COURT OF APPEALS DECISION DATED AND RELEASED October 5, 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. |
Nos. 94-3246-CR
94-3247-CR
94-3248-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIAM D. OLSON,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Jackson County: ROBERT W.
WING, Judge. Affirmed.
Before Eich, C.J., Dykman
and Vergeront, JJ.
DYKMAN,
J. William D. Olson appeals from a judgment convicting him of
theft of a firearm, contrary to §§ 943.20(1)(a) and (3)(d)5, Stats., possession of a firearm by a
felon, contrary to § 941.29(2), Stats.,
possession of a vehicle without the owner's consent, contrary to
§ 943.23(2), Stats., and two
counts of escape, contrary to § 946.42(3)(a), Stats. He also
appeals from an order denying his postconviction motion for relief.[1] The trial court sentenced him to a two-year
term for the theft, two concurrent one-year terms for the possession of a
firearm as a felon and possession of a vehicle without the owner's consent, and
one consecutive one-year term and one consecutive five-year term for the
escapes.
Olson raises the
following issues on appeal:
(1) whether his guilty pleas were entered knowingly, intelligently
and voluntarily; (2) whether the State breached the plea agreement; and
(3) whether he was denied the effective assistance of counsel. We conclude that: (1) Olson's pleas were entered knowingly, intelligently and
voluntarily; (2) the State did not breach the plea agreement; and
(3) Olson was not denied the effective assistance of counsel. Consequently, we affirm.
BACKGROUND
About the end of July
1993, William D. Olson escaped from his parents' home, his place of detention
under the intensive sanctions program.
Over the next week, he committed a series of crimes resulting in his
being charged with four felonies and seven misdemeanors. On October 19, 1993, the date of his initial
appearance, Olson escaped from the courthouse.
He was later charged in two separate cases with two counts of escape—one
resulting from his escape from his parents' home and the other from his escape
from the courthouse.
Olson
entered guilty pleas to three of the felonies and the two escapes. In return, the prosecutor agreed to dismiss
the other charges and the repeater allegations on three of the charges to which
he pleaded guilty. After sentencing,
Olson moved for postconviction relief asking that he be permitted to withdraw
his guilty pleas. He also claimed that
the prosecutor breached the plea agreement and that trial counsel's
representation was ineffective. The
trial court dismissed Olson's motion.
Olson appeals.
GUILTY
PLEA
Olson argues that the
trial court erred when it accepted his guilty plea. According to Olson, his plea was not entered knowingly,
voluntarily or intelligently because he was not aware of the potential
penalties that he faced for the escapes.
He also argues that the court did not establish a sufficient factual
basis to support his guilty pleas. We
disagree.
When accepting a plea,
there must be an affirmative showing that the plea was entered knowingly,
voluntarily and intelligently. State
v. Bangert, 131 Wis.2d 246, 257, 389 N.W.2d 12, 19 (1986). A plea is not voluntary unless the defendant
fully understands the charges against him or her and the penalties that may be
imposed. Id. These requirements have been codified in
§ 971.08(1), Stats., which
provides in pertinent part:
Before
the court accepts a plea of guilty or no contest, it shall do all of the
following:
(a) Address
the defendant personally and determine that the plea is made voluntarily with
understanding of the nature of the charge and the potential punishment if
convicted.
(b) Make such inquiry as satisfies
it that the defendant in fact committed the crime charged.
The
trial court must also determine whether a factual basis for the plea
exists. Christian v. State,
54 Wis.2d 447, 457, 195 N.W.2d 470, 475-76 (1972). We do not upset the court's determination that there is a
sufficient factual basis for the plea unless it is clearly erroneous. Id., 195 N.W.2d at 476.
Whether the trial court
complied with § 971.08(1), Stats.,
involves the interpretation of a statute and its application to the facts. State v. Baeza, 174 Wis.2d
118, 123, 496 N.W.2d 233, 235 (Ct. App. 1993).
These are questions of law which we review de novo. Id. The defendant must first make a prima facie showing that
the trial court accepted the plea without conforming with
§ 971.08(1). Bangert,
131 Wis.2d at 274, 389 N.W.2d at 26. The
burden then shifts to the State to show by any relevant, clear and convincing
evidence that the defendant's plea was knowingly, voluntarily and intelligently
entered. Id. at 274-75,
389 N.W.2d at 26.
Whether a guilty plea
should be withdrawn rests within the sound discretion of the trial court. White v. State, 85 Wis.2d 485,
491, 271 N.W.2d 97, 100 (1978). A plea
entered after sentencing may be withdrawn only "to correct a manifest
injustice, but this showing must be established by clear and convincing
evidence." Christian,
54 Wis.2d at 458, 195 N.W.2d at 476 (quoting Griffin v. State, 43
Wis.2d 385, 389, 168 N.W.2d 571, 573 (1969)).
