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COURT OF APPEALS DECISION DATED AND RELEASED December 17, 1996 |
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. |
No. 95-1447
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TROY BARNER,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Curley, JJ.
PER
CURIAM. Troy Barner, pro se, appeals from an order denying
his postconviction motion for relief.
He raises essentially the following issues for review: (1) whether the trial court erred when it
denied his postconviction motion without a hearing; (2) whether the trial court
based its sentence on inaccurate information; and (3) whether his sentence
was unduly harsh. We conclude that the
trial court properly denied Barner's postconviction motion without a hearing
because Barner's motion contained only conclusory allegations. Further, Barner has not shown how his
sentence was based on inaccurate information.
Finally, he cannot raise a claim challenging the trial court's
sentencing discretion in a motion pursuant to § 974.06, Stats.
Accordingly, we affirm the order denying postconviction relief.
I. Background.
Barner pleaded guilty to
one count of armed robbery, one count of first-degree reckless injury, and one
count of first-degree recklessly endangering safety. The last count arose out of an incident where gunshots were
exchanged between Barner and another man.
The other two counts arose out of an incident that occurred the next
day. Barner, driving a car, drove into
the car in front of him. Barner then
exited his car, ordered the driver to give him his necklace, and when he
refused, shot the victim with a handgun and tore the necklace from the victim's
neck. Barner admitted to police that
the encounter occurred, but told them that the gun went off in a struggle and
the necklace fell off.
Before accepting
Barner's guilty plea, the trial court conducted the following colloquy with
Barner and his counsel:
THE COURT: Sir, do
you understand by pleading guilty to those three counts in the criminal
complaint and the Information that you are waiving those constitutional rights
that are contained in the form that you signed?
THE
DEFENDANT: Yes, sir.
THE COURT: Do you
understand the complaint, sir?
THE
DEFENDANT: Yes, sir.
THE
COURT: Discussed it with your lawyer?
THE
DEFENDANT: Yes, sir.
THE COURT: Do you
understand the penalties the Court could impose?
THE
DEFENDANT: Yes, sir.
THE
COURT: Discussed those with your lawyer also?
THE
DEFENDANT: Yes, sir.
THE COURT: You
also understand by pleading guilty to those three counts you are going to be
waiving your right to trial by jury as to each count. And all twelve jurors must agree unanimously as to a verdict in
each count. Do you understand that?
THE
DEFENDANT: Yes, sir.
THE COURT: You
would be waiving your right to have the State prove you guilty beyond a
reasonable doubt as to each and every single element of the offenses. Do you understand that?
THE
DEFENDANT: Yes, sir.
THE COURT: In
addition thereto you are going to be waiving your right to cross examine the
State's witnesses and call witnesses on your own behalf. Do you understand that?
THE
DEFENDANT: Yes, sir.
THE COURT: And you
are going to be waiving any defenses that you might have to each of those
counts.
THE
DEFENDANT: Yes.
THE COURT: Do you
understand that?
THE
DEFENDANT: Yes.
[DISTRICT
ATTORNEY]: I didn't hear an answer.
THE COURT: He said
yes.
[DISTRICT
ATTORNEY]: Okay. Thank you.
THE COURT: Is
there anything that you do not understand by pleading guilty to those three
counts?
THE DEFENDANT: No,
sir.
THE
COURT: Discussed everything with your lawyer?
THE
DEFENDANT: Yes, sir.
THE COURT: And,
counsel, you are satisfied the defendant's intelligently, voluntarily and
knowingly waiving those constitutional rights?
[DEFENSE
COUNSEL]: Yes, I am, Judge.
Barner faced a total
possible sentence of thirty-five years for the three offenses. On May 27, 1992, the trial court sentenced
him to a total twenty-one-year sentence.
Nearly three years
later, in April 1995, Barner filed a motion pursuant to § 974.06, Stats., requesting a plea withdrawal or
sentence modification. He raised myriad
reasons in his motion, including: (1) that he did not knowingly enter his
guilty plea because “he was unaware of the penalties the court could imposed
[sic] by pleading guilty to the offenses;” (2) that he received
ineffective assistance of trial counsel because his counsel allegedly promised
him that he could receive “no more than 10 years in prison for pleading guilty
to the offenses;” (3) that he pleaded guilty because of “threats on his
life” by “inmates in the county jail;” and (4) that information in his
presentence investigation report was inaccurate.
The trial court denied
Barner's motion without a hearing. This
appeal follows.
II. Analysis.
A. Need for
evidentiary hearing.
Barner first argues that
the trial court erred when it denied his postconviction motion without a
hearing. We disagree.
Our standard of review
on this issue was recently stated in State v. Bentley, 201 Wis.2d
303, 548 N.W.2d 50 (1996):
If the motion on its face alleges facts
which would entitle the defendant to relief, the circuit court has no
discretion and must hold an evidentiary hearing. Whether a motion alleges facts which, if true, would entitle a defendant
to relief is a question of law that we review de novo.
However, if the motion
fails to allege sufficient facts, the circuit court has the discretion to deny
a postconviction motion without a hearing.
Id. at
310‑11, 548 N.W.2d at 53.
