|
COURT OF
APPEALS DECISION DATED AND
RELEASED July
25, 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. 95-1162-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
EARL
A. DREW,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Columbia
County: ANDREW P. BISSONNETTE, Judge. Affirmed.
Before
Eich, C.J., Dykman and Vergeront, JJ.
PER
CURIAM. Earl Drew appeals from a
judgment convicting him of two counts of first‑degree sexual assault of a
child in violation of § 948.02(1), Stats.,
and an order denying his postconviction motion to withdraw his pleas. He seeks to withdraw his pleas because they
resulted from ineffective assistance of trial counsel and because he discovered
new evidence. He also contends that: (1) the prosecution breached a plea
agreement, (2) the trial court abused its sentencing discretion, and
(3) § 948.02, Stats., is
unconstitutional. Finally, he asks that
we exercise our power of discretionary reversal under § 752.35, Stats.
Because
the record reveals that Drew failed to raise his ineffective assistance of
counsel claims before the trial court, that the trial court properly found that
the testimony introduced by Drew at his postconviction hearing did not meet the
criteria for newly discovered evidence, that the prosecution complied with the
terms of the plea bargain, that the trial court did not erroneously exercise
its sentencing discretion, and that Drew's contention that § 948.02, Stats., is unconstitutional is without
merit, we affirm the judgment of conviction and the order denying the motion to
withdraw the Alford pleas.
We also decline to exercise our power of discretionary reversal or
modify the sentence.
BACKGROUND
Drew
was initially charged with thirteen and then twenty-five counts of first-degree
sexual assault of a child under the age of thirteen. At a preliminary hearing, five girls, ranging in age from five to
ten years and including two of Drew's children, testified that Drew had either
molested or had sexual intercourse with them at various times and
locations. As part of a plea bargain
Drew entered Alford pleas to two counts of first-degree sexual
assault, and three additional counts were read in for sentencing. The remaining counts were dismissed, and the
prosecutor recommended a sentence of twenty years in prison for the first count
followed by ten years of probation for the second count. The trial court sentenced Drew to fifteen
years for each count to be served consecutively.
Drew
filed a postconviction motion to withdraw his Alford pleas based
on newly discovered evidence. At a
hearing, Drew called witnesses on his behalf.
Bonnie Lies, a woman he was dating, testified that she had been told by
Glenda Daley, a mother of one of the victims, that "her mother [the
victim's grandmother] put her up to" accusing Drew of molesting her
daughter. Daley testified that what had
really transpired in the conversation was that Lies had offered her $500 to
stop the prosecution against Drew.
Another witness testified as to what other people thought of Drew's
guilt. Finally, Drew testified that
had he known about the Lies-Daley conversation prior to entering a plea, he
would have opted for a jury trial. The
trial court denied the motion, stating:
The court is not satisfied by clear and convincing
evidence that this information was not discovered until after trial or that the
defense was not negligent in seeking evidence.
Some of it clearly was available prior to his conviction; some perhaps
not. And, ultimately, the court would
need to establish or find a reasonable probability that there would be a different
result than conviction if this went to trial.
And I don't think there's any probability.
INEFFECTIVE
ASSISTANCE OF COUNSEL
Drew
argues for the first time on appeal that he was denied effective assistance of
trial counsel because trial counsel failed to conduct an adequate investigation
into the facts of the case, wanted to avoid going to trial, failed to challenge
the sufficiency of the complaint and information, failed to "enforce"
the sequestration of a potential witness at the preliminary hearing, failed to
"enforce" the plea agreement, and failed to challenge the complaint
and information as charging "multiplicitous" charges. Drew further asserts that his Alford
pleas were not entered freely or voluntarily because his trial counsel entered
the pleas in order to avoid a jury trial.
The
record discloses no evidentiary hearing at the trial level on Drew's
ineffective counsel claims as required by State v. Machner, 92
Wis.2d 797, 285 N.W.2d 905 (Ct. App. 1979).
A Machner hearing at which trial counsel is present is a
"prerequisite to a claim of ineffective representation on appeal to
preserve the testimony of trial counsel.
We cannot otherwise determine whether trial counsel's actions were the
result of incompetence or deliberative trial strategies." Id. at 804, 285 N.W.2d at
908. Accordingly, we will not consider
the merits of the ineffective assistance of counsel claim in this case because
the trial court has not considered the issue.
NEW
EVIDENCE
Drew
requests to be permitted to withdraw his pleas and be granted a new trial in
order to prevent the manifest injustice of his incarceration in light of newly
discovered evidence. A motion to
withdraw a plea after sentencing is governed by the "manifest
injustice" rule adopted in State v. Reppin, 35 Wis.2d 377,
385‑86, 151 N.W.2d 9, 13-14 (1967).
New facts which tend to refute the factual basis that supported a plea
may create a "manifest injustice" warranting the withdrawal of a
plea. State v. Krieger,
163 Wis.2d 241, 255, 471 N.W.2d 599, 604 (Ct. App. 1991). However, a plea may be withdrawn on the
basis of new evidence only when "a reasonable probability exists of a
different result in a new trial." Id.
at 255, 471 N.W.2d at 604 (quoting State v. Coogan, 154 Wis.2d 387,
394-95, 453 N.W.2d 186, 188 (Ct. App. 1990)).
