|
COURT OF
APPEALS DECISION DATED AND
RELEASED September
19, 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. 96-0458-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL
F. KRATOCHWILL,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: JACK F. AULIK, Judge. Affirmed.
Before
Eich, C.J., Vergeront and Deininger, JJ.
VERGERONT,
J. Daniel Kratochwill entered a no
contest plea to a charge of knowingly possessing with intent to deliver between
fifteen and forty grams of cocaine, as a drug offense repeater, in violation of
§§ 161.41(1m)(cm)3 and 161.48, Stats. He appeals from the judgment of conviction
and the denial of his motion for postconviction relief, claiming that he is
entitled to withdraw his plea because
the trial court failed to inform him of the minimum period of incarceration for
the offense and because he did not know about certain potential constitutional
challenges to the State's case against him.
He also claims that his trial counsel was ineffective for not pursuing
those constitutional challenges. We
reject each contention and affirm.
We
first consider Kratochwill's argument that his plea was not knowingly,
voluntarily and intelligently entered because the trial court did not inform
him of the minimum period of incarceration.
A plea of guilty that is not knowingly, voluntarily and intelligently
entered creates a manifest injustice which entitles the defendant to withdraw
the plea. State v. Harrell,
182 Wis.2d 408, 414, 513 N.W.2d 676, 678 (Ct. App. 1994). When a defendant claims that the procedures
of § 971.08(1)(a) and (b), Stats.,
or other mandated procedures are not followed at the plea hearing, the
defendant has the burden to make a prima facie showing of that. State v. Bangert, 131 Wis.2d
246, 274, 389 N.W.2d 12, 26 (1986).
Once the defendant has done so and has alleged that he or she did know
the information that should have been provided, the burden shifts 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 plea hearing. Id.
Kratochwill
contends that the procedures of § 971.08, Stats., were not followed because the requirement in para.
(1)(a) that the trial court "address the defendant personally and
determine that the plea is made with understanding of ... the potential
punishment if convicted" includes
informing the defendant of the minimum as well as the maximum punishment, or
ascertaining that he knows the minimum as well as the maximum sentence. We do not decide whether Kratochwill's
interpretation of § 971.08 is correct because, even if it is and the
burden therefore shifts to the State, we conclude the State has shown by clear
and convincing evidence that Kratochwill knew of the minimum period of
incarceration.
The
amended information,[1]
filed the day of the plea hearing, stated that the penalty for the crime of
possession with intent to deliver between fifteen and forty grams of cocaine
was a fine of not more than $500,000 and imprisonment for not less than three
years nor more than twenty years. The
amended information also stated that because Kratochwill had been previously
convicted of a drug offense, the maximum and minimum fines and periods of
incarceration were doubled.[2] At the plea hearing, Kratochwill stated, in
response to the court's question, that he had received the amended
information. When the court asked him
whether he wanted to have the amended information read to him, his counsel stated
that they waived the reading. The court
informed Kratochwill that the maximum penalty he was facing was a fine up to
$500,000 and forty years in prison or both and asked Kratochwill if he
understood that. Kratochwill said he
did. The court did not inform
Kratochwill of the minimum penalty. The
plea questionnaire contained the maximum penalty but not the minimum.
At
the sentencing hearing, Kratochwill's counsel argued for a term of six years'
imprisonment and, on at least two occasions, stated that this was the minimum
sentence. The record shows that
Kratochwill did not make any objection or comment or ask any question of his
counsel or the court during the sentencing proceeding. The court sentenced Kratochwill to nine
years.
At
the hearing on Kratochwill's motion to withdraw his plea, Kratochwill and his
attorney were both present.
Kratochwill's trial counsel testified that he had a specific
recollection of discussing with Kratochwill the maximum and minimum penalties
of the offense originally charged and that he believed he did so on other
occasions as well. Counsel did not have
a specific recollection of discussing the penalties of the amended charge with
Kratochwill, but he assumed he did because that is his practice. His notes showed that he discussed with
Kratochwill the possibility of trying to get the district attorney to lower the
alleged amount of cocaine so that the minimum and maximum penalties would be
lower than those for the crime he was initially charged with. He went over the plea questionnaire and
waiver of rights form with Kratochwill prior to the entry of the plea and the
maximum and minimum penalties were again discussed with Kratochwill. Kratochwill did not testify and his trial counsel's
testimony was not disputed.
The
trial court found that Kratochwill was "completely advised as to the
appropriate penalties that might be imposed in conjunction with these
offenses" and concluded that the plea was, in fact, entered freely,
knowingly and intelligently. Because
Kratochwill specifically raised the issue of his knowledge of the minimum
penalty in his motion, we construe the court's finding to include both the
minimum and the maximum penalty in its reference to "the appropriate
penalties." We do not reverse a
trial court's finding of fact unless it is clearly erroneous. Section 805.17(2), Stats. The trial
court's finding is not clearly erroneous because it is supported by the
uncontradicted testimony of trial counsel that he advised Kratochwill of the
minimum and maximum penalties of the amended charge to which he entered a
plea. The fact that trial counsel
argued for a term of six years, referring to that as the minimum penalty in
Kratochwill's presence and without objections or questions from him, also
supports this finding.
Whether
the facts as found by the trial court meet the applicable constitutional
standard is a question that we review de novo.
See State v. Turner, 136 Wis.2d 333, 344, 401
N.W.2d 827, 832 (1987). We conclude, as
did the trial court, that the State has met its burden of showing that
Kratochwill entered his plea knowingly, voluntarily and intelligently with
respect to knowledge of the minimum penalty of the offense.
