PUBLISHED OPINION
Case No.: 95-2186-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LAURI MOHR,
Defendant-Appellant.
Submitted on Briefs: March
25, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: April 17, 1996
Opinion Filed: April
17, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Racine
(If
"Special", JUDGE: Emmanuel Vuvunas
so indicate)
JUDGES: Anderson, P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the brief of Mark D. Richards of Richards &
Reisterer, S.C., of Racine.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Sharon
Ruhly, assistant attorney general.
COURT OF
APPEALS DECISION DATED AND
RELEASED April
17, 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. 95-2186-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
LAURI
MOHR,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Racine County: EMMANUEL VUVUNAS, Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
BROWN,
J. Lauri
Mohr claims that she should be allowed to withdraw her no contest plea to
cocaine distribution charges. She
primarily maintains that the trial court did not inquire into her knowledge of
the presumptive minimum sentence and she therefore did not knowingly and
voluntarily enter the plea. We reject
the State's claim that the trial court was only required to inform her of the
maximum sentence. We hold that Mohr has
made a prima facie showing of an error during the plea hearing. Nevertheless, we uphold Mohr's plea because
the record reveals that she knew about the presumptive minimum sentence despite
the flaws in the colloquy.
In
September 1994, the State charged Mohr with possession of cocaine with intent
to distribute in an amount between fifteen and forty grams. See § 161.41(1m)(cm)3, Stats. The State also alleged that Mohr
was a repeat offender because of a marijuana conviction in 1983. See § 161.48, Stats.
The
complaint reveals that the police seized one-half gram of cocaine from
Mohr. It also contains a description of
some of her earlier deals, including Mohr's admission that she sold a quarter
ounce of cocaine a few days before her arrest.
At
a hearing in February 1995, the State reduced the charge to possession of
between five and fifteen grams of cocaine, see § 161.41(1m)(cm)2, Stats., but retained the repeat
offender allegation. Mohr then entered
a no contest plea to these charges. The
trial court accepted it and entered judgment against her. The trial court later sentenced Mohr to two
years imprisonment in accordance with the presumptive minimum.
In
June 1995, Mohr moved the trial court to allow her to withdraw the plea. During the hearing that followed, Mohr
argued that she lacked knowledge about the presumptive minimum sentence when
she entered her plea. She claimed that
she was led to believe that she would get probation on her charges, not the
mandatory two-year minimum. After
considering her testimony and the testimony of the attorney who represented her
at the plea hearing, the trial court rejected Mohr's motion. More information about the plea hearing and
other relevant facts will be set forth in our analysis.
Mohr
now contends that the trial court erred when it did not allow her to withdraw
the plea. We employ a two-step process
when testing a trial court's conclusion on this question. See State v. Bangert, 131
Wis.2d 246, 389 N.W.2d 12 (1986).
First, we read the plea hearing transcript to measure if the defendant
has made a prima facie showing that the trial court did not meet the procedures
mandated by § 971.08, Stats. See Bangert, 131 Wis.2d
at 274, 389 N.W.2d at 26. If the
defendant meets this burden, we then test whether the State has nevertheless
shown through clear and convincing evidence that the defendant entered the plea
knowingly, voluntarily and intelligently.
See id.
Mohr
was made aware of the range of possible sentences in two ways. First, she and her attorney went over a plea
questionnaire. While it stated that the
maximum penalty on her charges was thirty years imprisonment coupled with a one
million dollar fine, it did not mention the minimum sentence of two years. There was, however, some discussion about
the two-year minimum at the hearing:[Court]
Okay. And do you understand that
[your prior offense] enhances the sentence?
Ordinarily this offense would have been fifteen years?
[Prosecutor] Right, one to fifteen.
[Court] One to fifteen, and now the maximum now
becomes up to thirty years on this charge; do you understand that?
[Prosecutor] Two to thirty.
[Court] There is a presumptive minimum of two years?
[Prosecutor] Yes.
[Court] Two years to thirty years, and a fine up to
one million dollars, and is this the revocation of license?
[Prosector] Yes, Judge.
[Court] Revocation of your license for at least six
months, up to five years; do you understand that?
