COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 19, 1995 |
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No. 95-0999-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BRIAN T. VADNAIS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JOHN A. FRANKE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Brian Vadnais appeals his conviction for first-degree
sexual assault of child, as a repeater, having pleaded no contest. Vadnais's appellate counsel has filed a no
merit report under Anders v. California, 386 U.S. 738
(1967). Vadnais received a copy of the
report and has filed a response.
Counsel's no merit report raises one possible argument: the sentence was excessive. Vadnais's response claims that the victim's
mother lied and that his lawyer failed to make a defense based on this and
related information. Upon review of the
record, we are satisfied that the no merit report properly analyzes the issue
it raises; we therefore will not discuss it further. We conclude that Vadnais's pro se arguments also have no
arguable merit. Accordingly, we adopt
the no merit report, affirm the conviction, and discharge Vadnais's appellate
counsel of his obligation to represent Vadnais further in this appeal.
In his response, Vadnais
states that the victim's mother lied, that she coached her daughter into
fabricating the sexual assault, that she has falsely accused someone else in
the past, and that his State-paid lawyer extortively demanded $15,000 before he
would put on a better defense. Vadnais
also states that his lawyer failed to investigate the information Vadnais
supplied regarding the victim's mother's background, her motives, her past
fabrications, and her ability to fabricate this incident. Vadnais's arguments reduce to one basic
point: the victim's mother and his
lawyer, not he, are responsible for his conviction. These claims lack merit.
First, Vadnais expressed no such concerns at the plea hearing. There he declared satisfaction with his
lawyer and would state only that he had no recollection of committing the
offense; he refused to rule out his guilt.
By failing to consistently maintain his innocence, Vadnais has cast
doubt on his current claim that he is innocent and that the victim's mother
fabricated the account.
Second, Vadnais cannot
set aside his plea and obtain a trial merely by claiming that he has evidence
to impeach the victim's mother, by demonstrating that she had motives to
fabricate evidence and the experience necessary to carry out such a
scheme. Impeachment evidence, offered in isolation, does not
supply a sufficient basis for reexamining a criminal case. Simos v. State, 53 Wis.2d 493,
499, 192 N.W.2d 877, 880 (1972). In
fact, even witnesses recanting substantive testimony would not be enough to
require further proceedings, in the absence of other, new exculpatory
evidence. See State ex
rel. Hussong v. Froelich, 62 Wis.2d 577, 603-04, 215 N.W.2d 390, 404
(1974). Facts short of newly discovered
evidence provide no basis for reopening a case. See State v. Truman, 187 Wis.2d 622, 625,
523 N.W.2d 177, 178 (Ct. App. 1994); State v. Krieger, 163 Wis.2d
241, 255, 471 N.W.2d 599, 604 (Ct. App. 1991).
Vadnais has submitted no new substantive evidence. In the absence of such new substantive
evidence, Vadnais's impeachment evidence does not merit postconviction
investigation or judicial examination.
Third, if Vadnais has
simply changed his mind about pleading no contest, after mulling over what he
believes were the mother's motives to fabricate evidence, the time for such
examination has passed. Defendants can
vacillate before their pleas, not after.
Nesbitt v. United States, 773 F. Supp. 795, 802 (E.D. Va.
1991), aff'd, 974 F.2d 1333 (4th Cir. 1992), cert. denied, 113 S.
Ct. 1024 (1993). Changes of heart
motivated by mere desires to have trials are not enough to vacate no contest
pleas, either before or after sentencing.
See State v. Garcia, 192 Wis.2d 845, 861-62, 532 N.W.2d
111, 117 (1995). When Vadnais pleaded
no contest, he was undoubtedly aware of all of the issues and facts he now
raises in response to his counsel's no merit report, including the alleged
motives of the victim's mother. If
Vadnais wanted to litigate her motives, he should have proceeded to trial
rather than pleading no contest. His
plea was a strategic acknowledgment of the uncertain outcome he would have
faced in attempting to impeach the victim's mother. Vadnais may not enter a no contest plea, conceal his knowledge of
an accuser's truthlessness, and expect to change his mind later.
Fourth, no contest pleas
waive virtually all defects leading up to the plea, including claimed pre-plea
incidents of ineffective trial counsel, such as Vadnais's trial lawyer's
claimed failure to present a relevant, promising defense. See Smith v. Estelle,
711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S. 906
(1984). At the time of his plea, the
trial court expressly informed Vadnais that, by pleading no contest, he would
be waiving the right to trial by jury, the right to confront witnesses, and any
defenses his trial lawyer could have mounted in a trial. These included the right to have his trial
lawyer explore any motive the mother may have had, besides the truth, for
charging him with sexual assault of her daughter. Vadnais stated that he understood the waiver of these
rights. Under such circumstances, where
Vadnais freely, unconditionally, and unequivocally exchanged an uncertain
outcome by trial for a certain one by no contest plea, he has no basis to now
demand a trial on the ground that his trial lawyer failed to pursue a relevant
and promising defense. Vadnais's
election of a no contest plea was the last word on the mother's claimed
dishonesty.
Finally, if Vadnais is
claiming that his plea was involuntary by virtue of the fact that his
State-paid trial lawyer allegedly demanded an additional $15,000, this likewise
provides no basis for plea withdrawal.
Although defendants have the right to withdraw involuntary no contest
pleas for manifest injustices, Truman, 187 Wis.2d at 624, 523
N.W.2d at 178, courts, and therefore postconviction counsel, need not entertain
propositions that lack credibility on their face. State v. Koerner, 32 Wis.2d 60, 67, 145 N.W.2d 157,
161 (1966). Vadnais's claim displays
such facial incredibility. At the plea
hearing, under the trial court's questioning, Vadnais affirmed that no one had
made any threats to induce his no contest plea. This prior, directly contradictory position, seriously undermines
Vadnais's new one that he entered his plea as a result of his trial lawyer's
extortive financial demand.
Postconviction counsel may take such discrediting inconsistencies into
account when evaluating clients' claims and deciding whether to pursue
them. With no explanation for the
contradiction, Vadnais's postconviction counsel need not pursue the extortive
financial-demand issue further.
Moreover, Vadnais has
not explained how his State-paid lawyer expected him to overcome his indigency
and obtain the substantial sum of $15,000.
This is a gap in proof that destroys any remaining credibility this
claim may have and brings to the fore its inherent improbability. Whenever litigants do not explain the
absence of evidence someone would reasonably expect proponents to furnish in
support of their claims, such proof's absence is itself circumstantial evidence
that the true facts are the opposite of what the proponent asserts. See, e.g., Booth v.
Frankenstein, 209 Wis. 362, 370, 245 N.W. 191, 193-94 (1932). Further, Vadnais has simply provided
insufficient detail on this allegation to make it pursuable by postconviction
counsel. Litigants who hope to pursue
postconviction challenges must give specific facts, not broad generalizations. Cf. State v. Flynn, 190
Wis.2d 31, 48, 527 N.W.2d 343, 349-50 (Ct. App. 1994), cert. denied, 115
S. Ct. 1389 (1995). In sum, Vadnais's
response provides no legal basis for further postconviction proceedings or
investigation.
By
the Court.—Judgment affirmed.