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COURT OF APPEALS DECISION DATED AND RELEASED September 19, 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. 95-1194-CR and
95-1195-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WARREN J. PIK,
Defendant-Appellant.
APPEAL from judgments
and orders of the circuit court for Milwaukee County: TIMOTHY G. DUGAN, Judge.
Affirmed.
WEDEMEYER, P.J.[1] Warren J. Pik appeals from judgments
entered after pleading guilty to one count of criminal damage to property and
operating a vehicle while intoxicated (second offense), contrary to
§§ 943.01(1), 346.63(1)(a), and 346.65(2), Stats. He also
appeals from orders denying his postconviction motion seeking to withdraw his
guilty plea. Pik claims that the trial
court erroneously exercised its discretion in denying his motion to withdraw
his plea because the trial court did not address Pik's medical condition. Because the trial court did not erroneously
exercise its discretion and this court sees no proof of manifest injustice,
this court affirms.
I. BACKGROUND
Pik was charged with
criminal damage to property on September 20, 1991, and operating a vehicle
while intoxicated (second offense) on February 24, 1992. Pik pleaded guilty to both charges on
June 14, 1993. The plea was
accepted as knowing and voluntary.
Sentencing was set for September 1993, to allow time for Pik to attend
to his medical condition.
Pik failed to appear for
the September sentencing date and a warrant was issued. Sentencing actually took place on
March 25, 1994. Shortly after
sentencing, Pik filed a motion to withdraw his guilty plea. The trial court denied the motion. Pik now appeals.
II. DISCUSSION
To withdraw a guilty plea
after sentencing, the defendant must show by clear and convincing evidence that
a manifest injustice would result if the withdrawal was not permitted. State v. Booth, 142 Wis.2d
232, 235-37, 418 N.W.2d 20, 21-22 (Ct. App. 1987). Whether a defendant has made such a showing is a discretionary
determination and will not be upset unless the trial court erroneously
exercised its discretion. Id.
Pik argues that the
manifest injustice present here is the trial court's failure to inquire into
the nature of Pik's medical condition and how the condition affected Pik's
ability to enter a plea. Pik contends
that if an inquiry had been done, the trial court would have discovered that
Pik's medical condition prevented him from entering a knowing and voluntary plea. Pik's argument is based on the following
question and answer extracted from the plea colloquy:
THE
COURT: In terms of being able to form judgments, is it [the medical
condition] interfering with anything like that so you don't have your faculties
about you today?
THE DEFENDANT PIK: Yes.
At the hearing on the
postconviction motion, the trial court denied the motion to withdraw the plea,
reasoning:
This
is not an isolated one day plea and sentencing. It does involve an extended period in which the defendant did
enter a plea, subsequently failed to appear for the sentencing on that plea,
and was ultimately sentenced by a different judge than the judge that took the
plea. And, therefore, the Court will
consider the entire record of both dates.
And we would start with the plea date
itself. And that transcript reflects
that Judge Schellinger did have an extended conversation, discussion with the
defendant in which she asked him a variety of questions. She was able to observe his demeanor. She asked the defendant if he understood
what the State would have to prove. He
indicated that he did. She asked him if
he understood that it related to property regarding a Hugo Garcia. The defendant said that he did. He expressed that he understood the maximum
penalties. He explained that he was
pleading guilty because he was guilty.
He stated that the facts in the complaint were true, he understood the
charges in both the criminal damage to property as well as the operating under
the influence. She asked him his age,
how far he went in school.
In response to the question about his medical
condition he expressed that he only had a headache. The question in which he expressed, that the Court asked, “In
terms of being able to form judgments is it interfering with anything like that
so you don't have your faculties about you today?” is somewhat of a confusing
question. He did answer that yes, but
he indicated that he understood clearly everything earlier. She explained all the rights that he was
giving up. He expressed that he hadn't
used any drugs or alcohol, that he merely had a headache. He understood all of the constitutional
rights that the Court went through specifically with him, and the Court also
elicited from his attorney whether or not the attorney was aware of anything
that was affecting the defendant's ability to knowingly and voluntarily enter
his plea.... [T]he attorney was not aware of anything.
The
trial court also indicated that Pik had every opportunity to raise this issue
prior to the sentencing date or even on the date of sentencing itself, but
instead, Pik indicated his desire to be sentenced. The trial court concluded:
Under those circumstances, and on that factual
setting, the Court finds that the defendant has not shown by clear and
convincing evidence, or by any evidence, any standard that his plea was not
voluntarily and knowingly entered. And
the Court specifically finds that based upon the record that the defendant's
plea was freely, voluntarily, intelligently entered and that the withdrawal of
his plea is not necessary to prevent any manifest injustice.
This court's review of
the trial court's decision demonstrates that the trial court applied the
applicable law to the relevant facts and reached a reasonable conclusion. State v. Mordica, 168 Wis.2d
593, 602, 484 N.W.2d 352, 356 (Ct. App. 1992). Based on the lengthy colloquy, the length of time before
sentencing, Pik's representations at the sentencing hearing, the lack of
medical evidence to show that Pik's mental faculties were impaired, and Pik's
ability to respond appropriately to questions posed by the trial court, this
court concludes that the trial court did not erroneously exercise its
discretion in denying Pik's motion to withdraw his guilty plea.
By the Court.—Judgments
and orders affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.