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COURT OF APPEALS DECISION DATED AND RELEASED
August 10, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 93-2910
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RITCHIE H. DUMER,
Defendant-Appellant.
APPEAL from order of the
circuit court for Dane County: MARK A.
FRANKEL, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER CURIAM. Ritchie H. Dumer appeals from an order
denying a § 974.06, Stats.,
postconviction motion to withdraw his no contest pleas. Dumer argues that he was denied the
effective assistance of counsel because his trial attorney did not adequately
investigate prior to the plea hearing and withheld exculpatory evidence from Dumer. Dumer also argues that the court failed to
explain the nature of the charges, making his pleas unintelligent and
involuntary, and that there was an inadequate factual basis to support his
pleas. After a postconviction hearing
at which both Dumer and his trial attorney testified, the court denied Dumer's
motion. We affirm.
Facts
A seven-count criminal
complaint was filed on February 7, 1985.
The complaint charged Dumer with three crimes against Jessica P.: second-degree sexual assault, false imprisonment,
and misdemeanor battery. The complaint
also charged Dumer with four crimes against Lauren O.: attempted second-degree sexual assault,
false imprisonment, misdemeanor battery, and threatening injury. Each count included a repeater allegation
under § 939.62, Stats.
The complaint alleged
that, on February 5, 1985, at approximately 12:45 a.m., Dumer accosted Jessica P. in the lobby of
her Langdon Street apartment building.
Dumer followed Jessica into the lobby, and asked her if she wanted
"some company." Jessica told
Dumer to "get away from me," and struck Dumer in the chest. Dumer then grabbed Jessica and dragged her
outside the building. Once outside,
Dumer grasped Jessica's buttocks and slapped her several times. Jessica began screaming and managed to
escape. She reentered the building and
Dumer fled the area.
Jon Dickinson, another
resident of the building, heard Jessica's screams and witnessed part of the
incident from a third-floor window.
Dickinson saw the assailant enter an older, large dark blue car. Dickinson ran out of the building to where
the car had been parked. While outside,
Dickinson saw the vehicle drive past the parking spot.
At approximately 1:00
a.m., Dumer accosted Lauren O. near Elizabeth Waters dormitory on the
University of Wisconsin campus. Dumer
grabbed Lauren as she exited her car, and forcibly dragged her into a secluded
area. After Lauren started to scream,
Dumer hit her in the face and threatened to kill her. Lauren's screams alerted others in the area, and they chased
Dumer onto frozen Lake Mendota. Dumer
was caught and turned over to police.
Police also secured Dumer's car, a 1977 blue Pontiac. After Dumer's arrest, Dickinson identified
him as the man he saw running from the Langdon Street apartment.
Dumer waived his right
to a preliminary hearing on February 14, 1985.
At that time, Dumer's attorney stated "for the record ... I have
had discussions with the district attorney concerning a potential plea
arrangement. I expect that at the
arraignment a plea will be entered. I
don't think that it's necessary to go into the terms and conditions of that
arrangement at this time."
On February 21, 1985,
the State filed a six-count Information.
The Information did not contain the "threaten injury" offense
relating to Lauren O. The Information also
amended the second-degree sexual assault charge as to Jessica P. to attempted
second-degree sexual assault.
A plea hearing was held
on June 7, 1985. At the outset, Dumer's
attorney advised the court that the State had dismissed the felony charge of threatening
injury and amended the initial charge of second-degree sexual assault to
attempted second-degree sexual assault "as part of a plea
agreement." The court then
accepted Dumer's no contest pleas.
Further facts as to the plea colloquy will be stated below as necessary.
Ineffective Assistance of Trial Counsel
To prevail on a claim of ineffective
assistance of counsel, a defendant must establish both that his attorney's
performance was deficient and that the deficient performance was prejudicial. Strickland v. Washington, 466
U.S. 668, 687 (1984). To satisfy the
prejudice prong of the Strickland test, a defendant who pled
guilty "must show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have insisted on
going to trial." Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
The success of an allegation that counsel did not fully investigate or
discover exculpatory evidence "will depend on the likelihood that
discovery of the evidence would have led counsel to change his recommendation
as to the plea. This assessment, in
turn, will depend in large part on a prediction whether the evidence likely
would have changed the outcome of a trial." Id.
