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COURT OF APPEALS DECISION DATED AND RELEASED June 12, 1996 |
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. 94-3087-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ANTHONY R. WEST,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Walworth County: ROBERT J. KENNEDY, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER CURIAM. Anthony R. West appeals
from judgments convicting him of two counts of first-degree sexual assault of a
child as a repeater and from an order denying his motion for postconviction
relief. He claims that his trial counsel
was ineffective during plea agreement proceedings, at trial and at
sentencing. We disagree and affirm the
judgments and the order.
West was charged in the
information with two counts of first-degree sexual assault of his
stepdaughters, who were seven and eight at the time of the late-December 1990
incident. West allegedly entered the
girls' bedroom in the middle of the night wearing a Santa Claus suit and
touched their vaginal areas underneath their nightgowns and underwear. West admitted to a sheriff's department
detective that while dressed up as Santa Claus approximately three days before
Christmas and after heavy drinking, he went upstairs in the middle of the night
to speak with the girls about not letting boys touch them in intimate areas. West was bound over for trial after a
preliminary examination.[1]
INEFFECTIVENESS DURING PLEA PROCEEDINGS
The following facts are
relevant to West's claim that his trial counsel, Charles K. Stowe, rendered
ineffective assistance throughout pretrial plea agreement proceedings. West's counsel at the time plea negotiations
ensued, Larry D. Steen, wrote to the district attorney on September 8,
1993, to outline the terms of the parties' plea agreement. The agreement provided that the second count
of sexual assault and the penalty enhancer as to the first count would be
dismissed in exchange for West's no contest plea to one count of first-degree
sexual assault. While both parties were
to recommend probation, they could argue whether sentence would be withheld or
imposed but stayed and the conditions of probation.
At the September 16,
1993, plea hearing, a copy of the September 8 letter was attached to the plea
questionnaire West had completed and the trial court accepted West's no contest
plea. On October 29, 1993, Steen moved
to withdraw West's no contest plea because West had recently decided that while
he exercised bad judgment in touching the girls, he had not committed a criminal
act and wanted a jury trial. The trial
court granted Steen's motion to withdraw as counsel and required successor
counsel to file a plea withdrawal motion.
Successor counsel,
Stowe, filed a motion to withdraw West's plea.
On appeal, West argues that Stowe was ineffective throughout the
proceedings involving the plea agreement because he failed to withdraw West's
plea withdrawal motion and salvage the September 8 plea agreement for him. West also contends that Stowe gave him
advice which was contrary to applicable law and precluded him from making an
informed decision concerning his plea.
At the November 12
hearing on West's motion to withdraw his plea, Stowe stated the following
grounds for plea withdrawal: (1) West
did not fully understand the nature of the crime or the evidence against him;
(2) West did not fully understand the rights waived by entering a plea; and (3)
West, concerned about the probation term and conditions to be recommended by
the State, including possible jail time,[2]
felt that the State might breach the plea agreement. The district attorney
responded that while the parties had agreed to recommend probation, there had
been no agreement as to the term or the conditions. Stowe stated that West had received information through previous
counsel (Steen) that the State's sentencing recommendation would be other than
that contained in the September 8 letter.
Later in the hearing, Stowe related to the court that West might consent
to the September 8 letter describing the plea bargain "if he had some
guarantee that that would be the sentence the court would impose."
Contacted by telephone, Steen
testified that he told West that one year in the county jail would be the
maximum imprisonment as a condition of probation. Steen never received any indication that the State was going to
breach the plea agreement. Steen
advised the court that West had consistently maintained that he did not touch
the girls for purposes of sexual arousal or to degrade or humiliate them. The court determined that a further hearing
was required to take testimony from Steen as to the level of his former
client's understanding regarding the nature of the charges.
At the continued hearing
on November 19, Steen testified that West appeared to understand the provisions
of the plea questionnaire he signed and that he had reviewed the elements of
the crime with West.
During this hearing,
Stowe informed the court that West no longer claimed that the State would
renege on the plea agreement. The trial
court then put the question directly to Stowe whether West wanted to withdraw
his no contest plea. After being
directed to confer with his client, Stowe informed the court that West wanted
to know whether if he withdrew his motion the court would sentence him that
day. The court stated that it would be
willing to sentence that day. However,
the district attorney reiterated that West had alleged that he did not
understand the nature of the charges and that the trial court would have to
find that West understood the elements of the crime and the constitutional
rights waived,[3] otherwise
the court would have to proceed with the motion to withdraw. Rather than addressing the issue before the
court, i.e., whether West would affirm that he understood the elements and his
constitutional rights, Stowe again inquired of the court whether the district
attorney would be willing to argue sentencing that day. At that point, the district attorney
withdrew the plea offer. The court then
granted West's motion to withdraw his plea and set the matter for trial. West was convicted by a jury on both counts
of first-degree sexual assault.