Olson argues that he did
not know that he could receive consecutive sentences for the escape charges[2]
and therefore his plea was not made voluntarily. At the postconviction motion hearing, Olson testified that trial
counsel did not tell him that the escape charges carried consecutive sentences,
and he assumed that the trial court would impose "one lump
sentence." But the record reflects
that Olson entered his guilty plea knowingly, voluntarily and
intelligently. At the plea hearing, the
court instructed Olson that the two escape charges potentially subjected him to
two five-year prison terms and to two $10,000 fines. At the postconviction motion hearing, counsel directly
contradicted Olson, claiming that the two met at least thirteen times and
discussed the issue at several of those meetings. Counsel testified that while he and Olson did not discuss the
consecutive nature of the escape sentences at any length, they
"frequently" discussed Olson's maximum sentencing exposure. Counsel recalled that he and Olson discussed
the issue at least twice. Counsel
stated that he told Olson that he thought Olson would receive a total sentence
of three to five years but that it could be higher.
Olson challenges trial
counsel's veracity as to the number of times counsel met him and whether the
two discussed the consecutive nature of the escape sentences. Olson points to the fact that counsel
thought Olson would be exposed to a maximum three to five-year sentence. But, in concluding that counsel informed
Olson that the escape sentences would be consecutive, the trial court found
counsel's testimony to be more believable than that of Olson's. The credibility of witnesses and the weight
given to their testimony is left within the sound discretion of the trial court
and the trial court's findings will only be reversed if clearly erroneous. Section 805.17(2), Stats. The trial
court's findings are not clearly erroneous.
Moreover, trial
counsel's prediction as to what he believed would be Olson's likely total
sentence was not an improbable estimation, but an educated guess. Had the court imposed a two-year term rather
than a five-year term for one of the escapes, Olson's total sentence,
regardless of its consecutive nature, would have been nearer to counsel's
prediction. Counsel's failure to be a
better prognosticator does not mean that we should have misgivings about his
assertion that he informed Olson about the consecutive nature of the escape
sentences.
Olson also argues that
the trial court failed to establish a sufficient factual basis to support his
guilty pleas. According to Olson, the
court only relied upon Olson's affirmation that the facts set forth in criminal
complaints were true to establish the factual basis for the plea. Olson claims that there is no indication
that the court actually read the complaints and he argues that the court was
mistaken as to the facts supporting the pleas.
We disagree.
The trial court read
from the criminal complaints at the initial appearance and the plea
hearing. It listed each charge and
described the facts supporting those charges.
Olson acknowledged that the facts as alleged in those complaints were
true. Based upon our review of the
complaints, we are satisfied that they contain sufficient facts to support
Olson's pleas.
But Olson contends that
one complaint is factually deficient.
According to Olson, the complaint alleges that he committed the theft of
a firearm on August 1, 1993, but that other information in the complaint states
that Olson committed the offense on August 4.
From this, he concludes that the trial court could not have determined
when he committed the crime.
Olson misunderstands the
complaint. The introduction to the
criminal complaint provides that Olson committed all of the charged offenses
"on or about August 1, 1993."
(Emphasis added.) As to the
theft of a firearm charge, the complaint states that "on or about
August 4, 1993," Olson committed this offense. (Emphasis added.) These
dates were not specific. A four-day
difference is trivial. Accordingly, we
conclude there is a sufficient factual basis in the record to support the theft
plea.
Olson next argues that
the trial court did not have sufficient facts to support one of his escape
pleas because it is not clear that his placement in his parents' home under the
intensive sanctions program is custody within the meaning of § 946.42(3)(a),
Stats. Olson, however, has failed to cite any authority for this
proposition. Moreover, we note that
under § 302.425(6), Stats.,
a person who intentionally fails to remain within the limits of his or her home
detention or to return to his or her place of detention, commits an escape
under § 946.42(3)(a).
Consequently, we conclude that the allegation in the complaint that
Olson escaped from his parents' home, his place of detention under the
intensive sanctions program, satisfies his plea to the escape charge.
We conclude that the
record reflects that Olson entered his guilty pleas knowingly, understandingly
and voluntarily and that the complaints contain sufficient facts from which the
trial court could determine that Olson committed the crimes for which he
entered a guilty plea. Thus, there is
no basis for concluding that any manifest injustice has occurred in this
case. The court did not erroneously
exercise its discretion when it rejected Olson's request to withdraw his guilty
plea.
PLEA AGREEMENT
Olson argues that the
prosecutor breached the plea agreement in several respects. First, Olson claims that while the
prosecutor moved to dismiss several charges, the trial court did not rule on
their dismissal until the postconviction motion hearing. Olson argues that the prosecutor's
obligations included ensuring that the court dismiss all of the counts at the
plea hearing. Second, Olson argues that
the prosecutor breached the plea agreement when she failed to correct
references to the dismissed charges in a presentence investigation report
(PSI). Third, Olson argues that the
prosecutor breached the plea agreement when she requested restitution on a
charge that she had agreed to dismiss.
