COURT OF APPEALS DECISION DATED AND FILED September 28, 2011 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. |
Cir. Ct. No. 2007CF440 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of Wisconsin, Plaintiff-Respondent, v. Santiago M. Ramirez, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Waukesha County: JOHN A. FIORENZA, Reserve Judge, and RICHARD CONGDON, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
¶1 PER CURIAM. Santiago M. Ramirez has appealed from a judgment convicting
him of two counts of second-degree sexual assault of a child in violation of Wis. Stat. § 948.02(2) (2009-10)[1] and from
an order denying his motion to withdraw his pleas of no contest. We affirm the judgment and order.
¶2 In
the criminal complaint filed in this case, Ramirez was charged with one count
of first-degree sexual assault of a child under the age of thirteen and two
counts of second-degree sexual assault of a child under the age of
sixteen. The victim of all three counts
was Ramirez’ stepdaughter, M.O., whose date of birth is February 13, 1992. The first count alleged sexual contact
between
January 1, 2000, and December 31, 2001.
The second count alleged sexual intercourse between January 1, 2004, and
December 31, 2005, at the family’s residence at 3107 MacArthur Road in
Waukesha. The third count alleged sexual
intercourse at 3107 MacArthur Road between April 1, 2007, and April 15, 2007.
¶3 On
January 16, 2008, Ramirez entered pleas of no contest to counts two and
three. In exchange for his pleas, count
one was dismissed and read in for purposes of sentencing. Subsequently, Ramirez filed a postconviction
motion to withdraw his no contest pleas, alleging, among other things, that the
trial court failed to ascertain that there was a factual basis for the pleas
during the plea colloquy.
¶4 After
the trial court denied his motion for postconviction relief without an
evidentiary hearing, Ramirez appealed.
In State v. Ramirez, No. 2008AP3208-CR, slip op. at 5-6 (Wis. Ct.
App. Mar. 9, 2010), this court granted the State’s motion for summary reversal
of the order denying postconviction relief and remanded the matter for an
evidentiary hearing on Ramirez’ postconviction motion. This court agreed with the parties that the
transcript of the plea hearing revealed that, at the plea hearing, the trial
court did not discharge its duty of ascertaining personally that a factual
basis existed to support the pleas, as required by Wis. Stat. § 971.08(1)(b). Ramirez, No. 2008AP3208-CR, slip op.
at 4. This court held that because
Ramirez’ motion made a prima facie showing that the trial court violated its
duties during the plea colloquy, an evidentiary hearing should have been held
on the motion. Id. at 5. However, this court rejected Ramirez’ request
that this court decide as a matter of law that Ramirez was entitled to withdraw
his no contest pleas due to defects in the plea colloquy. Id. at 1. Because the State was entitled to an
opportunity to prove that despite the defect in the plea colloquy, Ramirez’
pleas were knowing, voluntary and intelligent, we stated that we would not
grant Ramirez’ request for plea withdrawal without an evidentiary hearing. Id. at 5 n.3.
¶5 After
remand, an evidentiary hearing was held on Ramirez’ motion to withdraw his no
contest pleas.[2]
Ramirez and his trial counsel testified.
In a written order entered after the hearing, the trial court denied
Ramirez’ motion, concluding that the State met its burden of proving by clear
and convincing evidence that Ramirez’ pleas were knowingly and intelligently
made. Ramirez then commenced his current
appeal.[3]
¶6 The
sole issue on appeal is whether the trial court erroneously exercised its
discretion when it denied Ramirez’ motion to withdraw his no contest pleas
after the evidentiary hearing. Ramirez
contends that he is entitled to withdraw his pleas because no factual basis for
his pleas to counts two and three can be found in the record. He further contends that even if a factual
basis can be found in a post-plea examination of the record, the factual basis
requirement of Wis. Stat.
§ 971.08(1)(b) was not satisfied because neither he nor his counsel
admitted the requisite facts prior to the acceptance of his no contest
pleas. We reject both arguments.
