COURT OF APPEALS
DECISION
DATED AND FILED
December 10, 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 Nos.
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
DISTRICT IV
|
|
|
|
|
State of Wisconsin,
Plaintiff-Respondent,
v.
Deirdre M. Richardson,
Defendant-Appellant.
|
|
|
|
|
|
|
|
APPEALS
from judgments and orders of the circuit court for Monroe County: Michael
J. McAlpine, Judge. Appeal
No. 2008AP2625‑CR reversed; appeal
No. 2008AP2626-CR affirmed.
Before Dykman, P.J, Higginbotham and Bridge, JJ.
¶1 PER CURIAM. Deirdre Richardson appeals from
judgments of conviction and orders denying her postconviction motion. The issues relate to plea withdrawal. We reverse as to one conviction and affirm as
to the other.
¶2 Richardson
pled guilty to one count of conspiracy to deliver cocaine and one count of
felony bail jumping. She moved to
withdraw the pleas on two grounds. The
circuit court denied the motion.
¶3 Richardson
first argues that she should be allowed to withdraw her plea to both counts
because she did not understand that the plea agreement allowed the State to
recommend jail time as a condition of probation.
¶4 Richardson’s
argument is not clear on the legal framework in which this request is
made. In taking guilty pleas, the
circuit court is required to ensure that the defendant is informed of and
understands certain information regarding the elements of the offense and the
potential penalty. See Wis. Stat. § 971.08(1)(a) (2007-08)
and State
v. Bangert, 131 Wis.
2d 246, 262-72, 389 N.W.2d 12 (1986). If
the defendant shows that the plea was accepted without the trial court’s
conformance with Wis. Stat.
§ 971.08 or other mandatory procedures, and also alleges that in fact she
did not know or understand the information that should have been provided at
the plea colloquy, then the burden shifts to the State to prove at an
evidentiary hearing that the plea was knowing, intelligent, and voluntary. State v. Howell, 2007 WI 75,
¶¶27-29, 301 Wis.
2d 350, 734 N.W.2d 48. However, if the
defendant does not allege that the plea colloquy was deficient in some manner,
the burden remains on the defendant to prove the ground alleged for plea
withdrawal. State v. Hoppe, 2009 WI
41, ¶60, 317 Wis. 2d 161, 765 N.W.2d 794.
¶5 In this case, regardless of which party had the burden, we
are satisfied that the circuit court’s findings are not clearly erroneous. At the plea hearing, the circuit court was
presented with a “statement of negotiated plea.” That document clearly states that the State
may recommend jail time as a condition of probation. During the colloquy, the court asked Richardson if she had
signed, read, and understood that document, and she answered affirmatively as
to all. At the postconviction hearing, Richardson testified that
she did not read the document and did not understand that the State was
permitted to recommend jail time. The
circuit court appeared to find this testimony not credible because of her
statements during the colloquy. In light
of those statements, we are not able to say the finding is clearly
erroneous.
¶6 Richardson
also argues that she should be allowed to withdraw her plea to the cocaine
conspiracy charge because she did not fully understand one of the elements of
the charge. Richardson was charged under Wis. Stat. § 961.41(1x), which cross-references to Wis. Stat. § 939.31, the statute for the inchoate version of
conspiracy, meaning that no completed crime need be proved. In addition to the inchoate version, there is
a separate statute that provides for convictions on a legal theory of
conspiracy when a completed crime has occurred.
See Wis. Stat. § 939.05(2)(c). The elements for these statutes are similar,
but not identical.
¶7 Richardson
argues that she was not aware that the crime she pled to required that she had
“agreed or combined with another” for the purpose of committing a crime, as Wis. Stat. § 939.31 does. As far
as we can see, the circuit court’s plea colloquy did not provide this
information, and the State concedes as much on appeal. Nor is it contained in the plea
questionnaire. The questionnaire
contains the pattern instruction for Wis.
Stat. § 939.05(2)(c),
which does not include the “agreed or combined with” element. Accordingly, we conclude that the plea
colloquy was deficient with respect to an explanation of this charge, and the
burden was on the State to prove by clear and convincing evidence that Richardson understood this
element. Hoppe, 317 Wis. 2d 161, ¶44.
¶8 Richardson
argues that the State failed to meet its burden because her trial counsel’s
testimony at the postconviction hearing did not establish that he explained to
her the “agreed or combined with” element.
She argues that his testimony was, at best, ambiguous. He testified that he went over with her the
elements in the plea questionnaire.
However, as we noted above, the questionnaire elements were for the wrong
conspiracy statute.
¶9 Trial counsel also testified that he printed the correct
instruction, Wis JI—Criminal 570, and put it in his file. However, as to whether he actually printed
the full version of that instruction and discussed it with Richardson, his testimony appears to indicate
only a limited discussion. Counsel
testified: “I went through what
constitutes a conspiracy on here [apparently referring to the plea
questionnaire with the wrong statute], and then I also had this in the file, so
… I would have reviewed both of those and went through it with her.” The court then asked: “All right, and when you’re referring to
this, you’re referring to the first page of instruction 570?” Counsel replied: “Yes, because on there it
talks about one and two, and it’s the elements that the State must prove for
conspiracy as a crime.”
¶10 The contents of trial counsel’s file were not admitted as an
exhibit. However, it is clear from the
testimony that counsel was reviewing the file as he testified. As we read the above passage, the court was
apparently also looking at the file during the testimony, or was at least able
to see in a general way what counsel was holding or looking at. This is the only way we can interpret the
court’s question about counsel referring to “the first page” of instruction
570. There is no other indication in the
record before that question that counsel’s file contained only the first page
of the instruction. Yet, in response to
the court’s question, counsel appears to have agreed that it was only the first
page, and he noted that it shows elements one and two.
¶11 The version of Wis JI—Criminal 570 that was in effect at the
time of Richardson’s
plea stated elements one and two on the first page. There is also a third element on the second
page. The second element is that the
defendant was a member of a conspiracy, and this is stated on the first
page. However, the first page does not include the explanatory material for
the second element, which is where the instruction explains that a conspirator
is one who “agrees or joins with another,” and further explains that a conspiracy
is a mutual understanding to accomplish some common criminal objective.
¶12 The circuit court appears to have found that the State met
its burden, but the court’s discussion
as to the instruction was short. The court
stated: “I note the testimony of [trial
counsel] as well that he went over with Ms. Richardson what the elements
were.” The court’s finding did not
address the different versions of conspiracy that counsel had used, nor
counsel’s testimony that his discussion of Wis JI—Criminal
570 was limited to the first page.
Beyond that, the court’s only other conclusion as to the conspiracy
conviction appears to have been that its plea colloquy was adequate. However, we have already concluded, and the
State has conceded, that the colloquy was not adequate.
¶13 Based on this record, we are not able to affirm a finding that
the State proved by clear and convincing evidence that Richardson understood that the conspiracy
conviction required that she agreed or combined with another. The evidence is at best ambiguous, and at
worst clearly demonstrates that trial counsel concedes he did not discuss that
portion of the elements with Richardson. Therefore, as to the cocaine conspiracy
conviction only, we reverse.
By the Court.—Judgment and order in appeal No. 2008AP2625-CR reversed; judgment
and order in appeal No. 2008AP2626-CR affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.