COURT OF APPEALS DECISION DATED AND FILED December 9, 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 I |
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State of Plaintiff-Respondent, v. Roberto I. Lopez, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Roberto I. Lopez pled guilty to two counts of felony murder. He appeals from the judgment of conviction and from the order denying his postconviction motion to withdraw his pleas. We affirm.
BACKGROUND
¶2 According to the criminal complaint, Lopez and several
co-actors robbed two occupants of a
¶3 On the day set for trial, Lopez and the State entered into a plea agreement. The State would file an amended information charging Lopez with two counts of felony murder and would make certain favorable sentencing recommendations in exchange for Lopez’s guilty pleas to the amended charges. Following a lengthy guilty plea colloquy, the circuit court accepted Lopez’s pleas and found him guilty. The court ordered preparation of a presentence investigation report and adjourned the matter for sentencing.
¶4 Although Lopez participated in the presentence investigation, he told the investigator that he was innocent and that he wished to withdraw his pleas and proceed to trial. On the day set for sentencing, he moved for plea withdrawal. Lopez cited unspecified “new evidence” in support of his motion, and the circuit court granted his request for additional time to “flesh out” the issue. Lopez’s trial counsel subsequently filed a written motion seeking plea withdrawal on the grounds that: (1) Lopez continued to maintain his innocence; (2) Lopez felt “somewhat” under pressure to make a plea decision on the day of trial; and (3) Lopez discovered after entering his pleas that a police detective “had tried to recruit a jail inmate” to persuade Lopez to confess. Under separate cover, Lopez submitted a letter pro se in which he reiterated his claim of innocence and stated that he felt “pressured and coerced” by trial counsel.
¶5 The circuit court held a hearing on Lopez’s motion for plea withdrawal at which Lopez offered neither sworn testimony nor documentary evidence outside of his letter. The State presented testimony from two police officers to support its opposition to plea withdrawal. The circuit court concluded that Lopez’s motion was based on nothing more than a change of heart and that the State would be substantially prejudiced if Lopez withdrew his pleas.[2] The circuit court denied the motion, and the matter proceeded to sentencing.
¶6 With the assistance of appellate counsel, Lopez next brought a postconviction motion to withdraw his pleas. He again asserted his innocence, and he further asserted that his trial counsel was ineffective in pursuing the earlier motion for plea withdrawal. The circuit court determined that the postconviction motion contained only conclusory allegations and denied relief without holding a hearing. Lopez appeals, contending that the circuit court erroneously resolved both his presentence motion and his postconviction motion for plea withdrawal.
DISCUSSION
¶7 We first consider whether the circuit court properly denied
Lopez’s presentence motion for plea withdrawal.
The decision to permit plea withdrawal prior to sentencing is committed
to the sound discretion of the circuit court.
State v. Jenkins, 2007 WI 96, ¶30, 303
¶8 A defendant may withdraw a guilty plea prior to sentencing
upon showing a fair and just reason for doing so if the State has not been
substantially prejudiced by reliance on the plea. State v. Shanks, 152
¶9 Fair and just reasons for plea withdrawal include “genuine
misunderstanding of the plea’s consequences; haste and confusion in entering
the plea; and coercion on the part of trial counsel.” State v. Shimek, 230
¶10 Here, Lopez claimed that he felt pressured and coerced by his
trial counsel. A defendant must do more,
however, than assert a recognized reason for plea withdrawal. Kivioja, 225
¶11 Lopez included nothing in his motion or letter demonstrating any improper pressure on the part of his trial counsel, and he did not supplement his written submissions with testimony. Further, Lopez’s postconviction allegations conflicted with his responses during the plea colloquy. The circuit court discussed the plea proceedings at length in considering Lopez’s motion, noting that Lopez expressed satisfaction with his attorney’s representation, denied that he was threatened or promised anything to induce his plea, and admitted committing acts constituting felony murder. Lopez also acknowledged understanding the procedural rights he forfeited by entering a plea. The circuit court found that Lopez was truthful during the plea colloquy, and the court rejected the representations in support of plea withdrawal because they were “belied by the record.”
