COURT OF APPEALS DECISION DATED AND FILED April 01, 2008 David R. Schanker 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 No. |
2007AP1668-CR |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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State of
Plaintiff-Respondent, v. Jimmie D. Gray,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Wedemeyer, Fine and Kessler, JJ.
¶1 PER CURIAM. Jimmie D. Gray appeals from the order denying his motion for postconviction relief. He argues that the postconviction court erred when it denied his motion for plea withdrawal or sentence modification. Because we conclude that the postconviction court did not err, we affirm.
¶2 Gray pled guilty to two counts of armed robbery.[1] Under the plea agreement, the State agreed to recommend ten-year sentences on each count to run concurrently. The trial court sentenced him to twelve years of initial confinement and eight years of extended supervision on the first count, with a concurrent twelve-year sentence on the second count.[2]
¶3 In 2007, Gray moved to withdraw his guilty pleas or for sentence modification. He argued that his trial counsel was ineffective at the plea and sentencing hearings because counsel did not object when the trial court “breached” the plea agreement and because counsel recommended a sentence different than the one set forth in the plea agreement. He also argued that the trial court erred because it did not tell him that it was not bound by the plea agreement, that it could impose consecutive sentences, and that he could withdraw his pleas if the court did not follow the plea agreement. The postconviction court denied the motion without holding a hearing. The court found that the trial court was not obligated to follow the plea agreement or tell Gray that he could withdraw his pleas if it did not follow the agreement. The court also found that the guilty plea questionnaire that Gray had signed stated that the trial court was not bound by the plea agreement and that it could impose consecutive sentences.
¶4 Gray argues to this court that the trial court erred when it conducted the plea colloquy with him because it did not tell him that it was not bound by the plea agreement. At the hearing, the following colloquy took place:
THE COURT: And you understand the penalty the Court could impose as to each one of those counts, up to a total of 60 years. You understand that?
THE DEFENDANT: That is correct. I understand.
[DEFENSE COUNSEL]: No, actually I think it’s 60 years on Count 1.
THE COURT: Oh, strike that. 60 years on the first count, 40 years on the second count. You understand that?
THE DEFENDANT: I understand that.
The trial court did not personally advise Gray that it was not bound by the plea agreement, or ask him whether he understood that it was not bound by the agreement.
¶5 When taking a guilty or no contest plea from a criminal
defendant, “the circuit court must advise the defendant personally on the
record that [it] is not bound by any plea agreement and ascertain whether the
defendant understands the information.” State
v.
The essence of the mandate is that the court must engage in a colloquy with the defendant on the record at the plea hearing to ascertain whether the defendant understands that the court is not bound by a sentencing recommendation from the prosecutor or any other term of the defendant’s plea agreement. The plea colloquy is defective if it fails to produce an exchange on the record that indicates that the defendant understands the court is free to disregard recommendations based on a plea agreement for sentencing.
¶6 In this case, the record shows that the trial court did not
personally advise Gray that it was not bound by the plea agreement as required
by
¶7 Gray also was not entitled to a hearing on his claim that his
trial counsel was ineffective for failing to object when the trial court deviated
from the plea agreement. To establish an
ineffective assistance of counsel claim, a defendant must show both that
counsel’s performance was deficient and that he was prejudiced by the deficient
performance. Strickland v.
¶8 Gray further argues that his trial counsel was ineffective because his counsel recommended that the trial court impose a sentence that was different from the recommended sentence in the plea agreement. First, it appears that the plea agreement established a sentence recommendation for the State to make, but not one for defense counsel. Second, the sentence that defense counsel recommended was less than the State’s recommendation. Consequently, even were we to conclude that counsel’s performance was deficient, Gray cannot show that he was prejudiced by his counsel’s recommendation. He has not established that he was entitled to a hearing on his claim of ineffective assistance of trial counsel.
¶9 Gray also argues that his plea colloquy was defective because
the trial court did not tell him that it could impose consecutive
sentences. The failure to advise a
defendant that sentences can run consecutively is not an error if the defendant
does not allege that he did not understand that multiple sentences could run
consecutively. State v. Brown, 2006 WI
100, ¶78, 293
¶10 Gray raises some additional arguments in his brief to this
court. He did not, however, raise these
issues before the circuit court. Generally,
we will not consider an issue raised for the first time on appeal. Segall v. Hurwitz, 114
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).