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COURT OF APPEALS
DECISION
DATED AND FILED
June 17, 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.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Willie D. Griffin,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: paul r.
van grunsven, Judge. Affirmed.
¶1 KESSLER, J. Willie
D. Griffin appeals from an order denying his motion to withdraw his guilty
pleas after sentencing based on ineffective assistance of trial counsel. Griffin
argues that the trial court erroneously denied his motion without granting him
a Machner
hearing. We affirm.
BACKGROUND
¶2 As part of a plea negotiation involving ten misdemeanor
counts in seven separate criminal cases, Griffin pled guilty to six counts of
violating a domestic abuse injunction, one count of bail jumping (relating to a
violation of the no-contact order while he was on bail for one of the previous
injunction violations), and had three counts dismissed and read in for
sentencing. During his plea hearing, Griffin indicated
displeasure with his counsel, responding “Not really” to the trial court’s
inquiry, “Are you satisfied with the way your attorney is representing
you?” Upon the trial court’s further
inquiry, Griffin
stated, “I know a lot of these things I didn’t do, but I am tired of sitting in
jail for some of the things I didn’t do….
I plead guilty.” The following
discussion then took place:
COURT: I want to
be completely certain that you are knowingly, voluntarily and freely entering
your guilty pleas in this case. [Counsel], do you want to talk to
Mr. Griffin? Obviously –
GRIFFIN: I plead guilty.
COURT: What?
GRIFFIN: I plead guilty.
COURT: No, but
you know what the point is. Not that I
am asking these question because – I have an obligation to protect your
Constitutional rights.
GRIFFIN: I plead guilty, sir.
COURT: You want
to plead guilty. The question is are you
knowingly, voluntarily, freely doing this?
GRIFFIN: Yes, yes.
COURT: Listen to
me. You tell me. When you have problems with your attorney, I
want to make sure you’re not feeling –
GRIFFIN: No, I do not.
COURT: You’re
telling me now that what you said before was not correct, that you and [your
counsel] are working together and you feel comfortable with her representation?
GRIFFIN: Yes, sir.
The court then inquired whether
it could use the facts as stated in the criminal complaints as the factual
basis for Griffin’s pleas, to which Griffin’s counsel answered yes, “except for
all of the facts in the case ending in 383 as to Count I” in that Griffin
admitted to being at the victim’s residence but denied breaking her patio
door. The trial court specifically asked
if Griffin “admit[ted] to having contact at the
location as stated in the complaint in violation of the domestic abuse
injunction and in violation of the terms and conditions of bond” and Griffin’s counsel
answered, “Correct.” The trial court
then accepted Griffin’s
pleas.
¶3 Thereafter, as the court and parties discussed what would be
needed for the sentencing hearing, Griffin
requested that he be allowed to withdraw his pleas. The trial court then adjourned the hearing to
determine which case would continue to trial that day and to give Griffin the opportunity to
talk with his counsel.
¶4 The trial court reconvened in the late afternoon that same
day. The trial court asked Griffin if he still wished to withdraw his pleas and Griffin stated that he
wanted to plead guilty. The court then
set a sentencing date for one week later where the trial court sentenced
Griffin to nine months in jail (no Huber release privileges) on the violation
of injunction count, consecutive to any other sentence, and nine months (with
Huber privileges) on the bail jumping count, to be served consecutively to the
sentence for count one.
¶5 Through appellate counsel, Griffin filed a motion to withdraw his guilty
pleas based upon his trial counsel’s failure to investigate his alibi for the incident
underlying the two counts in this case.
The motion set forth the grounds for the withdrawal, an ineffective
assistance of counsel claim, as follows:
1.
[Griffin] notified his counsel that he was at work
during the time at which the offense is alleged to have occurred and that she
should contact his supervisor to confirm that he was “punched in”;
2.
his counsel performed deficiently when she did not
investigate his defense of an alibi nor give notice of his alibi;
3.
without the alibi defense and without notice of the
alibi to the state, he pled guilty to the charge at his counsel’s
recommendation;
4.
not having an alibi defense prejudiced [Griffin] who pled guilty
and was sentenced to nine months consecutive to any other sentence; and
5.
[Griffin]
would have asked for a trial if his defense counsel had notified the state of
his alibi that would testify at trial that he was at work and could not have
committed the alleged offense.
¶6 The trial court held a hearing on the motion to withdraw
plea, including whether Griffin
had presented sufficient facts to warrant withdrawal based on an ineffective
assistance of counsel claim. The trial
court found that Griffin
had made only conclusory allegations in his motion, was therefore not entitled
to a Machner
hearing and, based on the record, denied the motion. Griffin
appealed.