[Mohr] Yes, I do.
[Court] How do you want to plea to this charge,
ma'am?
[Mohr] No contest.
Pointing to this excerpt, Mohr claims that the hearing
was deficient. She argues that the
court did not personally relate to her that it was accepting the corrections
suggested by the prosecutor and did not personally inquire about her
understanding. Mohr contends that the
transcript only shows, at best, that the court confirmed that Mohr understood
that she would lose her driver's license for at least six months.
In
response, the State argues that trial courts need only confirm that the
defendant understands the maximum sentence. The State essentially argues that Mohr's possible confusion about
the presumptive minimum sentence is irrelevant to whether her plea was
knowingly made. The State observes that
the questionnaire informed Mohr about the maximum sentence. Moreover, it adds that the trial court
diligently inquired into whether Mohr understood the contents of the
questionnaire containing information about the maximum sentence. It concludes that the trial court fulfilled
its responsibility and that analysis of the first Bangert prong
must be resolved in the State's favor.
We
acknowledge the line of authority that says a plea colloquy is sufficient when
the defendant is informed of the “maximum penalty.” See Garski v. State, 75 Wis.2d 62, 75-76, 248
N.W.2d 425, 432-33 (1977) (collecting cases); see also Wis J I—Criminal SM-32 cmt. 2 (citing State v. Bartelt, 112
Wis.2d 467, 334 N.W.2d 91 (1983)). But
mandatory minimum sentences disappeared from our statutes in 1971 and have only
recently been resurrected in the form of “presumptive” minimums. See Laws of 1971, ch. 219 (repealing
§ 161.28, Stats., 1969) and
1989 Wis. Act 121 § 53m (creating § 161.438, Stats.). We thus give
no credence to those cases decided during the period when minimum sentences
were not on the books. It would simply
be without any logical basis to assume that when our supreme court was
mandating the need for notice of the maximum sentence, it was also deciding
that any presumptive minimum sentence would not have to be communicated.
We
have found one case, State v. Erickson, 53 Wis.2d 474, 192 N.W.2d
872 (1972), where the supreme court examined a plea to drug charges carrying a
mandatory minimum sentence of the type that appeared in our statutes prior to
the 1971 repeal. But there is nothing
within that decision which suggests that the court even considered whether the
defendant should be informed about the minimum sentence. In fact, since the decision noted that the
court had made sure that the defendant “understood he could be sentenced from
two to ten years,” the decision could be read to acknowledge the importance of
informing the defendant of both the maximum and the minimum sentence. See id. at 477, 192 N.W.2d at
874.
We
conclude that prior case law has not decided the precise question of whether
the trial court's duty at a plea hearing includes clarifying that the defendant
is subject to a presumptive minimum sentence.
However, while the exact question may be a new one, our review of case
law involving trial court responsibilities at the plea hearings convinces us
that trial courts must assess the defendant's awareness of the presumptive
minimum sentence.
A
plea may be involuntary because the defendant does not have a complete
understanding of the charge. Bangert,
131 Wis.2d at 265, 389 N.W.2d at 22.
This includes the penalty. At
the time of the entry of plea, a defendant is entitled to know what might or
could happen to him or her. Erickson,
53 Wis.2d at 480, 192 N.W.2d at 875-76.
That is why case law requires that notice of the maximum sentence must
be given. See Bartelt,
112 Wis.2d at 475, 334 N.W.2d at 94. It
is also why case law should require that notice of the presumptive minimum also
be given.
Mohr,
in particular, was entitled to know that the law presumes she will be sentenced
to at least two years in prison unless she convinces the court that the best
interests of the community would be served and the public would not be harmed
by probation or a lesser sentence.
Section 161.438, Stats. Neither the plea colloquy nor the plea
hearing form referred to by the trial court during the plea contained this
information.[1] The first prong of the Bangert
analysis cannot be decided in the State's favor and we move to the second Bangert
prong.
