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COURT OF APPEALS
DECISION
DATED AND FILED
December 28, 2010
A.
John Voelker
Acting 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 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.
Reginald Fionna Baldwin,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: JEFFREY A. KREMERS and PATRICIA D. McMAHON, Judges. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Reginald Fionna Baldwin, pro se, appeals from a judgment of
conviction entered upon his guilty pleas to two felonies. He also appeals from a postconviction order
denying his motion for plea withdrawal. He claims that his pleas were not entered
knowingly, intelligently, and voluntarily, and that he received ineffective assistance
from his trial counsel. We affirm.
BACKGROUND
¶2 We take the facts underlying the charges from the criminal
complaint. Acting on an informant’s tip
advising of an impending drug transaction, City of Milwaukee police conducted surveillance on
August 16, 2007, near a residence at 3610
N. 10th Street. Police saw a person later identified as
Pharon Witherspoon enter the rear of that residence and then saw someone drive
a Honda Accord to the front of the residence.
Moments later, police saw a man subsequently identified as Baldwin leave the residence with a black plastic bag and
get into the passenger seat of the Honda.
As officers neared the vehicle, Baldwin
fled on foot. Police retrieved the black
plastic bag from the Honda and discovered a large quantity of cocaine
inside. Police arrested Baldwin and determined that he lived at 3610 N. 10th Street. Police searched his home and found a gun
under a mattress. Baldwin
stated that he “would take credit” for the gun.
The State charged Baldwin with
committing two crimes, both as a habitual criminal: (1) possessing with intent to deliver more
than forty grams of cocaine as a second or subsequent offense; and (2)
possessing a firearm as a felon.
¶3 Baldwin retained private
counsel and resolved the case with a plea bargain. He pled guilty to modified charges of
possessing more than forty grams of cocaine with intent to deliver and
possessing a firearm as a felon, and the State recommended a global disposition
of six years of initial confinement and three years of extended
supervision. The circuit court sentenced
Baldwin to five years of initial confinement
and four years of extended supervision for the firearms offense. The circuit court imposed and stayed a
twelve-year sentence for the drug offense and ordered Baldwin
to serve a consecutive term of probation.
¶4 Baldwin’s appellate rights
lapsed when he did not timely file a notice of intent to pursue postconviction
relief, but this court granted his pro se
motion to extend the applicable appellate deadline. Baldwin then
moved for plea withdrawal. The circuit
court denied his motion without a hearing, and this appeal followed.
DISCUSSION
¶5 A defendant who wishes to withdraw a guilty plea after
sentencing must establish by clear and convincing evidence that plea withdrawal
is necessary to correct a manifest injustice. State v. Thomas, 2000 WI 13, ¶16,
232 Wis. 2d
714, 605 N.W.2d 836. An involuntary plea
and the ineffective assistance of trial counsel are two of the factual
scenarios that may constitute a manifest injustice. State v. Krieger, 163 Wis. 2d
241, 251 n.6, 471 N.W.2d 599 (Ct. App. 1991).
Baldwin alleges both.
¶6 We begin by describing the governing standards of
review. Whether a guilty plea was
entered knowingly, intelligently, and voluntarily is a question of
constitutional fact that we review under a mixed standard. See State
v. Hoppe, 2009 WI 41, ¶61, 317 Wis. 2d
161, 765 N.W.2d 794. “We accept the circuit
court’s findings of historical and evidentiary fact unless they are clearly
erroneous. We independently determine
whether those facts demonstrate that the defendant’s plea was knowing,
intelligent, and voluntary.” Id.
(footnotes omitted).
¶7 A defendant claiming ineffective assistance of trial counsel
must show that counsel performed deficiently and that the deficient performance
prejudiced the defendant. Strickland
v. Washington, 466 U.S. 668, 687
(1984). To establish deficient
performance, the defendant must show that counsel’s performance was “outside
the wide range of professionally competent assistance.” Id.
at 690. To establish prejudice,
the defendant must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. The defendant must satisfy both components of
the Strickland
test and failure to make a sufficient showing as to one component ends the
inquiry. See id. at 697.
