COURT OF APPEALS DECISION DATED AND RELEASED February 13, 1997 |
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. 96-0129
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CRAIG M. MOLSTAD,
Defendant-Appellant.
APPEAL from an order of
the circuit court for La Crosse County:
MICHAEL J. MULROY, Judge. Affirmed.
Before Eich, C.J.,
Vergeront and Deininger, JJ.
PER
CURIAM. Craig Molstad appeals from an order denying him relief
from a criminal conviction. Molstad
pleaded guilty to three burglary charges pursuant to a plea bargain. He subsequently challenged his conviction on
a § 974.06, Stats., motion
alleging ineffective assistance of trial counsel. The issue is whether Molstad proved that counsel negligently
deprived him of the opportunity to accept a more beneficial plea bargain. We conclude that no evidence exists that
counsel was negligent or that his actions prejudiced Molstad. We therefore affirm.
In February 1990, with
five burglary charges pending against Molstad in two counties, the district
attorney presented Molstad's counsel with a written plea bargain proposal. In it, the State offered to dismiss two
burglary counts and recommend a ten to twelve year prison sentence if Molstad
pleaded guilty to the remaining three charges.
The proposal stated that it would remain in effect until February 27,
1990, the date of the next hearing scheduled in the case.
The February 27 hearing
was postponed until April 3, 1990. In
the meantime, Daniel Watson was appointed as substitute counsel for
Molstad. At the time of the April 3
hearing, both Watson and Molstad believed that the district attorney's proposed
plea bargain remained open, although Watson did not ask the prosecutor to
confirm that belief. However, Molstad
decided not to plead and instead asked for a trial.
As of an April 30 motion
hearing, Watson and Molstad continued to believe that the plea bargain remained
an option, although neither had received any indication from the district
attorney to that effect. On the night
of April 30, when Watson confronted Molstad with damaging information just
received from the prosecutor, Molstad agreed to accept the plea bargain. The next morning, Molstad learned from
Watson that the State had amended the terms of the offer by withdrawing its
promise to recommend only a ten to twelve year sentence. Molstad nevertheless accepted this offer,
despite its somewhat harsher terms, and pleaded guilty later that day. The trial court then sentenced him to prison
terms totalling thirty years.
In the postconviction
proceeding, Molstad argued that Watson ineffectively and prejudicially
represented him by failing to advise him that the State's original offer would
not remain open indefinitely. The trial
court rejected that argument and denied relief, resulting in this appeal.
To prove ineffective
assistance of counsel, the defendant must show that counsel's performance was
deficient and that counsel's errors or omissions prejudiced the defense. State v. Pitsch, 124 Wis.2d
628, 633, 369 N.W.2d 711, 714 (1985).
The deficient performance must fall outside the wide range of
professionally competent assistance which is measured by an objective standard
of what a reasonably prudent attorney would do in similar circumstances. Id. at 637, 369 N.W.2d at
716. Prejudice results when there is a
reasonable probability that but for counsel's errors, the result of the
proceeding would have differed. Id.
at 642, 369 N.W.2d at 719. Whether
counsel's performance was deficient and whether it was prejudicial to the
defendant are questions of law. Id.
at 634, 369 N.W.2d at 715.
Molstad apparently
contends that had he known when the State's original proposal was due to
expire, he would have accepted it before that date. However, nothing in the record supports that contention. He had an opportunity to accept the proposal
and enter his plea at the April 3, 1990 hearing, assuming it was still open,
but refused to do so and instead requested a trial. That ends the matter because there is no evidence that the
State's offer remained open after that date.
Additionally, until
April 30, 1990, he did not communicate with counsel or take any other steps to
accept the proposal, despite his belief that it remained in effect. He only agreed to the proposal on April 30,
and to a less beneficial proposal the next day, after learning that one of his
witnesses was, in fact, going to testify for the State. In other words, the inference that Molstad
would have accepted the offer sometime after April 3 but before April 30, had
there been some deadline during that period and had he known of it, is not
reasonably available from the facts.
By the Court.—Order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.