¶7 This
court reviews a trial court’s decision granting or denying a motion to withdraw
a no contest plea under an erroneous exercise of discretion standard. State v. Thomas, 2000 WI 13, ¶13,
232 Wis. 2d 714, 605 N.W.2d 836. “[I]f a
circuit court fails to establish a factual basis that the defendant admits
constitutes the offense pleaded to, manifest injustice has occurred.” Id., ¶17. The lack of a factual basis constitutes a
manifest injustice, entitling a defendant to withdraw his plea. See
id.,
¶¶16-17. The trial court’s obligation to
establish a sufficient factual basis helps ensure that the defendant’s plea is
knowing and intelligent. State
v. Howell, 2007 WI 75, ¶67, 301 Wis. 2d 350, 734 N.W.2d 48.
¶8 When,
as here, a trial court fails to discharge its duty of ascertaining at the plea
hearing that a factual basis exists to support the plea and the matter is
remanded for an evidentiary hearing, the State is given an opportunity to show
by clear and convincing evidence that the defendant’s plea was knowing,
voluntary and intelligent, despite the inadequacy of the plea hearing.[4]
State v. Lackershire, 2007 WI 74, ¶56, 301 Wis. 2d 418,
734 N.W.2d 23. When the defect was the
trial court’s failure to establish an adequate factual basis for a plea, the
focus of the evidentiary hearing is on whether the defendant’s pleas were
knowing and intelligent. Id. The trial court may look at the totality of
the circumstances to determine whether the defendant has agreed to the factual
basis underlying the plea. Id.,
¶60; Thomas,
232 Wis. 2d 714, ¶18. The totality
of the circumstances includes the plea hearing record, the sentencing record,
statements of the defendant’s counsel concerning the factual basis, and other
portions of the record, including witnesses’ statements and police reports or
statements of evidence. Thomas,
232 Wis. 2d 714, ¶¶18, 21. The
trial court also may consider the record of the postconviction hearing. Id., ¶23. The defendant does not need to admit to the
factual basis in his or her own words. Id.,
¶18.
¶9 At
the conclusion of the post-remand evidentiary hearing, the trial court
determined that Ramirez’ no contest pleas were knowing and intelligent. It thus implicitly determined that they were
supported by an adequate factual basis.[5]
The record supports its determination.
¶10 Initially,
we note that in the context of a negotiated plea, the court need not go to the
same length to determine whether the facts would sustain the charge as it would
if there had been no negotiated plea. State
v. Smith, 202 Wis. 2d 21, 25, 549 N.W.2d 232 (1996). However, even ignoring that Ramirez entered
his no contest pleas in exchange for dismissal of a first-degree sexual assault
charge, the record provides a sufficient factual basis for his pleas.
¶11 As
set forth above, counts two and three alleged that Ramirez had sexual
intercourse with M.O. between January 1, 2004, and December 31, 2005, at the
family’s residence at 3107 MacArthur Road in Waukesha, and between April 1,
2007, and April 15, 2007, at the same residence. The record includes a probable cause
statement filed in the trial court when this case was commenced. According to the probable cause statement,
Ramirez provided both written and recorded statements in which he admitted that
he had sexual intercourse and sexual contact with M.O. since she was in the
third grade, including oral and anal sex, occurring at the family’s two homes
in Waukesha, including the MacArthur Road residence. This was consistent with statements made by Ramirez
to the presentence investigation report (PSI) writer, in which he acknowledged
the accuracy of the criminal complaint, and acknowledged that from 2001, when
M.O. was about nine years old, until early April 2007, he had repeated sexual
contact with her at the family’s various homes, including numerous acts
constituting sexual intercourse as defined in Wis.
Stat. § 948.01(6).[6]
¶12 The
criminal complaint set forth M.O.’s statements that when she was in sixth and
seventh grades and living at the MacArthur Road address, Ramirez put his mouth
and tongue on her vagina and made her put her mouth on his penis, acts of
sexual intercourse within the meaning of Wis.
