COURT OF APPEALS
DECISION
DATED AND FILED
June 26, 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 IV
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State of Wisconsin,
Plaintiff-Respondent,
v.
Julian C. Bethel,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Dane County: patrick
j. fiedler, Judge. Affirmed.
¶1 DYKMAN, J. Julian
Bethel appeals from an order denying his motion for postconviction relief. He contends that he is entitled to withdraw
his plea of no contest to battery and disorderly conduct because he was denied
effective assistance of counsel and because his plea was involuntary. Bethel claims his counsel was ineffective
because he (1) failed to advise Bethel of all the consequences of his plea,
including the possible use of the conviction to enhance his sentence in a
future criminal case, and (2) failed to explain to Bethel that he was
being charged under the habitual criminal statute, which Bethel argues was
erroneously applied to him. Bethel argues he would not
have entered a plea if his counsel had provided that information to him, and
thus his plea was involuntary. We conclude that Bethel’s arguments are without merit, and
therefore affirm.
Background
¶2 On November 14, 1995, Bethel
was charged with misdemeanor battery and disorderly conduct, with an increased
penalty for habitual criminality.
On February 28, 1996, Bethel pled no contest to battery, contrary to Wis. Stat. § 940.19(1), as a
habitual offender. Bethel admitted that he
had a prior felony conviction dated June 7, 1994. The court withheld sentence, placed Bethel on probation for two years, and imposed forty-five days
in the Dane County Jail as a condition of probation. Bethel
did not appeal from the conviction.
¶3 In 2001, several years after he completed his Wisconsin
sentence, Bethel
committed a federal offense and was convicted in federal court. The federal court sentencing Bethel
classified him as a career offender based on his Wisconsin
convictions, consisting of the first felony and the misdemeanor battery. The court explained that the misdemeanor
battery qualified as a felony crime of violence under the federal guidelines. Thus, Bethel
was subject to an increased penalty range for his federal conviction.
¶4 On July 13, 2007, Bethel filed
a motion for postconviction relief from his Wisconsin
conviction for misdemeanor battery pursuant to Wis. Stat. § 974.06, asserting that the trial court and
his attorney failed to inform him of this potential consequence. The trial court found that “the fact that this
conviction may be considered in the future in another case and result in a
longer sentence in that future case” was a collateral consequence. The trial court explained that neither “the
sentencing court nor original counsel in this case were derelict in their
respective duties” because “[n]either … [was] required to advise a defendant of
collateral consequences.” The trial court
denied the motion for postconviction relief, finding it had no merit. Bethel
appeals.
Standard of Review
¶5 When a defendant seeks to withdraw a guilty or no contest
plea after sentencing, he must prove “by clear and convincing evidence that
withdrawal is necessary to correct a manifest injustice.” State v. James, 176 Wis. 2d 230, 236-37, 500
N.W.2d 345 (Ct. App. 1993). “A manifest
injustice occurs where a defendant makes a plea involuntarily or without knowledge
of the consequences of the plea—or where the plea is entered without knowledge
of the charge or that the sentence actually imposed could be imposed.” Id.
at 237 (citation omitted). “Whether a
plea is knowing, intelligent, and voluntary is a question of constitutional
fact. We accept the circuit court’s
findings of historical and evidentiary facts unless they are clearly erroneous
but we determine independently whether those facts demonstrate that the
defendant’s plea was knowing, intelligent, and voluntary.” State v. Brown, 2006 WI 100, ¶19,
293 Wis. 2d
594, 716 N.W.2d 906 (citation omitted).
Discussion
¶6 Bethel
argues that he did not enter his plea knowingly, intelligently and voluntarily
because he did not fully understand the
nature and consequences of his plea. He
asserts that neither the trial court nor his attorney informed him that he could receive a longer federal prison
sentence if he committed a federal crime based on his state conviction. He also asserts that he was not informed that
he was being charged as a habitual offender, and that he should not have been
so charged because he did not meet the criteria of a habitual offender. Bethel
contends that he was denied effective assistance of counsel based on his
attorney’s failure to provide this information to him before he entered his
plea. He contends that if he had known
that a future court could consider the conviction to enhance a future sentence
and that he was being charged as a habitual offender, he would have insisted on
a jury trial. We reject each of Bethel’s claims.
