COURT OF APPEALS DECISION DATED AND RELEASED October 3, 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. |
No. 95-0404-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
FELEIPE HARRIS,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
PATRICIA D. MCMAHON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Feleipe Harris, pro se, appeals from an order
denying his post-conviction sentence-modification motion. Harris argues that the trial court
erroneously exercised its discretion by imposing a fifteen-year sentence
following his guilty plea to the crime of first-degree reckless homicide, and
that the trial court should have modified his sentence based upon a “new
factor.” Further, Harris argues that
the State was required to disclose the entire amount of restitution being
requested as part of his plea bargain.
We affirm.
Harris pled guilty to
first-degree reckless homicide in connection with the death of Muhamed
El-Amin. According to the record,
Harris thought that El‑Amin had raped Harris's grandmother. Harris then beat El-Amin to death. The trial court sentenced Harris to fifteen
years in prison and ordered him to pay restitution for El‑Amin's funeral
expenses.
First, Harris challenges
the fifteen-year sentence imposed by the trial court, arguing that, during the
sentencing hearing, the trial court improperly emphasized the “severity of the
offense.” Because trial courts have
wide discretion in sentencing, our review is limited to whether the trial court
erroneously exercised its discretion. State
v. Larsen, 141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App.
1987). The primary factors that must be
considered when sentencing a defendant are “the gravity of the offense, the
character of the offender, and the need for protection of the public.” Id., 141 Wis.2d at 427, 415
N.W.2d at 541. The weight to be given
to each factor is within the trial court's discretion. Cunningham v. State, 76 Wis.2d
277, 282, 251 N.W.2d 65, 67-68 (1977).
In imposing sentence,
the court indicated that it was “appalled by the viciousness of that
crime.” The trial court stated that
while it could “understand [how Harris] may have felt[,] given his
grandmother's state and past history that she was vulnerable, it didn't appear
to [the trial court] that there was any need for any type of forcible
involvement with Mr. Harris at that particular time.” The trial court noted all of the letters it received on Harris's
behalf as well as the efforts Harris had made while out on bail to make
progress with his life. The trial
court, however, indicated that a lengthy sentence was necessary to “deter Mr.
Harris from any further criminal activity” and to “communicate to the community
that laws must be obeyed or serious repercussions will follow.” The trial court noted that Harris appeared
remorseful and, as a result, a sentence of fifteen years would be “an
appropriate and serious response” to the crime.[1] The trial court's sentence was well within
the ambit of its discretion.
Next, Harris argues that
a “new factor” justified sentence modification. Although pleading guilty, Harris denied that he had stomped on
El-Amin's head, even though the medical examiner found shoe sole imprints on
El-Amin's head. Harris claims that the
trial court should have modified his sentence because the “size and measurement
of the shoe sole imprint patterns” on El-Amin's body shows that he was not
responsible for all of El-Amin's injuries, particularly the head injuries.
“A trial court may, in
its discretion, modify a criminal sentence upon a showing of a new
factor.” State v. Michels,
150 Wis.2d 94, 96, 441 N.W.2d 278, 279 (Ct. App. 1989). “[T]he phrase `new factor' refers to a fact
or set of facts highly relevant to the imposition of sentence, but not known to
the trial judge at the time of the original sentencing, either because it was
not then in existence or because, even though it was then in existence, it was
unknowingly overlooked by all of the parties.”
Id. (citation omitted).
A “new factor” must be an event or development which “frustrates the
purpose of the original sentencing.
There must be some connection between the factor and the
sentence—something which strikes at the very purpose for the sentence selected
by the trial court.” Id.,
150 Wis.2d at 99, 441 N.W.2d at 280.
Whether a set of facts is a “new factor” is a question of law which we
review without deference to the trial court.
State v. Hegwood, 113 Wis.2d 544, 546-547, 335 N.W.2d 399,
401 (1983). Whether a “new factor”
warrants modification of sentence rests within the trial court's
discretion. Id., 113
Wis.2d at 546, 335 N.W.2d at 401.
The “new factor” Harris
sets forth in his argument is not a “new factor” within the meaning of Michels. The trial court was fully aware that Harris
denied kicking El‑Amin in the head; at the sentencing hearing Harris's
attorney told the trial court that. Further,
the trial court noted during the sentencing hearing that the cause of death
established by the medical examiner was loss of blood due to blows to the
liver, spleen and heart—injuries Harris admitted inflicting upon the victim.
Finally, Harris claims
error because the trial court did not advise him of the possibility of
restitution during the plea hearing.
