COURT OF APPEALS DECISION DATED AND RELEASED October 10, 1996 |
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. |
No. 95-0224-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DORAN J. LONDON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Iowa County: JAMES P. FIEDLER, Judge. Affirmed.
Before Eich, C.J., Dykman,
P.J., and Vergeront, J.
PER
CURIAM. Doran J. London appeals from a judgment of conviction
and from an order denying his postconviction motions. London was convicted after pleading guilty to first-degree
reckless homicide, contrary to § 940.02(2)(a)3, Stats., resulting from illegal drugs he supplied, which
killed the victim. After pleading
guilty and being sentenced, London brought postconviction motions alleging
various infirmities in his plea. His
motions were denied, and he appeals.
For the reasons set forth below, we affirm.
BACKGROUND
London supplied illegal
drugs to another person who administered them to the victim. The victim died. London was charged with first-degree reckless homicide for this
incident. He pled guilty to the crime. Under the terms of the plea, London was
sentenced to twelve years, concurrent with another sentence imposed in Dane
County for an unrelated crime.
ANALYSIS
Jurisdiction
London argues that the
circuit court lost jurisdiction over him because at neither his initial
appearance nor his arraignment did the court make him aware of the
charges. However, London makes no
argument to support this assertion.
We reject his argument
on two grounds. First, we do not
extensively search the record to find facts to support an alleged error. Zintek v. Perchik, 163 Wis.2d
439, 482-83, 471 N.W.2d 522, 539 (Ct. App. 1991). Second, even the most cursory examination of the record reveals
that at the June 30, 1993 hearing where London waived his preliminary examination,
the circuit court personally informed London of the charges by reading the
information into the record in London's presence.
Plea Withdrawal
London next argues that
he should be allowed to withdraw his plea because his plea was not knowing,
intelligent and voluntary. The burden is on the defendant to show that he
should be permitted to withdraw his plea.
State v. Rock, 92 Wis.2d 554, 559, 285 N.W.2d 739, 742
(1979). A defendant who seeks to
withdraw a guilty or no contest plea carries the heavy burden of establishing,
by clear and convincing evidence, that the trial court should permit the
defendant to withdraw the plea to correct "manifest injustice." State v. Krieger, 163 Wis.2d
241, 249, 471 N.W.2d 599, 602 (Ct. App. 1991). For three reasons, we conclude that London does not meet his
burden.
First, as with his first argument, London
simply asserts his position, with little record support. Second, London signed a very extensive plea
questionnaire which detailed all the rights he was giving up. A completed plea questionnaire is competent
evidence of a knowing and voluntary plea. See State v.
Moederndorfer, 141 Wis.2d 823, 827-28, 416 N.W.2d 627, 629-30 (Ct. App.
1987). Third, the record reveals that
the court conducted an oral colloquy with London, and ascertained not only that
he understood the rights he was giving up by pleading guilty, but also that any
questions he may have had were answered.
In support of his
argument that his plea was not knowing, intelligent and voluntary, London cites
a portion of a transcript where he indicated that he "forgot how the
process [of taking a plea] works."
However, this snippet does not support his argument because he made this
statement at a July 19, 1993 bond hearing, not at the March 15, 1994 sentencing
hearing where he pled guilty. Further,
the July 19, 1993 statement was made with reference to a plea entered in Dane
County Circuit Court on an unrelated case.
London also asserts that
at the time of his plea, he was not competent because he was in withdrawal from
his narcotic addiction. We take
judicial notice that at the time London made his plea, he had been in custody
for approximately nine months. Thus,
any addiction to street narcotics would have been in remission for that
time. In addition, London had ample
opportunity over several months, in the course of several personal colloquies
with the court, to apprise the court of any lingering effects of narcotic
withdrawal. We reject his unsupported
assertion that he was in narcotic withdrawal at the time he entered his
plea.
Ineffective Assistance of Counsel
London
asserts that he received ineffective assistance of counsel. To prevail on this
argument, London has to show that (1) his counsel's performance was deficient,
and (2) that deficient performance prejudiced his defense. Stickland v.
Washington, 466 U.S. 668, 687 (1984).
At issue is whether "counsel's representation fell below an
objective standard of reasonableness." Id. at 688. See
also State v. Ambuehl, 145 Wis.2d 343, 351, 425 N.W.2d 649, 652 (Ct.
App. 1988). London fails to meet his
burden.
Specifically, London
argues counsel was ineffective because counsel failed to advise him of the
consequences of his plea. Even were
this true, any possible error could not "prejudice his defense,"
because the circuit court advised him of the plea consequences, as did the plea
questionnaire.
London next argues that
counsel failed to challenge the constitutionality of § 940.02, Stats.
London, however, does not convincingly indicate why failure to challenge
a statute's constitutionality "falls below an objective standard of
reasonableness." This is
especially so because it is movant's burden to overcome the strong presumption
favoring the constitutionality of statutes.
State v. Hurd, 135 Wis.2d 266, 271, 400 N.W.2d 42, 44 (Ct.
App. 1986). London's cursory legal
analysis does not meet that burden here.
London argues that his
attorney failed to request lesser included offense instructions, but London
forgets that this was not a trial to a jury with jury instructions. London pled guilty. This argument is frivolous.
London argues that his
attorney failed to correct his criminal record. However, the transcript demonstrates that the district attorney
introduced evidence of London's record, and London himself made no attempt to challenge
the record when he addressed the court.
In addition, at a postconviction hearing, the court made clear it had
not relied upon London's former record.
London asserts that his
attorney failed to investigate such matters as the victim's alleged history of
suicide attempts, and her ingestion of drugs other that those London supplied.
However, London does not support these assertions of the victim's behavior in
any manner.
Newly Discovered Evidence
London last argues that
newly discovered evidence requires reversal. However, this is merely another
cut at his argument that the victim ingested drugs other than those he
supplied. He provides absolutely no
support for this assertion. A naked
assertion is not grounds for further consideration. In re Balkus, 128 Wis.2d 246, 255 n.5, 381 N.W.2d
593, 598 (Ct. App. 1985).
By
the Court.—Judgment and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.