COURT OF APPEALS DECISION DATED AND FILED March 13, 2008 David R. Schanker Clerk of Court of Appeals |
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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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Earl L. Diehl,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Dykman, Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Earl Diehl, pro se, appeals an order denying his postconviction motion to withdraw his no contest plea. Diehl argues the circuit court erred by denying his motion to withdraw his plea based upon claims of ineffective assistance of counsel. We reject Diehl’s arguments and affirm the order.
Background
¶2 An Information charged Diehl with perjury. The State alleged that during a trial that resulted in Diehl’s conviction for theft by contractor, Diehl knowingly made a false material statement when he testified that he placed $3,400 from a cashed check in a lock box at his home. In exchange for his no contest plea to the crime charged, the State agreed to dismiss a felony bail jumping charge in another case. The court ultimately sentenced Diehl to one year of initial confinement followed by two years’ extended supervision. Diehl’s postconviction motion for plea withdrawal was denied without a hearing, and this appeal follows.
Discussion
¶3 Diehl argues that the circuit court
erred by denying his motion to withdraw his no contest plea based upon claims of ineffective
assistance of counsel. A plea withdrawal motion that is filed
after sentencing should only be granted if it is necessary to correct a
manifest injustice. State v.
Duychak, 133
¶4 Ineffective assistance of counsel can constitute a manifest
injustice. State v. Bentley,
201
¶5 However, if the factual allegations of the motion are
insufficient or conclusory, or if the record irrefutably demonstrates that the
defendant is not entitled to relief, the circuit court may, in its discretion,
deny the motion without a hearing.
¶6 The analytical framework that must be employed in assessing
the merits of a defendant’s claim of ineffective assistance of counsel is well
known. To sustain a claim of ineffective
assistance of counsel, a defendant must show both that counsel’s performance
was deficient and that counsel’s errors were prejudicial. Strickland v.
¶7 To prove prejudice, Diehl must demonstrate that “there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474
¶8 In his postconviction motion for plea withdrawal, Diehl argued
that his counsel was ineffective because he failed to challenge what Diehl
characterized as prosecutorial misconduct. This court reviews allegations of prosecutorial misconduct in light
of the entire record of the case.
¶9
¶10 In his postconviction motion, Diehl also claimed the prosecutor made misrepresentations to the sentencing court by telling the court that: (1) the Department of Corrections waited to see if Diehl would be convicted of theft by contractor before initiating revocation of Diehl’s probation in another case; (2) Diehl lied to law enforcement and his probation agent about still having the money he had allegedly stolen as a contractor; and (3) Diehl enlisted his wife to lie to law enforcement. Diehl additionally claimed the prosecutor improperly informed the sentencing court about Diehl’s attempt at the theft trial to present false testimony through his wife.
¶11 With respect to the prosecutor’s comment that the DOC waited to
revoke Diehl’s probation, the circuit court found nothing in the record to
indicate the statement was untrue. Moreover, as the court acknowledged, when the DOC revoked Diehl’s probation
was immaterial to Diehl’s sentence in the perjury conviction. To the extent Diehl challenges the
prosecutor’s statement that Diehl lied about still having the money and
enlisted his wife to also lie, Diehl admitted during the plea colloquy that he
knew the subject money was not in the lock box when he testified that it
was. Further, the facts alleged in the
criminal complaint with respect to Diehl’s wife are consistent with the
prosecutor’s statements. Although Diehl additionally
claims that the exclusion of his wife as a rebuttal witness in the theft case
precluded the prosecutor in the present case from informing the sentencing
court about Diehl’s earlier attempt to present false testimony through his wife,
Diehl provides no authority to support his argument. Moreover, this information was relevant to an
evaluation of Diehl’s overall character, and character is one of the primary
factors that a court is to consider at sentencing. See
Rosado
v. State, 70
¶12 Diehl additionally claimed the prosecutor breached the plea
agreement and counsel was ineffective for failing to inform Diehl of the
consequences of that breach. At
sentencing, the prosecutor referred to a bail jumping charge that had been
dismissed outright pursuant to the plea agreement. While commenting on Diehl’s character, the
prosecutor stated that Diehl had failed to appear for sentencing on the
underlying theft case and was consequently charged with bail jumping. The prosecutor emphasized, however, that the
bail jumping charge had been dismissed.
Diehl contends that reference to the dismissed charge elevated the
charge into a “read-in” for sentencing purposes. Diehl, however, provides no authority for his
claim that reference to the dismissed charge breached the plea agreement. Further, “[i]n determining the character of
the defendant and the need for his incarceration and rehabilitation, the court
must consider whether the crime is an isolated act or a pattern of
conduct.” State v. McQuay, 154
¶13 Finally, Diehl claimed his trial counsel was ineffective for
failing to file pretrial motions challenging the admissibility of evidence,
jurisdiction, collateral estoppel, and dismissal. Diehl also claimed trial counsel failed to
properly advise him of the law regarding “personal and subject matter
jurisdiction, suppression of evidence, double jeopardy, collateral estoppel,
consequences of [breach] of plea agreement, [and] Alford pleas.” Diehl additionally argued his trial counsel
was ineffective for failing to properly investigate witnesses and documents
that would have exonerated him. We agree
with the circuit court’s conclusion that these assertions of trial counsel’s
deficiency are too conclusory to entitle Diehl to an evidentiary hearing. See Bentley, 201
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.