Further, if “`the defendant fails to allege sufficient facts in his
motion to raise a question of fact, or presents only conclusory allegations, or
if the record conclusively demonstrates that the defendant is not entitled to
relief, the trial court may in the exercise of its legal discretion deny the
motion without a hearing.'” Id.
at 309‑10, 548 N.W.2d at 53 (citation omitted). We address each of the issues raised by the trial court seriatim.
1. Ineffective
assistance of counsel.
To succeed in an
ineffective assistance of counsel claim the defendant must satisfy the two-part
test set forth in Strickland v. Washington, 466 U.S. 668
(1984). Thus, “a defendant must show
that counsel's performance was both deficient and prejudicial.” Bentley, 201 Wis.2d at 312,
548 N.W.2d at 54.
Barner alleged in his
postconviction motion that: (1) “his attorney promised and coerced him
into pleading guilty by telling him that he would receive no more than a 10
year sentence as a result of pleading guilty;” and (2) his trial counsel did
not give him his presentence investigation report in a timely manner and that
he did not get a chance to check the report for misinformation.
In order to show
prejudice under Strickland, Barner needed to show that there was
a reasonable probability that he would not have pleaded guilty but for his
counsel's alleged error. Bentley,
201 Wis.2d at 312, 548 N.W.2d at 54.
Here, Barner made only conclusory allegations in his motion that he would
have insisted on a trial if he would have known he could be sentenced for 35
years. The trial court could properly
reject Barner's argument on this issue without a hearing because he made only
conclusory allegations. Id.
at 309‑10, 548 N.W.2d at 53.
Further, the trial court
could properly reject Barner's second claim of ineffective assistance of
counsel because the record refutes his argument. Barner alleged that he did not have time to read the presentence
investigation report because his counsel did not provide it to him in a timely
manner. Barner did not present
anything, however, to refute his counsel's statement to the trial court at the
plea hearing that counsel had gone over the presentence report with him and
that he had personally read the report.
Barner has only raised conclusory allegations to the contrary.
2. Knowing guilty
plea.
Barner next argues that
the trial court should have granted him an evidentiary hearing on his claim
that he would not have pleaded guilty had he known he could be sentenced to
thirty-five years in prison for the three offenses. We reject this argument.
The trial court found
that the record of the plea hearing showed that Barner was both aware of the
maximum penalties and aware that he could receive the maximum penalties. The trial court's finding was based on the
fact that Barner had signed the guilty plea questionnaire and waiver of rights
form that informed him of the penalties and informed him that the trial court was
not bound by any agreement between Barner and the State. Further, Barner acknowledged that he
understood the penalties that the court could impose. As such, there was no reason to grant an evidentiary hearing on
this issue because the record conclusively demonstrated that he was not entitled
to relief. Id. at 310,
548 N.W.2d at 53 (citation omitted).
3. Involuntary
guilty plea.
Barner also argues that
his plea was not voluntary because he was partly motivated by a desire to get
away from county jail inmates. His
motion alleged: “part of the reason I pled guilty was to get out of the County
Jail so I wouldn't be around those people who were threatening me.”
Again, this is a
conclusory allegation. Barner did not
provide sufficient facts to support this allegation. See id. at 313‑14, 548 N.W.2d at
55. As such, the trial court could
reject his claim without a hearing.
B. Sentencing
information.
Barner next argues that
his sentence was based on inaccurate information. The trial court rejected this argument, concluding that the trial
court did not base its sentence on the alleged inaccurate information. We conclude that Barner has not shown how
this information, if inaccurate, prejudiced him.
A defendant has a
constitutional right to be sentenced on the basis of accurate information. State v. Coolidge, 173 Wis.2d
783, 788, 496 N.W.2d 701, 705 (Ct. App. 1993).
To gain relief, however, the defendant must show by clear and convincing
evidence that the information was both inaccurate and prejudicial. Id. at 789, 496 N.W.2d at
705. We review this question de novo. Id.
Barner's presentence
report contains the following statement:
The defendant told me he was placed on
probation in 1986 or 1987 on an Assault and Battery charge. He indicated that he spent a short period of
time, about three months, in a facility called St. Charles. I have written to the Cook County Juvenile
Court for specifics on the defendant's juvenile record but there has been no
response.
We
need not determine whether the above information was inaccurate as Barner claims,
because there is no showing of prejudice based on this information. The trial court, in rejecting Barner's
claim, stated that the sentence was based on other aggravating factors not on
any juvenile conduct. The sentencing
record supports this conclusion. The
trial court did focus on Barner's past criminal record in sentencing him, but
Barner had been convicted twice in Wisconsin of assault crimes and was facing
another charge in Illinois. Thus, there
is no showing that any reference to Barner's juvenile adjudications, even if
inaccurate, effected the trial court sentence.
C. Unduly harsh
sentence.
Finally, Barner argues
that his twenty-one-year sentence was unduly harsh. We reject this argument because a challenge to a judge's
sentencing discretion cannot be made in a § 974.06 motion when the
sentence is within the statutory maximum.
See Smith v. State, 85 Wis.2d 650, 661, 271 N.W.2d
20, 25 (1978). Here, Barner's sentence
was within the possible maximum of thirty‑five years.
III. Summary.
In sum, the trial court
properly rejected Barner's motion without a hearing because he raised nothing
more than conclusory allegations.
Further, we reject Barner's attacks on his sentence because he has not
shown any prejudice arising out of the alleged inaccurate sentencing
information and because his attack on the trial court's sentencing discretion
was improperly raised.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.