The
second prong asks whether, in spite of the error, Mohr nonetheless knew enough
about the presumptive minimum prison sentence to support a conclusion that she
knowingly entered the plea. See Bangert,
131 Wis.2d at 274-75, 389 N.W.2d at 26.
The trial court's determination on this second prong is subject to
deference. We may not reverse unless
the court misused its discretion. State
v. Spears, 147 Wis.2d 429, 434, 433 N.W.2d 595, 598 (Ct. App. 1988).
The
trial court never made an express finding that Mohr indeed knew about the
presumptive two-year minimum and thus knowingly entered her plea. Still, we are bound to look for evidence in
the record to support its ruling. See
State v. Schmitt, 145 Wis.2d 724, 734, 429 N.W.2d 518, 522 (Ct. App.
1988) (describing how appellate court looks for evidence to uphold trial
court's exercise of discretion).
Our
examination of the record reveals two facts supporting the trial court's
ultimate conclusion. First, Mohr's
former attorney testified that she discussed the minimum sentence issue with
Mohr before the hearing. In particular,
Mohr's attorney explained the meaning of a presumptive minimum sentence. She remembered taking out the statute book
and discussing the pertinent statute with Mohr. She told Mohr that probation was still a possibility although it
was something that probably would not occur.
Second,
Mohr admitted during the postconviction evidentiary hearing that she “heard”
the court and the prosecutor discuss the presumptive minimum sentence of two
years. Based on these facts, we
conclude that Mohr was cognizant of and understood the meaning of a presumptive
minimum sentence before her plea hearing and that she was also able to augment
her understanding from the discussions between the court and the prosecutor
which took place before her. The court
did not err in its decision to uphold the plea.
Finally,
we note that Mohr also makes a passing reference in her argument on the second Bangert
prong to the discrepancy between the amount of cocaine the police found in her
possession, i.e., one-half gram, and her plea to a charge involving between
five and fifteen grams. She seems to
argue that she thought she was only pleading to possession of one-half gram and
the court's failure to clarify or verify the factual basis for her plea to a
greater amount provides an alternative reason to charge it with a misuse of
discretion.
However,
Mohr has not pointed to any part of the plea transcript which would reveal why
she was confused about this issue during the plea hearing. Moreover, even if we assume that there was
some flaw in the hearing, the trial court's analysis of this issue at the
postconviction evidentiary hearing satisfies us that Mohr understood the
factual basis supporting the charges.
At
the evidentiary hearing, the trial court turned to the statement that Mohr
allegedly made to the police admitting recent cocaine deals in greater amounts
than the one-half gram found on her possession at the time of her arrest. It asked Mohr whether she now denied the
statement and asked her why she decided not to go to trial on the issue of whether
she was only guilty of possessing a small amount and not the amount alleged in
the complaint. Mohr did not deny having
made the confession but claimed that she was “set up.” She acknowledged that she could not have
produced a witness to prove her assertion of a set-up and that is why she
declined to press the claim at a trial.
Faced
with the record of the trial court's investigation into the conflict between
Mohr's theory of the facts and the allegations made in the complaint, we are
satisfied that the court's conclusion to uphold the plea was a proper use of
its discretion. It could reasonably
rely on the facts alleged in the complaint to satisfy itself that Mohr met the
five to fifteen grams element. See Bangert,
131 Wis.2d at 276, 389 N.W.2d at 27 (“A postconviction review of all relevant
evidence may reflect that the plea was constitutionally sound ¼.”). While Mohr was only willing to admit to
possessing one-half gram at the postverdict hearing, the complaint alleged that
she had sold a quarter ounce (about seven grams) a few days before her
arrest. The court was free to rely on
these allegations and Mohr's acknowledgement that they would be difficult to
rebut to reach a conclusion that Mohr understood the factual underpinnings to
the charges.
By
the Court.—Judgment and order
affirmed.
[1] We suggest that
during a plea colloquy involving a presumptive minimum, the sentencing court
inquire whether the defendant is aware of:
(1) the maximum sentence; (2) the presumptive minimum sentence; and (3)
the circumstances under which the court may, in its discretion, deviate from
the presumptive minimum. See
§ 161.438, Stats. Alternatively, we suggest that this
information be included in the Moederndorfer form. State v. Moederndorfer, 141
Wis.2d 823, 416 N.W.2d 627 (Ct. App. 1987).