DISCUSSION
I. Plea
withdrawal
¶7 A postconviction motion to withdraw a plea is within the
discretion of the trial court. State
v. Duychak, 133 Wis. 2d
307, 312, 395 N.W.2d 795 (Ct. App. 1986). We will reverse only upon an erroneous
exercise of the trial court’s discretion.
State v. Thomas, 2000 WI 13, ¶13, 232 Wis. 2d 714, 605 N.W.2d 836
¶8 When a defendant moves to withdraw a plea after sentencing,
the defendant “carries the heavy burden of establishing, by clear and
convincing evidence, that the trial court should permit the defendant to
withdraw the plea to correct a ‘manifest injustice.’” State v. Thomas, 232 Wis. 2d 714, ¶16; State v. Schill, 93 Wis. 2d 361, 383, 286
N.W.2d 836 (1980). “The ‘manifest
injustice’ test requires a defendant to show ‘a serious flaw in the fundamental
integrity of the plea.’” Thomas,
232 Wis. 2d
714, ¶16 (citation omitted).
¶9 Ineffective assistance of counsel has been recognized as a
manifest injustice requiring a guilty plea to be withdrawn. State v. Bentley, 201 Wis. 2d 303, 311,
548 N.W.2d 50 (1996). A trial counsel’s
failure to investigate an alibi can constitute ineffective assistance. State v. Crooks, 2006 WI App 262,
¶¶63-65, 297 Wis. 2d
633, 726 N.W.2d 322.
A. Sufficient
factual basis for acceptance of plea
¶10 Under Wis. Stat. § 971.08(1)(b),
when accepting a guilty plea, a court must make sufficient inquiries to satisfy
it that the defendant did in fact commit the crime. The purpose for this requirement is to make
certain the defendant is pleading guilty to a crime he actually committed. See State v. Lackershire, 2007 WI 74, ¶33,
301 Wis. 2d
418, 734 N.W.2d 23 (A sufficient factual basis requires a showing that “‘the
conduct which the defendant admits constitutes the offense charged.’” (citation
omitted)). The defendant’s admitting the
facts supporting each element of the crime charged, even if he or she does not
agree with other, non-dispositive facts included in these documents or
testimony, is also sufficient to support a plea. Cf. State v.
Black, 2001 WI 31, ¶16, 242 Wis. 2d
126, 624 N.W.2d 363 (factual basis for a plea exists if facts admitted to by
the defendant satisfies the court that the defendant in fact committed the
crime charged); Thomas, 232 Wis.
2d 714, ¶¶19-23. We review a trial
court’s determination of a sufficient factual basis under a clearly erroneous
standard. State v. Harvey,
2006 WI App 26, ¶10, 289 Wis. 2d 222, 710 N.W.2d 482 (“Unless it
was clearly erroneous, we will uphold the trial court’s determination that
there existed a sufficient basis to accept the plea.”).
¶11 Here, the trial court conducted a thorough plea colloquy. The court asked whether it could use the
criminal complaint as a basis for Griffin’s guilty pleas and Griffin agreed that
the facts in the complaint—that alleged that he was with the victim on the
dates specified, in violation of the injunction and no-contact order—were
correct. The plea colloquy further
demonstrates that when Griffin was informed of
the crimes that he was charged with and what the maximum penalties were for
those crimes, Griffin
answered that he understood. Griffin, upon questioning by the court, also stated that
he understood that the trial court was not bound by the sentencing
recommendations, but could sentence Griffin
to the maximum sentence allowable for the crimes to which he was pleading
guilty. When Griffin
asked to withdraw his pleas, the trial court adjourned the hearing, allowing Griffin time to speak with his counsel and upon
reconvening, the court had a lengthy discussion with Griffin
ensuring that Griffin
did want to plead guilty. Based on our
review of the record, we determine that the trial court properly accepted Griffin’s guilty pleas as
knowingly, voluntarily and intelligently given.
B. Withdrawal of pleas—manifest injustice
1. Ineffective
assistance of counsel standard
¶12 In order to prove an ineffective assistance claim, the
defendant must satisfy a two-part test:
the defendant must prove both that counsel’s performance was deficient
and that the deficient performance was prejudicial. Strickland v. Washington,
466 U.S. 668, 687 (1984); State
v. Pitsch, 124 Wis.