At the postconviction
motion hearing, Stowe testified that in order to get a hearing on West's motion
to withdraw his plea, he felt he needed to assert that West did not understand
the constitutional rights waived or the nature of the charges. Stowe testified that at no time during the
proceedings on the motion to withdraw the plea did West ask him to withdraw the
motion. Stowe testified that West was
more interested in what the court would do on sentencing than in what the State
would recommend pursuant to the plea agreement. West wanted a guarantee as to his sentence and did not want to
accept the plea agreement until he had such a guarantee. Stowe testified that had he been able to get
the court to indicate that it would comply with the plea agreement and give a
guarantee as to the sentence, he would have placed West's assent to the
agreement on the record.
On cross-examination,
Stowe testified that West maintained throughout the plea-related motion hearings,
trial and sentencing that he was innocent.
Stowe acknowledged that when the State finally sought to withdraw from
the plea, he did not object in part because West had maintained his innocence
and did not want to serve any more jail time.
On redirect, Stowe testified that West was willing to withdraw his
motion if the State renegotiated the plea agreement consistent with his
understanding of that agreement.
However, the district attorney declined to renegotiate the plea
agreement. Stowe testified that he
believed his client heard the district attorney say that if he did not accept
the plea agreement, it would be withdrawn.
West testified that he
believed the plea agreement required probation with possibly a year in the
county jail as a condition. After Steen
mentioned something about a possible ten-year concurrent sentence, he told
Steen that he wanted to withdraw from the plea agreement. After Stowe replaced Steen, West told Stowe
that he wanted to withdraw his plea because he was innocent but did not give
any other reasons for withdrawing.
Stowe advised West that those grounds were insufficient and told him he
had to assert that he did not understand the constitutional rights waived or
the nature of the charge. Although West
testified that he wanted Stowe to withdraw his motion, he did not testify that
he made that desire clear to Stowe.
West later testified that he told Stowe he wanted the plea agreement and
did not require the court's assurances regarding sentencing.
The trial court found that
before Stowe assumed West's case, West wanted to withdraw from the plea
agreement on the ground that he was innocent.
The court also found that before the State learned that West wanted to
withdraw his motion, the State accepted his motion to withdraw. The court found there was no evidence that
West made clear to Stowe that he no longer required assurance from the court
regarding his sentence and that he was willing to go along with the plea
agreement. The court found that West
advised Stowe that he wanted guarantees regarding the likely sentence even
though West's desire to serve any jail term concurrently with his present
sentence was not part of the plea agreement.
The court concluded that West breached the plea agreement. The court found no prejudice to West because
he got what he wanted: an opportunity to withdraw his plea.
The trial court also
found that there was a mutual mistake regarding the plea agreement: the district attorney offered probation with
the right to argue conditions of probation, which could include a term in the
county jail; and West believed that the plea required probation and no extra
jail time. The court found that even if
Stowe misinformed West that he had to make certain allegations in order to
withdraw his plea, this was of little consequence because there had never been
a meeting of the minds with regard to the plea agreement.
On appeal, West argues
that Stowe was ineffective throughout the plea proceedings because he failed to
withdraw West's motion and salvage the September 8 agreement. In the alternative, West argues that Stowe
provided him with advice which was contrary to applicable law and precluded him
from making an informed decision concerning his plea.
To establish a claim of
ineffective assistance, a defendant must show that counsel's performance was
deficient and that it prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a defendant
must show that his or her counsel made errors so serious that he or she was not
functioning as the "counsel" guaranteed by the Sixth Amendment. Id. Review of counsel's performance gives great deference to the
attorney and every effort is made to avoid determinations of ineffectiveness
based on hindsight. State v.
Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 847 (1990). The case is reviewed from counsel's
perspective at the time of trial, and the burden is placed upon the defendant
to overcome a strong presumption that counsel acted reasonably within
professional norms. Id. at
127, 449 N.W.2d at 847-48.