¶8 A defendant’s postconviction motion “must include facts that
‘allow the reviewing court to meaningfully assess [the defendant’s] claim.’” State v. Allen, 2004 WI 106, ¶21, 274 Wis. 2d 568, 682
N.W.2d 433 (citation omitted, brackets in Allen). The circuit court may deny a postconviction
motion without a hearing “if all the facts alleged in the motion, assuming them
to be true, do not entitle the movant to relief; if one or more key factual
allegations in the motion are conclusory; or if the record conclusively
demonstrates that the movant is not entitled to relief.” Id.,
¶12 (footnote omitted). We determine de novo whether a motion alleges facts
that, if true, would entitle a defendant to relief. State v. Bentley, 201 Wis. 2d 303, 310,
548 N.W.2d 50 (1996). With these
principles in mind, we turn to the issues.
¶9 Baldwin claims that his guilty pleas were not entered
knowingly, intelligently, and voluntarily because: (1) his trial counsel misled him by advising
him that the State would recommend three years of initial confinement and three
years of extended supervision in exchange for his guilty pleas; and (2) his
trial counsel made false promises that he “would receive the Earned Release
Program” and “be home between 18-24 months [sic].” The record demonstrates that Baldwin is not entitled to relief.
¶10 Baldwin signed a guilty plea questionnaire and waiver of rights
form, and the circuit court established before accepting his guilty pleas that he
understood the form and signed it freely and voluntarily. The form includes a handwritten description of
the parties’ plea bargain—Baldwin would plead guilty to possessing cocaine with
intent to deliver and to possessing a firearm as a felon, and in exchange, the
State would move to dismiss the penalty enhancers and recommend a “total
penalty” of six years of initial confinement and three years of extended
supervision. The parties also recited
these terms on the record at the outset of the plea hearing. Baldwin told
the circuit court that he had not been promised anything else to induce his
pleas and that he had not been threatened.
¶11 The circuit court reviewed the maximum penalties for the
offenses and explained that it was not bound by the parties’ sentencing
recommendations or the plea bargain. Baldwin confirmed his understanding that the circuit
court had discretion to impose any sentence up to the maximum allowed by
statute.
¶12 The plea colloquy reflects that Baldwin understood at the time
of his pleas the recommendations that the State would make, the maximum penalties
that he faced, and the circuit court’s freedom to impose those maximum
penalties. The information Baldwin received during the plea hearing overrides any
misstatements that trial counsel may have made before the hearing began. See Bentley, 201 Wis. 2d at 319.
¶13 A defendant who asserts that matters extrinsic to the guilty
plea proceeding undermine the plea must present specific, nonconclusory
information showing why the plea was not voluntary. See
State v.
Basely, 2006 WI App 253, ¶10, 298 Wis. 2d 232, 726 N.W.2d 671. To meet that burden here, Baldwin
places substantial reliance on statements made during the sentencing
proceeding. At the outset of that
hearing, the circuit court reviewed the terms of the plea bargain and stated: “the State was prepared to recommend a total
sentence of six years, three years of initial confinement and three years of
extended supervision; is that correct?” Baldwin’s reliance on these remarks is misplaced. First, the circuit court’s inquiry at the
time of the sentencing hearing does not suggest, let alone demonstrate, that
Baldwin misunderstood anything at the time of the earlier plea hearing. Second, the State and trial counsel both told
the circuit court that it was not correct and reiterated the State’s promise to
recommend six years of initial confinement and three years of extended
supervision. The circuit court then
asked Baldwin if the lawyers accurately stated the promised recommendation, and
Baldwin answered, “yes sir.”