“When a defendant alleges that he or she did not know or understand the
information which should have been provided at the plea hearing and shows that
the trial court failed to follow the procedures necessary to properly accept a
plea, he or she has made a prima facie case that the plea was not
knowingly and voluntarily entered.” State
v. James, 176 Wis.2d 230, 237, 500 N.W.2d 345, 348 (Ct. App. 1993). Whether Harris has made a prima facie
showing that his plea was entered involuntarily or unknowingly is a question of
law that we review de novo. Id.
In accepting a plea of
guilty or no contest, the trial court has a mandatory duty to undertake a
personal colloquy with a defendant to ascertain his or her understanding of the
nature of the charge. State v.
Bangert, 131 Wis.2d 246, 260, 389 N.W.2d 12, 20 (1986). Such communication is statutorily mandated
by § 971.08, Stats., which
provides in part:
Pleas of guilty and no contest;
withdrawal thereof. (1) 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.
A
plea entered in violation of a defendant's due process rights, including the
right to enter a knowing and voluntary plea after being informed of the
criminal penalties is void and is entitled to be withdrawn. State v. Bartelt, 112 Wis.2d 467,
485-486, 334 N.W.2d 91, 99-100 (1983).
When “informing accused persons of their rights, courts are only
required to notify them of the `direct consequences' of their pleas.” James, 176 Wis.2d at 238, 500
N.W.2d at 348 (quoting Brady v. United States, 397 U.S. 742, 755
(1970)). Defendants have no due process
right to be informed of the “collateral consequences” to a voluntary and
intelligent plea of guilty. See State
v. Madison, 120 Wis.2d 150, 160, 353 N.W.2d 835, 841 (Ct. App.
1984). “[T]he distinction between
`direct' and `collateral' consequences of a plea ... turns on whether the
result represents a definite, immediate, and largely automatic effect on the
range of the defendant's punishment.” James,
176 Wis.2d at 238, 500 N.W.2d at 348.
The issue raised by
Harris was recently addressed in State v. Dugan, 193 Wis.2d 610,
534 N.W.2d 897 (Ct. App. 1995). Dugan
pled guilty. The trial court engaged
Dugan in a personal colloquy by eliciting Dugan's understanding of the plea
bargain but did not address the possibility of restitution. At the sentencing hearing, Dugan was
sentenced to eight years in prison and was ordered to pay the victim $40,000 in
restitution pursuant to § 973.20, Stats.[2] Dugan filed a post-conviction motion seeking
relief from the restitution order, arguing that restitution was “potential
punishment” within the meaning of § 971.08, Stats.,
and that the court had erred in failing to warn him that restitution could be
ordered. The trial court concluded that
restitution was not “punishment” and denied the motion. Dugan, 193 Wis.2d at 616, 534
N.W.2d at 899.
On appeal, Dugan
determined that “even if restitution is `definite, immediate, and largely
automatic' within the meaning of State v. James, it is not a
mandatory component of a valid plea colloquy under § 971.08, Stats., if it is not punishment.” Dugan, 193 Wis.2d at 618 n.4,
534 N.W.2d at 900 n.4 (citation omitted).
As required by Dugan,
we conclude that the restitution order here is not “potential punishment” as
that term is used in § 971.08, Stats.,
and, therefore, the trial court was not required to notify Harris that
restitution would be sought. We are not
persuaded by Harris's argument that Federal Rule 11(c)(1) supports his
position. Unlike § 971.08, Stats., Federal Rule 11(c)(1)
specifically addresses the subject of restitution and expressly requires the
court to inform the defendant that restitution might be ordered. The trial court did not err when it failed
to advise Harris that the trial court could order restitution.[3]
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] Section 973.20(1), Stats., provides, in part:
Restitution. (1) When imposing sentence or ordering probation for any crime, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of the crime or, if the victim is deceased, to his or her estate, unless the court finds substantial reason not to do so and states the reason on the record. Restitution ordered under this section is a condition of probation or parole served by the defendant for the crime. After the termination of probation or parole, or if the defendant is not placed on probation or parole, restitution ordered under this section is enforceable in the same manner as a judgment in a civil action by the victim named in the order to received restitution or enforced under ch. 785.
[3] We also agree with the Dugan court that despite our holding that a restitution warning is not a mandatory component of a plea colloquy under § 971.08, Stats., it is better practice for a sentencing court to include the warning when taking a plea and to include the warning on the Moederndorfer questionnaire. See State v. Moederndorfer, 141 Wis.2d 823, 416 N.W.2d 627 (Ct. App. 1987).