Even if deficient
performance is found, a judgment will not be reversed unless the defendant
proves that the deficiency prejudiced the defense. Id. at 127, 449 N.W.2d at 848. 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 129, 449 N.W.2d at 848. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. In applying this principle, reviewing courts
are instructed to consider the totality of the evidence before the trier of
fact. Id. at 129-30, 449
N.W.2d at 848-49.
The question of whether
there has been ineffective assistance of counsel is a mixed question of law and
fact. State ex rel. Flores v.
State, 183 Wis.2d 587, 609, 516 N.W.2d 362, 368‑69 (1994). An appellate court will not overturn a trial
court's findings of fact concerning the circumstances of the case and counsel's
conduct and strategy unless the findings are clearly erroneous. State v. Knight, 168 Wis.2d
509, 514 n.2, 484 N.W.2d 540, 541 (1992).
However, the final determinations of whether counsel's performance was
deficient and prejudiced the defense are questions of law which this court
decides without deference to the trial court.
Id.
The decision regarding
what plea to enter is the client's, not counsel's. State v. Ludwig, 124 Wis.2d 600, 610-11, 369 N.W.2d
722, 727 (1985). While West argues on
appeal that Stowe failed to communicate to the court his ultimate desire to
accept the plea agreement, the trial court found that West did not make this
desire clear to counsel and that his insistence on the deletion of a possible
jail sentence as a condition of probation was outside the terms of the
agreement.[4] The trial court's findings of fact are not
clearly erroneous. See Knight,
168 Wis.2d at 514 n.2, 484 N.W.2d at 541.[5] We see no deficient performance on the part
of Stowe with regard to plea proceedings.
INEFFECTIVENESS AT TRIAL
West argues that Stowe's
performance at trial was deficient and prejudicial because he failed to
corroborate West's defense and failed to object to the introduction of
irrelevant, prejudicial hearsay and a jury question resulting from the
introduction of that hearsay evidence.
Although West admitted
touching the girls, he defended on the basis that he did not touch them for any
unlawful purpose, but only to instruct them where boys should not touch
them. West testified that such instruction
was necessary as a result of an incident in which one of his nephews undressed
the older girl and laid on top of her in the garage of the West home. According to West, the garage incident
occurred ten days to two weeks before the touching incident for which he was on
trial.
West contends that Stowe
did not present "highly relevant evidence corroborative of [his]
defense" in any meaningful fashion.
In fact, West alleges that "highly irrelevant and prejudicial
evidence contradicting [his] testimony was admitted and specifically considered
by the jury." The issue was
whether and when the garage incident occurred which allegedly motivated West to
counsel his stepdaughters about "good touch-bad touch" at 3:00 a.m. while
intoxicated and wearing a Santa Claus suit.
West contends that because counsel's representation fell below the
standard of reasonableness expected of a prudent attorney, "the jury was
ultimately led to believe that, there was, in fact, reason to doubt whether the
garage incident ever took place and therefore reason to doubt [West's]
testimony."
West's defense focused
on negating the element of first-degree sexual assault which requires sexual
contact with the victim for the purpose of sexually arousing or gratifying the
defendant or sexually degrading or humiliating the victim. See §§ 948.02(1) and 948.01(5), Stats.
At trial, West's estranged wife and the victims' mother, Deborah,
testified that West came home intoxicated after midnight on the evening in
question. He wanted to don a Santa
Claus suit and surprise the girls.
Deborah told him not to wake the girls.
Approximately fifteen to twenty minutes later, Deborah was awakened by a
crash. She ran upstairs and found West
sitting on the bed of the older girl, Titiana, whispering in her ear. West told Deborah that he was talking to
Titiana, and Deborah told him to come back downstairs and let the girls go to
sleep.
Titiana testified that
West, while wearing a Santa Claus suit, came into the bedroom she shared with
her younger sister, Fawn. West asked
Fawn what she wanted for Christmas and touched her. West then asked Titiana what she wanted for Christmas and touched
her in "the private and mostly around there." Titiana testified that West "kind of
rubbed" the skin around her private area.
She denied that West said anything about not letting boys touch her
there. Fawn testified that West touched
her privates while he was wearing a Santa Claus suit, did not mention anything
about not letting boys touch her and then went to Titiana's bed.
West admitted entering
the girls' bedroom at approximately 3:00 a.m. in a Santa Claus suit. He testified that he asked Fawn what she
wanted for Christmas and then asked her about an incident involving his
nephews.[6] West admitted touching Fawn above the
vaginal area and advising her not to let boys touch her there. He then went to Titiana's bed, asked her
what she wanted for Christmas, told her that Fawn said she had been involved in
an incident with his nephews, told Titiana not to let boys "touch you
there" and then touched her intimately.
