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COURT OF APPEALS
DECISION
DATED AND FILED
February 19, 2009
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.
Chino Antonio
Moore, Jr.,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: jeffrey
a. wagner, Judge. Affirmed.
Before Higginbotham, P.J., Lundsten and Bridge, JJ.
¶1 PER CURIAM. Chino Antonio Moore, Jr., appeals from the
judgment of conviction entered against him and the order denying his motion for
postconviction relief. He argues that he
did not enter his guilty plea knowingly, intelligently, and voluntarily, and
should be allowed to withdraw it, and that the trial court erred when it denied
his repeated requests for substitution of counsel because his counsel had a
conflict of interest. Because we
conclude that the record demonstrates that Moore entered his plea knowingly,
intelligently, and voluntarily, and that he waived the right to challenge the
court’s decision to deny his counsel’s motions to withdraw, we affirm.
¶2 Moore
pled guilty to one count of felony murder while attempting to commit an armed
robbery as a party to a crime. Before
entering his plea, Moore
asked the circuit court three times to allow his counsel to withdraw. The first two times were oral requests, which
the court denied, and the third request was a written request made the day Moore entered his
plea. The court did not decide the third
motion before accepting Moore’s
guilty plea. The court sentenced Moore to seventeen years
of initial confinement and eight years of extended supervision.
¶3 Moore
then moved to withdraw his plea. Moore alleged that the
court failed to establish on the record that he fully understood the elements
of the crime with which he was charged, including his culpability as a party to
a crime. He further alleged that the
circuit court erred when it refused to allow trial counsel to withdraw based on
a conflict of interest. The circuit
court held a hearing on the motion and denied it.
¶4 Moore
argues that the circuit court’s colloquy with him did not establish that he
understood the elements of the crime to which he pled. In order to withdraw a guilty plea after
sentencing, a defendant must prove “by clear and convincing evidence, that a
refusal to allow withdrawal of the plea would result in ‘manifest injustice.’” State
v. Brown, 2006 WI 100, ¶18, 293 Wis.
2d 594, 716 N.W.2d 906. The defendant
may do this by showing that the plea was not knowingly, intelligently, and
voluntarily entered. Id.
“[A] plea will not be voluntary unless the defendant has a full
understanding of the charges against him [or her].” Id.,
¶29. See
also Wis. Stat. § 971.08(1)(a) (2007-08).
¶5 A circuit court may establish the defendant’s understanding
of the charges to which he or she is pleading by: (1) summarizing the elements of the crime by
reading from the appropriate jury instructions; (2) asking defense counsel
whether he or she explained the charges to the defendant, and asking counsel to
summarize the explanation including a reiteration of the elements; or (3)
referring to the record or other evidence of the defendant’s knowledge of the
charges established before the plea hearing.
Brown, 293 Wis. 2d 594, ¶¶46-48. Whether the plea was knowing, intelligent,
and voluntary is a question of constitutional fact. Id.,
¶19. We accept the circuit court’s
findings of historical and evidentiary fact unless they are clearly erroneous,
but we independently review whether those facts establish that the defendant
entered the plea knowingly, intelligently, and voluntarily. Id.
¶6 The record of the plea hearing in this case shows that
defense counsel and the court explained the elements of the offense to Moore, and that Moore
understood them. At the hearing, defense
counsel stated that he had given Moore a copy of
the jury instructions on felony murder and party to a crime, that they reviewed
them together, and that Moore
said he understood. The court then asked
counsel if he had a copy of the instructions, and counsel responded that he had
previously given his copies to Moore,
but that he had entered the elements of the crime on the Guilty Plea
Questionnaire. The prosecutor then went
to get copies of the instructions.
¶7 The court then asked Moore if
his lawyer had gone over the elements of the offense “and how they relate to
the facts in the case,” to which Moore
answered: “Yes.” The court explained that Moore was charged with attempted armed
robbery, and that “the death of the victim was caused by the attempt to commit
that armed robbery.” Moore said that he understood. The court then asked if he understood the
felony murder instruction, and Moore
answered: “Yeah.” The court then explained the elements of armed
robbery, and stated that, in this case, it was an attempted armed robbery. The prosecutor said that “attempt” was
defined in the instruction he had just given defense counsel. The court asked Moore if he understood that, to which he
again replied: “Yeah.” The court then stated that an additional
element was the use, or threat of use, of a dangerous weapon and explained what
that meant. Defense counsel then stated:
Judge, before the Court
continues, I want to make a specific note of two things. First of all—and I apologize. I had previously given Mr. Moore copies of
the instructions that [the prosecutor] was kind enough to get today and
furnished them to him, but on a prior occasion on another date while he was in
custody in jail I gave him copies of those instructions excluding Instruction
1480, the armed robbery instruction, but all other ones including those I had
furnished him.
Further,
while we were getting these, I asked that—he indicated to me that was
true. Is that correct, Mr. Moore? That I gave you those written instructions
before?
THE DEFENDANT:
Yes.
[DEFENSE COUNSEL]:
Now the other thing, Judge. While
we had the break and were getting these instructions, if Mr. Moore either does
not understand something or disagrees with something—I want it very clear if there
is something he doesn’t understand or disagrees with, now is the time to tell
you.
THE COURT:
Correct. Do you understand that,
sir?
THE DEFENDANT:
Yes.
And later on during the
colloquy, the prosecutor asked defense counsel if he had explained to Moore what an attempt was
and what it meant to be a party to a crime, to which defense counsel responded
that he had.
¶8 Moore argues specifically that
the plea colloquy did not establish that Moore
understood “attempt liability in any way.”
Moore
appears to be arguing that the court was required to ensure that he understood
the legal definition of attempt, as opposed to determining that he understood
that the underlying crime charged was attempted armed robbery. However, “a valid plea requires only knowledge
of the elements of the offense, not a knowledge of the nuances and descriptions
of the elements.” State v. Trochinski, 2002
WI 56, ¶29, 253 Wis.
2d 38, 644 N.W.2d 891.
¶9 Based on this record, we conclude that the sentencing court
fully complied with its obligations to determine that Moore understood the elements of the
offense. In fact, the sentencing court
in this case complied with all three methods for making such a determination. See Brown,
293 Wis. 2d
594, ¶¶46-48. Consequently, we conclude
that the record establishes that Moore’s
plea was knowingly, intelligently, and voluntarily entered.
¶10 Moore
also argues that he should be allowed to withdraw his plea because the circuit
court erroneously exercised its discretion when it denied his counsel’s motions
to withdraw. Moore
argues that the circuit court erred when it denied the motions because counsel
himself admitted that he was not acting in Moore’s interests, but instead was acting to
protect himself from claims of ineffective assistance of counsel. We conclude, however, that Moore waived his right to challenge the
court’s decision to deny these motions when he entered his guilty plea. A guilty plea waives any non-jurisdictional
defenses to the crime charged. State
v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 651, 292 N.W.2d 807
(1980).
¶11 Further, the record of the plea hearing shows that while Moore
and his counsel may have had some difficulty communicating prior to the plea
hearing, they communicated freely at the time Moore entered his plea. Consequently, we also conclude that the
circuit court did not err when it refused to allow Moore to withdraw his plea on this
basis. For the reasons stated, we affirm
the judgment and order of the circuit court.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.