¶14 We are satisfied that Baldwin offers
nothing to undermine his acknowledgements in open court during the plea
colloquy that he knew and understood the consequences of his guilty pleas. Accordingly, we reject Baldwin’s
claim that he is entitled to withdraw his pleas because he misunderstood their
consequences.
¶15 Baldwin also claims that his
trial attorney’s ineffective assistance left him with no choice except to plead
guilty. This allegation requires Baldwin to demonstrate that his trial attorney in fact
performed ineffectively. Therefore, we
turn to his specific claims of ineffective assistance of counsel.
¶16 Baldwin asserts that his trial
counsel coerced his waiver of the preliminary examination. The record conclusively refutes the
claim. Baldwin
signed a form stating that he wished to waive the preliminary examination. He confirmed in open court that he signed the
waiver form, that he understood the rights that he was giving up, and that he
had not been threatened or promised anything to induce his waiver. His self-serving and conclusory allegation of
coercion does not entitle him to any relief. See Allen,
274 Wis. 2d
568, ¶12.
¶17 Next, Baldwin makes a series of allegations that his trial
counsel performed ineffectively regarding “Rommel Reed” who, Baldwin states,
“could have proven his innocence.”
According to Baldwin, Reed was the owner and driver of the Honda that
police observed in front of Baldwin’s home on
August 16, 2007. Baldwin contends that
his trial counsel’s failure to preserve Reed’s testimony during pretrial
proceedings denied Baldwin the opportunity to
challenge law enforcement’s stop of the Honda.
Baldwin asserts that Reed’s testimony would have “combat[ted] the
credibility of the police officers [claiming] that [Baldwin]
was seen entering into Reed’s car carrying a black bag.” Baldwin also
asserts that his trial counsel should have undermined Reed’s credibility by
investigating “plea concessions” that Reed received.
¶18 Baldwin’s vague and somewhat
inconsistent allegations about Reed are not tethered to any material
facts. The record does not establish
that Reed exists, let alone that he played a role in any of the relevant events
or that he received something of value from the State in exchange. Further, Baldwin offers only his own
optimistic assertion that Reed would have provided exculpatory testimony, the
exact substance of which Baldwin does not
describe. Baldwin’s
allegations are inadequate to support a claim of ineffective assistance of
counsel. See id.
¶19 Baldwin next contends that his
trial counsel performed ineffectively by not pursuing suppression motions. Such a claim requires a showing that the
motions would have succeeded. State
v. Jackson, 229 Wis. 2d
328, 344, 600 N.W.2d 39 (Ct. App. 1999).
Baldwin does not make that showing.
¶20 Baldwin repeatedly states that his trial counsel performed
ineffectively by failing to move to suppress the cocaine found in the Honda,
but he offers no basis on which trial counsel could have mounted a successful
challenge to the stop and search of that car.
His substantive arguments are limited to contentions that his trial
counsel’s “failure to subpoena Reed denied [Baldwin]
an opportunity to effectively challenge the initial Terry stop” and that trial
counsel “failed to subpoena Reed so that the 9 ounces [of cocaine] that w[ere]
inside of his car ... could be proven [to belong to] Reed.” We have already explained that Baldwin’s arguments regarding Reed are conclusory and
insufficient to sustain a claim of ineffective assistance of counsel. We decline to develop alternative bases for Baldwin’s contention that his trial counsel performed
ineffectively by failing to challenge the stop and search of the vehicle. See State v. Gulrud, 140 Wis. 2d 721, 730, 412 N.W.2d 139 (Ct.
App. 1987).
¶21 Baldwin claims that his trial
counsel was ineffective by failing to seek suppression of the gun on the ground
that police searched his home without a warrant or consent. The record conclusively shows that he cannot
obtain relief on this ground. First, his
postconviction submission included a letter from his trial counsel showing that
counsel investigated Baldwin’s claims that the
police improperly searched his home, and the results of the investigation did
not support his position. According to
the letter, Baldwin “backed off” his claim
when confronted with the information that counsel uncovered, and counsel did
not pursue suppression of the gun any further.
