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COURT OF APPEALS DECISION DATED AND RELEASED February 11, 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. 96-0489-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
YATHZEE D. INMAN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: TED E. WEDEMEYER, JR., and VICTOR MANIAN,
Judges.[1] Affirmed.
Before Fine, Schudson
and Curley, JJ.
PER
CURIAM. Inman pleaded guilty to the charge of first-degree reckless
homicide while armed, after he was waived into adult court. In this appeal from the judgment of
conviction and an order denying his motion to withdraw his guilty plea, Inman
presents the following argument. He
claims he was entitled to an evidentiary hearing on his motion to withdraw his
plea because he raised sufficient facts to question his trial counsel's
assistance in failing to petition this court for leave to appeal from the
juvenile court's decision to waive him into adult court. Inman asserts that had his trial counsel
petitioned this court for leave to appeal from the waiver order, he would have
been successful and therefore his counsel's failure constitutes ineffective
assistance of counsel. He argues there
was insufficient evidence to waive him into adult court on the charge of
first-degree reckless homicide while armed, and had the juvenile court retained
jurisdiction, he would no longer be incarcerated. We reject his arguments and affirm.
I. Background.
On June 19, 1989,
Bhupinderpal Ghuman, a clerk in a grocery store in Milwaukee, was fatally shot
during the course of an armed robbery.
Inman, who at the time of the shooting was fourteen years old, was
implicated in the shooting. The State
filed a delinquency petition alleging that Inman committed the offense of first-degree
reckless homicide while armed, as a party to a crime. Approximately one month later, the State moved the juvenile court
to waive Inman into adult court. The
juvenile court conducted a hearing on the waiver petition and concluded that
waiver was appropriate. Inman later
pleaded guilty to the charge of first-degree reckless homicide while
armed. The trial court sentenced him to
twenty years incarceration.
In December 1995, Inman
filed a motion to withdraw his guilty plea.
On January 26, 1996, the trial court denied Inman’s motion without a
hearing. Inman premised his motion, in
part, on his claim that his first counsel was ineffective for failing to advise
him of the procedure to appeal the juvenile court's waiver decision. Using the two-pronged test from Strickland
v. Washington, 466 U.S. 668 (1984), the trial court reasoned that
regardless of whether Inman's trial counsel failed to advise him of his right
to seek review of the juvenile court's waiver determination, Inman had not “met
the second [prejudice] prong needed to obtain relief.” The trial court concluded after reading the
100-page transcript of the waiver hearing that the juvenile court made all the
necessary findings, that the juvenile court did not base the waiver decision on
speculation, and that the transcript supported a finding that the juvenile
court properly exercised its discretion.
Therefore, the trial court concluded that Inman was not entitled to an
evidentiary Machner hearing on his motion.[2]
II.
Analysis.
The controlling issue
that Inman raises is whether the trial court should have granted him an
evidentiary hearing on his motion to withdraw his guilty plea. We conclude the trial court properly denied
his motion without a hearing.
The standard for
reviewing this issue was recently stated in State v. Bentley, 201
Wis.2d 303, 548 N.W.2d 50 (1996):
If the motion on its face alleges facts
which would entitle the defendant to relief, the circuit court has no
discretion and must hold an evidentiary hearing. Whether a motion alleges facts which, if true, would entitle a
defendant to relief is a question of law that we review de novo.
However, if the motion
fails to allege sufficient facts, the circuit court has the discretion to deny
a postconviction motion without a hearing.
Id. at
310‑11, 548 N.W.2d at 53 (citations omitted). Further, 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, the trial court may in the exercise of its legal
discretion deny the motion without a hearing.'” Id. at 309‑10, 548 N.W.2d at 53 (citation
omitted).
For a defendant to
succeed in a plea withdrawal motion based on a ineffective assistance of
counsel claim, the two-pronged test set forth in Strickland v. Washington,
466 U.S. 668 (1984), must be satisfied.
That is, a defendant “must show that counsel's performance was both
deficient and prejudicial.” Bentley,
201 Wis.2d at 312, 548 N.W.2d at 54.
Further, if a defendant fails to show one of the prongs, the court need
not address the other. See Strickland,
466 U.S. at 697.
In order to satisfy the prejudice prong
of the Strickland test, the defendant seeking to withdraw his or
her plea must allege facts to show “that there is a reasonable probability
that, but for the counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial.”
Bentley, 201
Wis.2d at 312, 548 N.W.2d at 54 (citation omitted).
