COURT OF APPEALS DECISION DATED AND FILED June 18, 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. |
2007AP972-CR |
2005CF1650 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Edward M. Maresh,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Brown, C.J.,
¶1 PER CURIAM. Edward M. Maresh pled guilty to one count each of felony bail jumping and maintaining a drug-trafficking place. He appeals from the judgment of conviction and the order denying his postconviction motion to withdraw his guilty pleas based on ineffective assistance of counsel. Maresh also seeks resentencing on grounds the trial court failed to state on the record the basis for the sentence and relied on inaccurate information. Maresh has not shown manifest injustice: his counsel’s performance was not prejudicial, his pleas were knowingly and intelligently entered and he has waived direct review of whether the State breached the plea agreement. In addition, the trial court did not erroneously exercise its discretion in sentencing Maresh. We affirm.
BACKGROUND
¶2 The State charged Maresh in case no. 05-CF-1398 with one count of maintaining a drug-trafficking place and one count of possessing drug paraphernalia, contrary to Wis. Stat. §§ 961.42(1) and 961.573(1), and later charged him in case no. 05-CF-1650 with two counts of bail jumping, contrary to Wis. Stat. § 946.49(1)(b) (2005-06).[1] In exchange for Maresh’s guilty pleas to maintaining a drug-trafficking place and one count of bail jumping, the State agreed to recommend probation and to dismiss and read in the two other counts.
¶3 Finding Maresh’s testimony about his rehabilitation efforts “totally incredible,” the court rejected the State’s recommendation and sentenced Maresh to an aggregate sentence of three and a half years’ initial confinement and two and a half years’ extended supervision on the two counts. Maresh filed a postconviction motion to withdraw his guilty pleas, claiming ineffective assistance of counsel. The trial court denied his motion after a Machner[2] hearing.
DISCUSSION
¶4 Maresh contends that he should have been permitted to withdraw his guilty pleas either because his counsel provided ineffective assistance or because his plea was uninformed and the State breached the plea agreement.
¶5 A defendant who moves to withdraw the plea after sentencing
carries the heavy burden of establishing by clear and convincing evidence that
the trial court should permit plea withdrawal to correct a “manifest
injustice.” State v. Thomas, 2000 WI
13, ¶16, 232
Ineffective Assistance of Counsel
¶6 The familiar two-pronged test for ineffective assistance of
counsel claims requires defendants to prove both deficient performance and
prejudice from that deficiency. Strickland v.
¶7 Ineffective assistance claims present mixed questions of fact
and law. Marshall, 251
1. Failure to inform that court not bound by plea agreement
¶8 Maresh first asserts that counsel’s assistance was deficient because she did not explain that the court was not bound by the plea agreement. Maresh’s claim arises from a letter his counsel wrote him after Maresh’s mother told counsel Maresh “doesn’t know his choices.” Counsel wrote back to Maresh the next day, laying out the State’s offer. An excerpt of the letter reads:
The state’s offer is as follows:
1) In Case No: 05-CF-1398 Plead to Count 1, receive 3 years imposed and stayed, that’s 18 months prison/18 months probation, 3 years probation 120 days Racine County Jail as a condition of that probation and other appropriate conditions. Count 2 would be dismissed and read in.
2) In Case No: 05-CF-1650 Plead to count 1, dismiss and read in count 2, receive an imposed and stayed prison term of 1 year in, 1 year extended supervision and 3 years probation to run concurrent with the other case.
Please take some time to review your options and decide how you would like to proceed. If you take the pleas on the above mentioned cases you would serve a total time of 3 years probation ….
¶9 Maresh contends that counsel misadvised him of the actual punishment he faced because the letter conveys a certainty that by pleading he “would serve” three years’ probation. Maresh concedes that the court advised him that it was not obligated to follow the State’s recommendation and could impose the statutory maximums and that he acknowledged to the court that he understood. He asserts, however, that counsel repeatedly told him not to worry, literally saying that to him even as the court advised him that it could impose the full sentence. The record does not support Maresh’s argument.
¶10 First, the letter plainly says, “The State’s offer is as follows.” Second, counsel followed up the letter with a visit to Maresh. She testified that she informed him, as with all of her clients who plead, that the court was not bound by the plea and, in fact, could impose the maximum sentence. She also testified that she discussed that the sentences could be consecutive. She was sure she did not tell him not to worry or that probation was a guarantee because the sentencing judge “[is] a tougher judge.” After the visit, she “felt certain he understood what was going on.”
