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COURT OF APPEALS DECISION DATED AND RELEASED June 1, 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. 95-1092
95-1093
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHN N. MCCOY,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Dane County:
JACK F. AULIK, Judge. Affirmed.
Before Dykman, Sundby,
and Vergeront, JJ.
PER CURIAM. John N. McCoy appeals from an order denying
his motion for postconviction relief.
The issue is whether his plea was entered knowingly, voluntarily and
intelligently. We conclude it was. We affirm.
In October 1991, McCoy
pleaded no contest to, and was convicted of, second-degree recklessly
endangering safety, criminal trespass to a dwelling and resisting an officer.[1] Sentence was withheld and he was placed on
probation. Following revocation of his
probation, McCoy was sentenced to prison in February 1993. He then filed a postconviction motion
seeking to withdraw his pleas on the grounds that the trial court had
inaccurately described the elements of the charges and had failed to determine
whether he understood the charges in relation to the facts of his case. Although the motion was initially treated as
one under Rule 809.30, Stats., it must be construed as one
under § 974.06, Stats.[2] The trial court denied the motion. McCoy appeals.
If a defendant seeking
to withdraw his plea makes a prima facie showing that the trial court's plea
colloquy did not comply with § 971.08(1), Stats., or State v. Bangert, 131 Wis.2d 246,
389 N.W.2d 12 (1986), the burden shifts to the State to show by clear and
convincing evidence at a postconviction hearing that his plea was entered
knowingly, voluntarily and intelligently.
Id. at 274-75, 389 N.W.2d at 26-27. McCoy argues that the plea colloquy failed
to comply with § 971.08(1) and Bangert because the trial
court misstated the elements of the three charges.
The State disputes this
argument on only one of the counts, the resisting an officer charge, and
appears to concede that the trial court misstated the elements of the
endangering safety and criminal trespass charges. The trial court is required to ascertain that the defendant
possesses accurate information about the nature of the charge. Bangert, 131 Wis.2d at 267-69,
389 N.W.2d at 23-24. We conclude that
the trial court failed to do so in this case.
The trial court misinformed the defendant about the nature of at least
two of the charges. The burden shifts
to the State to show by clear and convincing evidence that McCoy's plea was
entered knowingly, voluntarily and intelligently.
At the postconviction
hearing, McCoy testified that he was not aware of certain elements of the
charges when he pled guilty, and that he did not think the State could have
proven those elements. He testified
that his trial counsel had not explained the elements to him. McCoy's trial counsel testified that he did
explain the elements to McCoy. Although
the plea questionnaire is not of record, the trial court noted at the
postconviction hearing that it did not list the elements of the charges. Based on its evaluation of the credibility
of the witnesses, the trial court found that the State had shown by clear and
convincing evidence that McCoy understood the elements of the charges at the
time of his plea.
McCoy does not attack
the trial court's decision to accept the testimony of trial counsel over his
own. Instead, he argues that the
ultimate finding that he understood is erroneous because the State has not
shown that the trial court's misstatement of the elements did not confuse
him. He argues that even if his attorney
informed him of the elements before the plea, the trial court's misstatements
create doubt about what McCoy believed at the time he actually went through
with the pleas. However, the trial
court could reasonably infer that McCoy's understanding was not affected by the
misstatement of the elements.
Furthermore, McCoy's argument is inconsistent with his testimony. He did not testify that he was confused
because the trial court's recitation of the elements was different from his
lawyer's. Rather, he testified that he
was never told the elements by either his lawyer or the trial court.
Therefore, we conclude
that the trial court properly denied McCoy's postconviction motion.
By the Court.—Order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.