COURT OF APPEALS DECISION DATED AND RELEASED February 13, 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
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No. 95-1191-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ALIL AZIZI,
Defendant-Appellant.
APPEAL from a judgment
and orders of the circuit court for Milwaukee County: LEE E. WELLS, Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
PER
CURIAM. Alil Azizi appeals from a judgment of conviction and an
order denying his postconviction motion to withdraw his Alford
pleas to two counts of second-degree sexual assault of a child and one count of
first-degree sexual assault of a child.
He also appeals from an order moving the trial court to recuse itself
from the postconviction motion hearing.
Azizi claims that the trial court erred in denying his motion to
withdraw his Alford pleas because: (1) the plea
questionnaire did not convey the deportation consequences of his plea;
(2) defense counsel did not read to him the paragraph regarding deportation
upon such a plea; and (3) the trial judge refused to recuse himself from
the motion hearing. The trial court did
not erroneously exercise its discretion in denying the motion to withdraw the Alford
pleas because the trial court's findings that Azizi did understand the
consequences of his pleas and that defense counsel did read the entire plea
questionnaire to Azizi were not clearly erroneous. We additionally conclude that the trial court did not err in
failing to recuse itself; thus, we affirm.
I. Background.
This case arises out of
Azizi's Alford[1]
pleas to two counts of second-degree sexual assault of a child and one count of
first-degree sexual assault of a child.
The United States Immigration and Naturalization Service has since
placed a detainer on Azizi, a citizen of Yugoslavia, as a result of his
plea-based convictions in this case.
The trial court denied Azizi's motion to withdraw his pleas on the
ground that he was unaware that he could be deported as a consequence of his Alford
pleas. Azizi appealed that order to
this court. Concluding that the trial
court failed to personally advise Azizi of the potential for deportation as a
result of his pleas, we remanded the case to the trial court to determine
whether Azizi did in fact know that his pleas subjected him to potential
deportation. See State v.
Azizi, No. 94‑1636‑CR (Wis. Ct. App. Dec. 23, 1994)
(unpublished order). An evidentiary
hearing was held on April 20 and 25, 1995, after which the trial court denied
Azizi's motion to withdraw his pleas.
II. Discussion.
After sentencing, a
defendant must establish “manifest injustice” to withdraw a plea. State v. Truman, 187 Wis.2d
622, 624, 523 N.W.2d 177, 178 (Ct. App. 1994).
The “manifest injustice” test requires a showing of a serious flaw in
the fundamental integrity of the plea. Libke
v. State, 60 Wis.2d 121, 128, 208 N.W.2d 331, 335 (1973). A defendant seeking to withdraw a plea after
sentencing must show manifest injustice by clear and convincing evidence. Truman, 187 Wis.2d at 624, 523
N.W.2d at 179. The trial court has wide
discretion in denying a motion to withdraw a guilty plea. State v. Krieger, 163 Wis.2d
241, 249-50, 471 N.W.2d 599, 602 (Ct. App. 1991). We will not find an erroneous exercise of that discretion if the
trial court applied the proper law to the relevant facts to reach a rational
conclusion. See Village of
Shorewood v. Steinberg, 174 Wis.2d 191, 204, 496 N.W.2d 57, 62 (1993).
Azizi first claims that
he was unaware that he could be deported as a result of his Alford
pleas. Azizi makes much of the fact
that defense counsel deleted “guilty plea” with a pen on the plea questionnaire
and inserted Alford plea in every paragraph but paragraph 12,
which concerned deportation.[2] This, Azizi contends, led him to believe
that potential deportation did not apply to Alford pleas.
On remand from this
court, the trial court held an evidentiary hearing to determine whether Azizi
was in fact aware of the potential deportation consequences of his Alford
pleas. At that hearing, defense counsel
stated that he had told Azizi that an Alford plea was a type of
guilty or no-contest plea. Before
accepting the pleas, the trial court also informed Azizi of the meaning of an Alford
plea and that he would be found guilty if his plea was accepted. Also, prior to the trial court's acceptance
of his pleas, Azizi stated that he had reviewed all paragraphs of the plea
questionnaire and had no questions about the questionnaire.
There is ample evidence
in the record to support the trial court's finding that Azizi was aware of the
potential for deportation as a result of his Alford pleas. See § 805.17(2), Stats. (“Findings of fact shall not be
set aside unless clearly erroneous.”).