¶7 The problem with Bethel’s first
argument is that neither the court nor counsel had an obligation to inform Bethel of the possible
future use of a state conviction to enhance a federal sentence. A defendant need only be informed of
the direct consequences of his guilty plea in order to enter a plea knowingly,
intelligently, and voluntarily. See State v. Kosina, 226 Wis. 2d 482, 485, 595 N.W.2d 464 (Ct. App.
1999). “If the court fails to disclose a direct consequence of a plea, a
defendant may withdraw the plea as a matter of right.” State
v. Brown, 2004 WI App 179, ¶7, 276 Wis. 2d 559, 687 N.W.2d 543. “However, if the court does not disclose a
collateral consequence of a plea, a defendant may not withdraw his plea on the
basis of that lack of information.” Id. Furthermore, “defense counsel’s failure to
advise a defendant of collateral consequences is not a sufficient basis for an
ineffective assistance of counsel claim.” Id., ¶7
n.3. We turn, then, to whether
the possible use of Bethel’s
state conviction to enhance a federal sentence in a future criminal proceeding
is a direct or collateral consequence of his plea.
¶8 “A direct consequence is one that definitely, immediately and
largely automatically flows from the conviction.” State v. Parker, 2001 WI App 111, ¶8,
244 Wis.2d 145, 629 N.W.2d 77. A
consequence is collateral if it might or might not occur in a given case and if
it is the result of a separate decisionmaking process. Id.
“Collateral consequences do not automatically
flow from the plea, but rather will depend upon a future proceeding, or may be
contingent on a defendant’s future behavior.” State v. Yates, 2000 WI App 224, ¶7,
239 Wis. 2d
17, 619 N.W.2d 132.
¶9 The use of Bethel’s state conviction to enhance his federal sentence
depended, first and foremost, upon Bethel’s
committing a federal crime. As such, it
did not automatically flow from Bethel’s state
conviction, but was contingent upon Bethel’s
own future behavior. Additionally, the
use of the state conviction to enhance the federal sentence was a decision by a
separate court in a separate proceeding.
Because the federal court’s treatment of the state conviction did not
flow automatically from the state conviction, but rather depended on Bethel’s
own behavior and the decision of a separate court, the consequence was
collateral rather than direct. It
therefore cannot support a claim that Bethel’s
plea was involuntary or that he was denied effective assistance of counsel in
entering his plea.
¶10 Bethel
also argues that the trial court erred in accepting his no contest plea to the
battery charge with a habitual criminal enhancer because he did not admit to
being a habitual criminal. See State v.
Theriault, 187 Wis.
2d 125, 132 & n.1, 522 N.W.2d 254 (Ct. App. 1994) (requiring either
defendant’s express admission to prior felony conviction or that State prove
the elements of the habitual criminal statute beyond a reasonable doubt). The record reveals, however, that Bethel did expressly admit
to having committed a felony within five years of the battery conviction, as
required by the habitual criminal statute.
The transcript of Bethel’s plea and sentencing
hearing contains the following exchange between Bethel and the court:
Q: …. Mr.
Bethel, this complaint further alleges the habitual offender charge or statute
which asserts that on June 7th of 1994 you were convicted of a felony offense
of possession of a controlled substance with intent to deliver contrary to
section 161.41(1m) of the statutes, is that true?
A: Yeah.
Q: And to your knowledge that conviction is
still there, it wasn’t appealed, it hasn’t been reversed?
A: No.
This admission is sufficient to
satisfy the increased penalty for habitual criminality statute.
¶11 Finally, Bethel argues that his
attorney provided ineffective assistance of counsel because he failed to inform
Bethel that his
plea included an increased penalty for habitual criminality and, presumably,
for advising him to enter a plea with a habitual criminal enhancer that did not
apply to him. Because the record
establishes that Bethel was subject to the
habitual criminal statute, and was informed of that fact by the court, Bethel’s argument that his
counsel provided him ineffective assistance necessarily fails. We therefore affirm.
By the Court.— Order affirmed.
Not
recommended for publication in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.