He then turned around and found Deborah in the room.
West claimed that he was
motivated to touch the girls for several reasons. First, he claimed knowledge of the garage incident, which he
testified occurred ten days to two weeks before he "instructed" the
girls and involved one of his nephews undressing Titiana and laying on top of
her in the garage. West claimed to have
been present when Deborah talked with Titiana about the incident but felt that
he needed to further instruct the girls while dressed as Santa Claus. Second, he believed that he and Deborah were
headed to prison for committing theft by fraud and that the girls would be sent
to live with their father in Nebraska.
However, he testified that he thought the girls might see his nephews
more often, too. West
"instructed" the girls out of fear that their father might abuse them
or as a result of an incident involving a boy in Darien who allegedly molested
Titiana. However, West acknowledged a
prior statement to the police in which he made no reference to these two
reasons for instructing the girls.
Rachel Hanson, who was
engaged to West's brother, testified that Fawn told her daughter that West,
while dressed as Santa, told Fawn where boys should not touch her and then had
touched her there.
West claims that Stowe's
representation was deficient because the jury had reason to doubt whether the
garage incident ever took place and therefore had reason to doubt West's
testimony. However, our review of the
record indicates that it was West's testimony which could have created doubt in
the jury's mind. Furthermore, the jury
was entitled to believe the victims' testimony that West never said anything to
either of them about not letting boys touch them. On cross-examination, West admitted not telling the police about
the garage incident as his motivation to instruct his stepdaughters. West was also cross-examined about
inconsistent statements he made while in chambers regarding the garage incident
to the effect that the incident occurred two months before he instructed the
girls and that Titiana had taken her swimming suit off in the garage in the
winter months. West admitted that
Deborah spoke to Titiana about the garage incident, but he felt he had to also
address the issue with the girls. West
did not tell the police about the Darien incident in June 1992 when he was
questioned about touching his stepdaughters. West's testimony was sufficient to
create doubt in the jurors' minds regarding his credibility and motivation in
touching the girls.
West contends that
Stowe's representation was deficient because he did not present evidence that
West reasonably believed that the garage incident had occurred. West argues that the only corroborating
evidence introduced at trial that West had a reasonable basis for believing the
garage incident took place was West's testimony that he was present when
Deborah spoke to Titiana about the incident the next day. However, West argues that Stowe should have
put before the jury a statement Deborah gave to police in 1992 in which she
described the incident involving the victims and West's nephews. According to the statement, one of the
victims told her mother that her sister had taken her clothes off in the garage
in the presence of the nephews. In the
police report, Deborah stated that she believed this incident took place in
1987 or 1988. At the postconviction
motion hearing, Stowe testified that he did not use this information at trial
because the report referred to an event which he believed was too remote. Therefore, he did not attempt to elicit
Deborah's testimony about the garage incident because he feared that in so
doing, he would put her estimate of the date the incident occurred before the
jury. The trial court concluded that
Stowe's failure to establish how West knew about the garage incident was not
deficient performance because it was reasonable for counsel to be concerned
that Deborah's statement that the incident occurred in 1987 or 1988 would
undermine West's credibility.
We previously stated the
standards for assessing ineffective assistance of counsel. Here, the trial court's factual finding that
Stowe made a strategic decision not to explore the garage incident with Deborah
is not clearly erroneous. We see no
prejudice to West. There was
uncontradicted evidence before the jury that Deborah told West about the garage
incident and he claimed to have had knowledge of it.[7] Even West concedes in his appellant's brief
that "[a]t no time did there appear to be any dispute during the course of
the argument on this issue at trial that some type of incident had in fact
occurred involving the alleged victims and the appellant's nephews in a garage
sometime prior to the incident leading to the charges against the
appellant."
West argues that a
question from the jury during deliberations highlights Stowe's failure to
provide the jury with additional evidence corroborating the garage
incident. The jury inquired during
deliberations regarding evidence that Titiana denied in a police report that
the nephews took her clothes off in the garage. West points to this as an indication that the jury should have
been provided with further evidence corroborating West's version because it was
apparently swayed by this reference to Titiana's statement in a police report.
