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COURT OF APPEALS DECISION DATED AND RELEASED June 15, 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. 94-0469-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PETER BEKERSKY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Dane County: ROBERT A. DE CHAMBEAU, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Sundby, JJ.
PER CURIAM. Peter Bekersky appeals from a judgment
convicting him of first-degree intentional homicide and carrying a concealed
weapon. He also appeals from the order
denying his motion for postconviction relief.
The conviction resulted from a guilty plea. Bekersky contends that the trial court erroneously exercised its
discretion by denying his presentence motion to withdraw his plea, and by
imposing an illegal sentence. We reject
these arguments and affirm.
Bekersky killed James
Engelke by firing three bullets into his head.
In exchange for his plea, the State agreed to drop an armed robbery
charge, and to withhold a recommendation on Bekersky's parole eligibility
date. At the plea hearing, Bekersky
admitted his guilt. Six months later,
the presentence report was filed with a recommendation for a parole eligibility
date in thirty years. Two months later,
with new counsel, while still awaiting sentencing, Bekersky moved to vacate the
plea.
At the hearing on his
motion, Bekersky testified, among other things, that even before receiving the
presentence report, he had consistently maintained to counsel that he did not
intentionally kill Engelke. The trial
court denied the motion, based in part on the determination that Bekersky had
not consistently asserted his innocence to counsel, and that the record
contained no other evidence that Bekersky had consistently maintained his
innocence. The trial court also
concluded that Bekersky was fully aware of the consequences of the plea, that
he fully understood the proceeding, that he was not unduly pressured to consent
to the plea by his counsel or the district attorney, and that the unfavorable
presentence report, rather than other more legitimate reasons, prompted the
motion.
At sentencing, Bekersky
received a life term, with parole eligibility in twenty-five years, "plus
penalty enhancer--consecutive term 5 years," for using a dangerous weapon
in his crime.[1]
In his postconviction
motion, Bekersky asked for reconsideration on the motion to vacate, arguing
that the trial court ignored or misconstrued statements to an investigating
officer and to the presentence investigator in which he purportedly denied
intentionally killing Engelke. The
trial court discounted those statements, however, in view of the other
inculpatory statements Bekersky made, including his admission of guilt at the
plea hearing. Bekersky also
unsuccessfully argued that the trial court erroneously sentenced him to a
separate consecutive sentence on the weapons penalty enhancer.
The trial court should
allow a defendant to withdraw a guilty plea if there is a fair and just reason
for doing so, without substantial prejudice to the prosecutor. State v. Canedy, 161 Wis.2d
565, 580-81, 469 N.W.2d 163, 169 (1991).[2] Determining whether a fair and just reason
exists lies within the trial court's discretion. Id. at 579, 469 N.W.2d at 169. In exercising that discretion, the trial
court should consider the following factors:
1. the
defendant's assertion of innocence;
2.a genuine misunderstanding of a guilty
plea's consequences;
3. the
defendant's confusion;
4. hasty
entry of the plea;
5. coercion
by trial counsel; and
6. delay in bringing the withdrawal motion.
State
v. Shanks, 152 Wis.2d 284, 290, 448 N.W.2d 264, 266 (1989).
If the trial court erred
by overlooking Bekersky's purported assertions of innocence, that error was
harmless. Those two assertions
consisted, first, of a statement to a police investigator that he did not want
to kill Engelke, while at the same time admitting that he pointed the gun at Engelke's
head and fired three shots. The second
assertion, made to a presentence investigator, is that he remembered accidently
shooting Engelke, although he immediately acknowledged that his recalled
version of the event made no sense. In
each case, Bekersky offered a contradictory, ambivalent description of his
intent, greatly at odds with other contemporaneous or prior statements. Bekersky cannot reasonably argue that the
trial court would have granted his motion had it credited those statements as
valid assertions of innocence. The
court considered all six Shanks factors, at length, and concluded
that none favored Bekersky. The court's
finding that Bekersky failed to assert his innocence before he filed his
withdrawal motion played only a very small part in its decision.
Bekersky is not entitled
to a five-year reduction in his sentence.
He correctly notes that the penalty for using a dangerous weapon may
increase his sentence, but is not a "consecutive term" as his
judgment of conviction indicates. See
§ 939.63(1)(a), Stats. However, the sentencing court's intent
controls the determination of the sentence.
State v. Brown, 150 Wis.2d 636, 642, 443 N.W.2d 19, 22
(Ct. App. 1989). The record plainly
indicates that the trial court's intent was to add five years to Bekersky's
life sentence, as allowed by § 939.63(1)(a)2.
Use of the phrase "consecutive term" was incorrect, but does
not change the ultimate effect of what is a legal sentence. Bekersky's proper sentence is life plus five
years.
By the Court.--Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.