COURT OF APPEALS DECISION DATED AND FILED September 9, 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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of
Plaintiff-Respondent, v. Howard A. Perkins,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Howard A. Perkins appeals from a judgment of conviction and from an order denying his postconviction motion for plea withdrawal. The dispositive question on appeal is whether the State presented sufficient evidence at the postconviction hearing to prove that Perkins knowingly, intelligently, and voluntarily entered his guilty plea to second-degree reckless homicide as a party to a crime. We conclude that the State met its burden of proof, and we affirm.
BACKGROUND
¶2 Someone in a group of people shot Marquell Beard to death on
a residential
¶3 After sentencing, Perkins filed a postconviction motion with the assistance of an appellate lawyer.[1] Perkins asserted that the plea colloquy was deficient because it did not include “any reference to Perkins acting as a party to a crime.” He further asserted that he “believed that simply being in the vicinity of the shooter would make him guilty as party to a crime,” and that he “was not aware of the statutory definition of party to a crime because neither his attorney nor the Court went over it with him.” Therefore, Perkins sought to withdraw his plea to the homicide charge on the ground that he did not understand party-to-a-crime liability when he pled guilty.
¶4 Thirty months after Perkins entered his plea, the circuit court held a hearing on Perkins’s motion.[2] Perkins’s trial attorney was the only witness. The attorney testified that, during pretrial discussions, Perkins described a feud between his family and the victim’s family. According to the attorney, Perkins acknowledged that on the day of the homicide he and others planned to “drive by [the victim’s] house ... [and] display their presence ... in the neighborhood.” Perkins denied shooting the victim but he admitted “that in fact he did have a gun and he shot in the air.” The attorney testified to “many” discussions with Perkins about party-to-a-crime liability in which the attorney explained “how you can be responsible for a crime when you’re not the shooter.” The attorney also testified that the discussions took place “throughout the representation because ... it was our theory [Perkins] was not the shooter.” Although the attorney was unable to recall the words used during the discussions, the attorney testified that “I know we discussed ... party to a crime.”
¶5 In response to questions from the circuit court, the trial attorney indicated that he had a conversation with Perkins explaining that the State “would have to prove that [Perkins] was the shooter or that [Perkins] was aware that some crime was going to occur and that [Perkins] was assisting in the crime or was ready and willing to assist[.]” The attorney also confirmed that the conversation “would have made it clear to [Perkins] that the State would have to prove that he was more than a bystander or spectator.” Based on Perkins’s demeanor and responses, the attorney believed that Perkins understood the concepts involved in party-to-a-crime liability.
¶6 The circuit court denied the motion for plea withdrawal, concluding that Perkins entered his plea knowingly, intelligently and voluntarily. This appeal followed.
DISCUSSION
¶7 A defendant may move to withdraw a guilty plea if the circuit
court did not comply with Wis. Stat. § 971.08
or other court-mandated duties during the plea colloquy. State v. Bangert, 131
¶8 Whether a plea is knowing, intelligent, and voluntary is a
question of constitutional fact that we review independently. State v. Brown, 2006 WI 100,
¶19, 293
¶9 When a defendant enters a plea to an offense as a party to the
crime, the circuit court must establish the defendant’s understanding of
party-to-a-crime liability during the plea colloquy. State v. Howell, 2007 WI 75, ¶37,
301
¶10 The circuit court found that the trial attorney testified credibly at the postconviction hearing. As Perkins acknowledges, we must defer to that finding. See State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 421, 435, 651 N.W.2d 345, 352 (when circuit court acts as fact finder, it is the ultimate arbiter of witness credibility). The attorney’s testimony plainly supports the circuit court’s finding that Perkins and his attorney had “a thorough discussion of party to a crime law.”
¶11 The circuit court also credited the trial attorney’s testimony that Perkins understood party-to-a-crime liability when he entered his plea. While Perkins alleged in his moving papers that he believed mere presence at the scene of the crime would be sufficient to prove his guilt, the circuit court rejected that contention as wholly unsupported by any evidence. Instead, the circuit court determined that Perkins “understood that the State had to prove more than that he was just a bystander.”
¶12 The mental state of a person is a fact that must be determined
by inference from the established historical facts. Pfeifer v. World Serv. Life Ins. Co.,
121
¶13 The circuit court’s inferences here were reasonably based on
the historical facts. Perkins admitted
to his attorney that he shot a gun at the time and place of the homicide, and
the circuit court reasonably determined that Perkins and his attorney discussed
party-to-a-crime liability in the context of that admission. Although the attorney frankly acknowledged an
inability to recall the precise words used in the various discussions with
Perkins more than thirty months earlier, the attorney did recall that the
discussions involved aiding and abetting rather than conspiracy as the basis
for party-to-a-crime liability. See Wis.
Stat. § 939.05(2) (listing the ways that a person may be concerned
in the commission of a crime). The
circuit court noted that a person who aids and abets the commission of a crime
is responsible for the natural and probable consequences of the crime.
¶14 Perkins emphasizes that the circuit court may not base its
findings on speculation. In support, he
cites Howell, 2007 WI 75, ¶48, 301
¶15 When a plea colloquy is deficient and a postconviction motion
earns the defendant a Bangert hearing, the circuit court
may consider any evidence and the entirety of the Record to determine whether
the State met its burden to prove that the defendant’s plea was knowing,
intelligent, and voluntary. See Bangert, 131
[T]he fact-finder may draw reasonable inferences from credible evidence.... An inference is reasonable if it can fairly be drawn from the facts in evidence. While an inference cannot be based on speculation or conjecture, the fact-finder might find any fact which it believes might rightfully and reasonably be inferred from the evidence of the case; the inferences should be logical and natural results drawn from the evidence by proper deduction.
State ex rel. N.A.C. v. W.T.D., 144
¶16 To enter a valid plea, a defendant must have “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
¶17 The State proffered clear and convincing evidence that
Perkins’s trial attorney discussed party-to-a-crime liability with Perkins
prior to the plea and that Perkins was aware of and understood the issue when
he pled guilty. Accordingly, the circuit
court did not err in concluding that Perkins knowingly, intelligently, and voluntarily
entered his plea to second-degree reckless homicide as a party to a crime. See ibid.
Because this conclusion is dispositive, we do not reach
Perkins’s argument that an infirm plea to the homicide charge entitles him to
withdraw his plea to the charge of possessing a firearm as a felon. See Gross v. Hoffman, 227
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Perkins
also filed a pro se postconviction
motion. The circuit court denied that
motion without a hearing and without prejudice because Perkins had
representation. See
[2] The Honorable Jeffrey A. Wagner presided over the plea proceedings and entered the judgment of conviction. The Honorable John A. Franke presided over the postconviction hearing.