Stat. § 948.01(6). Based
upon M.O.’s birth date, it can be inferred that these acts fell within the time
frame alleged in count two. M.O. also
alleged that the last act of sexual assault occurred on April 15, 2007. Based upon M.O.’s statement and the acts and
incidents as admitted by Ramirez, including his admission that he continued to
engage in sexual conduct with M.O. until early April 2007, a clear factual
basis existed for his pleas to counts two and three.[7]
¶13 The
trial court’s determination that an adequate factual basis existed is also
supported by the testimony of Ramirez’ trial counsel at the postconviction
hearing. Ramirez’ trial counsel
testified that prior to Ramirez’ entry of his no contest pleas, he and another
attorney from his office discussed the nature of each count with Ramirez,
including the time frame for each count and the facts that supported counts two
and three. Counsel testified that he had
the benefit of police reports and other discovery material to review with
Ramirez at the time of the discussions, including Ramirez’ statements. Counsel testified that he also reviewed the
definition of sexual intercourse with Ramirez and concluded that Ramirez
understood his pleas to counts two and three.
¶14 The
trial court found the testimony of Ramirez’ trial attorney to be credible,
while finding Ramirez’ conflicting testimony to be incredible. Because credibility determinations are for
the trial court, State v. Hubanks, 173 Wis. 2d 1, 27, 496 N.W.2d 96 (Ct.
App. 1992), no basis exists to disturb its findings. Based on its findings and the totality of the
circumstances, an adequate factual basis existed for Ramirez’ no contest pleas,
and the trial court properly determined that his pleas were knowing,
intelligent and voluntary. Ramirez’
motion to withdraw his no contest pleas therefore was properly denied.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Wis.
[1] All references to the Wisconsin Statutes are to the 2009-10 version.
[2] The Honorable John A. Fiorenza, acting as a reserve judge, presided at the plea hearing and the initial postconviction hearing. The Honorable Richard Congdon presided at the evidentiary hearing following remand.
[3] After commencing this appeal, Ramirez filed a motion in the trial court seeking clarification of the trial court’s May 18, 2010 decision and order denying his postconviction motion after the evidentiary hearing. Ramirez asked the trial court to clarify that it had considered his claim regarding a lack of a factual basis for his pleas. This court remanded the record pursuant to Wis. Stat. § 808.075(6) to permit the trial court to address Ramirez’ motion for clarification and instructed the parties that any objection to the trial court’s order on remand should be included in the parties’ briefs, stating that no separate objection under § 808.075(8) was necessary. In an order entered on October 19, 2010, the trial court, the Honorable Mark D. Gundrum presiding, denied Ramirez’ motion for clarification, noting that Ramirez himself acknowledged having previously concluded that Judge Congdon had “impliedly ruled” that there was a factual basis for his pleas.
[4] For this reason, we reject any argument that Ramirez was entitled to automatic plea withdrawal merely because the trial court failed to ascertain at the plea hearing that a factual basis existed for his pleas or to obtain his admission to the offenses at the plea hearing. As already determined in his prior appeal, Ramirez was entitled to an evidentiary hearing on the issue of whether a factual basis existed, not automatic plea withdrawal.
[5] Even accepting Ramirez’ argument that the trial court should have made an explicit determination as to whether an adequate factual basis existed, his contention provides no basis for relief on appeal. When a trial court fails to adequately explain its decision on the record, this court will independently review the record to determine whether the trial court’s decision can be sustained based on the facts as applied to the applicable law. State v. Jenkins, 2007 WI 96, ¶35, 303 Wis. 2d 157, 736 N.W.2d 24. Here, the record supports a determination that an adequate factual basis existed for Ramirez’ pleas.
[6] Ramirez made similar admissions in a mental health examination report, acknowledging that he engaged in conduct as alleged in the police reports.
[7] We reject Ramirez’ argument that his admissions concerning the time, place and nature of his acts were not sufficiently definite as to constitute an admission to the offenses alleged in counts two and three. This argument ignores well-established law providing that a factual basis for a plea exists if an inculpatory inference can be drawn from the complaint or facts admitted by the defendant, even though it may conflict with an exculpatory inference elsewhere in the record, and the defendant later maintains that the exculpatory inference is the correct one. State v. Black, 2001 WI 31, ¶16, 242 Wis. 2d 126, 624 N.W.2d 363.