COURT OF APPEALS DECISION DATED AND RELEASED November 12, 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. 96-0003-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PHILLIP C. LAMSON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: VICTOR MANIAN, Judge. Affirmed.
Before Fine, Schudson
and Curley, JJ.
PER
CURIAM. Phillip C. Lamson appeals from a judgment of conviction for
first-degree reckless homicide, arising from his participation in the shooting
death of a fourteen-year-old boy, and from an order denying his motion for
postconviction relief. Lamson argues
that we should vacate the judgment of conviction because he never entered a
plea. Further, Lamson argues that, if
we conclude that he did enter a plea, we should allow him to withdraw it and
reverse the trial court’s denial of his postconviction motion because he did
not understand the crime to which he was pleading guilty. Because the trial court correctly concluded
that Lamson knowingly, voluntarily, and intelligently entered his guilty plea,
we reject his arguments and affirm.
I. Background.
On June 11, 1992,
fourteen-year-old Julius Patterson was shot to death on a Milwaukee
street. Lamson was one of six people
the State identified as participating in the shooting. The trial court charged Lamson with
first-degree intentional homicide while armed with a dangerous weapon, as a
party to a crime. After originally
pleading not guilty, Lamson pleaded guilty to a reduced charge of first-degree
reckless homicide, party to a crime, pursuant to a plea agreement with the
State. After the following colloquy
with Lamson, the trial court accepted his guilty plea:
THE COURT: You’re going
to plead guilty to the crime of first degree reckless homicide, party to the
crime?
DEFENDANT: Yes, I am.
THE COURT: If you’re
convicted of that offense and you will be convicted because you are pleading
guilty, the Court may impose a term of imprisonment up to 20 years, do you
understand that?
DEFENDANT: Yes, I do.
....
THE COURT: Did you and
[Lamson’s trial counsel] go through this guilty plea questionnaire and waiver
of rights form together?
DEFENDANT: Yes.
THE COURT: Did he
explain to you, as he said earlier, what the elements of this offense are and
what the District Attorney would have to prove in order to convict you if this
case went to trial?
DEFENDANT: Yes, he did.
....
THE COURT: Did he explain
to you what your rights are, including your constitutional rights?
DEFENDANT: Yes.
THE COURT: And did he
also explain what rights you’re giving up by pleading guilty?
DEFENDANT: Yes.
....
THE COURT: Are you
entering this guilty plea completely freely and voluntarily?
DEFENDANT: Yes.
The trial court relied
on the State’s recitation of evidence, affirmed by Lamson, as the basis to
accept the plea. The trial court then
sentenced Lamson to an indeterminate prison term not to exceed twenty
years. Lamson then filed a
postconviction motion to withdraw his guilty plea because he claimed, among
other things, he did not correctly understand that he was pleading guilty. After conducting an evidentiary hearing, the
trial court denied the motion. This
appeal follows.
II. Analysis.
Lamson claims that we
should vacate his judgment of conviction because he never entered a plea. He also claims that if we decide that he did
enter a plea, we should allow him to withdraw it and reverse the trial court’s
denial of his postconviction motion to withdraw the plea. We address each item seriatim.
A. The entrance of a
plea.
Lamson argues that §
972.13(1), Stats., requires that
a defendant actually articulate the words, “I plead guilty.” Hence, he argues that “[t]he intentions of
the parties are therefore irrelevant to the question of whether this simple,
clear mandate was satisfied.” We
disagree.
A judgment of conviction
is governed by § 971.13, Stats.,
which states in part:
(1) A judgment of conviction shall be
entered upon a verdict of guilty by the jury, a finding of guilty by the court
in cases where a jury is waived, or a plea of guilty or no contest.
(Emphasis
added.)
Similar to a confession, the
constitutional validity of a plea must be measured in terms of whether it was
entered knowingly, voluntarily, and intelligently. ... This includes a
showing or an allegation and evidence which shows that the effective waiver of
federal constitutional rights was knowing and intelligent. A plea will not be voluntary unless the
defendant has a full understanding of the charges against him.
State
v. Bangert, 131 Wis.2d 246, 257, 389 N.W.2d 12, 19 (1986).
Our supreme court has
decided that a court may consider the totality of the circumstances when
determining the voluntariness of the plea.
Id. at 258, 389 N.W.2d at 19.
After considering the
totality of the record, we conclude Lamson did in fact plead guilty to a charge
of first-degree reckless homicide.
First, Lamson’s counsel stated on the record that because one of the
defendants was going to testify for the State, “[a]fter discussing the matter
with my client, my client felt that, under all the circumstances ... that it
would have been in this best interest to change his plea.” Second, the record shows the trial court
thoroughly questioned Lamson about his understanding of the plea during the
colloquy. This colloquy clearly
reflects a concerted effort on the part of the trial court to decide whether
Lamson was entering his plea knowingly, intelligently, and voluntarily.
Third, Lamson signed a
plea questionnaire that stated that he “wish[ed] to enter a plea of guilty to
the offense[] of” first degree reckless homicide. Last, the State recounted facts to support Lamson’s conviction
and he again acknowledged he was part of the conspiracy that resulted in
murder.
Lamson’s only argument
is that he did not utter the words “I plead guilty.” The totality of the record clearly shows, however, that Lamson
did knowingly, intelligently, and voluntarily enter a plea of guilty. While § 971.08, Stats., requires a colloquy, its absence is not fatal if the
defendant uses an alternative method to effectively waive his constitutional
rights. In a case that challenged the
use of a guilty plea questionnaire in lieu of a personal colloquy between the
judge and the defendant, we said: “[T]he trial court personally questioned the
defendant concerning the form. It asked
the defendant if he had signed the form, if his attorney had assisted him in
understanding the rights being waived and if he understood each of the
paragraphs he had initialed. The
defendant replied affirmatively to each question. We hold that there was no error.” State v. Moederndorfer, 141 Wis.2d 823, 826, 416
N.W.2d 627, 629 (Ct. App. 1987).