In his motion seeking
his plea withdrawal, Inman alleged that he “was unaware, because he was not
informed by his attorney, that the Court of Appeals would review the
waiver order prior to the commencement of criminal proceedings.” (Emphasis in
original.) He further alleged that:
Historically,
the Court of Appeals in District I has granted virtually every interlocutory
appeal filed challenging a juvenile waiver order. It seems unlikely that Inman's request for review of his waiver
would have been denied, given the novelty of his case, which was, as all
parties agreed, the first waiver in Milwaukee County of a child age 14. The record in the trial court contains no
indication that trial counsel, Inman, or the court discussed challenging the
waiver order, or that the right to challenge the waiver order would by direct
appeal would [sic] be foreclosed by entry of the guilty plea.
Inman
acknowledges in his appellate brief that by entering a guilty plea he has
waived his right to appeal the waiver issue.
He now argues, however, that had counsel informed him of the appeal
procedure, he would have brought an appeal and he contends his appeal would
have met with success. Inman posits
that the juvenile court judge erred by basing his findings on speculation. He claims the juvenile judge based his
decision on speculation when the court stated, after determining that six-and-one-half
years was the maximum period of supervision in juvenile court, “I find that
there is a significant chance that 6 and ½ years is not enough time to address
the needs of the juvenile and to protect the interest of society.”
Thus, his claim of
ineffective assistance of counsel is grounded on his allegations that he was
not told of the appeal process which, he urges, constitutes deficient
performance by counsel. Inman further
posits that this meets Strickland's prejudice prong because he
assumes his petition for leave to appeal would have been successful. As relief for these perceived deficiencies,
Inman argues it is not enough that his case be remanded to the adult court
where he would be allowed to merely withdraw his guilty plea, but rather he
insists that his case must be returned to juvenile court. Because he is now 21 years old, he contends
he would be released from incarceration.
We first note that
Inman's motion to withdraw his guilty plea based on ineffective assistance of
counsel is comprised almost entirely of conclusory allegations. These allegations are insufficient under Bentley
to require the trial court to hold an evidentiary hearing. Bentley, 201 Wis.2d at 309-10,
548 N.W.2d at 53 (citation omitted).
Our supreme court “has long held that the facts supporting plea
withdrawal must be alleged in the petition and the defendant cannot rely on
conclusory allegations, hoping to supplement them at a hearing.” Id. at 313, 548 N.W.2d at 54.
When ruling on Inman's
motion, however, did not have the benefit of the supreme court's recent ruling
in Bentley. The trial
court read the entire waiver hearing transcript and concluded that Inman had
not shown the prejudice necessary under Strickland, because the
juvenile court's waiver decision was proper.
See J.A.L. v. State, 162 Wis.2d 940, 960, 471
N.W.2d 493, 501 (1991) (discussing juvenile court's discretionary decision to
waive juvenile jurisdiction). The trial
court correctly noted in its decision that: “A juvenile court may waive jurisdiction
based solely upon the seriousness of the offense.” After reviewing the transcript, the trial court adopted the
findings of the juvenile court, specifically that: “this is an extraordinary serious offense, ¼
clearly a violent offense ¼ an
aggressive offense ¼ a
premeditated and willful offense.” The
transcript also revealed that the juvenile court took into consideration the
facts of both the charged crime—a homicide with two shots fired at close range,
and Inman's other subsequent actions involving two additional armed robberies
in as many days and a third several weeks later.
The trial court, in
denying Inman’s motion, concluded that it was “satisfied beyond a reasonable
doubt that the Court of Appeals would have found that the juvenile court
properly exercised its discretion in waiving jurisdiction and that there was a
reasonable basis for doing so.” The
trial court further stated that it was
“satisfied that the Court of Appeals would have upheld this
determination finding that the juvenile court's conclusion was reasonable under
all the circumstances and that the availability or unavailability of extended
jurisdiction would not have made a difference.” Finally, the trial court concluded that Inman had not established
that he was prejudiced under Strickland. We agree.
It would have been futile for the trial court to afford Inman a hearing
when his motion did not establish a sufficient basis for withdrawal of his
plea. As the trial court ruled, even
assuming that trial counsel failed to explain the waiver appeal process to
Inman, Inman nonetheless failed to meet the prejudice prong required by Strickland. As a consequence, the trial court was not
obligated to furnish him with an evidentiary hearing for his motion to withdraw
his guilty plea. Accordingly, we
affirm.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.