This argument does not
present a new basis for evaluating Stowe's performance. We have already upheld Stowe's strategic
decision not to put on additional information regarding the garage incident
through the testimony of Deborah and the trial court's determination on
postconviction motion that the other evidence West claims Stowe should have
offered (the testimony of his mother and his brother) was purely
speculative.
West next complains that
Stowe appeared intoxicated during jury deliberations. Approximately one-half hour after the jury received an Allen
charge in response to its statement that it was deadlocked, court resumed
outside the presence of the jury to address evidence that Stowe had been
drinking. One of the deputies reported
to the court that West told him that he believed Stowe was intoxicated. The court instructed the deputy to
investigate further and the deputy reported that a sweet odor was detected
about Stowe and that he was slurring his words. The court personally observed Stowe insisting that a person to
whom he was speaking was someone else and that as Stowe made his way to counsel
table, he seemed unsteady. The court
further discerned that counsel was slurring his words. However, the court was not certain that
counsel's speech was indicative of intoxication.
The court inquired of
Stowe whether he was under the influence of intoxicants. Stowe responded that "I attended the
lunch break at Moy's and had a drink at the bar, but I do not believe that I am
intoxicated, and I wish to confer with my client." The court then addressed West directly and asked
whether he had seen Stowe under the influence.
West stated that he did not claim Stowe was drunk; he merely told the
deputy that "[Stowe] smelled like he had a few." West did not believe Stowe was under the
influence of alcohol. West denied
telling the deputy that his attorney was drunk. The deputy then told the court that West told him that
"[Stowe's] drunker than hell."
West then acknowledged that he might have said such a thing to the court
officer. West testified that he first
noticed Stowe's condition after the court responded to the jurors' inquiry
regarding Titiana's statement in the police report regarding the garage
incident.
Stowe admitted to the
court that he had approximately three drinks that evening. He stated that he did not believe he was
intoxicated, although he volunteered that he would not operate his vehicle and
intended to remain in town overnight.
The court detected in Stowe's speech a slight hint that he might be
under the influence of alcohol but did not have sufficient evidence from which
it could conclude that Stowe was under the influence of an intoxicant at any
time important to West's defense. The
jury returned a verdict a few hours later.
At the postconviction
motion hearing, Stowe was questioned about his consumption of alcohol during
deliberations. West argues on appeal
that the record supports a finding that Stowe's judgment was impaired due to
his consumption of alcohol and that such impairment occurred at a critical stage
in the proceedings. While we agree that
counsel's consumption of alcohol prior to the entry of a verdict and conclusion
of proceedings was unprofessional, we cannot conclude, based on this record,
that counsel's condition prejudiced West.
It appears from the
record that the only matter which came before the court subsequent to West's
discovery that Stowe had consumed alcohol was whether the jury should continue
deliberating after 11:00 p.m. or should be given an opportunity to resume
deliberations in the morning. West and
counsel indicated that it did not matter to them whether the jury continued
deliberating or resumed in the morning.
When the jury indicated that it desired to continue deliberating, West
did not oppose that decision. The court
found no evidence that Stowe's representation was impaired by his drinking.
While we normally do not
consider the performance prong of the ineffective assistance analysis when no
prejudice has been shown, see State v. Moats, 156 Wis.2d
74, 101, 457 N.W.2d 299, 311 (1990), we do so here due to the nature of
counsel's conduct while the jury was deliberating. Counsel must be prepared to respond to questions from the jury
and other matters which may arise during deliberations. Such matters require counsel's full
attention and ability. Imbibing alcohol
while a jury deliberates is evidence of extremely poor judgment and may, under
certain circumstances, prejudice the client.
There is no objective
standard of reasonableness which contemplates that counsel may imbibe alcohol
while the jury is deliberating regardless of counsel's subjective assessment of
his or her ability to function as counsel guaranteed by the Sixth Amendment
while drinking.[8] Under certain circumstances, drinking during
deliberations may result in inherent prejudice, similar to that which can
result where an attorney is unconscious or asleep during the trial. Such conduct is "equivalent to no
counsel at all. The mere physical
presence of an attorney does not fulfill the Sixth Amendment entitlement to the
assistance of counsel, particularly when the client cannot consult with his or
her attorney or receive informed guidance from him or her during the course of
the trial." Javor v. United
States, 724 F.2d 831, 834 (9th Cir. 1984) (citation omitted).