¶11 For its part, the court rebuffed Maresh’s testimony as a “bogus, incredible story.” The court rejected Maresh’s contention that counsel was saying “don’t worry” to him even as the court gave its advisories because it would have seen her speaking and offered a recess. Furthermore, the court itself carefully reviewed each count and the maximum penalty each entailed, stressing that it was not held to any agreement. Maresh confirmed that he understood and was pleased with his lawyer’s performance. Finally, Maresh signed the plea questionnaire advising that the court is not bound by the State’s recommendation and may impose the maximum sentence. Significantly, Maresh entered the plea and received the explanations from the court after receiving the letter containing the information he claims misled him. The court noted that any lingering confusion after counsel’s letter was more than fully resolved by further discussion with counsel and the plea colloquy itself. The court’s findings, including that Maresh’s testimony was “totally incredible” are not clearly erroneous.
¶12 Maresh maintains on appeal that he would not have pled guilty
had he known he would get prison time instead of probation. At the Machner hearing, however, he
testified only that he would not have pled guilty had trial counsel shared
“complete discovery” with him. The failure
to address below the claim he now raises deprives us of the trial court’s
assessment of the claim’s credibility. See State v. Krawczyk, 2003 WI App 6,
¶29, 259
2. Failure to inform of all penalties
¶13 In addition to
his prison sentence and extended supervision, the court revoked Maresh’s
driving privileges for three years. Maresh
contends trial counsel failed to explain that the array of penalties he faced
included revocation of his driving privileges. See Wis. Stat. § 961.50(1). Counsel did not recall whether or not she
discussed his conviction’s impact on his driver’s
license.
¶14 An
understanding of potential punishments or sentences includes knowledge of the
plea’s direct consequences, but does not require that a defendant be informed
of consequences collateral to it. State
v. Kosina, 226
3. Failure to object to State’s reference to unissued charge
¶15 Maresh next asserts counsel was ineffective for failing to object when, while making its sentencing recommendation, the State referred to an unissued charge of fraud on an innkeeper. The matter arose from a recent incident where Maresh allegedly took a motel room with a group of people he did not know well, used controlled substances and caused damage, and then left without paying for further use of the room but with the other people still there. Maresh contends the State breached the plea agreement by presenting the unissued charge as having been dismissed and read in when, in fact, it was referred in but never formally charged. He asserts that counsel’s failure to object to the alleged breach automatically prejudiced him. We see what transpired differently.
¶16 Maresh was charged in case no. 05-CF-1398 with one count of maintaining a drug-trafficking place and one count of possessing drug paraphernalia. When the court asked for the State’s recommendation, the prosecutor stated:
Your Honor, on the 05-CF-1398 file, the State is recommending on a plea to count one three years in prison imposed and stayed with eighteen months initial incarceration, eighteen months extended supervision and three years of probation. That includes 120 days jail, serve 90, 30 stayed and other appropriate conditions. We moved to dismiss and read in count three previously.
Logic convinces us that the prosecutor mistakenly said “count three” instead of “count two.” Case no. 05-CF-1398 never had more than two counts and count two was the only one dismissed and read in. If this were not so, there would be no recommendation or comment upon count two. This language did not breach the agreement because the recommendation was the same to dismiss and read in a second count in that case.
¶17 After the above comment, the prosecutor noted that the offer was “silent as to whether or not prison will be concurrent or consecutive on the two cases.” She then commented that she reviewed a fraud on an innkeeper charge the sheriff’s department referred in after Maresh missed a court appearance. The prosecutor expressly told the court that she did not believe the State could meet its burden. Maresh’s counsel said this was the first she knew of the episode, but that the court should not consider the uncharged matter. The court answered, “Okay.”
¶18 We see no grounds for plea withdrawal or resentencing. The reference to “count three” was a verbal misstep and was not directly connected to the comment about the motel incident. Moreover, counsel testified at the Machner hearing that she thought she had objected and so did not re-raise the issue, as she already had told the court the uncharged incident should not be considered. Regardless of whether counsel’s comment was a clear objection, the court confirmed that it “kind of sluffed … off” the reference, and the record shows that it did not rely on, or even refer to, the incident in its sentencing. Rather, it focused on the Presentence Investigation report, Maresh’s tendency to shift blame and his outright lie about faithfully attending Alcoholics Anonymous meetings. The spirit of the agreement was not violated.