An attorney’s strategic decision following reasonable investigation is
“virtually unchallengeable” in the context of an ineffective assistance claim. See Strickland,
466 U.S.
at 690. Second, and perhaps more
importantly, at sentencing Baldwin admitted to
the circuit court: “I gave them [the
police] permission to search my home.”
Consent to search is a well-established exception to the requirement
that police searches be conducted pursuant to a search warrant. State v. Krajewski, 2002 WI 97, ¶24,
255 Wis. 2d
98, 648 N.W.2d 385.
¶22 Baldwin claims that his trial
counsel was ineffective by failing to seek suppression of his custodial statements
because, he says, the police questioned him even though he “requested that his
counsel be presence [sic] during all interviews.” This is the epitome of a conclusory assertion. It is wholly inadequate to support a
postconviction claim. See Allen,
274 Wis. 2d
568, ¶12.
¶23 Next, Baldwin asserts that his trial counsel’s spouse is a Milwaukee police officer,
and that the marriage created a conflict of interest. Conflict of interest claims in criminal cases
are analyzed as a form of ineffective assistance of counsel. State v. Love, 227 Wis. 2d 60, 68, 594 N.W.2d 806 (1999). To prevail, the defendant must show by clear
and convincing evidence that “counsel had an actual conflict of interest.” Id.
at 71. In Love, the supreme court
cited with approval the seventh circuit’s definition of an actual conflict of
interest: “‘the defense attorney was
required to make a choice advancing his own interests to the detriment of his
client’s interests.’” Id. at 71-72 n.5 (citations and one
set of quotation marks omitted). When
the defendant established an actual conflict of interest, prejudice is
presumed. Id. at 71.
¶24 Here, Baldwin did not allege
facts showing that his trial counsel had an actual conflict of interest. Nothing in the record suggests that trial counsel’s
spouse had any involvement in investigating the charges against him or stood to
gain professionally from any adverse outcome to Baldwin
as a result of the prosecution.
¶25 Baldwin failed to demonstrate
that his trial counsel was ineffective in any respect before the circuit court
entered a judgment of conviction in this case.
Accordingly, he has not shown that his attorney’s performance
constitutes a manifest injustice necessitating plea withdrawal.
¶26 Baldwin also attempts to
undermine his convictions by raising claims that are not cognizable as
allegations of manifest injustice. He
asserts, for example, that the State lacked sufficient evidence to convict him,
that he has standing to challenge the stop and search of the Honda, and that
police officers arrested him on a hunch without reasonable suspicion or a
warrant. He cannot pursue such
allegations. “[A] guilty plea,
voluntarily and understandingly made constitutes a waiver of nonjurisdictional
defects and defenses including claims of violations of constitutional rights
prior to the plea.” Mack v. State, 93 Wis. 2d 287, 293, 286 N.W.2d 563
(1980). We have rejected Baldwin’s claim that his pleas were involuntary. No jurisdictional error is alleged or shown.
¶27 Finally, Baldwin asserts that his trial counsel was ineffective
after his conviction and sentencing by failing to file a timely notice of
intent to pursue postconviction relief. See Wis.
Stat. Rule 809.30(2)(b). Baldwin shows no prejudice from any alleged deficiency,
because he obtained a complete remedy when this court granted his pro se motion to extend the filing deadline
pursuant to Wis. Stat. Rule
809.82(2)(a). See State v. Quackenbush, 2005 WI App 2, ¶17, 278 Wis. 2d 611,
692 N.W.2d 340 (remedy when counsel is allegedly ineffective by failing to file
a notice of intent to pursue postconviction relief is an extension of the time
for filing the notice). As this opinion
demonstrates, he has had a full opportunity to exercise his appellate rights.
¶28 We agree with the circuit court’s conclusion that Baldwin’s allegations do not merit an evidentiary hearing. Accordingly, we affirm.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.