COURT OF APPEALS DECISION DATED AND FILED April 27, 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 I |
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State of Plaintiff-Respondent, v. Jonathan L. Rausch, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Jonathan L. Rausch appeals pro se from a circuit court order that denied his postconviction motion filed pursuant to Wis. Stat. § 974.06 (2007-08).[1] He asserts that reason existed to doubt his competency to proceed at the time of his guilty pleas, and that he did not plead guilty knowingly, intelligently, and voluntarily. We reject his contentions and affirm the postconviction order.
BACKGROUND
¶2 Rausch pled guilty in 2005 to three counts of armed robbery as a party to a crime. At the outset of the plea proceeding, Rausch told the circuit court that he was taking Prozac and Trazodone to treat depression and another mental disorder that he could not recall. In response to the court’s inquiry, Rausch stated that the medications did not cause him any confusion about the proceedings. Additionally, Rausch’s trial counsel told the court that he and Rausch had discussed the effect of Rausch’s medications, and trial counsel was “very satisfied” that the medications allowed Rausch “a clearer understanding of what is going on than was first present when [trial counsel] first interviewed [Rausch] shortly after his arrest.” After conducting a detailed colloquy with Rausch and further questioning his trial counsel, the circuit court accepted Rausch’s guilty pleas. At the subsequent sentencing hearing, the circuit court imposed three concurrent twenty-eight-year sentences, each bifurcated as fourteen years of initial confinement and fourteen years of extended supervision.
¶3 Several years later, Rausch filed a pro se motion alleging numerous claims for postconviction relief pursuant to Wis. Stat. § 974.06.[2] The circuit court denied the claims without a hearing, and this appeal followed.
DISCUSSION
¶4 On appeal, Rausch presents claims related to his competency
to proceed and to the validity of his guilty pleas.[3] Both of Rausch’s bases for relief involve an
allegation that Rausch received ineffective assistance from his trial
counsel. We assess such claims using the
familiar two-prong test set out in Strickland v. Washington, 466 U.S.
668, 687 (1984). Under Strickland,
a defendant must show both a deficiency in counsel’s performance and prejudice
resulting from the deficiency.
A. Competency
¶5 Rausch first asserts that reason existed to doubt his competency to proceed at the time of the guilty plea hearing. He argues that his trial counsel performed ineffectively by failing to raise the issue and that the circuit court erred by failing to question his competency sua sponte. We disagree.
¶6 Competency to proceed is “a judicial inquiry, not a medical
determination .... Although a defendant
may have a history of psychiatric illness, a medical condition does not
necessarily render the defendant incompetent to [proceed].” State v. Byrge, 2000 WI 101, ¶31,
237
¶7 When trial counsel doubts the defendant’s competency to
proceed, counsel must raise the issue with the circuit court and failure to do
so constitutes deficient performance. State
v. Johnson, 133
¶8 Rausch relies on his trial counsel’s statement that he
displayed a “clearer understanding” at the time of the plea hearing than he
displayed earlier in the proceedings as a reason to doubt his competency. Rausch argues that he “exhibited mental disorders
shortly after his arrest that appeared to be successfully treated with Prozac
and Trazodone, [and that] was enough evidence for the court to stay the plea
hearing and order Mr. Rausch [to] undergo a competency examination.” Rausch’s conclusion does not follow from his
premise. His successful treatment does
not suggest that he lacked competency to proceed. “[A] competency inquiry focuses on a
defendant’s ability at the time of the present
proceeding.” State v. Farrell, 226
¶9 Rausch points out that he claimed to carry two diagnoses but
could recall the name of only one at the time of the plea hearing. Memory lapses, however, are normal and do not
demonstrate lack of competency.
¶10 The record reflects that Rausch responded appropriately to the
circuit court’s questions throughout the plea colloquy. Nothing suggests that Rausch was disoriented
or impaired during the hearing, and he fails to identify any point at which he
exhibited any confusion about what was happening in court. Rausch also fails to identify any evidence of
his incompetency at the time of the plea hearing that trial counsel had
available but did not bring to the attention of the circuit court. Cf.
Johnson,
133
B. Knowing, intelligent, and voluntary nature of guilty pleas
¶11 A defendant who wishes to withdraw a plea after sentencing must
establish by clear and convincing evidence that plea withdrawal is necessary to
correct a manifest injustice. State
v. Fosnow, 2001 WI App 2, ¶7, 240
¶12 According to Rausch, his guilty plea was infirm because the circuit court conducted a defective plea colloquy and because his trial counsel performed ineffectively. We examine each contention separately.