This
court accepts the factual findings made by the trial court at the
postconviction hearing unless the findings are clearly erroneous. State v. Johnson, 153 Wis.2d
121, 127, 449 N.W.2d 845, 848 (1990).
This court also defers to the fact finder's credibility
determinations. Ivalis v. Curtis,
173 Wis.2d 751, 762, 496 N.W.2d 690, 695 (Ct. App. 1993). However, this court reviews independently
the legal question of whether counsel's performance was prejudicial. State v. Moats, 156 Wis.2d 74, 101, 457 N.W.2d 299, 311
(1990).
Dumer
argues that his trial attorney was ineffective in two respects. First, Dumer argues that his attorney did
not adequately investigate the case prior to the plea hearing. Dumer points to a police report indicating
that Jessica P. could not positively identify him as the assailant. Dumer suggests that his attorney did not
have this report prior to the plea, or if he did, he did not tell Dumer of its
contents. Dumer contends that he would
not have entered his plea if he had been aware of this exculpatory
evidence.
Initially, we note that
the fact finder determined that Dumer's trial attorney was more credible than
Dumer. Thus, when faced with a conflict
in the testimony, we must accept the version offered by Dumer's attorney.
We conclude that Dumer
has not shown the necessary prejudice.
Trial counsel testified that he felt that Jessica's inability to
positively identify Dumer was not compelling in light of Dickinson's
identification of Dumer as her assailant.
Dumer's car matched the description of the car seen leaving the Langdon
Street incident. Counsel testified that
he discussed the strength of the State's case with Dumer, and suggested to
Dumer that the fact that he was caught virtually "red-handed"
minimized the prospects of a successful defense on both incidents. Even if we assume that counsel was not aware
of Jessica's non-identification or that he did not tell Dumer of the evidence,
it is not likely that disclosure of the evidence "would have led counsel
to change his recommendation" that Dumer accept the proposed plea
agreement. We agree with trial
counsel's assessment of Dumer's defense prospects—Jessica's non-identification
likely would not have affected the outcome of a trial in light of the other
evidence implicating Dumer in the assaults.
Dumer also asserts that
his attorney did not inform him of any plea agreement, and that he would never
have accepted a plea agreement. The
record defeats Dumer's assertion. Dumer
faced a maximum of sixty-six years under the seven charges contained in the
criminal complaint. When Dumer waived a
preliminary hearing, defense counsel indicated that plea negotiations were
ongoing. Dumer was present at that
hearing, and affirmatively waived his right to a preliminary hearing after
counsel's statement.
The
subsequent Information contained six charges, and decreased Dumer's exposure to
forty-four years. At the plea colloquy,
defense counsel informed the court that the State had filed the Information,
which dropped one count and amended another count to an "attempt," in
exchange for Dumer's previous waiver of the preliminary examination. Dumer was present at the plea colloquy, and
entered his no contest plea shortly after counsel's description of the plea
agreement. Dumer assured the court that
he understood the plea proceedings and that he had no questions.
The trial court found
Dumer's assertion that he was "confused" to be unfounded. That finding is amply supported by the
record and is not clearly erroneous.
Dumer has not shown that his trial attorney failed to inform him of the
terms of the plea agreement.
Voluntary and Intelligent Pleas
Dumer seeks to withdraw
his pleas as not knowingly, voluntarily and intelligently entered. He argues that he had inadequate notice of
the nature and elements of the charges, and that the trial court did not
establish a factual basis for the pleas.
Dumer's arguments are not persuasive.[1]
Prior to accepting a no
contest or guilty plea, the trial court shall "[a]ddress the defendant
personally and determine that the plea is made voluntarily with understanding
of the nature of the charge and the potential punishment if
convicted." Section 971.08(1)(a), Stats.; see also Ernst v.