Turning to the prejudice
prong of Strickland, we conclude that despite Stowe's use of
alcohol during deliberations, West was not prejudiced. The trial court's response to the jury's
request to hear a portion of the trial transcript was a discretionary decision
and the court stated at the postconviction motion hearing that it would have
provided the transcript regardless of any objection made by West at the
time. The trial court found that at the
time of the jury question, Stowe was not so intoxicated as to have impaired his
ability. These facts do not support a conclusion that West was prejudiced.
INEFFECTIVENESS AT SENTENCING
We turn to West's
contention that Stowe was ineffective at sentencing. West argues that Stowe's sentence recommendation was not well
thought out and that he did not properly prepare for sentencing. As an example, West points to Stowe's
initial recommendation that West be sentenced to from ten to six years, which
counsel later clarified as a recommendation of six to ten years. Stowe also apparently referred to a
presentence investigation report prepared prior to West's conviction in this
case.
At the postconviction
motion hearing, the court found that Stowe performed deficiently at sentencing
when he attempted to recommend a sentence.
However, the court noted that it would not have accepted a probation
recommendation, nor was it willing to accept Stowe's recommended six to ten
years in prison. The court recalled its
reasons for imposing a lengthy prison sentence and found no prejudice to West
as a consequence of Stowe's deficient performance at sentencing.
We need not address
whether Stowe was deficient at sentencing because we agree with the trial court
that there was no prejudice flowing from counsel's performance. See Moats, 156 Wis.2d
at 101, 457 N.W.2d at 311. In sentencing
West, the court referred to West's extensive criminal record, his abuse of
alcohol and drugs and other undesirable behavior patterns, the nature of the
offenses, his age, educational background and employment history, and the need
for close rehabilitative control. The
court also considered the need to protect the public from West. The court considered the proper factors in
sentencing West. See State
v. Paske, 163 Wis.2d 52, 62, 471 N.W.2d 55, 59 (1991). West has not demonstrated that had his counsel
performed otherwise at sentencing, his sentence would have been less than that
imposed by the trial court in the exercise of its discretion.
NEW TRIAL
Finally, West asks this
court to invoke its discretionary power to reverse a conviction when the real
controversy has not been fully tried or justice has miscarried. He argues that the crucial issue of his
credibility was not properly presented to the jury, particularly because Stowe
failed to present crucial corroborating evidence of the garage incident. We have already addressed this claim. We will not exercise our discretion to grant
a new trial based upon arguments which we have already rejected. See State v. Echols,
152 Wis.2d 725, 745, 449 N.W.2d 320, 327 (Ct. App. 1989).
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Although the incidents allegedly occurred in December 1990, it was not until the beginning of May 1992 that the girls told a Walworth County Department of Human Services worker that West had touched them. The criminal complaint was filed on November 13, 1992.
[2] Because West was scheduled to be released from incarceration on another matter in October 1996, he was very concerned about the possibility of a jail term extending that date.
[3] In light of West's initial allegations that he did not understand the elements of the charge or the constitutional rights waived by his plea, the State was rightly concerned that the plea had not been taken as required by State v. Bangert, 131 Wis.2d 246, 260, 389 N.W.2d 12, 20 (1986) (plea must be knowingly, voluntarily and intelligently entered, and defendant must possess accurate information about the nature of the charge and understand the constitutional rights waived by the plea).
[4] West's interest in obtaining guarantees regarding a possible sentence is of no consequence because the trial court had no obligation to agree with or commit to the sentence recommended in the plea bargain. State v. McQuay, 154 Wis.2d 116, 128, 452 N.W.2d 377, 382 (1990).
[5] West argues that Stowe did not require the State to comply with State v. Rivest, 106 Wis.2d 406, 316 N.W.2d 395 (1982), which governs setting aside a plea agreement at the State's request. The focus of the lengthy pretrial proceedings was West's motion to withdraw from the plea. In effect, the State acceded to West's request to dispose of the plea agreement. Under the facts and circumstances of this case, we do not see that the State and the trial court were required to employ the Rivest analysis when the State indicated that it no longer wanted the plea agreement. See id. at 412-14, 316 N.W.2d at 398-99 (material and substantial breach of plea agreement must be proved before judge who took the plea).
[7] We note that West claimed at the postconviction motion hearing that he told his mother and his brother about the garage incident. However, the trial court determined that he presented no proof that they would have corroborated his story. The trial court found West's claim incredible and deemed "pure speculation" any possibility that West's mother or brother would have corroborated West's account. In the absence of such evidence, the trial court correctly concluded that Stowe's failure to present such evidence was not deficient performance.