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COURT OF APPEALS
DECISION
DATED AND FILED
November 17, 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 Nos.
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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.
Demarco C. Graves,
Defendant-Appellant.
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APPEAL
from judgments and an order of the circuit court for Milwaukee County: JEFFREY
A. KREMERS, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Demarco C. Graves appeals
from two judgments of conviction for two counts of felony bail jumping and for
resisting an officer, and from a consolidated postconviction order summarily
denying his motions for postsentencing plea withdrawal and for sentence
modification. The issue is whether Graves was entitled to an evidentiary hearing on any of
his three plea withdrawal claims, and whether the trial court erroneously
exercised its sentencing discretion when it imposed the sentences consecutively
to one another. We conclude that Graves was not entitled to an evidentiary hearing to
develop his plea withdrawal claims because he either did not allege sufficient
facts to entitle him to relief, or because the record conclusively demonstrated
that he was not entitled to relief. Further,
the record supports the trial court’s imposition of consecutive sentences. Therefore, we affirm.
¶2 Graves entered guilty pleas
to felony bail jumping and resisting an officer in Milwaukee County Circuit
Court Case No. 2003CF2610. The trial
court imposed nine- and six-month respective sentences to run concurrent to one
another. In Milwaukee
County Circuit Court Case No.
2004CF387, Graves entered an Alford
plea to felony bail jumping. The trial court imposed a thirty-nine-month
sentence, comprised of fifteen- and twenty-four-month respective periods of
initial confinement and extended supervision, to run consecutive to the
nine-month aggregate sentence. He moved
for postconviction relief, seeking to withdraw his guilty pleas in the bail
jumping and resisting case, and alternatively, for a concurrent sentencing
disposition in the other felony bail jumping case. The trial court summarily denied the motion. Graves
appeals.
¶3 To demonstrate entitlement to a postconviction evidentiary
hearing, the defendant must meet the following criteria:
Whether a defendant’s postconviction motion alleges
sufficient facts to entitle the defendant to a hearing for the relief requested
is a mixed standard of review. First, we
determine whether the motion on its face alleges sufficient material facts
that, if true, would entitle the defendant to relief. This is a question of law that we review de
novo. [State v.] Bentley,
201 Wis. 2d
[303,] 309-10[, 548 N.W.2d 50 (1996)].
If the motion raises such facts, the [trial] court must hold an
evidentiary hearing. Id. at 310;
Nelson v. State, 54 Wis. 2d 489, 497, 195
N.W.2d 629 (1972). However, if the
motion does not raise facts sufficient to entitle the [defendant] to relief, or
presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief, the [trial] court
has the discretion to grant or deny a hearing.
Bentley, 201 Wis. 2d at 310-11; Nelson,
54 Wis. 2d
at 497-98.
State
v. Allen, 2004 WI 106, ¶9, 274 Wis.
2d 568, 682 N.W.2d 433.
¶4 Graves sought plea
withdrawal on three bases: (1) an
alleged breach of the plea bargain; (2) “new evidence” implicating the interest
of justice; and (3) the alleged ineffective assistance of trial counsel
for failing to file a suppression motion.
Graves’s postconviction motion must
meet the criteria summarized in Allen to obtain an evidentiary
hearing. Graves
also sought to modify the sentencing structure from consecutive to concurrent
if his plea withdrawal motion was unsuccessful.
¶5 Graves’s first claim is that
the prosecutor breached the plea bargain, namely that the bail jumping and
resisting charges should have been dismissed and read-in for sentencing
purposes. The sum total of the
allegations in his motion on this issue are “that the prosecution breached a
plea agreement with [Graves] to dismiss and read in the charges in this case as
part of the global plea agreement in these cases, such that said agreement
should be specifically enforced with Defendant being resentenced to the
remaining charges with 03 CF 2610 read in only.” Attached to the motion is an affidavit from Graves’s brother who averred that trial counsel “came
[in] on the spur of the moment” and “did not know anything about Demarco’s
case, so she could not help Demarco.” He
further averred that “Demarco was confused about the issue, that if his gun
case had been dismissed, why had the bail jumping charge not been dismissed
also. Demarco also though[t] he was
going to be released on paper after his sentencing.”
¶6 A prosecutor
who does not present the negotiated sentencing recommendation to the circuit
court breaches the plea agreement. An
actionable breach must not be merely a technical breach; it must be a material
and substantial breach. When the breach
is material and substantial, a plea agreement may be vacated or an accused may
be entitled to resentencing. A material
and substantial breach is a violation of the terms of the agreement that
defeats the benefit for which the accused bargained.
State v. Williams, 2002
WI 1, ¶38, 249 Wis.
2d 492, 637 N.W.2d 733 (footnotes omitted).
¶7 The prosecutor recited the terms of the proposed plea
bargain. The trial court then asked,
“[i]s that an accurate summary of the negotiations and the recommendation the
State will make if the defendant enters pleas today?” Defense counsel responded affirmatively. The trial court then asked Graves personally
if that was “[his] understanding as well,” to which Graves
responded that it was. The transcript of
the plea hearing established that there was no breach of the plea bargain. Graves’s
allegations are not sufficiently specific to overcome the record of proceedings
to warrant an evidentiary hearing on his claim that the State breached the plea
bargain.
¶8 Graves’s next claim is that “there is new evidence that the
Defendant did not engage in the charged offense conduct,” namely that there are
witnesses who did not see Graves carrying a
gun. Graves
filed affidavits from three proposed witnesses.