Fourth, Olson argues that the prosecutor breached the plea agreement
when she argued that he should receive a maximum sentence based upon a mistaken
assertion that both of the two firearms charges involved a theft.
The right to object to
an alleged breach of a plea agreement is waived when a defendant fails to
object and proceeds to sentencing after he or she knows the basis for the claim
of error. State v. Smith,
153 Wis.2d 739, 741, 451 N.W.2d 794, 795 (Ct. App. 1989). Olson and his counsel were present at the
plea hearing and sentencing and had the opportunity to make the same arguments
he now makes for the first time on appeal.
Our review of the record reveals that, with the exception of the
argument that the State breached the plea agreement when it failed to secure
dismissals from the trial court at the plea hearing, the rest of these issues
were never raised before the trial court.
Because Olson failed to raise these objections before the trial court
before sentencing,[3] we conclude
that he has waived his right to review these issues in this court. Additionally, with regard to the dismissed
counts, contrary to Olson's assertions, the trial court did dismiss them and
did not consider them for sentencing purposes.
The court made this clear at the postconviction motion. Accordingly, we reject Olson's argument.
EFFECTIVE ASSISTANCE OF COUNSEL
Lastly, Olson argues
that he was denied the effective assistance of trial counsel. We construe Olson's claims as the
following: (1) counsel should have
corrected references to the dismissed counts in the PSI; (2) counsel
should have corrected the trial court's statements at sentencing as to the
facts supporting the escape charges; (3) counsel erred in failing to
demand that a preliminary hearing be held and an information filed on the
escape charges; (4) counsel should have asserted that the prosecutor
violated the plea agreement; and (5) counsel's overall representation was
inferior.
To determine whether
Olson received ineffective assistance of counsel in violation of the Sixth
Amendment to the United States Constitution, counsel's performance must be
deficient and the deficient performance must have prejudiced the
defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984).
These are mixed questions of fact and law. Id. at 698.
We will not reverse a trial court's findings of fact unless they are
clearly erroneous. Section 805.17(2), Stats.
If the facts, however, have been established, whether counsel's
representation was deficient and, if it was, whether it was prejudicial are
questions of law which we review de novo.
State v. Johnson, 153 Wis.2d 121, 128, 449 N.W.2d 845, 848
(1990).
We may decide the
prejudice prong first. Strickland,
466 U.S. at 697. Whether Olson's trial
counsel's deficient performance was prejudicial "requires showing that
counsel's errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable." Id.
at 687. In other words, "[t]he
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 a
probability sufficient to undermine confidence in the outcome." Id. Our review, then, focuses on whether the error causes us to
believe that the outcome is unreliable.
First, with respect to
counsel's failure to correct the references to the dismissed charges in the
PSI, as the State correctly points out, the trial court indicated that it knew
that these counts were dismissed and did not consider them when imposing a
sentence. Consequently, Olson was not
prejudiced by their inclusion in the PSI.
Second, Olson argues
that trial counsel should have corrected the trial court's statement indicating
that it believed that when Olson escaped from the courthouse on the day of the
initial appearance, he was before the court on many felony charges including
the escape charge. While it is true
that Olson had not yet been charged with the first escape when the initial
appearance was held, the court was obviously aware that Olson had already committed
the first escape and that his felony charges stemmed from that escape. Olson was eventually charged with two
escapes. The fact that he had not yet
been charged with the first escape is irrelevant when he committed it before
appearing in court on that day.
Third, with respect to
Olson's arguments as to the lack of a preliminary hearing or the State's
failure to file an information, § 971.31(2), Stats.,
provides that defects in the institution of the proceedings, insufficiency of
the complaint, information or indictment shall be raised before trial by motion
or are deemed waived. Olson never
raised these issues before the trial court at any of the hearings or by
motion. He has waived these arguments
on appeal.
Fourth, Olson argues
that counsel's failure to object to the prosecutor's violation of the plea
agreement prejudiced him and that he should be relieved of any finding of
waiver. But our finding of waiver rests
upon trial counsel and appellate counsel's failure to preserve these issues
before the trial court either before the plea was entered or during the
postconviction motion hearing. We will
not address them for the first time on appeal.
The only breach raised in the trial court relates to the references to
the dismissed counts in the PSI. As we
stated above, the court did not consider them for sentencing purposes and
therefore, their inclusion in the PSI did not prejudice Olson.
Fifth, Olson asserts
that counsel's representation was generally inadequate. However, we fail again to see how counsel's
representation prejudiced him. Olson
was charged with thirteen crimes and faced about ninety years in prison. Counsel negotiated with the prosecutor who
agreed to dismiss eight charges and several repeater allegations, leaving Olson
with about a twenty-year exposure. The
trial court eventually sentenced Olson to eight years. Absent an affirmative showing of prejudice,
we must reject Olson's ineffective assistance of counsel claim.
By the Court.—Judgments
and order affirmed.
Not recommended for
publication in the official reports.