¶13 A claim for plea withdrawal bottomed on an alleged defect in
the plea colloquy is governed by State v. Bangert, 131
¶14 A defendant moving for plea withdrawal pursuant to Bangert
must both: (1) make a prima facie showing that the plea
colloquy was defective because the circuit court violated Wis. Stat. § 971.08 or other
court-mandated duties; and (2) “allege that the defendant did not know or
understand the information that should have been provided at the plea
hearing.” State v. Brown, 2006 WI
100, ¶39, 293
¶15 A Bangert claim, however, cannot be pursued in the context of a
postconviction motion filed under Wis.
Stat. § 974.06. Motions
filed under § 974.06 are limited to issues of constitutional or
jurisdictional dimensions. State
v. Carter, 131
¶16 We turn to the claim that Rausch’s guilty pleas are invalid
because Rausch received ineffective assistance from his trial counsel. In support of this contention, Rausch alleges
that his pleas were not entered knowingly, intelligently, and voluntarily
because his trial counsel failed to ensure that he understood the elements of
the offense or the maximum penalties.
This is a basic constitutional challenge to the validity of the
pleas. Such a claim can be pursued under
Wis. Stat. § 974.06. See
Carter,
131
¶17 A claim that a plea is infirm for reasons outside of the
record, such as the ineffective assistance of counsel, invokes the authority of
Nelson
v. State, 54
¶18 Our review of a Nelson/Bentley motion is de novo.
See Howell, 301
¶19 Rausch alleges insufficient facts to warrant relief. He contends that his trial counsel “failed to take the necessary steps” to ensure that he understood the charge and the penalties. This is an entirely conclusory assertion that does not explain what steps counsel should have taken or how the omission of those steps disadvantaged Rausch. He further alleges that his trial counsel’s billing records overstate the number of hours that counsel spent in consultation with Rausch. This allegation simply does not demonstrate any deficiency in counsel’s explanation of the elements of the offense or counsel’s description of the statutory penalties. Thus, Rausch did not allege sufficient nonconclusory facts that would entitle him to relief. See id., ¶76.
¶20 Further, the record as a whole demonstrates that Rausch is not entitled to relief because it shows that Rausch understood the elements of the offense and the maximum penalties that he faced when he entered his pleas. See id., ¶78. The record contains a guilty plea questionnaire and waiver of rights form signed by both Rausch and his trial counsel. The form reflects Rausch’s understanding that he faced three counts of armed robbery as a party to the crimes. The elements of armed robbery and the maximum penalties for the offense are handwritten on the form. The form reflects that Rausch reviewed the elements and the penalties with his counsel and that he understood them.
¶21 During the plea colloquy, Rausch told the circuit court that he had reviewed the plea questionnaire with his trial counsel. The circuit court discussed the elements of armed robbery and asked Rausch if he understood what the State would have to prove in order to convict him of each armed robbery as a party to the crime. Rausch replied that he understood. The circuit court probed further, asking Rausch if he understood the term “party to a crime,” and whether his trial counsel had explained that concept. Rausch replied: “yes, your honor.” Additionally, the circuit court asked Rausch’s trial counsel if he had explained to Rausch the meaning of the term “party to a crime,” and trial counsel replied affirmatively.
¶22 The circuit court explained the maximum penalties to Rausch: “those armed robberies, as a party to a crime, are what we call Class C felonies. They carry with them fines of up to $100,000, imprisonment for up to forty years, or both on each of those three charges.” The circuit court asked Rausch if he understood the maximum penalties for the charges, and Rausch replied that he did.
¶23 The record conclusively refutes Rausch’s claims that he did not understand the elements of the offense or the maximum penalties. The record establishes that Rausch reviewed with his trial counsel the elements of the offense and the maximum penalties and that he understood the information when he pled guilty. Therefore, we affirm the order of the circuit court.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] For reasons that do not appear in the record, Rausch did not pursue a direct appeal in this matter. We note that Rausch obtained appellate counsel and that we granted appellate counsel’s motion for an extension of the deadlines to pursue a direct appeal under Wis. Stat. Rule 809.30. The extended time limits passed without Rausch filing a notice of appeal or postconviction motion, and Rausch’s right to a direct appeal lapsed. See State ex rel. Van Hout v. Endicott, 2006 WI App 195, ¶35, 296 Wis. 2d 580, 724 N.W.2d 692 (right to direct appeal expired when defendant did not exercise appellate rights within time limits established by this court).
[3] Rausch
raised a variety of claims for relief in his postconviction motion that he does
not renew on appeal. These included
claims that his trial counsel performed ineffectively by:
(1) failing to review discovery material; (2) failing to file “standard and
requested motions”;
(3) failing to keep him informed; and (4) failing to preserve his direct appeal
rights. Rausch also claimed that his
postconviction and appellate counsel performed ineffectively by failing to file
postconviction motions and that the circuit court erroneously exercised its
sentencing discretion. We deem these
claims abandoned, and we do not address them.