2d 628, 633, 369 N.W.2d 711 (1985). Performance
is deficient if it falls outside the range of professionally competent
representation, Pitsch, 124 Wis. 2d at 636-37, i.e., if the attorney “made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment,” State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990) (citation
omitted). We measure performance by the
objective standard of what a reasonably prudent attorney would do in similar
circumstances, see id.; Strickland, 466 U.S. at 688, and we indulge in a strong
presumption that counsel acted reasonably within professional norms, Pitsch,
124 Wis. 2d
at 637. We review the attorney’s
performance with great deference and “the burden is placed on the defendant to
overcome a strong presumption that counsel acted reasonably within professional
norms.” Johnson, 153 Wis. 2d at
127. “Review of the performance prong
may be abandoned ‘[i]f it is easier to dispose of an ineffectiveness claim on
the ground of lack of prejudice….’” State
v. Moats, 156 Wis. 2d
74, 101, 457 N.W.2d 299 (1990) (citation omitted).
¶13 To prove prejudice, it is not enough for a defendant to merely
show that the alleged deficient performance had some conceivable effect on the
outcome. State v. Erickson, 227 Wis. 2d 758, 773,
596 N.W.2d 749 (1999). Rather, the
defendant must show that, but for counsel’s error, there is a reasonable
probability that the result would have been different. Id.
¶14 A claim of ineffective assistance of counsel presents a mixed
question of fact and law. State
v. O’Brien, 223 Wis.
2d 303, 324-25, 588 N.W.2d 8 (1999).
Upon appellate review, we will affirm the trial court’s findings of
historical fact concerning counsel’s performance unless those findings are
clearly erroneous. Id.
However, the ultimate question of ineffective assistance is one of law,
subject to independent review. Id. at
325.
2. Nelson/Bentley test
¶15 Griffin
appeals the trial court’s denial of an evidentiary hearing on his motion to withdraw
his guilty pleas in this case based upon a claim of ineffective assistance of
counsel. A defendant who has made
factual allegations with sufficient specificity which, if true, would establish
both prongs of the Strickland test, is entitled to the
opportunity to make the necessary record in an evidentiary hearing. State v. Bentley, 201 Wis. 2d 303, 313-18, 548 N.W.2d 50 (1996); State
v. Machner, 92 Wis. 2d
797, 804, 285 N.W.2d 905 (Ct. App. 1979).
However, before a trial court must grant a Machner hearing on an
ineffective assistance-of-counsel claim, the defendant must allege sufficient
facts to raise a question of fact for the court. State v. Washington,
176 Wis. 2d
205, 214-15, 500 N.W.2d 331 (Ct. App. 1993). A conclusory allegation, unsupported by
factual assertions, is legally insufficient and does not require the trial
court to conduct a Machner hearing. Washington, 176 Wis. 2d at 214-15. We recently noted, in State v. Howell, 2006 WI
App 182, ¶17, 296 Wis. 2d 380, 722 N.W.2d 567, rev’d on other grounds, 2007 WI 75, 301 Wis. 2d 350, 734
N.W.2d 48: “The Nelson/Bentley test asks
whether a motion alleges ‘facts sufficient to entitle the movant to relief, or
presents only conclusory allegations, or if the record [otherwise] conclusively
demonstrates that the defendant is not entitled to relief.’” Howell, 296 Wis. 2d 380, ¶17 (citing
State
v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d
568, 682 N.W.2d 433 (paraphrasing Nelson v. State, 54 Wis. 2d 489, 497, 195 N.W.2d 629 (1972), and Bentley,
201 Wis. 2d at 309-10)); State v. Love, 2005 WI
116, ¶26, 284 Wis.
2d 111, 700 N.W.2d 62.
¶16 The supreme court, in Allen, provided additional guidance
when it “explained that a motion sufficient to meet the Nelson/Bentley standard
should ‘allege the five “w’s” and one “h”; that is, who, what, where, when,
why, and how.’” Howell, 296 Wis. 2d
380, ¶19 (citation omitted). The Allen
court further noted that the facts supplied must be “material facts,” i.e.,
“facts that allow a reviewing court to meaningfully assess a defendant’s
claim.… ‘[A] fact that is significant or
essential to the issue or matter at hand.’
In this case, they would be facts material to a claim of ineffective
assistance of counsel.” Allen,
274 Wis. 2d
568, ¶22 (citations omitted).
Significantly, the Allen court noted that these
material facts must be contained within “the four corners of the [motion] itself.” Id.,
¶23.
¶17 The determination of whether a defendant’s postconviction
motion alleges facts sufficient to entitle the defendant to an evidentiary
hearing is a mixed standard of review. Allen,
274 Wis. 2d
568, ¶9. “First, we determine whether
the motion on its face alleges sufficient material facts that, if true, would
entitle the defendant to relief. This is
a question of law that we review de novo.”
Id. If, however,
“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.”
Bentley, 201 Wis. 2d at 309-10
(citation omitted). “We review a [trial]
court’s discretionary decisions under the deferential erroneous exercise of
discretion standard.” Allen,
274 Wis. 2d
568, ¶9.
