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COURT OF APPEALS DECISION DATED AND RELEASED August 30, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
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No. 94-1478-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ALBERT STEVEN WINFREY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Racine County: DENNIS FLYNN, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER
CURIAM. Albert Steven Winfrey appeals pro se from a judgment
convicting him of retail theft as a habitual offender, contrary to
§§ 943.50(1m) and (4)(b) and 939.62, Stats.,
after a no contest plea. Winfrey also
appeals from the order denying his postconviction motion to withdraw his plea
and modify his sentence. We affirm.
The information charged
Winfrey with retail theft, battery and robbery arising out of an incident in
which Winfrey attempted to take six coats from a department store without
paying for them. The battery charge
arose out of a struggle with the store's security guard. Winfrey pled no contest to felony retail
theft as a repeat offender and the battery and robbery charges were
dismissed. The State was free to argue
at sentencing. After receiving a
six-year sentence, Winfrey brought pro se motions to withdraw his plea and
modify his sentence. Those motions were
denied, and Winfrey appeals.
Winfrey argues that he
did not receive effective assistance from his trial counsel. This claim is waived for lack of a proper
record. In order to obtain appellate
review of an ineffective assistance of trial counsel claim, trial counsel must
testify in the trial court and explain his or her conduct in the course of the
representation. State v. Krieger,
163 Wis.2d 241, 253, 471 N.W.2d 599, 603 (Ct. App. 1991). In the absence of a proper record, we have
nothing to review. Id. at
254, 471 N.W.2d at 603.
Winfrey complains that
the trial court did not arrange for trial counsel to appear at his
postconviction motion hearing. However,
Winfrey cites no authority for the proposition that it was the trial court's
responsibility to assure counsel's presence at the hearing, and we have located
none. None of Winfrey's various
postconviction motions asked the trial court to require counsel's presence at
the hearing.[1] The burden was on Winfrey to seek counsel's
presence at the hearing. State v.
Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979).
Even though it is waived
for lack of a proper record, Winfrey's ineffective assistance claim is
undermined by his repeated expressions of satisfaction with trial counsel. Winfrey twice stated at the plea hearing
that he was satisfied with the representation he had received. At sentencing, Winfrey apologized to trial
counsel, apparently acknowledging that she had correctly advised him on the
legal issues in his case.
Winfrey next claims that
the State breached a plea agreement offered to him prior to the preliminary
examination. This claim is waived
because Winfrey subsequently pled no contest after confirming that the earlier
plea offer had been withdrawn. See
County of Racine v. Smith, 122 Wis.2d 431, 434, 362 N.W.2d 439,
441 (Ct. App. 1984) (a no contest plea waives the right to raise nonjurisdictional
defects and defense). At his plea
hearing, Winfrey argued that the State committed itself to the earlier plea
agreement. The State responded that the
offer was withdrawn. After further
consultation with counsel and questioning from the court, Winfrey entered a no
contest plea. The record is clear that
Winfrey pled no contest even though he may have believed that an earlier plea
offer should have remained available to him.
A defendant waives the right to object to an alleged breach of a plea
agreement when he or she fails to object and proceeds to sentencing after the
basis for the claimed error becomes known.
State v. Smith, 153 Wis.2d 739, 741, 451 N.W.2d 794, 795
(Ct. App. 1989).
Even if this claim were
not waived, we would hold that it lacks merit.
At the outset of the preliminary examination, the State informed the
court that Winfrey had agreed to waive the preliminary examination and enter a
plea. In exchange, the State agreed not
to recommend a specific sentence.
However, if Winfrey did not accept the agreement, the State would charge
him as a repeat offender. The plea
agreement would have permitted a maximum sentence of two years for retail theft
and nine months for battery. Counsel
stated that Winfrey wished to accept the plea offer. Winfrey then asked numerous questions about the meaning of the
plea offer. During Winfrey's inquiries,
the State withdrew the offer and the preliminary examination was held.
A prosecutor has great
latitude in offering and withdrawing plea proposals. State v. Beckes, 100 Wis.2d 1, 7-8, 300 N.W.2d 871,
874-75 (Ct. App. 1980). Absent
deliberate abuse of the opportunity to make and withdraw plea proposals, a
prosecutor may withdraw from a plea bargain at any time before the defendant
pleads guilty or otherwise detrimentally relies on the bargain. Id. Winfrey did not ask the trial court to make a finding as to the
basis for the offer's withdrawal or whether he had detrimentally relied on it.[2]
Because Winfrey has
waived or failed to preserve any issue relating to the plea bargain offered and
withdrawn by the State, we need not address his claim that the trial court
should have allowed him to withdraw his no contest plea because the earlier
plea agreement was breached.
Winfrey also argues that
he was inappropriately sentenced as a repeat offender because the repeater
allegation in the information does not refer to a specific count. For this proposition, Winfrey cites State
v. Coolidge, 173 Wis.2d 783, 496 N.W.2d 701 (Ct. App. 1993). Winfrey's reliance upon Coolidge
is misplaced.
Coolidge
involved the application of § 973.12(1), Stats.,
which allows a defendant to be sentenced as a repeater if the defendant admits
his or her prior conviction or the State proves it. The Coolidge court concluded that the defendant's
prior conviction had not been established by admission or other proof. Therefore, the trial court erroneously
sentenced the defendant as a repeater. Coolidge,
173 Wis.2d at 796, 496 N.W.2d at 708.
The allegations in the information were not relevant to this particular
question.
It is clear that Winfrey
was sentenced as a repeater. Winfrey
was convicted of retail theft (a Class E felony) as a repeater contrary to
§§ 943.50(1m) and (4)(b), Stats. The maximum sentence was two years. See § 939.50(3)(e), Stats.
However, Winfrey's sentence could be enhanced by six years if he had a
prior felony conviction. See
§ 939.62(1)(b), Stats. Winfrey received a six-year sentence.
We next examine whether
the requirements of § 973.12(1), Stats.,
were met. At the plea hearing, Winfrey
twice acknowledged that he was convicted on May 28, 1992, in Waukegan, Illinois
of the felony offense of unlawful use of a weapon by a convicted felon. The conviction was of record and unreversed,
§ 939.62(2), Stats.,
although Winfrey argued that it was unjustified. At sentencing, Winfrey acknowledged that he had a 1992 felony
conviction which made him a repeat offender under Wisconsin law. See § 939.62(2) (a defendant is
a repeat offender if the defendant was convicted of a felony during the
five-year period immediately preceding the commission of the crime for which
the defendant is being sentenced).
Winfrey's admission satisfied the requirements of § 973.12(1). See State v. Goldstein,
182 Wis.2d 251, 255-57, 513 N.W.2d 631, 633-34 (Ct. App. 1994). Therefore, the trial court properly
sentenced Winfrey as a repeater.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] One of Winfrey's motions cites State v. Krieger, 163 Wis.2d 241, 471 N.W.2d 599 (Ct. App. 1991), which clearly states that trial counsel's testimony is required to support a claim of ineffective assistance. Id. at 253, 471 N.W.2d at 603. Winfrey had available to him the information regarding the proper procedure for challenging trial counsel's effectiveness.