Kratochwill
also claims that his plea was not knowing, voluntary and intelligent because he
did not have knowledge of three possible constitutional challenges to the
State's case against him. Kratochwill
recognizes that his plea waives challenges to any non-jurisdictional violation
of constitutional rights occurring before the entry of the plea. See State v. Riekkoff, 112
Wis.2d 119, 123, 332 N.W.2d 744, 746 (1983).
However, Kratochwill contends that his trial counsel was ineffective for
not pursuing these constitutional challenges.
In order to prevail on this claim, Kratochwill must show both that trial
counsel's performance was deficient and that the deficient performance
prejudiced him. Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). Kratochwill has the burden of proving prejudice. See State v. Sanchez,
201 Wis.2d 219, 548 N.W.2d 69, 74 (1996).
The
trial court found that Kratochwill was advised throughout the proceedings of
his constitutional and statutory rights and that his counsel made certain
decisions about whether to bring pretrial motions. The court concluded that these decisions were not in any way
defective and Kratochwill had adequate assistance of counsel.
We
review the trial court's finding of fact under the clearly erroneous
standard. See State v. Johnson,
153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). Whether those findings constitute deficient performance and
prejudice are issues of law, which we review de novo. Id. at 128, 449 N.W.2d at 848. We may dispose of an ineffective assistance
claim by deciding either that counsel's performance was not deficient or that
there was no prejudice. Id.
Kratochwill
first claims that trial counsel was deficient for not pursuing constitutional
challenges to the admissibility of statements he made to the police. Kratochwill's trial counsel testified that,
before entry of the plea, he considered a possible challenge to the
admissibility of Kratochwill's statements to the police and discussed the
statements with Kratochwill. In his
view, there was a basis for a motion to suppress his statements because Kratochwill
stated that he was not given Miranda warnings. However, trial counsel also knew that the
police report of the detective questioning Kratochwill stated that the
detective read Kratochwill his constitutional rights from his "Miranda
card." Given that conflict in
testimony, counsel thought the prospects of the motion's success were
slim. He did not challenge the
admissibility of the statements within twenty days of the arraignment, but he
knew that there remained the opportunity, even after the jury was selected, to
have the court rule on the statements' admissibility.
Trial
counsel's performance is not deficient if it is reasonable under the
circumstances. State v. Hubanks,
173 Wis.2d 1, 25, 496 N.W.2d 96, 105 (Ct. App. 1992). The burden is on the defendant to overcome the strong presumption
that counsel acted reasonably within professional norms. Johnson, 153 Wis.2d at 127,
449 N.W.2d at 848. We have no
hesitation in concluding, as did the trial court, that trial counsel's decision
not to bring a motion to suppress the statements prior to the entry of the plea
was not deficient performance.
We
reach the same conclusion with respect to counsel's decisions not to bring a
motion to suppress the evidence seized from Kratochwill. Trial counsel considered this, discussed
this with Kratochwill, and viewed videotapes of the alleged offense. Counsel decided not to challenge the arrest
because, in his view, there was probable cause to arrest and search
Kratochwill. The transfer of the
cocaine was videotaped and the arrest took place immediately after Kratochwill
left the motel room where the transfer took place.
Kratochwill
makes the point that on appeal he is not challenging the decision not to attack
the validity of arrest for lack of probable cause. Rather, in his view, the arrest should have been challenged on
the grounds of "outrageous government conduct" because he was setup
in a sting operation. Unlike the
defense of entrapment, which requires that the defendant not be predisposed to
commit the crime, the defense of
outrageous government conduct, or government abuse, focuses on whether the
government instigated the crime. State
v. Steadman, 152 Wis.2d 293, 301, 448 N.W.2d 267, 271 (Ct. App.
1989). Kratochwill concedes that trial
counsel considered entrapment and "correctly realized that the lack of
predisposition on [his] part would be difficult to establish, given his prior
drug conviction and the materials found on his person following the
arrest." Trial counsel testified
that he also considered the defense of outrageous government conduct and the
cases recognizing such a defense.
However, he did not think that defense would be successful, either, and
he advised Kratochwill to enter into a plea agreement rather than pursuing
those defenses.
The
defense of outrageous government conduct in Wisconsin requires an assertion by
the defendant that the State violated a specific constitutional right and that
the government's conduct be so enmeshed in a criminal activity that prosecution
of the defendant would be repugnant to the American criminal justice
system. State v. Gibas,
184 Wis.2d 355, 360, 516 N.W.2d 785, 787 (Ct. App. 1994). Kratochwill does not state what specific
constitutional right the State violated and we do not perceive one. Trial counsel explained, in the context of
argument at sentencing, that he advised Kratochwill against pursing this
defense because he could not think of a specific constitutional right of
Kratochwill's that was violated in the sting operation. We conclude that counsel's decision to
advise Kratochwill not to pursue this defense was a reasonable one, in view of
the absence of one of the two requirements for the defense.
Finally,
Kratochwill contends that trial counsel should have challenged the application
of the repeater statute to him on the ground that it violates his right to
equal protection. Trial counsel
testified that he did not consider a challenge to the statute prior to the plea
hearing. There is no other testimony on
this point. Since Kratochwill did not
testify, there is no evidence that, had he known of the possibility of such a
challenge, he would not have entered a plea.
Therefore he has not met his burden of showing that he was prejudiced by
counsel's failure to consider this challenge.
By
the Court.—Judgment affirmed.
Not
recommended for publication in the official reports.