Salentine's interpretation of §§ 971.06 and 972.13(1), Stats., thereby requiring the defendant
to verbalize the terms “Alford plea guilty” or “Alford
plea no contest,” would only inject needless “ritual” into the
proceedings. The State contends instead
that we should look to the substance of the exchange between the trial court
and the defendant and determine if the defendant knew what he or she was
doing.
We agree with the
State's analysis. When this court
addresses alleged flaws in plea proceedings, its first task is to read the
transcripts and determine if the defendant has made a prima facie showing that
he or she did not understand the proceedings.
See Bangert, 131 Wis.2d at 274, 389 N.W.2d at 26. Here, after reading the transcript, we
conclude that Salentine understood he was entering an “Alford
plea no contest,” understood the charges he was entering this plea to, and
understood the ramifications of this plea.
We rest our conclusion
on the following statements. First, the
transcript Salentine highlights above shows that the trial court asked him if
he knew that the “special plea of no contest” would still result in him being
found “guilty.” The trial court
obviously wanted to ensure that Salentine understood that his particular plea
would still result in a conviction.
Moreover, the trial court asked Salentine if “anyone threatened you or
promised you anything to get you to enter [an] Alford plea of no contest.” With this inquiry, the trial court not only
tested if the plea was voluntary, but also double-checked that Salentine was
pleading “Alford plea no contest.” Finally, the trial court asked Salentine if he understood that:
by entering this Alford plea of no
contest while you do not admit your guilt to me you do indicate to [the] court
that you believe first of all that [the] State would have enough evidence or
information available to it to convict you ....?
We
thus see that Salentine was told, in plain language, what it meant to enter an
“Alford plea no contest.”
His affirmative response to the above inquiry is more than sufficient
proof that he understood what he was doing.
Salentine did not have to use the terms “Alford plea no
contest” for us to reach this conclusion.
Next, we turn to
Salentine's claim that he had “fair and just” reasons to withdraw his
plea. Some more procedural background
is necessary to our discussion of these issues.
The trial court accepted
Salentine's plea on October 21, 1994.
At that hearing, the court also ordered the Department of Probation and
Parole to conduct a presentence investigation (PSI). The sentencing hearing was scheduled for November 28. But Salentine was later unable to attend the
November sentencing hearing. He was
transferred from the Waukesha County Jail to the Dodge Correctional Institution
on a separate sentence and the parties and the court were not properly
informed. Although they rescheduled
sentencing for December 19, the trial court did confirm that Salentine's attorney
had received a copy of the PSI.
Before the rescheduled
sentencing hearing, however, Salentine's attorney filed a motion to rescind the
plea. Based on his correspondence with
Salentine, he was concerned that Salentine's “judgment in this case is seriously
impaired” and believed that Salentine should present his case to a jury. Counsel also explained how his observations
of Salentine led him to a conclusion that Salentine had a “substantial
inability ... to formulate an opinion and decision and understand the
ramifications thereof.”
The trial court
addressed Salentine's motion to withdraw his plea at the opening of the
December 19 sentencing hearing. While
the court acknowledged receiving the motion, because it had already reviewed
the PSI and prepared for sentencing, the court reasoned that it would delay
consideration of the plea withdrawal issue until any possible postconviction
motions were filed. The court, however,
reserved Salentine the right to the “fair and just reason” standard, rather than
the higher “manifest injustice” standard typically applied to a postconviction
motion to withdraw a plea. See Libke
v. State, 60 Wis.2d 121, 128, 208 N.W.2d 331, 335 (1973). The trial court then sentenced Salentine to
eight years of imprisonment.
After sentencing,
Salentine's appellate counsel filed a motion for postconviction relief. Salentine again sought permission to
withdraw his plea on various grounds.
One, he renewed his argument that his developmental disability impaired
his judgment. In support, Salentine
emphasized how statements he made to the police and to the court admitting his
crime contradicted statements in the letters he sent to his trial counsel about
how he hoped to take the case to trial.
Two, Salentine contended that he did not consider how he might be
subject to commitment under ch. 980, Stats.,
when he entered his plea. And three,
Salentine claimed that he had newly discovered evidence which he did not
account for when he made the decision to enter the plea. This evidence consisted of records
associated with the prosecution of a juvenile who had also sexually assaulted
the victim. Salentine believed that the
victim might be confusing him with that juvenile.[3] The trial court rejected all three
arguments.
As we previously noted,
the claim that Salentine should be permitted to withdraw his plea because his
developmental disability impaired his judgment was evaluated under the “fair
and just reason” standard because it was raised before sentencing. See Libke, 60 Wis.2d at 128,
208 N.W.2d at 335. Our review of
determinations made under this standard is deferential, and we may not reverse
unless the trial court misused its discretion.
See State v. Shanks, 152 Wis.2d 284, 288, 448 N.W.2d 264,
266 (Ct. App. 1989). We examine the
record and gauge if the trial court reached a reasonable conclusion and whether
that conclusion was based on the proper legal standard and a logical
interpretation of the facts. See id.
at 289, 448 N.W.2d at 266.
We thus turn to the
trial court's analysis. It rejected the
claim that Salentine's disability hindered his judgment based on the following
considerations.
