COURT OF APPEALS DECISION DATED AND FILED August 23, 2006 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal Nos. |
2005AP1307-CR |
Cir. Ct. Nos.
2002CF375 2002CF542 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State
of Wisconsin, Plaintiff-Respondent, v. Bryon
P. Cibrario, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Kenosha County: Michael fisher, Judge. Affirmed.
Before Brown, Nettesheim and Anderson, JJ.
¶1 NETTESHEIM, J. Bryon P. Cibrario appeals from a judgment of conviction and from an order denying his postconviction motion seeking to withdraw his guilty pleas. Cibrario argues that the trial court’s plea colloquy was defective because the court failed to personally inform him that it was not bound by the terms of the plea agreement. Cibrario contends that he would not have entered his pleas had he known that the court was not so bound.
¶2 We reject Cibrario’s argument because it is premised entirely on the sentencing aspects of the case, but the plea agreement contained no sentencing concessions by the State. Thus, the trial court was not obligated to inform Cibrario that it was not bound by something the State had not promised. We affirm the judgment and order.
FACTS AND
PROCEDURAL HISTORY
¶3 Cibrario
was charged with possession of child pornography, repeated acts of sexual
assault of a child, second-degree sexual assault of a child and child
enticement. Pursuant to a plea
agreement, Cibrario pled guilty to one count of possession of child pornography
in violation of Wis. Stat. § 948.12
(2001-02),[1]
one count of repeated acts of sexual assault of a child in violation of Wis. Stat. § 948.025, and one
count of second-degree sexual assault of a child in violation of Wis. Stat. § 948.02(2). In exchange for his pleas, the State agreed
to dismiss and read in the child enticement charge and to not issue additional
child pornography charges. The State
made no sentencing concessions or promises to Cibrario under the plea
agreement. To the contrary, both
Cibrario and the State were free to make whatever sentence recommendations each
deemed appropriate.
¶4 During
the plea colloquy, the trial court explained each of the charges to Cibrario
and advised him of the maximum penalties that each charge carried. However, at no time did the court inform
Cibrario that it was not bound by the terms of the plea agreement. After confirming that Cibrario understood
the charges, the possible penalties and the terms of the plea agreement, the
trial court accepted Cibrario’s guilty pleas.
The court then sentenced Cibrario to an indeterminate sentence not to
exceed thirteen years for repeated sexual assault of a child; a bifurcated
sentence of twenty years’ confinement and ten years of extended supervision for
second-degree sexual assault of a child, to run concurrently; and a bifurcated
sentence of two years’ confinement and two years of extended supervision for
possession of child pornography, also to run concurrently.
¶5 Cibrario
appealed and his counsel filed a no-merit report pursuant to Wis. Stat. Rule 809.32 (2003-04). However, we rejected the no-merit
report. We noted that under State
v. Hampton, 2004 WI 107, ¶38, 274 Wis. 2d 379, 683 N.W.2d 14, “a
circuit court must advise the defendant personally that the terms of a plea
agreement, including a prosecutor’s recommendations, are not binding on the
court and, concomitantly, ascertain whether the defendant understands this
information.” Our rejection order
contemplated that Hampton might be a bright-line rule. Our order said, “[G]iven the absolute
quality of the above rule from Hampton … we cannot say that a Hampton
challenge in the circuit court, which would appear to be a question of first
impression, would be without any arguable merit.” Cibrario then moved for postconviction relief on the grounds that
his plea colloquy was defective because the trial court failed to personally
inform him that it was not bound by the terms of the plea agreement. At the hearing on the motion, the trial
court denied the motion without taking any evidence. Cibrario appeals.
STANDARD OF
REVIEW
¶6 Whether
a defendant’s postconviction motion alleges facts sufficient to require a
hearing for the relief requested presents a mixed standard of review. State v. Bentley, 201 Wis. 2d
303, 309-10, 548 N.W.2d 50 (1996).
First, we determine whether the motion on its face alleges sufficient
material facts that, if true, would entitle the defendant to relief. See id. at 310. This is a question of law that we review de
novo. Id. If the motion raises such facts, the trial
court has no discretion and must hold an evidentiary hearing. Id. However, if the motion does not raise facts sufficient to entitle
the defendant to relief, presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the
trial court has the discretion to grant or deny a hearing. See id. at 309-10.