One averred that “[n]o gun was found.”
Another averred that she overheard Demarco say, “I didn’t have a gun, it
was a beer.” The third proposed witness
averred that “[t]he police searched the house and found guns in the basement,
which Demarco was charged with, but these guns were found in the Woods’ basement,
and Demarco did not live there. Demarco
did not have a gun on him, but was charged with a gun case.”
¶9 To establish newly discovered evidence, the defendant must
clearly and convincingly show that:
(1)
the evidence was discovered after trial;
(2)
the defendant was not negligent in seeking evidence;
(3)
the evidence is material to an issue;
(4)
the evidence is not merely cumulative to the evidence
presented at trial; and
(5)
a reasonable probability exists of a different result
in a new trial.[]
State v. Coogan,
154 Wis. 2d
387, 394-95, 453 N.W.2d 186 (Ct. App. 1990) (footnote added).
¶10 Graves does not allege why he
did not discover this information prior to entering his pleas. He also does not explain how a gun or its
absence is consequential to the charges against him for bail jumping and
resisting an officer. These material defects alone are sufficient
to defeat his entitlement to an evidentiary hearing on “new evidence.”
¶11 Graves also contends that the
interest of justice would be served by the introduction of this “new evidence” so
the jury could consider these offenses without being distracted by the claim
that he “illegally possessed the guns.”
First, we have explained why we rejected Graves’s
“new evidence” claim. Second, the bail jumping
and resisting-an-officer charges that we are reviewing do not involve
“illegally possess[ing] … guns.” The
interest of justice does not mandate consideration of a factor that is not
material to the convictions we are reviewing.
¶12 Graves’s remaining plea
withdrawal claim is that his trial counsel was ineffective for failing to file
a suppression motion. Graves alleged
that “his rights against unreasonable search and seizure under [the federal and
state constitutions], for the reason that his waiver of Constitutional
challenges to the evidence against him as part of the guilty plea process in
this case was obtained as the result of ineffective assistance by his trial
counsel.” He also alleges that his trial
counsel
did not discuss waiver of his search and seizure
motions as part of the guilty plea before he made his change of plea on these
cases. Specifically, Defendant claims
the weapon found in 03 CF 2610 was the result of an illegal search in that
there was no warrant, no consent, no search incident to arrest and no plain
view or other exception to the warrant requirement of the 4th
Amendment prior to the search and seizure of the weapon.
¶13 First, Graves has not alleged
specific facts; he has merely alleged his conclusions that the search was
“illegal,” and that, in his opinion, none of the exceptions to the warrant
requirement applied here. Second, the
transcript of the plea colloquy belies his claim that he was unaware of the
fact that his pleas would waive his right to pursue any suppression challenge. See State v. Riekkoff, 112 Wis.
2d 119, 122-23, 332 N.W.2d 744 (1983) (by entering a plea other than not
guilty, the defendant waives the right to challenge non-jurisdictional defects
and defenses).
¶14 In his postconviction motion, Graves
also alleged two other bases for plea withdrawal: police misconduct, and that he was “bullied
into pleading guilty.” Although Graves reiterates some of the misconduct allegations in
the Statement of the Case section of his brief-in-chief, he does not pursue
this basis by identifying it as an appellate issue, or by arguing this claim on
appeal. Consequently, we do not review
this issue. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992) (“We may decline to review issues inadequately briefed” for example, when
“the arguments are supported by only general statements.”). On appeal, Graves
does not pursue his claim that he was “bullied into pleading.” Likewise, we do not review this issue. See id. Both claims fail for lack
of specificity and a general failure to pursue them on appeal. Each claim also relies on affidavits from proposed
witnesses who are proffering “new evidence.”
We previously rejected this “new evidence,” also undercutting the
misconduct and “bull[ying]” claims.
¶15 Graves’s final claim is that
the trial court erroneously exercised its discretion by providing “insufficient
reasons” for imposing the sentences consecutively rather than
concurrently. We disagree.
¶16 “A trial judge has discretion to determine whether sentences
imposed in cases of multiple convictions are to run concurrently or
consecutively, using the same factors that apply in determining the length of a
single sentence.” State v. Larsen, 141 Wis. 2d 412, 427, 415
N.W.2d 535 (Ct. App. 1987). The
trial court imposed the bail jumping and resisting-an-officer sentences
concurrently; those two offenses arose out of the same incident. The trial court imposed the other bail jumping
sentence to run consecutively to the other two concurrent sentences because it
was a separate offense and, as the trial court explained, was “deserving of
separate punishment.”
¶17 We reject Graves’s sentencing
challenge. First, the trial court
explained that it was imposing a separate (consecutive) punishment because the
offense was separate from the others, having occurred eight months later than
the other two offenses that occurred together.
Second, the trial court’s imposition of consecutive sentences was
supported by its general remarks while imposing sentences in four different
cases, only two of which are challenged in these appeals; it explained why it
was imposing concurrent sentences in two of the cases and consecutive sentences in the two
others. The trial court considered the
primary sentencing factors. It considered the gravity of the offenses and
was particularly concerned about the bail jumping because Graves
repeatedly committed that offense. The
trial court was mindful that Graves had “11
bench warrants and been arrested 30 times and [been subject to] 58
charges.” It also considered “another
factor that becomes more troublesome because [Graves
is] out on bail and commit[s] yet another offense.” The trial court did not misuse its discretion
when it imposed consecutive sentences for separate instances of bail-jumping.
By the Court.—Judgments and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5. (2007-08).