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COURT OF APPEALS DECISION DATED AND RELEASED January 30, 1997 |
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. 96-0078-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LESTER H. COOK,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Waushara County: LEWIS R. MURACH, Judge. Affirmed.
Before Dykman, P.J.,
Vergeront and Roggensack, JJ.
PER
CURIAM. Lester H. Cook appeals from a judgment of conviction
for sexual assault and from a postconviction order summarily denying a motion
to withdraw his guilty plea. The issues
are whether Cook alleged sufficient facts, which if true, would entitle Cook to
relief and whether the trial court erroneously exercised its discretion in denying
Cook's motion without an evidentiary hearing (summary denial). We conclude the motion alleged insufficient
facts and that the court properly exercised its discretion in summarily denying
the motion for plea withdrawal because Cook made only conclusory
allegations. Therefore, we affirm.
Cook is a borderline
mentally retarded adult charged with sexual intercourse and sexual contact with
a child. Cook is alcohol-dependent and
also suffers from some memory loss.
Incident to a plea agreement, Cook pled guilty to second-degree sexual
assault of a child, contrary to § 948.02(2), Stats., and the parties jointly agreed to recommend a
five-year term of probation. However,
the presentence investigator recommended the maximum ten-year prison sentence,
which was imposed by the trial court.
After sentencing, Cook moved to withdraw his plea, contending that it
was not entered intelligently and voluntarily.
The trial court refused to hold an evidentiary hearing and summarily
denied the motion.
To prevail on a postsentencing
motion for plea withdrawal, the defendant must show, by clear and convincing
evidence, that "withdrawal of the plea is necessary to correct a manifest
injustice." State v. Johnson,
105 Wis.2d 657, 666, 314 N.W.2d 897, 902 (Ct. App. 1981) (citation
omitted). The trial court has the
discretion to summarily deny a postconviction motion for plea withdrawal
"if the defendant fails to allege sufficient facts in his motion to raise
a question of fact, or presents only conclusory allegations, or
if the record conclusively demonstrates that the defendant is not entitled to
relief ...." State v.
Bentley, 201 Wis.2d 303, 309-11, 548 N.W.2d 50, 53 (1996) (emphasis
supplied). A motion presents only
conclusory allegations if it does contain factual assertions of sufficient
specificity to allow the trial court to meaningfully assess the defendant's
claim for plea withdrawal. Id.
at 314, 548 N.W.2d at 54-55. Whether
the motion alleges sufficient facts which, if true, would entitle the defendant
to relief is a question of law, which we review de novo. Id. at 310, 548 N.W.2d at
53.
Cook does not claim that
the trial court did not comply with the mandatory procedures for accepting a
guilty plea. See § 971.08, Stats.; State v. Bangert,
131 Wis.2d 246, 261-62, 267-70, 274-75, 389 N.W.2d 12, 21, 23-24, 26-27
(1986). He claims that his plea was
constitutionally infirm because it was entered unintelligently and
involuntarily in that he did not understand that by pleading guilty to the
amended charge, he could be facing a maximum penalty of ten years in
prison. In his motion, Cook's claims
are that he "is mildly retarded and functionally illiterate" and
that, despite the trial court's statement to him that this "felony crime
[is] punishable by imprisonment not to exceed ten years" and warning that
it was not required to follow the attorney's recommendation of probation, he
did not understand that he could be facing ten years in prison.
After
reviewing the record of the plea hearing, the trial court denied Cook's request
for an evidentiary hearing, explaining its decision as follows:
[The
court has] look[ed] at the record as a whole, not just the sentencing hearing,
and of course we spent great amounts of time and considerable amounts of money
in having experts evaluate Mr. Cook to determine whether he could understand
the nature of the charges and the punishment that he faced and so we have an
extensive record. But limiting it to
the hearing itself, the court did have a colloquy. The court was asking the defendant nearly at the end of every
sentence whether he was understanding.
The understanding was good throughout.
There was never any misunderstanding and the court immediately before
taking the plea identified the date that we were talking about, the sexual
contact which we already talked a lot about and that we were talking about the
person that we were talking about. The
court then stated, ‘[t]his would be a felony crime punishable by imprisonment
not to exceed ten years.' We went on
from there and the defendant, again, although he was not asked specifically
concerning that particular sentence, I think the record as a whole would
indicate that the defendant was advised that there is no reason whatever to
question his understanding. The
language is certainly clear enough and the language does reference this would
be a felony crime punishable by imprisonment not to exceed ten years. He entered his plea immediately
thereafter. So, the court finds that
the record does support the understanding of the nature of the charges and the
penalty that he faced sufficiently to pass muster and the court will therefore
deny the motion on that basis.
The
transcript of the plea hearing also shows that the trial court asked Cook
periodically if he understood what it was telling him, including its warning
about not being bound by the sentencing recommendation. Each time the trial court asked Cook if he
understood, Cook responded affirmatively.[1]
In his postconviction
motion, Cook alleges that: (1) he is
"mildly retarded and functionally illiterate;" (2) "[h]e did not
understand that the court could sentence him to ten years;" and (3) the
trial court "fail[ed] to advise [him] of the potential ten years
incarceration as a result of his no contest plea . . . ." We conclude that the third allegation is
contradicted by the record,[2]
and that the remaining allegations are merely conclusory.
The phrase mildly
retarded is not synonymous with a lack of understanding. Cook does not claim that the trial court's
language was too legalistic or technical.
He does not explain how his mild retardation affected his failure to
understand the trial court's explanations at the plea hearing, particularly
when the record demonstrates that he claimed to understand the ramifications of
pleading guilty. Consequently, the bare
allegation that Cook is mildly retarded is merely conclusory. The allegation of functional illiteracy does
not permit a meaningful assessment of Cook's claims because he does not allege
that he could not read a specific document, or that the trial court failed to
tell him of his potential sentencing exposure.[3]
Cook's claim that he did
not understand that the court could sentence him to ten years in prison is
nothing more than a conclusory allegation.
He does not explain how or why he did not understand the court's direct
statements to him, particularly when the trial court asked him directly
"[if he is] having trouble understanding what I am saying to you," to
which Cook responded, "[n]o."
There is no specific explanation in his motion as to why he did not understand
that he could be sentenced to ten years in prison, when the trial court told
him that. Cook's general allegations,
in the context of this record, do not permit the court to meaningfully assess
the merits of his claimed lack of understanding.
Because Cook has
presented only conclusory allegations, the trial court has the discretion to
summarily deny the motion. See Bentley,
201 Wis.2d at 310, 548 N.W.2d at 53 (citations omitted). Reviewing its oral decision and the record
as a whole, we cannot conclude that the trial court erroneously exercised its
discretion, particularly when Cook's conclusory allegations contradict his own
admissions at the plea hearing.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] An excerpt from the transcript of the plea
hearing shows the trial court's specific explanation about the potential
sentencing exposure and Cook's affirmative responses that he understood that
explanation:
THE
COURT: Do you understand that those
recommendations
from
the attorneys are recommendations to me but that they
are
not binding on me. Do you understand
that?
THE
DEFENDANT: Yes.
THE
COURT: A judge has to be free to impose
the sentence
that
he believes is needed even if it differs from what
the
attorneys recommend. Do you understand?
THE DEFENDANT: Yes.