The trial court started
with the question of whether the apparent inconsistencies between the
statements that Salentine made to the police, and those made in letters to his
trial counsel, revealed that he did not understand the ramifications of his
plea. But the trial court observed that
Salentine also sent an unsolicited letter to the court, where he expressed fear
that he would be sentenced to “prison for a long long time” and asked for
“another chance.” In that letter,
Salentine admitted sexually assaulting his niece in the same way that he
described the events to the police. The
court reasoned that Salentine's “great consistency” between the statements made
to the police and those made in the letter to the court outweighed concerns
that the letters he later sent to his attorney, where he still talked about
pursuing a possible trial, somehow revealed that Salentine did not actually
assault his niece or that Salentine did not know that his plea would preclude
him from taking the matter to trial.
In addition, the trial
court also reflected on the precautions it took during the plea proceedings to
ensure that Salentine understood the ramifications of his plea. The court noted how it recognized
Salentine's “vacillation” and thus took “greater pains” to make sure that
Salentine was certain about the rights he was relinquishing.
Perhaps the best
indication that Salentine understood the ramifications of his plea, and that
his disability was not a legitimate reason to withdraw it, was the State's
evidence of how Salentine had previously submitted pleas to other criminal
charges. The trial court found that
Salentine was “no rookie” and noted that he indeed had entered an Alford
plea in another case.
We conclude that the
trial court properly exercised its discretion when it chose to uphold the
plea. This court is certainly aware
that a person with a developmental disability may have problems understanding
the intricacies of legal proceedings and may make statements that he or she was
involved in a crime without comprehending the possible significance of such
statements. We further acknowledge that
these difficulties could be a “fair and just” reason to set aside a plea. But we also recognize that many persons with
developmental disabilities are capable of understanding the plea process and
can positively and truthfully admit to committing a crime. Therefore, the trial court has the
responsibility in each individual case to determine whether a person's developmental
disability has materially affected the case.
We glean from the trial
court's analysis that it recognized these two possibilities, but nonetheless
concluded that Salentine, despite his disability, understood the ramifications
of his decision to enter a plea. The
trial court found that Salentine was engaged in a deliberate attempt to
manipulate it into believing that his disability was a legitimate reason for
him to escape the possibility of a long prison sentence and take his chances at
a trial. Given the trial court's
detailed evaluation of Salentine's disability and how it affected the
credibility of his claim, we cannot say that it reached an illogical or
factually insupportable conclusion. We
acknowledge that a trial court's failure to comprehensively evaluate the
effects of a person's developmental disability could be grounds for concluding
that his or her plea is invalid, but this is not such a case.
We next address
Salentine's concern that he failed to consider the ramifications of a possible
ch. 980, Stats., commitment when
he offered his plea. Although Salentine
claims that this constitutes a separate “fair and just” reason to set aside his
plea, we conclude that he did not properly reserve his right to pursue this
issue under this standard.
As we explained above,
Salentine's original request to set aside his plea was properly filed before
sentencing. But in this motion,
Salentine made no mention of ch. 980, Stats. This issue was not raised until Salentine
filed his postconviction motion.
This court described in Shanks
that one way to measure whether a reason for setting aside a plea was “fair and
just” is to ask whether it was “plausible.”
Shanks, 152 Wis.2d at 290, 448 N.W.2d at 267 (quoted
source omitted). We apply waiver to Salentine's
ch. 980, Stats., claim because we
have just such doubts. Since this
specific issue was not presented to the court until after sentencing, it is
implausible that Salentine was actually concerned about the possibility of
sexual predator commitment when he first claimed that his decision to enter a
plea was a mistake. Quite simply, once
the trial court passed sentence, it closed the door on Salentine's ability to
present further “fair and just” reasons for setting aside his plea. And while we could address this claim under
the postconviction “manifest injustice” standard, this court's decision in State
v. Myers, 199 Wis.2d 391, 544 N.W.2d 609 (Ct. App. 1996), which holds
against Salentine, would apply.
Lastly, we turn to
Salentine's concerns regarding his discovery of evidence about the victim's
other assaulter. The trial court
conducted an in camera review of the records and denied Salentine access to
them after it found that the information did not have any relevancy to the
motion to withdraw his plea.
While Salentine does not
directly challenge the trial court's decision, he makes a related complaint
about how the procedures relating to in camera reviews of confidential records
set out in State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719 (Ct.
App. 1993), still do not permit appellate counsel to access the records. He contends that another in camera review by
the court of appeals is not a sufficient “substitute for advocacy by counsel.”
We decline Salentine's
invitation to develop a different process for appellate review than the same in
camera review that is called for under Shiffra. We acknowledge that this court has
recognized the importance of providing appellate counsel with the information
necessary to mount an attack on the trial court's in camera findings. See State v. Denny, 120 Wis.2d
614, 626, 357 N.W.2d 12, 18 (Ct. App. 1984) (noting that the court of appeals
granted appellate counsel access to sealed police reports). But the due process principles associated
with ensuring criminal defendants with zealous appellate advocacy must be
balanced against the protection of privileged communications or confidential
records. We affirm our belief that in
camera review by the court of appeals is the best way to accomplish this
balancing. See Shiffra, 175 Wis.2d at 611-12, 499 N.W.2d at
724. Since our in camera review of the
targeted records confirms the trial court's analysis, we uphold the decision
not to release the records to Salentine's appellate counsel.
By the Court.—Judgment
and order affirmed.