COURT OF APPEALS DECISION DATED AND RELEASED October 24, 1995 |
NOTICE |
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. 94-1972
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ABEL SILVA,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER CURIAM. Abel Silva appeals, pro se, from an
order denying his § 974.06, Stats.,
postconviction motion. Silva was
convicted of one count of felony murder, party to a crime, contrary to
§§ 943.32(1)(b)(2), 940.03, and 939.05, Stats. Silva claims: (1) that the trial court
erred in refusing to allow him to withdraw his no contest plea; (2) that
the State violated the terms of the plea agreement, which justifies plea
withdrawal; (3) that he received ineffective assistance of trial counsel;
(4) that he received ineffective assistance of appellate counsel;
(5) that a new factor exists requiring sentence modification;
(6) that his sentence was unduly harsh; and (7) that the interests of
justice require sentence modification.
Because we resolve each claim in favor of supporting the order, we
affirm.
I. BACKGROUND
Following
seventeen-year-old Silva's wavier into adult court, a criminal complaint was
filed charging him with one count of felony murder for killing Michael Pettis
during an armed robbery, and one count of armed robbery involving victim Mark
Dunham. The maximum potential penalty
for the felony murder charge was forty years (twenty years for felony murder
and twenty years for the underlying armed robbery), and the maximum potential
penalty for the armed robbery charge was twenty years. Silva agreed to plead no contest to the
felony murder count in exchange for dismissal of the armed robbery count. Pursuant to the plea agreement, both sides
would be free to argue for whatever sentence they deemed appropriate.
The trial court accepted
Silva's no contest plea at a hearing on August 9, 1993, and dismissed the
armed robbery count. Silva was
sentenced on September 24, 1993.
The State argued for the imposition of the maximum forty-year sentence. The trial court imposed a thirty-eight- year
sentence. Silva did not file a
postconviction motion or a direct appeal.
Instead, he sought postconviction relief pursuant to § 974.06, Stats.
The trial court summarily denied the motion, concluding that Silva's
claims were devoid of merit and conclusively refuted by the record. Silva now appeals.
II. DISCUSSION
A. Withdrawal
of Plea.
Silva first contends
that he should be allowed to withdraw his no contest plea because he did not
knowingly, voluntarily and intelligently enter this plea. Postconviction plea withdrawal can be
granted only where withdrawal of the plea is necessary to correct a manifest
injustice. State v. Booth,
142 Wis.2d 232, 235-37, 418 N.W.2d 20, 21-22 (Ct. App. 1987). Whether a defendant has made such a showing
is a discretionary determination and will not be upset unless the trial court erroneously
exercised its discretion. Id.
at 237, 418 N.W.2d at 22.
Silva argues that he did
not understand the effect of pleading no contest. The record conclusively refutes his contentions. Silva told the trial court at the time of
his plea that he understood the felony murder charge to which he was
pleading. The transcript from the plea
hearing demonstrates that the trial court fully informed Silva of the rights he
was waiving by his plea and of the maximum potential forty-year sentence that
could be imposed. Silva told the trial
court that he discussed his rights with his attorney, that he understood his
rights, and that he understood the consequences of his plea. Further, Silva completed a guilty plea
questionnaire and waiver form with his attorney wherein he stated that he was
voluntarily and intelligently entering his plea. Accordingly, the trial court did not erroneously exercise its
discretion in denying Silva's motion to withdraw his plea.
B. Plea
Agreement.
Next, Silva contends
that the State breached the plea agreement by recommending a forty-year
sentence when the State agreed to recommend only a twenty-year sentence. It is clear from the record that the State
complied with the provisions of the plea agreement put on the record in this case. The plea agreement was simple: Silva would plead no contest to the felony
murder charge in exchange for dismissing the armed robbery count and each side
could argue freely with respect to length of sentence. This is exactly what happened in this case. If the State actually agreed at some point
to recommend a twenty-year sentence, then Silva should have objected at the
sentencing hearing when the State requested the maximum sentence available for
felony murder. Accordingly, the record
does not support Silva's claim that the State violated the plea agreement.
C. Ineffective
Assistance of Trial Counsel.
Next, Silva claims that
his trial counsel did not provide him with effective assistance. Specifically, Silva argues that his counsel
was ineffective because he did not file any pretrial motions, he did not file
any discovery motions; he did not investigate the State's allegations; he did
not discuss going to trial; and he was a “divorce lawyer.”
A valid claim of
ineffective assistance of trial counsel requires an allegation of both
deficient performance and resulting prejudice from counsel's actions or
inactions. State v. Pitsch,
124 Wis.2d 628, 633-34, 369 N.W.2d 711, 714-15 (1985). Although Silva argues that his trial
counsel's performance was deficient, he does not explain how that performance
prejudiced him. He does not allege what
motions should have been filed, what effect such motions may have had, what
would have been discovered if discovery motions were pursued or what an
investigation would have revealed.
Accordingly, the trial court's conclusion that Silva failed to allege a
valid ineffective assistance claim was correct.
D. Ineffective
Assistance of Appellate Counsel.
Next, Silva claims that
he did not receive effective assistance of appellate counsel because his trial
attorney refused to file a direct appeal.
We summarily reject this claim because it is not cognizable in a
§ 974.06, Stats.,
motion. See State v.
Knight, 168 Wis.2d 509, 519, 484 N.W.2d 540, 544 (1992).
E. Sentence
Modification.
Next, Silva claims that
he is entitled to sentence modification either on the grounds that a new factor
exists or that his sentence was unduly harsh.
This argument stems from Silva's discovery that his co-defendants
received only eight- and nine-year sentences for the crime.
We summarily reject
Silva's “new factor” contention because this kind of claim is not cognizable
under a § 974.06, Stats.,
motion. See State v.
Flores, 158 Wis.2d 636, 640, 462 N.W.2d 899, 900 (Ct. App. 1990), overruled
on other grounds by Knight, 168 Wis.2d 509, 484 N.W.2d
540. Further, the thirty-eight-year
sentence imposed was within the maximum potential sentence available and,
therefore, was not unduly harsh. See
State v. Daniels, 117 Wis.2d 9, 22, 343 N.W.2d 411, 417-18 (Ct.
App. 1983) (a sentence within the limits of the maximum is not so
disproportionate to the offense committed so as to shock the public sentiment
or offend reasonable judgment).
F. Interests
of Justice.
Finally, Silva claims
that he is entitled to a new trial in the interests of justice. This argument is contained in a one sentence
paragraph. He does not explain why
justice requires a reversal and we see nothing in the record to grant Silva's
request. Accordingly, we must reject
this claim as well. See State
v. Pettit, 171 Wis.2d 627, 646-647, 492 N.W.2d 633, 642 (Ct. App. 1992)
(appellate court may decline to address issues that are inadequately briefed;
arguments that are not supported by legal authority will not be considered).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.