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COURT OF APPEALS DECISION DATED AND RELEASED June 27, 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. 94-2778-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TERRY L. FOWLER,
Defendant-Appellant.
APPEAL from orders of
the circuit court for Milwaukee County:
JEFFREY A. KREMERS, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Terry L. Fowler was convicted of burglary,
following his no-contest plea. Fowler
appeals from the trial court's denial of his motion to withdraw his plea and
his motion for reconsideration of the trial court's order denying his motion to
withdraw his no-contest plea. We
affirm.
Fowler was prosecuted
for the November 7, 1993, burglary of a bank building. According to the criminal complaint, he was
seen running from the bank and getting on a county bus. Police stopped the bus and apprehended
Fowler after he fled from the bus.
Stolen money from the bank was recovered from the rear steps of the bus
and from the area where Fowler was apprehended.
On April 25, 1994, after
the completion of jury selection and as opening statements were about to begin,
the prosecutor advised the court that an officer had just presented him with
bank surveillance camera photos of which neither the prosecutor nor defense
counsel had been aware. Although the
photos are not contained in the record on appeal, there is no dispute that the
photos showed Fowler as the perpetrator.
After a brief recess, Fowler changed his plea to no-contest.
Five months later,
Fowler moved to withdraw his plea, alleging that it “was entered in haste and
under circumstances of a coerced plea.
(Prior to commencement of trial, surprise evidence was produced by the
State; and a plea was entered under coerced circumstances.).” Fowler also moved to withdraw his plea
alleging that he “lacked understanding regarding the elements of the offense
charged.” In his motion, Fowler stated
that he “also reserves the right to request a Machner hearing regarding
the issue of denial of effective assistance of counsel,... in the event the
testimony regarding withdrawal of the plea raises an issue of ineffective
representation.”[1]
The trial court denied
his motion, explaining:
It is
true a police officer produced pictures of the defendant perpetrating the crime
at the eleventh hour. It is undeniable
that this factor may have caused the defendant to reconsider his plea. However, the defendant affirmatively stated,
by virtue of the Guilty Plea Questionnaire and Waiver of Rights Form and in
response to the court's inquiry, that he was not threatened or coerced
to give up his rights and or to enter a plea of no contest. The defendant has failed to raise a question
of fact with regard to this issue; the record conclusively demonstrates that he
is not entitled to relief in this respect.
(Emphasis
in original.) The trial court also
quoted the plea colloquy establishing that Fowler acknowledged his
understanding of the elements of burglary with specific reference to the date
and location of the offense to which he was pleading no contest.
Fowler moved for
reconsideration and submitted an affidavit in which he alleged that after the
surveillance photos were produced, he “requested from ... trial counsel that an
adjournment be sought due to the surprise evidence, but no request for
adjournment was made,” and that he believed his “plea was entered in haste
under circumstances of coercion.” The
trial court concluded that “[t]he affidavit adds nothing to what was previously
asserted by counsel” and denied the motion for reconsideration.
Fowler argues that the
trial court erred in denying his motion to withdraw his guilty plea without
holding an evidentiary hearing regarding whether “his plea was coerced because
surprise evidence produced at the last moment contributed to entry of his plea
in haste under the circumstances,” and in denying his motion without a Machner
hearing to determine whether counsel was ineffective for failing to request an
adjournment when the photos were produced.
We conclude, however, that the trial court was correct.
A trial court must grant
a defendant's request to withdraw a guilty or no contest plea after sentencing
only if the defendant establishes by clear and convincing evidence that
withdrawal of the plea is necessary to correct a manifest injustice. State v. Woods, 173 Wis.2d
129, 136, 496 N.W.2d 144, 147 (Ct. App. 1992).
Withdrawal of a guilty plea after sentencing may be based on ineffective
assistance of counsel. See State
v. Washington, 176 Wis.2d 205, 213-214, 500 N.W.2d 331, 335 (Ct. App.
1993).
