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COURT OF APPEALS DECISION DATED AND RELEASED May 2, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0063-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GLEN BLANKE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Jackson County: ROBERT W. RADCLIFFE, Judge.
Affirmed.
Before Eich, C.J.,
Dykman and Sundby, JJ.
PER CURIAM. Glen
Blanke appeals from a judgment convicting him of felony car theft and from a
postconviction order. The issues are
whether the trial court erroneously exercised its discretion in denying his motion
for plea withdrawal and whether Blanke received ineffective assistance of trial
counsel. We conclude that the trial
court properly exercised its discretion and that its explanation of the
sentencing options and Blanke's criminal history demonstrate that he did not
receive ineffective assistance of counsel.
Therefore, we affirm.
Blanke escaped from a
minimum security prison and stole a truck.
When the truck ran out of gas and began to have engine problems, Blanke
parked it in a driveway and stole another vehicle.
Blanke pled guilty to
escape, contrary to § 946.42(3), Stats.,
and to operating a vehicle without the owner's consent ("felony car
theft"), as a party to the crime and as a repeater, contrary to
§§ 943.23(2), 939.05 and 939.62, Stats. The trial court imposed a three-year
sentence on the escape conviction and a two-year consecutive sentence on the
felony car theft conviction. Both
sentences were imposed consecutive to one another and consecutive to a
fifteen-year sentence Blanke was then serving.
We rejected a no merit
report and directed appellate counsel to pursue postconviction relief on the
felony car theft conviction. State
v. Blanke, No. 94‑1515-CR-NM (Wis. Ct. App. Oct. 19, 1994). We were concerned that the factual basis
for the guilty plea more appropriately supported misdemeanor, rather than
felony, car theft. Id.
In his postconviction
motion, Blanke moved to withdraw his plea and claimed ineffective assistance of
trial counsel. The trial court denied
the motion and Blanke appeals.
A postconviction motion
to withdraw a guilty plea should be granted only when necessary to correct a
manifest injustice. State v.
Duychak, 133 Wis.2d 307, 312, 395 N.W.2d 795, 798 (Ct. App. 1986). The defendant must show a manifest injustice
by clear and convincing evidence. State
v. Washington, 176 Wis.2d 205, 213, 500 N.W.2d 331, 335 (Ct. App.
1993).
Felony car theft is
defined as the "intentional tak[ing] and driv[ing] any vehicle without the
consent of the owner ...." Section
943.23(2), Stats. However, the felony charge is reduced to a
misdemeanor if the violator "abandons a vehicle without damage within 24
hours ...." Section 943.23(4), Stats., 1991-92.[1] Blanke stipulated to the trial court's use
of the amended complaint as a factual basis for his guilty plea, but there was
an allegation that the truck was discovered shortly thereafter and there was no
allegation of damage. Consequently, the
inquiry was whether there was a sufficient factual basis to support a
conviction for felony, rather than misdemeanor, theft.
The postconviction court
concluded that abandonment requires an intentional act. Blanke testified that it was easier to steal
another vehicle than to get gasoline for the truck. The trial court did not consider Blanke's conduct intentional
because he testified that the truck "wouldn't run anymore, so they had no
choice but to leave the vehicle."
The trial court also concluded that the vehicle was damaged because
"[it was] having engine problems."
We review an order
denying a motion for plea withdrawal for an erroneous exercise of
discretion. State v. McKnight, 65
Wis.2d 582, 593, 223 N.W.2d 550, 556 (1974).
Abandonment requires the voluntary relinquishment of possession. State v. Olson, 106 Wis.2d
572, 587, 317 N.W.2d 448, 455-56 (1982).
The Olson court rejected the abandonment defense because
Olson relinquished the vehicle only to avoid apprehension. Id. at 586-87, 317 N.W.2d at
455. One also must abandon the intent
to commit the crime, as well as relinquishing the vehicle. The trial court's conclusion, that Blanke
did not abandon the truck, is consistent with Olson because
Blanke admitted that he relinquished the truck only to facilitate the
continuation of his crime. See id.
Because abandonment is
an affirmative defense, rather than an element of the crime, the complaint
"need not allege the failure to abandon the vehicle undamaged within a
twenty-four-hour period...." Id.
at 584, 317 N.W.2d at 454.
Consequently, there was a sufficient factual basis to support a guilty
plea to felony car theft under § 943.23(2), Stats., and we conclude that the trial court properly
exercised its discretion in denying Blanke's postconviction motion.
Blanke also claims that
he received ineffective assistance of trial counsel because he failed to
discuss or investigate the affirmative defense of abandonment without damage,
which would merely have reduced the offense from a felony to a
misdemeanor. Blanke claims that had he
known of the availability of this affirmative defense, he would not have pled
guilty. Trial counsel testified that he
did not believe that this affirmative defense was viable.
To prevail on an
ineffective assistance claim, Blanke must show that trial counsel's performance
was deficient and prejudicial to his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Without concluding that
counsel's performance for failing to discuss this defense was deficient, the
trial court analyzed why the failure to raise this defense was not
prejudicial. Because Blanke admitted
that he took and drove the truck without the owner's consent, had he prevailed
on the abandonment without damage defense, the charge of felony car theft would
merely have been reduced to a misdemeanor under § 943.23(4), Stats.
Blanke would have been subject to a three-year sentence irrespective of
whether this was a misdemeanor or a felony because he is a repeater. See § 939.62(1)(a), Stats.
The trial court concluded that if the charge had been a misdemeanor, it
would have imposed the same two-year sentence, which was within its discretion
and less than the maximum sentence it could have imposed. Although being a convicted felon has more
serious consequences than being a misdemeanant, the trial court concluded that
Blanke had not shown prejudice because he had been convicted previously of
multiple felonies.
We agree with the trial
court that Blanke has not shown prejudice.
Because he has not done so, we do not address whether trial counsel's
performance was deficient.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.