Similarly, the trial court here questioned Lamson about the offense, the
penalty, the elements of the offense, and whether his counsel explained his
constitutional rights when going through the guilty plea form. Lamson answered affirmatively.
The trial court could
have eliminated this issue by requiring a defendant to say, “I plead guilty,”
but the totality of the circumstances test in Bangert adequately
resolves the issue here. While Lamson
did not use the “magic” words, “I plead guilty,” the trial court asked him
several times whether he was going to plead guilty and whether he was entering
the guilty plea “completely freely and voluntarily.” To all these questions Lamson answered affirmatively. Therefore, we agree with the trial court
that, given the totality of the circumstances, Lamson did plead guilty as a
matter of law.
B. Denial of motion for
plea withdrawal.
In the alternative,
Lamson argues that we should allow him to withdraw his plea because he “did not
understand and/or was misinformed with regard to the concept of party to a
crime liability and its elements” when he entered the plea. We reject this argument.
A post-sentencing motion
for plea withdrawal is left to the discretion of the trial court and will not
be upset on review unless there has been an erroneous exercise of
discretion. State v. Garcia,
192 Wis.2d 845, 861, 532 N.W.2d 111, 117 (1995). If a defendant shows a denial of a constitutional right relevant
to the plea decision, plea withdrawal becomes a matter of right that, in turn,
is a question of law subject to independent review. See id. at 864-65, 532 N.W.2d at 118.
Lamson claims his
counsel misled him to believe that he would be liable as a conspirator solely
because Lamson had been present at the victim’s house earlier on the day of the
shooting and because Lamson knew the other people the State identified as
responsible for the shooting.
Under the Fourteenth
Amendment guarantee of due process, a state trial court may accept a plea of
guilty only when it has been made knowingly, voluntarily, and
intelligently. Brady v. United
States, 397 U.S. 742, 747 (1970).
The plea colloquy has arisen to insure when the defendant enters the
plea he is aware of the nature of the crime charged, the constitutional rights
he is waiving, and the direct consequences of the plea. Bangert, 131 Wis.2d at 257,
389 N.W.2d at 19. Further, our supreme
court has established a two-step procedure to evaluate a defendant’s
postconviction challenge to the constitutional validity of a plea of guilty or
no contest:
The initial burden
rests with the defendant to make a prima facie showing that his
plea was accepted without the trial court’s conformance with § 971.08 or other
mandatory procedures as stated herein.
Where the defendant has shown a prima facie violation of Section
971.08(1)(a)[1] ... and
alleges that he in fact did not know or understand the information which should
have been provided at the plea hearing, the burden will then shift to the state
to show by clear and convincing evidence that the defendant’s plea was knowingly,
voluntarily, and intelligently entered, despite the inadequacy of the record at
the time of the plea's acceptance. The
state may then utilize any evidence which substantiates that the plea was
knowingly and voluntarily made. In
essence, the state will be required to show that the defendant in fact
possessed the constitutionally required understanding and knowledge which the
defendant alleges the inadequate plea colloquy failed to afford him.
Bangert, 131
Wis.2d at 274‑75, 389 N.W.2d at 26 (citations omitted).
The record of both the
plea hearing and the postconviction motion hearing provides a clear and
convincing basis to show that Lamson’s plea was knowingly, voluntarily, and
intelligently entered when he pled guilty to first-degree reckless homicide,
party to a crime. First, the prosecutor
delineated the State’s theories of prosecution at the plea hearing which, if
the case went to trial, included testimony from a co-defendant, Timothy Payne,
that would have implicated Lamson.
Payne was to testify that Lamson went to the location, observed the
victim, and was a member of the group that fired shots at the victim. Further, Lamson told the trial court that he
“was aware [the shooting] was going to happen, but that really, ... wasn't
expecting for it to happen like [it did.]”
The trial court then directly asked Lamson if his counsel had explained
the theory of conspiracy and whether Lamson believed he was part of the
conspiracy that resulted in the death of the victim. To both questions Lamson answered positively.
Second, Lamson submitted
a plea questionnaire that both he and his counsel signed. In this document Lamson acknowledged, “I
also understand the elements of the offense and their relationship to the facts
in this case.” Lamson’s counsel also
stated, “I met with [Lamson] yesterday, went over the [notes of the police
interview with Timothy Payne and] ... [e]xplained to [Lamson] the [theory of
conspiracy].” The previously quoted
plea colloquy also emphasized this under-standing.
Finally, further
evidence that Lamson understood his plea was provided at the postconviction
hearing on his motion to withdraw his plea.
Lamson’s counsel stated, “I literally go over everything in terms of me
reading it to them, including the jury instruction, giving them examples.” Indeed, Lamson bolstered his counsel’s
testimony by acknowledging that his counsel had read the jury instructions to
him. In part, Lamson stated his counsel
“underlined the elements to me and told me that, look, here’s the elements, and
all this and that, and how he put the elements together ... it indicated that
... I had no chance.”
The transcript of the
postconviction hearing, in conjunction with the plea hearing testimony, is
clear and convincing evidence that Lamson entered his plea of guilty knowingly,
voluntarily and intelligently. The
trial court properly denied his motion to withdraw his guilty plea.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Section 971.08, Stats., provides in relevant part:
Pleas of Guilty and No contest; Withdrawal Thereof; (1) Before the court accepts a plea of guilty of no contest, it shall do all of the following: (a) Address the defendant personally and determine that the plea is made voluntarily with the understanding of the nature of the charge and the potential punishment if convicted.