¶12 Credibility determinations rest with the circuit court. Turner v. State, 76
¶13 Lopez’s suggestion that the actions of law enforcement
warranted plea withdrawal is also unavailing.
Although Lopez alleged that a police detective took steps to persuade
Lopez to confess, the detective testified at the hearing and denied the
allegation. The circuit court believed
the detective. “[I]f the circuit court
does not believe the defendant’s asserted reasons for withdrawal of the plea[s],
there is no fair and just reason to allow withdrawal of the plea[s].” State v. Garcia, 192
¶14 The circuit court found that Lopez demonstrated no more than
second thoughts as a justification for his change of heart. Therefore, the court determined that Lopez failed
to offer proof of a fair and just reason for withdrawing his pleas. The court reached a reasonable conclusion
based on the credible evidence of record.
In light of our deferential standard of review, we must sustain that
conclusion. See Jenkins, 303
¶15 Because the circuit court concluded that Lopez did not have a
fair and just reason for withdrawing his pleas, the State was not obliged to
show substantial prejudice stemming from reliance on the pleas. See
Kivioja,
225
¶16 Lopez argues that the State’s efforts to find its elusive
witness were insufficient to permit a conclusion that the witness could not be
found. The circuit court, however,
believed Officer Hein. “[A]s to the
credibility of disputed testimony in relation to evidentiary facts, this court
will not substitute its judgment for that of the [circuit] court.” Turner, 76
¶17 The circuit court examined relevant facts in light of the applicable standard of law. Based on its findings, the circuit court reasonably exercised its discretion by denying Lopez’s presentence motion for plea withdrawal.
¶18 We next consider whether the circuit court erroneously denied
Lopez’s postconviction motion for plea withdrawal without a hearing. A defendant who moves to withdraw a guilty
plea after sentencing has the burden of establishing, by clear and convincing
evidence, that plea withdrawal is necessary to correct a manifest injustice. State v. Thomas, 2000 WI 13, ¶16,
232
¶19 In
his postconviction motion, Lopez contended that his trial counsel performed
ineffectively by coercing his guilty pleas and by failing to call witnesses at
the presentence plea withdrawal hearing.
A defendant is entitled to a hearing
on a postconviction motion only when he or she “states sufficient material
facts that, if true, would entitle the defendant to relief.” State v. Allen, 2004 WI 106, ¶14,
274
¶20 Lopez
offered only conclusory assertions to support his claim that trial counsel failed
to call witnesses at the presentence plea withdrawal hearing. An allegation that counsel failed to call
witnesses must include information regarding who the witnesses are, why they
are important, and what they would say. See id., ¶24. Lopez did not include these details in his
moving papers.
¶21 Lopez
also failed to show that his trial counsel coerced his pleas with “incorrect”
advice. As Lopez recognizes in his
appellate submissions, the facts he alleged concerning his trial counsel’s
coercion boil down to two: (1) counsel
informed Lopez that the circuit court would impose mandatory life sentences if
Lopez did not resolve the charges by entering guilty pleas; and (2) counsel
provided that information while Lopez was in a holding cell on the day of
trial. These facts, if true, do not
entitle Lopez to relief. On the day of
trial, Lopez faced two counts of first-degree intentional homicide. See
Wis. Stat. § 940.01(1)(a). The mandatory penalty for first-degree
intentional homicide is life in prison. See Wis.
Stat. § 939.50(3)(a). Trial
counsel’s warning to that effect was not “incorrect,” and trial counsel did not
perform deficiently by presenting Lopez with accurate information.
¶22 Lopez
suggests that he is entitled to a hearing to elaborate on “the level and
severity of [trial counsel’s] coercion.”
He is wrong. “[T]he facts
supporting plea withdrawal must be alleged in the petition and the defendant
cannot rely on conclusory allegations, hoping to supplement them at
hearing.” Bentley, 201
By
the Court.—Judgment and order affirmed.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)5. (2005-06).
[1] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[2] The State surmises that the penalty recommendations contained in the presentence report triggered Lopez’s decision to move for plea withdrawal. The circuit court, however, did not make such a finding.