DISCUSSION
¶7 Cibrario’s
postconviction motion recited, and the State concedes, that the trial court did
not personally advise Cibrario that the court was not bound by the terms of the
plea agreement. If the inquiry were
limited to just the four corners of Cibrario’s motion, the trial court erred as
a matter of law by declining to conduct an evidentiary hearing on the
motion. See id. at
310. However, the inquiry also takes in
the full record of the trial court proceedings. As we have noted, if the record conclusively demonstrates that
Cibrario is not entitled to relief, the trial court may, in the proper exercise
of discretion, decline to hold a hearing.
See id. at 309-10.
It is on this prong of the inquiry that we decide this case.
¶8 The
paramount principle at a plea hearing is that a guilty plea must be knowingly,
voluntarily, and intelligently entered.
Hampton, 274 Wis. 2d 379, ¶21. As part of this process in a plea agreement setting, Hampton
requires that when a trial court discovers that “the prosecuting attorney has
agreed to seek charge or sentence concessions which must be approved by
the court, the court must advise the defendant personally that the
recommendations of the prosecuting attorney are not binding on the court.” Id., ¶32 (first
emphasis added; citation omitted).
¶9 Cibrario
argues that his plea colloquy was defective because the trial court did not
personally inform him that it was not bound by the terms of his plea agreement
pursuant to Hampton and, as such, he should be permitted to
withdraw his pleas.
¶10 In
Hampton, the defendant had entered into a plea agreement by which
he would enter an Alford plea[2]
in exchange for the prosecutor’s sentencing recommendations. Hampton, 274 Wis. 2d 379,
¶12. During the plea colloquy, the
trial court failed to inform Hampton that it could choose not to follow the
prosecutor’s recommendations. Id.,
¶15. Later, at sentencing, the court,
in fact, imposed a longer sentence than the prosecutor had recommended. See id., ¶17. Postconviction, Hampton sought to withdraw
his Alford plea, but the trial court denied the motion without an
evidentiary hearing. Hampton,
274 Wis. 2d 379, ¶18. On appeal,
the supreme court held that the trial court’s failure to advise Hampton that
the court was not bound by the State’s sentencing recommendation was fatal to
the plea agreement and the court remanded the matter for an evidentiary hearing
on Hampton’s plea withdrawal motion. Id.,
¶73.
¶11 However,
this case is factually distinct from Hampton. In his affidavit in support of his
postconviction motion for plea withdrawal, Cibrario states that “[h]e would not
have entered his plea in this case but would have proceeded to trial if he had
known that the court could, in fact, impose [the maximum penalties for the
crimes he was pleading to].” Thus,
Cibrario’s motion was directly linked to the sentence imposed by the trial
court. However, as we have noted, the
State made no sentencing concessions or sentencing recommendations under the
plea agreement in this case. Instead,
both Cibrario and the State were each free to make their own sentencing recommendations—a
privilege each party would have been entitled to absent a plea agreement. Moreover, the trial court properly advised
Cibrario of the maximum potential penalties.
¶12 By
its own words, Hampton requires only that a trial court advise a
defendant that the court is not bound by the terms of the plea agreement where
“the prosecuting attorney has agreed to seek charge or sentence concessions which
must be approved by the court.” Id.,
¶32 (emphasis added). Unlike Hampton,
here the State made no sentencing concessions.
Thus, there was nothing for the trial court to approve. The plea-taking process is designed to
assure that a plea is knowingly, voluntarily, and intelligently entered. Id., ¶21. Cibrario would have us read Hampton to
require a trial court to advise a defendant that the court is not bound by any
promises the State has not made.
Such a reading would invite confusion instead of understanding on the
part of a defendant.
¶13 In
summary, we hold that Hampton does not apply where the grounds
for plea withdrawal are not premised upon any provisions of the plea agreement.[3] We affirm the judgment and the order denying Cibrario’s motion to
withdraw his guilty pleas.
By the Court.—Judgment and order affirmed.
Recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] See North Carolina v. Alford, 400 U.S. 25 (1970).
[3] If Cibrario’s argument traveled to a provision of the plea agreement that required the approval of the trial court, he might have an argument that the trial court erred under State v. Hampton, 2004 WI 107, 274 Wis. 2d 379, 683 N.W.2d 14. That would then require us to address the State’s alternative argument that any error was harmless. However, given Cibrario’s challenge to the trial court’s sentence, and given that the State made no sentencing promises or concessions under the agreement, we see no error in the first instance.