"[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.'" Krieger,
163 Wis.2d at 249, 471 N.W.2d at 602.
The Wisconsin Supreme Court has indicated that "[o]nce the
defendant waives his constitutional rights and enters a guilty plea, the
state's interest in finality of convictions requires a high standard of proof
to disturb that plea." State
v. Walberg, 109 Wis.2d 96, 103, 325 N.W.2d 687, 691 (1982), rev'd on
other grounds sub nom. Walberg v. Israel, 766 F.2d 1071 (7th
Cir.), cert. denied, 474 U.S. 1013 (1985). The motion to withdraw a plea is addressed to the sound
discretion of the trial court, and we will only reverse if the trial court
fails to properly exercise its discretion.
State v. Booth, 142 Wis.2d 232, 237, 418 N.W.2d 20, 22
(Ct. App. 1987).
Drew
argues that had he been aware of the potentially favorable witnesses prior to
entering his plea, he would have opted to go to trial. However, this contention does not fall
within the "manifest injustice" rule for new evidence under Krieger. The trial court ultimately denied Drew's
motion because it saw no reasonable probability of a different outcome at trial
based on the testimony at the postconviction hearing. It found that this testimony, even if admissible, was clearly outweighed
by the testimony of the five victims.
In fact, the trial court questioned whether any of the testimony,
including that of Lies regarding Daley, was even material to the issue of
Drew's guilt because his conviction was based solely on the testimony of his
five victims and not that of Daley. In
light of the contradicted testimony introduced at the postconviction hearing,
we conclude that Drew would probably be found guilty at a new trial. We therefore conclude that the trial court
did not erroneously exercise its discretion by denying Drew's motion.
UNCONSTITUTIONAL STATUTES
Drew asks this court to
take judicial notice that § 948.02, Stats.,
is unconstitutional. This issue was not
presented to the trial court and the argument is obscure, undeveloped, and
lacking relevant authority. We decline
Drew's invitation to take judicial notice that Wisconsin statutes prohibiting
sexual assault and molestation of children are unconstitutional. We further note that, in any event, judicial
notice is not a device to determine the constitutionality of statutes, but a
means to recognize the existence or truth of facts without the production of
evidence. See Black's Law Dictionary
848 (6th ed. 1990).
PLEA
AGREEMENT
Drew
contends the prosecution breached its plea agreement by not arguing forcefully
enough that the trial court should follow the sentencing arrangement
contemplated by the agreement. He cites
United States v. Brown, 500 F.2d 375 (4th Cir. 1974), for the
proposition that failure to argue strongly for a sentence recommendation
pursuant to a plea agreement violates the requirement that the prosecution keep
its part of a plea bargain as required under Santobello v. New York,
404 U.S. 257 (1971). Therefore, Drew
argues he is entitled to have his sentence modified in accordance with the plea
bargain or, alternatively, be allowed to withdraw his plea. In Brown, the district
attorney, at sentencing, failed to explain to the court why the disposition he
was recommending as part of a plea agreement was appropriate and expressed
personal reservations about the terms of the agreement. Brown, 500 F.2d at 377. In contrast, at Drew's sentencing, the
prosecution argued at some length why the sentence it was recommending was the
appropriate disposition of the case, citing rights of the public, the victims'
families, and the victims themselves.
The prosecution expressed no reservations about the sentence or terms of
the plea bargain. We conclude that the
prosecution complied with its obligations under the plea agreement.
SENTENCING
Drew
contends that the trial court erroneously exercised its sentencing discretion
when it failed to follow the sentencing recommendation made by the
prosecution. Sentencing lies within the
discretion of the trial court and our review is limited only to whether the
trial court abused its discretion. State
v. Larsen, 141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App.
1987). A trial court is not bound by a
plea agreement and may accept a guilty plea while rejecting the sentence
recommendations. Melby v. State,
70 Wis.2d 368, 385-88, 234 N.W.2d 634, 642-43 (1975). First-degree sexual assault of a child is a Class B felony, which
was punishable by up to twenty years in prison. Section 939.50(2)(b), Stats.,
1991-92.[1] The imposition of a fifteen-year sentence
for each count was within the limits prescribed by the legislature. The record indicates Drew was properly
informed that the trial court was not bound to follow the sentencing terms of
the plea bargain. The trial court also
explained why it was not following the plea agreement or the optional
sentencing guidelines and considered the proper factors, including Drew's
unwillingness to admit guilt. The trial
court properly exercised its sentencing discretion.
DISCRETIONARY
REVERSAL
Finally,
Drew requests this court to exercise its power of discretionary reversal under
§ 752.35, Stats., and set aside
his conviction and order a new trial or, alternately, discharge Drew from
incarceration in the interest of justice. Drew argues he has been subject to
false arrest and imprisonment because the statutes he is accused of violating
are unconstitutional and therefore "null and void." This court may reverse a judgment or order
on appeal if it appears from the record that the real controversy has not been
tried or that justice for any reason has been miscarried. Section 752.35, Stats. We do not see
how either of these situations present themselves in this case and therefore
decline to grant a discretionary reversal.
By the Court.—Judgment
and order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.