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COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 26, 1995 |
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. |
Nos. 95-0564-CR
95-0565-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL E. LAFAVE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Brown County: SUSAN E. BISCHEL, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Daniel LaFave appeals a judgment convicting
him of three counts of first-degree sexual assault and an order denying his
motion to withdraw his guilty pleas. He
argues that his pleas were not knowing and voluntary because his trial counsel
mistakenly informed him and he reasonably believed he could appeal two pretrial
evidentiary decisions despite the guilty plea.
The trial court found that LaFave was not misinformed about his right to
appeal an order denying his motion to allow medical evidence that one of the
victims tested positive for a venereal disease and LaFave tested negative. The trial court further ruled that LaFave
was misinformed about his right to appeal the decision allowing the State to
present other crimes (Whitty)[1]
evidence, but he did not rely on that advice in reaching his decision to plead
guilty. Because the record supports the
trial court's findings of fact and those findings defeat LaFave's claim of a
manifest injustice, we affirm the judgment and order.
At the time of the
guilty plea, the trial court had not finally decided whether to allow the
medical evidence. Rather, the court
found that the defense had not made a satisfactory offer of proof, but allowed
an opportunity for the defense to present additional information. LaFave's trial counsel investigated the
matter further and concluded that he had no medical evidence that would support
LaFave's innocence. He then commenced
plea negotiations without securing a final decision from the trial court. LaFave contends that his trial counsel told
him, or at least he understood, that he could appeal the decision despite
entering a guilty plea.
The record supports the
trial court's finding that LaFave's trial counsel did not misinform him of his
right to appeal the medical evidence ruling.
It is reasonable to infer from counsel's testimony at the postconviction
hearing that he did not inform LaFave that he could appeal the medical evidence
ruling because no final ruling had been made.
Section 971.31(10), Stats.,
allows a postjudgment appeal from an order denying a motion to suppress
evidence despite entry of a guilty plea.
Because counsel knew that no final decision had been made and no appeal
could be taken unless the trial court decided the action, it is unlikely that
counsel would misinform his client that he could appeal a decision that had not
yet been made.[2]
LaFave's entire argument
that he reasonably believed he could appeal the medical evidence ruling or
could appeal his "whole case" is based solely on his testimony. While LaFave's briefs repeatedly refer to
trial counsel's statements that LaFave could appeal "suppressed
evidence," counsel's testimony stated only that he could appeal an order
denying a motion to suppress evidence.
An order denying the defense motion to present medical evidence cannot
be fairly described as an order denying a motion to suppress evidence. The trial court found that LaFave's
testimony regarding his understanding of his appeal rights was not
credible. Throughout the postconviction
hearing, LaFave testified to matters that were directly contradicted by
statements he made at the plea hearing.
The trial court reasonably found that LaFave lacked credibility on
numerous matters, including whether he misunderstood his right to appeal. In the absence of credible testimony
establishing a misunderstanding of his appellate rights, LaFave has not
established by clear and convincing evidence that he should be allowed to
withdraw his guilty pleas to correct a manifest injustice. See State v. Krieger,
163 Wis.2d 241, 249, 471 N.W.2d 599, 602 (Ct. App. 1991).
The record also supports
the trial court's finding that LaFave's decision to plead guilty was not
influenced by his counsel's erroneous advice on his right to appeal the order
allowing the State to present Whitty evidence. LaFave relies on the fact that his trial
counsel testified that LaFave asked about his right to appeal the decision on Whitty
evidence at some point before LaFave made the decision to plead guilty. While that testimony might support an
inference that LaFave based his guilty pleas on that assurance, it was not the
only evidence the trial court considered.
The trial court noted that LaFave's postconviction motion and his
testimony did not refer at all to the Whitty motion. When asked by the prosecutor what pretrial
motions he was talking about, LaFave answered "there was a negative herpes
test and there was a negative sexual assault test." It is the trial court's function to assess
the credibility of the witnesses, weigh the evidence and draw inferences from
the evidence. Cogswell v.
Robertshaw Controls Co., 87 Wis.2d 243, 249, 274 N.W.2d 647, 650 (1979). LaFave's complete failure to mention a
desire to appeal Whitty evidence until after his trial counsel
testified supports the trial court's finding that counsel's erroneous advice on
the appealability of Whitty evidence had "no significant
impact" on his decision to plead guilty.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.