4. Failure to correct PSI report at sentencing
¶19 In the “Offender’s Version” portion of the PSI, Maresh denied all responsibility for the crime, claiming he had been set up by a friend. He contends that since his guilty plea required him to accept full responsibility, his PSI denial should have been a “red flag” to trial counsel that his plea may not have been knowing, intelligent and voluntary and she should have drawn that discrepancy to the court’s attention.
¶20 Assuming without deciding that counsel should have alerted the
court, we see no prejudice flowing from her failure to do so. First, Maresh assured the trial court that he
thoroughly discussed the issues with counsel, was satisfied with the job she
had done for him, had no questions, understood the elements of the crimes to
which he was pleading and was admitting guilt to all of them. Maresh’s assertion of innocence is a factor
that bears on whether his claim of misunderstanding, confusion or coercion in
entering his plea is credible, see State
v. Jenkins, 2007 WI 96, ¶89, 303
5. Failure to provide discovery
¶21 Maresh asserts that if counsel had provided the discovery he
requested, he would have pursued a different defense theory and would not have
pled guilty. Except for hinting at the Machner
hearing about some unspecified possible witnesses, Maresh leaves us to guess at
what the discovery entailed or what other theory of defense he might have
pursued. We decline to consider this
undeveloped argument.
Involuntary Plea
¶22 Reiterating his earlier arguments, Maresh next claims that he should be permitted to withdraw his pleas to correct a manifest injustice because his pleas were not knowing and voluntary. We already have concluded that Maresh’s plea was knowingly and voluntarily entered. The letter from counsel which Maresh claims misled him about his sentence was but one piece of the information he received. Maresh knew his potential sentence because he had seen the complaint, was present at the preliminary hearing, read and signed the plea questionnaire, and was instructed by the court at the plea colloquy. He told the court he understood the court was not bound by the plea agreement and could impose the maximum sentence. This argument fails.
Breach of Plea Agreement
¶23 Maresh argues that the State breached the plea agreement by
putting on the record the uncharged motel incident. This argument also fails. Maresh acknowledges that he did not object to
the State’s alleged breach of the plea agreement at the sentencing
hearing. He also concedes that he waived
his right to directly challenge the alleged breach, thus placing the issue
before us in the context of an ineffective assistance of counsel claim.
Erroneous Exercise of Sentencing Discretion
¶24 Maresh’s final argument is that the trial court erroneously
exercised its sentencing discretion either by failing to state on the record
the basis for the sentence or by considering inaccurate information. Sentencing rests within the trial court’s sound
discretion and we examine only whether the court has properly exercised its
discretion. State v. Spears, 227
1. Failing to state basis for sentence
¶25 We start with the presumption that the court acted
reasonably. State v. Lechner, 217
¶26 The court acknowledged that it had been prepared to consider
probation, but Maresh’s unabashed lying convinced it that he needed to be
confined. The court concluded that the
correctional and rehabilitative treatment Maresh needed could be provided most
effectively in prison and that confinement was necessary to protect the public
from his further criminal activity. The
court’s explanation was adequate.
2. Relying upon inaccurate information
¶27 The second part of Maresh’s sentencing challenge is that the court relied upon inaccurate and incomplete information. Once again he points to the alleged “count three,” which we have concluded was a verbal slip. The trial court did not refer to the motel incident in its sentencing remarks. Maresh offers no evidence that the court actually considered this or any other inaccurate or incomplete information. This argument fails.
CONCLUSION
¶28 We note that Maresh did not reply to any of the State’s
arguments by way of a reply brief. While
none is required, we take this as a concession that the State is correct. See
Schlieper
v. DNR, 188
Attorney Sanction
¶29 As a final matter, we address certain deficiencies and errors in
Maresh’s appellate brief. For starters,
the statement of facts contains no references to the record and only a few citations
to his own appendix. Such citations do
not conform to the rules of appellate procedure because they do not inform the
court where the facts he asserts may be found in the record. See Forman
v. McPherson, 2004 WI App 145, ¶6 n. 4, 275 Wis. 2d 604, 685 N.W.2d
603. An appellate court is improperly
burdened where briefs fail to cite to the record. See id.
In addition, a portion of the confidential PSI is reproduced,
unredacted, in the appendix. Making this
information available without specific court authorization is prohibited. See
Wis. Stat. § 972.15(4). Finally, the appendix does not conform to the
mandates of Wis. Stat. § 809.19(2)(a)
and counsels’ own certification. See State v. Bons, 2007 WI App 124, ¶¶22-25,
301
By the Court.—Judgment and order affirmed; attorneys sanctioned.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.