State, 43 Wis.2d 661, 674, 170 N.W.2d 713, 719 (1969), modified in
part on other grounds, State v. Bangert, 131 Wis.2d 246, 389
N.W.2d 12 (1986). The court should
"ascertain, at the plea hearing itself, whether the defendant had an
adequate understanding of the crimes charged." State v. Harvey, 139 Wis.2d 353, 381, 407 N.W.2d
235, 247 (1987). The court, however, is
"not precluded from examining the entire record to aid in that determination." Id.
Our examination of the
record leads us to the same conclusion as the trial court; that is, Dumer
understood the nature of the crimes charged when he entered his no contest
pleas. Dumer received a copy of the
criminal complaint at his initial appearance.[2] The complaint set forth the elements of the
crimes facing Dumer and the factual underpinnings for the charges.[3] In his postconviction testimony, Dumer's
trial counsel testified that he had discussed the complaint's factual
allegations, and their legal import, with Dumer. While Dumer denies any such discussions occurred, the trial court
accepted counsel's testimony as credible.
We conclude that the record as a whole shows that Dumer understood the
nature of the charges against him when he entered his no contest pleas. Therefore, Dumer has not shown the necessary
due process violation that would support the withdrawal of his pleas.
Dumer also argues that
the trial court failed to establish a factual basis for the pleas. Again, the record refutes Dumer's
contention. When accepting a plea, a
court must make sufficient inquiries to satisfy it that the defendant did in
fact commit the crime to which he is pleading.
Section 971.08(1)(b), Stats.;
see also State v. Harrington, 181 Wis.2d 985, 989, 512
N.W.2d 261, 263 (Ct. App. 1994). During
the plea colloquy, the court asked Dumer:
"[A]re you willing to acknowledge your involvement in the attempted
sexual assault, false imprisonment, and battery of both [victims] on February 5
of this year?" Dumer answered,
"Yes." Dumer's response, and
the allegations of the criminal complaint, constitute an adequate factual basis
for Dumer's pleas.
Ineffective Assistance of Appellate Counsel
Dumer has represented
himself in this § 974.06, Stats.,
postconviction motion and appeal. As a
final argument in his brief to this court, Dumer complains that the attorney
appointed in 1986 to represent him did not file either a direct appeal under Rule 809.30, Stats., or a no merit appeal under Rule 809.32, Stats. Dumer asserts that appointed counsel did
nothing on his behalf, and the state public defender ultimately closed its file
for "inactivity." Dumer asks
this court to construe his brief as a petition for habeas corpus under State
v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), and "determine
whether [postconviction counsel] was ineffective in refusing to assist the
Defendant in his motion to withdraw his pleas or file a No Merit Brief."
In Knight,
the supreme court held that a defendant claiming ineffective assistance of
appellate counsel should petition the court that heard the appeal for a writ of
habeas corpus. Id. at
520, 484 N.W.2d at 544. The court chose
habeas corpus as the appropriate avenue, in part, because an appellate court
can "link the remedy closely to the scope of the constitutional
violation." Id.
For purposes of this
discussion, we assume that Dumer's appointed counsel acted improperly by not
filing either a no merit report or a postconviction motion to withdraw the no
contest pleas. We decline, however, to
order any further proceedings under Knight because Dumer cannot
show prejudice from counsel's actions. See
Strickland, 466 U.S. at 687 (to succeed on a claim of ineffective
assistance of counsel, a defendant must show both that counsel's performance
was deficient and that the performance was prejudicial). Dumer's desire to withdraw his no contest
pleas has been fully addressed by this court.
While Dumer has proceeded pro se, he has done so competently and
presented cogent arguments for our consideration. We have addressed the merits of those arguments. Cf. State v. Escalona-Naranjo,
185 Wis.2d 168, 517 N.W.2d 157 (1994).
Therefore, Dumer has already received the "remedy" appropriate
to the loss of a direct appeal. Further
proceedings under Knight are not warranted.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Dumer entered his no contest pleas on June 7, 1985, three days before the Wisconsin Supreme Court decided State v. Cecchini, 124 Wis.2d 200, 368 N.W.2d 830 (1985), overruled in part on other grounds, State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). Therefore, Dumer's claims are governed by pre-Cecchini law. See State v. Harvey, 139 Wis.2d 353, 380-81, 407 N.W.2d 235, 247 (1987).