As such, the trial court could properly conclude that Azizi did not make
the necessary showing of manifest injustice to withdraw his pleas. Accordingly, we conclude that the trial
court applied the proper law to the relevant facts to reach a rational
conclusion regarding Azizi's awareness of the consequences of his plea.[3]
Azizi next claims that
the trial court should have recused itself because the trial court prejudged
the issue in controversy. Whether a
judge is a neutral and detached magistrate raises a question of constitutional
fact which we review de novo. State
v. Ledger, 175 Wis.2d 116, 122, 499 N.W.2d 198, 200-01 (Ct. App. 1993).
At the outset, there
exists a presumption that a judge is free of bias and prejudice. State v. McBride, 187 Wis.2d
409, 414-15, 523 N.W.2d 106 (Ct. App. 1994).
To overcome this presumption, the defendant must make a showing of
judicial bias or prejudice by a preponderance of the evidence. Id. To make such a showing, the defendant must establish either of a
two-prong test. State v. Rochelt,
165 Wis.2d 373, 378-79, 477 N.W.2d 659, 661 (Ct. App. 1991). The first, the subjective component,
involves the judge's own assessment of his or her impartiality. Id. The second, the objective component, turns on whether the “trial
judge in fact treated [the defendant] unfairly.” Id. “Merely
showing that there was an appearance of partiality or that the circumstances
might lead one to speculate that the judge was partial is not sufficient.” McBride, 187 Wis.2d at 416,
523 N.W.2d at 110.
Azizi claims that the
subjective test is met by the trial court's failure to “unequivocally” deny
partiality. Here, Azizi focuses on the
trial court's statement that it did not “think it prejudged the matter
... or in any way unduly depreciated the credibility of the defendant
....” (Emphasis added.) Azizi argues that the trial court's use of
the words “think” and “unduly” imply that it might have prejudged the
matter or duly depreciated the credibility of the defendant. We disagree.
This statement, made by
the trial court, was in response to Azizi's motion that it recuse itself. Taken in the context with which it was made,
this statement indicates that the trial court believed it was not biased. At best, the interpretation urged by Azizi
strains the imagination. Therefore, we
conclude that the first prong of the Rochelt test is not satisfied.
Azizi claims the second
prong of Rochelt, the objective test, is also met because a
reasonable observer would conclude that the trial court appeared to have
prejudged Azizi's motion to withdraw his pleas. Azizi relies on the following statements made by the trial court:
The defendant is here saying look. I want to withdraw [my pleas] because I
could be deported. He's serving a
thirty year sentence. I'm sorry but
part of me says he's not here because he might be deported. He's here because he doesn't want to serve a
thirty year sentence. He's not going
anywhere fast.
He's not eligible for parole until
what? About seven-and-a-half years, and
there's no guarantee of being [paroled].
... That's not on the immediate
horizon for Mr. Azizi.
I'm satisfied that
there is -- at least a good part of me here that says [hey], wait a
second. I'm suspicious that what he
really doesn't like is the sentence in this case. This is just a back door, but typically -- and I think both
counsel agree that typically what you have here is was the defendant aware of
the collateral ramifications of his plea?
These
statements by the trial court, Azizi contends, evince bias. We disagree.
As we have said, the
mere appearance of partiality or speculation from the circumstances is not
sufficient. McBride, 187,
Wis.2d at 416. Rather, the defendant
must have “in fact” been treated unfairly by the judge. Id. Here, the trial court's comments reveal its belief as to why the
defendant was making a motion to withdraw his plea. Azizi makes no showing that the trial court did in fact prejudge
the merits of his motion and thus treat him unfairly. Thus, the objective test, the second prong of Rochelt,
has not been satisfied.
By the Court.—Judgment
and orders affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162 (1970), pleas may be entered when a defendant accepts the conviction, but maintains innocence. See generally State v. Garcia, 192 Wis.2d 845, 532 N.W.2d 111 (1995).
Deportation: If I am not a citizen of the United States of America. I know that upon a plea of guilty or no contest and a finding of guilty by the Court for the offense(s) with which I am charged in the criminal complaint or information, I may be deported, excluded from admission to this country, or denied naturalization under federal law.
[3] Azizi's second argument is that defense counsel did not read to him paragraph 12 of the plea questionnaire. Because we already decided that the trial court was not clearly erroneous in finding that defense counsel had read the entire plea questionnaire, we need not address this argument separately. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).