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COURT OF
APPEALS DECISION DATED AND
RELEASED July
31, 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
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 95-1985
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL
L. GARRITY,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Dodge County: DANIEL W. KLOSSNER, Judge. Affirmed.
Before
Dykman, Sundby and Vergeront, JJ.
PER
CURIAM. Daniel L. Garrity appeals from a judgment of
conviction for conspiring to deliver cocaine in violation of
§§ 161.16(2)(b), 161.41(1)(c)4, 161.41(1x), and 939.31, Stats., 1991-92, and from an order
denying his postconviction motion for withdrawal of his guilty plea. He contends that he did not have an adequate
understanding of the plea negotiations and that he received ineffective
assistance of counsel. We reject each
contention and affirm.
Garrity
was charged with conspiracy to deliver cocaine, in violation of §§
161.16(2)(b), 161.41 (1)(c)4, 161.41(1x) and 939.31, Stats., 1991-92.[1] He entered a guilty plea to the
charges. The State recommended fifteen
years, the maximum sentence available, and the trial court sentenced Garrity to
fifteen years. Garrity later moved to
withdraw his guilty plea on the ground that he believed he had entered into a
plea agreement whereby the State would recommend a ten-year sentence.[2] Both Garrity and trial counsel testified at
the hearing on Garrity's motion. Their
testimony was sharply conflicting.
At
the hearing on Garrity's motion, trial counsel testified that she conveyed the
State's final plea offer to Garrity via telephone the day before his plea
hearing, and that they discussed the offer again, in person, just before the
plea hearing. The offer provided that
Garrity would testify against his co-defendants, in exchange for a sentencing
recommendation of seven years if he agreed not to dispute the sentence, or ten
years if he wanted to argue for less time.
Garrity did not think that the State's sentencing recommendation was
favorable enough to induce him to testify against his co-defendants. Trial counsel advised him that she estimated
that his actual sentence would probably be "about ten years," but she
also advised him not to enter a guilty plea without some type of plea agreement
from the State, and that he could be sentenced to the maximum penalty. Trial counsel did not ask the district
attorney what his recommendation would be in the event that Garrity did not
accept the plea agreement. Immediately
before the plea hearing, trial counsel reviewed the guilty plea questionnaire
with Garrity. She specifically recalled
indicating that there was no plea agreement.
At the plea hearing, she told the court that she had reviewed the guilty
plea questionnaire with Garrity, and that he understood it and had no
questions.
Garrity
testified that he would not have pleaded guilty had he known the district
attorney would recommend the fifteen year sentence. His understanding of the State's offer was that the district
attorney would recommend seven years if he pleaded guilty and testified against
his co-defendants, and ten years if he pleaded guilty but refused to testify.
When he entered the guilty plea, he thought he had an agreement with the State
whereby it would recommend ten years.
Garrity acknowledged that he initialed the statement on the guilty plea
questionnaire indicating he did not have a plea agreement, and told the court
at the plea hearing that he did not have a plea agreement. However, he testified at the postconviction
hearing that he did so at the advice of counsel.
The
trial court found that Garrity executed his plea with a full understanding that he did not have a plea
agreement, and denied Garrity's motion to withdraw his plea.
Garrity
argues that he thought he had entered into a plea agreement under which he
would receive a sentence recommendation of ten years from the State, in exchange
for his plea of guilty; and that his trial counsel was ineffective because she
did not ask the district attorney what his recommendation would be absent a
plea agreement.[3]
When
a defendant wishes to withdraw a plea after sentencing, he or she must show a
manifest injustice by clear and convincing evidence. State v. Nawrocke, 193 Wis.2d 373, 379, 534 N.W.2d
624, 626 (Ct. App. 1995). A defendant
may withdraw his plea if he shows by clear and convincing evidence that there
was a genuine misunderstanding about a plea agreement. Id. at 379, 534 N.W.2d at
626. See also State v.
Schill, 93 Wis.2d 361, 286 N.W.2d 836 (1980). Whether to permit withdrawal is committed to the trial court's
discretion. Nawrocke, 193
Wis.2d at 381, 534 N.W.2d at 627.
"We will affirm the trial court's exercise of discretion if the
record shows that the court correctly applied the legal standards to the facts
and reached a reasoned conclusion."
Id. We do not
overturn findings of fact made by the trial court unless they are clearly
erroneous. State v. Owens,
148 Wis.2d 922, 929-30, 436 N.W.2d 869, 872 (1989).
We
address first Garrity's claim that he did not have an adequate understanding of
the plea negotiations and thought he was entering a guilty plea pursuant to a
plea agreement. Because the testimony
of Garrity and of trial counsel was flatly inconsistent, the trial court had to
make a credibility determination. It
chose to believe the testimony of counsel, rather than Garrity, and determined
that Garrity understood and rejected the State's offer. It is the role of the trial court, not this
court, to resolve questions of credibility.
Owens, 148 Wis.2d at 930, 436 N.W.2d at 872-73. The trial court's findings are not clearly
erroneous and are supported by the record.
Garrity
also argues that his counsel was ineffective because she failed to ask the
district attorney what his sentencing recommendation would be absent a plea
agreement. Garrity maintains that he
would have gone to trial rather than risk a fifteen-year sentence. "When the competency of trial counsel
is questioned, it is incumbent upon one who seeks to show that incompetency to
give notice to trial counsel that [her] handling of a criminal matter is being
questioned on post-trial or post-conviction proceedings." State v. Machner, 92 Wis.2d
797, 803, 285 N.W.2d 905, 908 (Ct. App. 1979).
Garrity did not raise ineffective assistance of counsel in his
postconviction motion. However, he
contends that the hearing on his motion to modify his sentence and withdrawal
of his guilty plea is adequate to satisfy the requirement of Machner. We do not agree.
At
the beginning of the postconviction hearing, Garrity's counsel stated that the
hearing was not an ineffective assistance of counsel proceeding, but rather a
hearing to consider Garrity's withdrawal of his plea. Accordingly, the trial court did not make findings as to
deficient performance or prejudice--the basis for a claim of ineffective
assistance of counsel. See Strickland
v. Washington, 466 U.S. 668, 687 (1984). There may also be additional testimony pertinent to the
ineffective assistance claim that was not presented. Garrity argues that he did not know that he had a claim for
ineffective assistance until his trial counsel testified at the postconviction
hearing that she did not ask the district attorney what his sentencing
recommendation would be in the absence of any plea agreement. Garrity does not explain why, at that time,
he did not ask the court to proceed with a Machner hearing either
then or at a later date. The absence of
a Machner hearing precludes our review of the ineffective
assistance of counsel claim.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.