|
COURT OF APPEALS DECISION DATED AND RELEASED December
7, 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(1),
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
Nos. 94-2832-CR
94-2833-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KURT
A. LOEWEN,
Defendant-Appellant.
APPEAL
from judgments and an order of the circuit court for Dane County: DANIEL R. MOESER, Judge. Affirmed.
Before
Gartzke, P.J., Sundby and Vergeront, JJ.
PER
CURIAM. Kurt A.
Loewen appeals from judgments of conviction and an order denying his motion for
postconviction relief. We affirm.
Loewen
pleaded no contest to two felony counts and two misdemeanors. The plea agreement, as expressed by the
prosecutor at the plea hearing without objection, was that "the State will
not recommend prison if there ... are no further arrests based upon probable
cause between now and the time of any sentencing." Later that day, Loewen was arrested for bail
jumping, criminal damage to property and disorderly conduct. At sentencing on the earlier charges, the
State adopted the recommendation of the presentence investigation for thirteen
years in prison. The court imposed that
sentence.
Loewen
argues that his no contest pleas were not entered knowingly, voluntarily and
intelligently because he did not understand that a mere arrest, as opposed to a
conviction, would be a breach of the agreement.[1] Whether a plea was entered knowingly,
voluntarily and intelligently is a question of "constitutional fact"
which we review without deference to the trial court. State v. Bangert, 131 Wis.2d 246, 283, 389 N.W.2d
12, 30 (1986). The trial court's
findings of historical fact will not be upset unless they are clearly
erroneous. Id. at 283-84,
389 N.W.2d at 30.
The
trial court conceded that it should have better explained the plea agreement to
Loewen. However, as the trial court
noted, that is not the ultimate issue.
The trial court went on to find, based on the testimony of Loewen and
his trial counsel, that Loewen understood at the time of the plea hearing that
he should not be arrested.
Loewen
argues this finding was clearly erroneous.
We reject the argument. Loewen's
trial counsel testified he had no reason to believe Loewen's plea was not
entered knowingly, voluntarily and intelligently. He testified he went over the terms of the agreement "again
and again and again" with Loewen, Loewen expressed comprehension of the
terms, and counsel did not doubt his actual comprehension of them.
Loewen's
testimony on direct examination was somewhat confused and perhaps
self-contradictory. He stated that he
understood that he was not to commit any new offenses or the State could
recommend prison. However, he also said
that he did not understand that he was not supposed to do anything he could be
arrested for. On cross-examination,
however, the following exchange occurred:
Q.[Trial
counsel] has told us that he emphasized to you that if you took [the plea], you
absolutely couldn't commit any more crimes, right?
A.Yeah.
Q.And
that's true, isn't it?
A.Yeah.
Q.He
told you, "Any arrests, Kurt, and you're done," right?
A.Yeah,
words to that effect.
Q.And
you understood him, didn't you?
A.Yeah.
Loewen
argues the record does not show his trial counsel or the trial court explained
to him the meaning of the term "probable cause." The purpose of including the phrase
"probable cause" was most likely to protect Loewen from being held in
breach of the agreement on the basis of an arrest without probable cause, a
circumstance which could be beyond his control. However, it is not apparent why it would be necessary for Loewen
to understand this term. For Loewen to
control his conduct, the key part of the plea agreement to understand was that
he should not do anything to be arrested at all. Understanding the difference between arrests with probable cause
and those without could not have assisted him in complying with the agreement.
For
the above reasons, we affirm the trial court's finding that Loewen's pleas were
entered knowingly, voluntarily and intelligently.
Loewen
argues that his trial counsel was ineffective because he did not seek a hearing
under State v. Rivest, 106 Wis.2d 406, 316 N.W.2d 395 (1982), to
determine whether Loewen breached his plea agreement. The Rivest court held that the State may not
unilaterally determine that a plea agreement has been breached. Id. at 411-12, 316 N.W.2d at
398-99. An agreement may be vacated
where a material and substantial breach has been proved. Id. at 414, 316 N.W.2d at
399. The burden of proof is on the
party seeking to vacate the agreement. Id.
To
establish ineffective assistance of counsel a defendant must show that
counsel's performance was deficient and that such performance prejudiced his
defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). We need not
address both components of the analysis if the defendant makes an inadequate
showing on one. Strickland,
466 U.S. at 697. To demonstrate
prejudice, the defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would
have been different. Id.
at 694. A reasonable probability is one
sufficient to undermine confidence in the outcome. Id.
To
show prejudice in this case, Loewen must demonstrate that if a Rivest hearing
had been held the court would probably have determined that he did not commit a
material and substantial breach of the plea agreement. But Loewen does not dispute that he
committed the acts which are claimed to have been in breach of the agreement. In fact, it appears that he has been
convicted, on pleas, of charges stemming from that episode. Rather, Loewen argues that he did not
understand what the plea agreement meant.
However, this argument goes only to whether Loewen's plea was entered
knowingly, voluntarily and intelligently.
Once it has been determined that Loewen understood the plea agreement,
he is bound by it. His understanding of
the agreement would not have been at issue in a Rivest hearing.
Loewen
also argues that he might not have been mentally responsible for the conduct
which led to his arrest following the plea agreement, that is, he might have
been found not guilty by reason of mental disease or defect. However, the plea agreement was that Loewen
not be arrested with probable cause.
It is irrelevant whether, following his arrest, he might have been found
not guilty by reason of mental disease or defect.[2] Because Loewen has failed to demonstrate how
he was prejudiced by the lack of a Rivest hearing, we reject the
argument that his trial counsel was ineffective.
Loewen
also argues that he should be allowed to withdraw his pleas because the State
breached the agreement by recommending prison without the holding of a Rivest
hearing. However, as Loewen
concedes, the proper remedy for breach of a plea agreement by the State is not
plea withdrawal, but resentencing with the State required to make the agreed
upon recommendation. See State
v. Poole, 131 Wis.2d 359, 365, 389 N.W.2d 40, 43 (Ct. App. 1986). Furthermore, as discussed above, Loewen has
shown no reason to doubt that he breached the agreement. A trial court may vacate a plea agreement
without an evidentiary hearing when there was "an obvious material and
substantial breach of the agreement."
State v. Toliver, 187 Wis.2d 346, 358, 523 N.W.2d 113, 117
(Ct. App. 1994).
By the Court.—Judgments
and order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Because Loewen
did not make this argument before the trial court, we remanded for further
findings. Following remand, Loewen
asserts that the argument was indeed presented to the trial court in his
original motion and memorandum. We
disagree. While those materials show
that Loewen sought to withdraw his pleas, he did not do so on the ground that
they were not entered knowingly, voluntarily and intelligently.