COURT OF APPEALS DECISION DATED AND FILED February 10, 2010 David
R. Schanker Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Christopher J. Dauer,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Brown, C.J., Neubauer, P.J., and
¶1 PER CURIAM. Christopher J. Dauer appeals from a judgment convicting him of second-degree recklessly endangering safety, false imprisonment and second-degree sexual assault. He also appeals from an order denying his motion for postconviction relief by which he sought to withdraw his plea on the basis that the plea questionnaire stated the elements for first-, rather than second-, degree reckless endangerment, such that he pled to one additional element and that counsel rendered ineffective assistance for having misadvised him. We conclude Dauer understood the elements sufficiently to enter a valid plea and was not prejudiced by the surplus information. We affirm.
¶2 High on crack cocaine and armed with a knife, Dauer bound and gagged his girlfriend with duct tape and sexually assaulted her over the next four hours, threatening to “go after” her two children if she said anything. Pursuant to a negotiated plea agreement, Dauer pled no-contest to second-degree sexual assault as a repeater, second-degree recklessly endangering safety and false imprisonment. Two additional second-degree sexual assault charges, also as a repeater, were dismissed and read in. The court imposed a thirty-year sentence, twenty years’ initial confinement followed by ten years’ extended supervision.
¶3 Dauer filed a motion for postconviction relief seeking to
withdraw his pleas. He claimed his plea
to second-degree recklessly endangering safety was not knowing, intelligent or
voluntary because he was incorrectly advised as to the elements of the offense and
that his counsel, Attorney Bridget Boyle, was ineffective for failing to
correctly advise him.[1] Boyle conceded at the hearing on the motion
that she advised Dauer of the elements of first-degree recklessly endangering
safety. Second-degree recklessly
endangering safety has two elements, while first-degree has the same two
identical elements plus an additional one.
See
¶4 A defendant who seeks to withdraw a no-contest plea after
sentencing must prove by clear and convincing evidence that plea withdrawal is
necessary to avert a manifest injustice. State v. Thomas, 2000 WI 13, ¶16,
232
¶5 The defendant has a two-part initial burden to make a prima
facie case. State v. Jipson, 2003 WI
App 222, ¶7, 267
¶6 Dauer argues that Boyle advised him that there were three elements to the reckless endangerment charge to which he was pleading when, in fact, there are two. He points out that the attachment to the plea questionnaire recited the three elements of first-degree reckless endangerment and that, rather than itself reviewing the elements with him at the plea hearing, the court asked only whether Boyle had “talk[ed] to [him] about [them].” Dauer also contends he was otherwise unaware that second-degree reckless endangerment has only two elements. We agree that Dauer established a prima facie case. Accordingly, the burden shifts to the State to show that despite the errors Dauer’s plea nonetheless was knowingly, voluntarily and intelligently made. We conclude it was.
¶7 Second-degree recklessly endangering safety has two elements:
(1) the defendant endangered the safety of another human being and (2) the
defendant endangered the safety of another by criminally reckless conduct.
¶8 As noted, the elements portion of the “court form” attached to the plea questionnaire recites the three elements of first-degree recklessly endangering safety. Dauer confirmed that he and Boyle discussed the elements, that he initialed the elements portion of the form when Boyle explained them to him, that he reviewed the police reports and complaint and that he committed the offenses as described. Boyle stated at the plea hearing that she spent about an hour and a half, the day before, explaining everything to Dauer and testified at the motion hearing that she went over with him the language of the charge itself.
¶9 Dauer’s claim is unpersuasive. He conceded that the State could have proved all three elements. Necessarily, then, he also acknowledged that it could prove the two that make up the offense with which he was charged. The record satisfies us that Dauer’s no-contest plea to second-degree reckless endangerment was knowingly, intelligently and voluntarily entered.
¶10 Dauer also contends that plea withdrawal is warranted on
grounds of ineffective assistance of counsel occasioned by Boyle’s incorrect
recitation of the elements of second-degree reckless endangerment. A claim of ineffective assistance of counsel
presents a mixed question of law and fact. Strickland v.
¶11 The test for ineffective assistance of counsel requires that
the defendant show both that counsel’s performance was deficient and that the
deficient performance prejudiced him or her. Strickland, 466
¶12 Dauer has not affirmatively proved prejudice. The plea agreement reduced his prison
exposure by ninety-two years. He
confirmed at the motion hearing that he understood that all five original
charges would be reinstated upon plea withdrawal, that the State would not be
required to offer the same, or any, plea bargain and that he risked a longer
sentence if he went to trial. We are
hard-pressed to accept that, had Boyle correctly informed him that
second-degree reckless endangerment has but two elements, he would have
insisted on going to trial. Indeed, the
most Dauer offered as to whether his plea decision would have been different
was that he “would have had to give it some thought.” A showing of prejudice requires more than
speculation. Wirts, 176
¶13 We do agree that an error was made in regard to explaining the correct elements of the offense, and we urge greater care both by the court taking the plea and by defense counsel. At bottom, however, Dauer’s argument seems to be that the mistake matters not because of its substance but because two is different than three. He does not claim that he was confused about the potential penalty if he did not plead, or what the State would have to prove vis-à-vis the two relevant elements. We conclude that plea withdrawal is not required or warranted.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Dauer claimed his plea to the second-degree sexual assault count also was not knowing, intelligent or voluntary because he did not know the State had to prove that the sexual contact was with the intent to cause bodily harm or for the purpose of sexually degrading/humiliating the victim or sexually arousing/gratifying himself. He abandons that claim on appeal.
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless noted.