COURT OF APPEALS DECISION DATED AND FILED April 16, 2009 David
R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
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. |
|
Appeal No. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT III |
|||
|
|
|||
|
|
|||
State of
Plaintiff-Respondent, v. Charles L. Hegna,
Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment and an order of the circuit court for
Before Higginbotham, P.J., Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Charles Hegna appeals a judgment convicting him of fleeing an officer while operating a vehicle, possessing methamphetamine, possessing methamphetamine paraphernalia, and bail jumping. He also appeals an order denying him postconviction relief. The issue is whether he received effective assistance from trial counsel. We affirm.
¶2 The State charged Hegna with eleven criminal counts in four
separate
¶3 In his postconviction motion Hegna alleged that Schneider provided him insufficient information and advice regarding the State’s plea offer and, had Schneider performed effectively in that regard, Hegna would have accepted the offer. After hearings on the matter, at which Hegna and Schneider testified, the trial court made findings of fact and conclusions of law, and denied the motion. On appeal Hegna challenges two of the trial court’s findings of fact, and contends that Schneider’s testimony establishes as a matter of law that he provided ineffective assistance.
¶4 To demonstrate ineffective assistance of counsel, a defendant
must show counsel’s performance was deficient and that the deficiency
prejudiced the defense. State
v. Jeannie M.P., 2005 WI App 183, ¶6, 286
¶5 Hegna first contends that the trial court’s postconviction decision included the clearly erroneous finding that Schneider told Hegna that the State’s final offer was the best Hegna could hope to achieve. As Hegna notes, Schneider could not specifically remember telling Hegna that he could not get a better deal. However, Schneider testified that he would have told Hegna that in the course of their discussion of the offer. He added that “there is no question in my mind that he would have known my opinion [that it was as good a deal as he could get] from the way I presented it to him.” That testimony provided sufficient evidence for the trial court’s finding.
¶6 Hegna also contends that the trial court clearly erred by finding that Schneider discussed with Hegna the testimony Schneider expected the State to present against him on the conspiracy charge. Schneider testified that he twice discussed with Hegna the police reports in the conspiracy case. He added that with regard to each of the State’s witnesses, “I kind of said to him, this is what they are going to testify to. This is what they are going to say at trial….” He reported that Hegna responded with comments of his own on each witness. That testimony provides sufficient if not overwhelming support for the trial court’s finding.
¶7 Hegna’s principal argument on appeal concerns the extent of counsel’s duty to advise the defendant whether to accept a plea offer. This court has stated that
[T]he effective-assistance-of-counsel right applies to advice as to whether a defendant should accept or reject a plea bargain … those enmeshed in the gears of the criminal justice system need advice and guidance - not only in the selection and execution of trial strategies but also in the decision of whether to forego a trial by pleading guilty (or one of its many variants).
State v. Fritz, 212
¶8 We conclude that Schneider did not have a duty to advise Hegna to accept the State’s plea offer. The duty addressed in Fritz requires counsel to provide sufficient advice and information about a plea offer to allow an informed decision, which is what Schneider did. According to the trial court’s findings of fact which we have upheld, and those which are uncontested, Schneider conveyed to Hegna the details of the offer and his opinion that the offer was the best Hegna could get. Schneider also gave Hegna sufficient facts to meaningfully and accurately assess his chances at trial, both in this case and on the conspiracy charge, should he refuse the offer.[1] In doing so Schneider fulfilled his duty under Fritz to provide advice and guidance about the plea offer.
¶9 We acknowledge that Hegna cites federal cases holding that in
some circumstances counsel has a duty to advise a defendant whether to accept a
plea bargain. We are not persuaded by those
cases that we should adopt the same rule in
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).
[1] Schneider testified that he did not know how he could have been any clearer to Hegna about Hegna’s poor chances at trial in this case.