A defendant in a
criminal case has a right to the effective assistance of counsel. Strickland v. Washington, 466
U.S. 668, 686 (1984); State v. Ludwig, 124 Wis.2d 600, 606, 369
N.W.2d 722, 725 (1985). To establish
ineffective assistance, a defendant must demonstrate that counsel's performance
was both deficient and prejudicial. Strickland,
466 U.S. at 687; Ludwig, 124 Wis.2d at 607, 369 N.W.2d at
725. Generally, an evidentiary hearing
at which trial counsel testifies regarding the alleged deficient performance is
required for the trial court's consideration of an ineffective assistance of
counsel claim. State v. Machner,
92 Wis.2d 797, 804, 285 N.W.2d 905, 908, (Ct. App. 1979). Such a hearing, however, is not automatic:
The
mere assertion of a claim of “manifest injustice,” in this case the ineffective
assistance of counsel, does not entitle a defendant to the granting or relief
or even a hearing on a motion for withdrawal of a guilty plea. A conclusory allegation of “manifest injustice,”
unsupported by any factual assertions, is legally insufficient....
... [I]f a motion to withdraw a guilty plea
after judgment and sentence alleges facts which, if true, would entitle the
defendant to relief, the trial court must hold an evidentiary hearing.
State
v. Washington, 176 Wis.2d 205, 214-215, 500 N.W.2d 331, 335-336 (Ct.
App. 1993) (quoting Nelson v. State, 54 Wis.2d 489, 497-498, 195
N.W.2d 629, 633 (1972)). Where, as
here, a trial court refused to hold a Machner evidentiary hearing
we independently review the defendant's motion “to determine whether it alleges
facts sufficient to raise a question of fact.”
State v. Toliver, 187 Wis.2d 346, 360-361, 523 N.W.2d 113,
118 (Ct. App. 1994).
In this case the trial
court correctly concluded that Fowler had failed to advance any claim or
factual assertion that would warrant an evidentiary hearing. Although he asserted that “the plea was
entered in haste and under circumstances of a coerced plea,” he never alleged
that his plea was coerced. Needless to
say, when Fowler was confronted with “caught-in-the-act” photos, his sense of
being under “coerced circumstances” was understandable. Fowler does not, however, offer any argument
or authority to suggest that being confronted with overwhelming evidence
presents a situation that is unlawfully coercive.
Similarly, Fowler failed
to present any factual allegation, argument, or authority to establish that
counsel's alleged failure to request an adjournment was deficient performance. The folly of Fowler's argument is revealed
in his reply brief to this court in which he contends that “if the request for
adjournment by trial counsel had been made, a trial would have taken place
instead of a conviction by a plea.”
Does he assume that the motion for adjournment would have been granted,
leading to postponement of the trial?
Fowler does not say. After all,
the jury had been selected and the parties were ready for trial. Fowler does not argue that an adjournment
would have been granted. Thus, Fowler
implicitly is maintaining that counsel was ineffective for failing to bring a
motion for adjournment that would have been denied. That is absurd. Moreover,
although Fowler offered this rather dubious argument in his reply brief, he never
alleged in his postconviction motion or affidavit that, but for counsel's
alleged failure to request an adjournment, he would not have pled
no-contest. The trial court correctly
declined to hold a Machner hearing.
Fowler also argues that
the trial court erred in relying “solely on the plea questionnaire as a basis
that [his] plea was entered voluntarily,” and that the trial court erred in
determining that he understood the elements of burglary. These arguments also have no merit.
To succeed, a challenge
to a guilty or no contest plea must first establish, at a minimum, that the
guilty plea colloquy was deficient, thus rendering an involuntary or
unintelligent plea. See State v.
Bangert, 131 Wis.2d 246, 265-266, 389 N.W.2d 12, 22 (1986). In this case, the record belies Fowler's
claim. The plea questionnaire further
establishes that Fowler's plea was not coerced and, in combination with the
plea colloquy, refutes his assertion that he did not understand the elements of
the crime. The trial court advised:
Mr. Fowler, you are charged with one count of
burglary from this incident that occurred on November 7, 1993. It's alleged that you intentionally entered
a building at 10859 West Bluemound Road in the City of Wauwatosa without the
consent of the person in lawful possession of that building and with intent to
steal from that building.
Fowler
responded that he understood the charge and what the State would have to
prove. Counsel confirmed that Fowler
was “entering his plea freely, voluntarily, intelligently with full
understanding of the nature of the charge.”
The trial court provided
a direct statement of the elements as they applied to the specific charge
against Fowler. As the State points
out, it is ironic that Fowler complains that the trial court failed to recite
the burglary elements or jury instruction in a general, non-specific
manner. As the State also points out,
Fowler “never alleged just what it was he did not understand.” Thus, we again conclude that the trial court
correctly denied Fowler's motion without an evidentiary hearing.
By the Court.—Orders
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.