¶18 Here, the trial court found that Griffin only presented conclusory allegations
regarding his trial counsel’s effectiveness which were insufficient to entitle
him to a Machner hearing.
Analyzing Griffin’s motion de novo,
using Allen’s five “w’s” and one “h”—“who, what, where, when, why,
and how,” see Howell, 296 Wis. 2d
380, ¶19, we determine that Griffin
has not met the Nelson/Bentley test.
First, Griffin
claims that his supervisor would be able to provide him an alibi. However, Griffin does not identify this individual by
name, by company and position within the company, or with any other
specificity. Griffin
does not provide any affidavit by this individual, or anyone else, confirming Griffin’s alleged alibi,
such as where and/or when they saw him at the time of the alleged crime, how
they know his whereabouts at the time of the crime, or why they know of the
existence of this alibi evidence. Griffin provides no material
facts as to when he provided this alibi information to his counsel, or
counsel’s response in receiving this information. Rather, Griffin
offers only conclusory allegations that he told his counsel about this alibi,
that counsel failed to investigate it and this failure to investigate and
provide an alibi notice to the State was the sole reason that Griffin pled guilty to these charges. The four corners of Griffin’s motion fails to provide “sufficient
material facts for [a] reviewing court[] to meaningfully assess [his]
claim.” See Allen, 274 Wis.
2d 568, ¶23. Accordingly, Griffin has failed to
provide sufficient material facts upon which to demand an evidentiary hearing.
¶19 The record in this case conclusively demonstrates that Griffin is not entitled to
relief. As noted above, see § I.A. supra, the trial court had a sufficient
basis for accepting Griffin’s
pleas as knowingly, voluntarily and intelligently made. Further, the plea colloquy and subsequent
on-the-record discussions between Griffin, his
counsel, and the trial court also do not support Griffin’s interpretation of events. A review of these discussions reveal that
Griffin had the opportunity to, and did at one point in the plea hearing,
withdraw his guilty pleas. After having
an opportunity to meet with his counsel during an adjournment called
specifically because Griffin had asked to
withdraw his guilty pleas, the trial court then questioned Griffin extensively about whether he wished
to withdraw his pleas. A review of the
trial court’s questioning of Griffin
demonstrates that the trial court attempted to find out why Griffin
had wanted to withdraw his pleas and inquired of Griffin whether he was voluntarily and
knowingly pleading guilty.
¶20 When Griffin responded that he was not all that happy with his
counsel, the trial court inquired further.
Following up on Griffin’s
subsequent statement that he was pleading guilty, the trial court specifically
asked: “Listen to me. You tell me.
When you have problems with your attorney, I want to make sure you’re
not feeling – … You’re telling me now that what you said before was not correct,
that you and [your counsel] are working together and you felt comfortable with
her representation?” to which Griffin answered, “Yes, sir.” When later in the same hearing, Griffin
requested to withdraw his guilty pleas, the trial court adjourned for several
hours to provide Griffin with the opportunity to consult with his attorney
regarding whether he wished to plead guilty as part of the negotiated plea
agreement or withdraw his pleas. After
reconvening, Griffin
specifically stated numerous times, in response to the trial court’s inquiry,
that he wished to plead guilty. At no
time during these discussions with the trial court did Griffin mention that he was pleading guilty
because his counsel had failed to investigate a possible alibi and/or fail to
provide a notice of alibi to the State; an alibi was never mentioned. Rather, when specifically questioned about
his comment that he was “[n]ot really” satisfied with his counsel, Griffin stated that he
was satisfied. Additionally, when asked
whether he admitted to being present with the victim at the time and location
noted in the criminal complaint for the charges he is now seeking to withdraw
his guilty plea, his counsel admitted that he was present, but that he disputed
that he had damaged the victim’s patio door.
At no time did Griffin
assert that he had an alibi against these charges. Griffin
has not met the third element of the Nelson/Bentley test.
¶21 While not required, the trial court, as an exercise of its
discretion, could still have granted Griffin
a Machner
hearing. Allen, 274 Wis. 2d 568, ¶9. We will reverse a trial court’s discretionary
denial of such a hearing only if it is clearly erroneous. Id. Based on our review of the record, we
determine that Griffin
has not shown by clear and convincing evidence that he will suffer a manifest
injustice if not allowed to withdraw his guilty pleas. Accordingly, the trial court did not
erroneously exercise its discretion when it denied his motion to withdraw his
guilty pleas after sentencing without holding a Machner hearing.
By the Court.—Judgment and order affirmed.
This
opinion will not be published. See Wis.
Stat Rule 809.23(1)(b)4.