COURT OF APPEALS DECISION DATED AND RELEASED November 20, 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. 95-2275-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ADAN CASTELLANO,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Racine County: EMMANUEL VUVUNAS, Judge. Affirmed
and cause remanded with directions.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Adan Castellano appeals pro se from a judgment
convicting him of being party to the crime of first-degree reckless homicide[1]
and aggravated battery and from an order denying his postconviction motion to
withdraw his no contest pleas on the grounds that trial counsel was ineffective
and Castellano misunderstood the plea agreement's homicide charge. We reject Castellano's claims and affirm.
Plea withdrawal after
sentencing is discretionary with the trial court unless the defendant
establishes that a relevant constitutional right was denied. State v. Rock, 92 Wis.2d 554,
559, 285 N.W.2d 739, 742 (1979). A plea
may be withdrawn if the defendant establishes the existence of a manifest
injustice by clear and convincing evidence.
State v. Bentley, 201 Wis.2d 303, 311, 548 N.W.2d 50, 54
(1996). The manifest injustice test is
met if the defendant was denied the effective assistance of counsel. Id.
Castellano's
postconviction motion seeking plea withdrawal claimed that he was coerced by
counsel into entering no contest pleas and that counsel was ineffective because
he did not clarify the degree of reckless homicide to which Castellano had
agreed to plead.
Castellano proceeded pro
se at the postconviction motion hearing.
Castellano's trial counsel, John Ward, testified that he was hired by
Castellano's parents. Ward recommended
accepting a plea agreement offered by the State[2]
because, in counsel's professional judgment, Castellano was likely to be
convicted by a jury of first-degree intentional homicide and other
charges. Ward testified that Castellano
rejected the plea offer several times before trial.
On the first day of
trial, Castellano and counsel met for approximately two hours to discuss the
plea offer and review discovery materials.
Ward was prepared to go to trial had Castellano again rejected the plea
offer. However, Castellano decided to
accept the plea agreement in consultation with and at the recommendation of
counsel. Castellano's aunt, father and
mother testified that Ward urged them to advise Castellano to accept the plea
agreement.
Castellano did not offer
sworn testimony or subject himself to cross-examination by the State.[3] Rather, he argued that his pleas were not
voluntary because Ward pressured him and his family to accept the plea
offer. Castellano further holds counsel
responsible for what he contends is his confusion regarding the degree of
reckless homicide to which he had agreed to plead. Pointing to Ward's statement at the plea hearing that Castellano
would plead to second-degree reckless homicide and the guilty/no contest plea
questionnaire and waiver of rights form's reference to second-degree reckless
homicide,[4]
Castellano contends he intended to plead to second-degree reckless homicide,
not first-degree.
The trial court reviewed
the plea colloquy and found that Castellano's no contest pleas were entered
knowingly, intelligently and voluntarily.
The crimes and their elements were explained to him. The court found that counsel provided
effective representation and that counsel's advice to take the plea agreement
was sound in light of the evidence against Castellano and the fact that
Castellano had proposed to present false alibi testimony.[5] In the absence of a manifest injustice, the
court declined to permit Castellano to withdraw his no contest pleas.
We conclude the trial
court properly exercised its discretion in declining to permit Castellano to
withdraw his no contest pleas because Castellano did not show either that trial
counsel was ineffective or any other manifest injustice. See Bentley, 201 Wis.2d
at 311, 548 N.W.2d at 54.
To establish a claim of
ineffective assistance, a defendant must show that counsel's performance was
deficient and that it prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Review of counsel's performance gives great
deference to the attorney and every effort is made to avoid determinations of
ineffectiveness based on hindsight. State
v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 847 (1990). The case is reviewed from counsel's
perspective at the time of trial, and the burden is placed upon the defendant
to overcome a strong presumption that counsel acted reasonably within
professional norms. Id. at
127, 449 N.W.2d at 847-48. An appellate
court will not overturn a trial court's findings of fact concerning the
circumstances of the case and counsel's conduct and strategy unless the
findings are clearly erroneous. State
v. Knight, 168 Wis.2d 509, 514 n.2, 484 N.W.2d 540, 541-42 (1992).
In the absence of
testimony from Castellano, the trial court's findings regarding counsel's
conduct are supported by Ward's testimony and are not clearly erroneous.
On the question of
whether Ward misled the court and Castellano regarding the degree of reckless
homicide, we conclude that the totality of the record confirms that Castellano
was fully informed at the plea colloquy that he was entering a no contest plea
to first-degree reckless homicide.
Although Ward initially stated that the plea agreement involved
second-degree reckless homicide, the district attorney stated that the amended
information charged first-degree reckless homicide. Ward agreed with that recitation. The court then closely questioned Castellano as to his
understanding of the plea agreement and the related proceedings. The court specifically informed Castellano
that before he could be convicted of first-degree reckless homicide, the State
would have to prove the elements of that crime, which the court listed. The court also confirmed that no one had
threatened Castellano or made any promises to him to induce him to accept the
plea agreement.
Although Ward misspoke
at the outset of the plea hearing, Castellano was advised on at least two
subsequent occasions during the plea colloquy that he was entering a plea to
first-degree reckless homicide.
Castellano had numerous opportunities to inform the court that he did
not understand or agree to the homicide charge. At the sentencing hearing six weeks after he entered his no
contest pleas, the court discussed the crimes for which Castellano would be
sentenced and referred to the first-degree reckless homicide charge. Castellano did not advise the court that he
misunderstood the homicide charge.
We note that the
judgment of conviction indicates that Castellano was convicted of second-degree
reckless homicide. As is clear from our
previous discussion, Castellano pled no contest to and was convicted of
first-degree reckless homicide.
Although we affirm the judgment of conviction and the order denying
postconviction relief, we remand the matter to the trial court to amend the
judgment of conviction to reflect that Castellano was convicted of first-degree
reckless homicide.
By the Court.—Judgment
and order affirmed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The judgment of conviction erroneously indicates that Castellano was convicted of second-degree reckless homicide. As will be discussed later in this opinion, the judgment shall be amended on remand.
[2] The plea agreement required pleading no contest to first-degree reckless homicide and aggravated battery and dismissal of a robbery charge.
[3] Castellano argues on appeal that because he proceeded pro se and the State did not object to his argument, his argument should have the force of evidence. Argument is not evidence. See Merco Distrib. Corp. v. O & R Engines, Inc., 71 Wis.2d 792, 795-96, 239 N.W.2d 97, 99 (1976). It was Castellano's burden to put on evidence in support of his plea withdrawal claim. See State v. Rock, 92 Wis.2d 554, 559, 285 N.W.2d 739, 742 (1979). He did not do so.
[5] The trial court also remarked that it would not be to Castellano's benefit to permit him to withdraw his pleas because he would likely be convicted of first-degree intentional homicide based upon the information adduced at the postconviction motion hearing. The trial court's comment is speculative. Had the trial court not stated other reasons for declining to permit Castellano to withdraw his no contest pleas, this comment would not necessarily support the court's exercise of discretion.