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COURT OF APPEALS DECISION DATED AND RELEASED MARCH 12, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 95-2376 & 95-2464
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
No. 95-2376
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LINDA R. CAULEY,
Defendant-Appellant.
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No. 95-2464
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL J. CAULEY,
Defendant-Appellant.
APPEALS from orders of
the circuit court for Price County:
DOUGLAS T. FOX, Judge. Affirmed.
LaROCQUE, J. Michael and Linda Cauley appeal the denial
of postconviction motions to set aside their no contest pleas to misdemeanor
theft.[1] The trial court held an evidentiary hearing
to address the issue. It denied the
motions on grounds the pleas were made knowingly and voluntarily; it found that
the Cauleys were merely displeased with the thirty-day jail term as a condition
of probation, longer than recommended by the terms of a plea bargain. The State opposes a review of the motions on
the merits on grounds the Cauleys failed to raise the issue in their initial
appeal as required by State v. Escalona-Naranjo, 185 Wis.2d 168,
186, 517 N.W.2d 157, 164 (1994), and also brought a previous § 974.06, Stats., motion in which they failed to
show sufficient reason why it was not raised on direct appeal.[2] This court concludes that the Cauleys have
shown good reason for their failure to properly raise the plea withdrawal issue
either on direct appeal or in their previous § 974.06 motion. However, because the trial court's findings
of fact relevant to the merits of their claims are not clearly erroneous, the
Cauleys have failed to meet the manifest injustice standard to mandate granting
a plea withdrawal. This court affirms
the order denying relief.
PROCEDURAL HISTORY AND COMPLIANCE WITH
ESCALONA AND
§ 974.06(4), Stats.
Michael and Linda
Cauley, husband and wife, were charged in a criminal complaint with a number of
misdemeanor theft charges. The parties
reached a plea bargain, and the Cauleys entered no contest pleas on the date scheduled
for jury trial on March 17, 1993. The
Cauleys concede that the record of the plea hearing colloquy met the standards
established by State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12
(1986). The Cauleys each acknowledged
in open court on the record their understanding that the trial court was not
bound by the recommended plea bargain that they could be sentenced to anything
up to the maximum penalty on each count.
Each defendant also affirmatively and unequivocally acknowledged that
the plea was made without threat or coercion.
They were properly informed of each of their constitutional rights they
were waiving by entry of their pleas, informed of the elements of the crimes
charged and that each element must be proved prior to entry of a guilty
finding. Michael completed three years
of college with a degree from a technical college, and Linda, a high school
graduate, acknowledged in answer to the court's inquiries, the information
necessary to support the court's finding that their pleas were entered
knowingly and voluntarily.
The circuit court found
the Cauleys guilty and entered a judgment of conviction. It withheld sentence and placed them on
probation and required them to serve thirty days jail as a condition. The court's reason for rejecting the
recommended five-day jail term was the number and breadth of offenses. Numerous other theft counts were dismissed
and treated as read-ins, and similar charges had been made in other
counties. The court also noted the
significant amount of money the Cauleys had stolen.
Almost immediately, the
Cauleys filed a notice of intent to pursue postconviction relief. The state public defender appointed new
counsel, Jeffrey Kohler, to pursue the matter.
Later, at the postconviction hearing into the present motion, unrefuted
evidence, including admissions from Kohler, shows that the Cauleys sought to
withdraw their pleas and so informed him and their previous counsel in
writing. Kohler failed to read their
communications and moved the trial court only for a sentence modification.[3]
The motion for sentence modification was denied, and the Cauleys appealed. Kohler filed a no merit report with this
court, and the trial court's denial of the motion was affirmed. The per curiam decision released on August
16, 1994, states in relevant part:
The Cauleys' appellate
counsel [Kohler] has filed a no merit report in each appeal pursuant to Rule
809.32, Stats., and Anders
v. California, 386 U.S. 738 (1976).
Each appellant received a copy of his or her report and was advised of
the right to file a response. Linda
Cauley and Michael Cauley filed a response.
Upon consideration of the no merit reports, the response and an
independent review of the records, we conclude that there is no arguable merit
to any issue that could be raised in either appeal.
The no merit reports address only the trial
court's decision to deny the appellants' respective motions to modify
sentence. The transcript of the hearing
at which the trial court considered the motions for modification convinces us
that counsel is correct in his analysis that this issue is without arguable
merit. Our further review of the
remainder of the records discloses no other potential issues for appeal. Therefore, we affirm the judgments of
conviction and relieve Attorney Jeffrey R. Kohler of further representing the
appellants in these matters.
In September 1994, the Cauleys
filed a pro se petition to review this court's decision with the Wisconsin
Supreme Court. Before the petition was
decided, Kohler moved the supreme court to withdraw his earlier no merit
report, supporting his motion with his affidavit that, for the first time,
raised the question of a plea withdrawal.
Kohler, however, alleged inadequate facts to support a basis to support
a claim of an involuntary plea.
Instead, he inaccurately alleged that after the decision of this court
accepting his no merit report, the Cauleys expressed a desire to try the case,
and that trial counsel had discouraged them from doing so. The supreme court denied both the motion to
withdraw the no merit report and the Cauleys' petition to review.
Upon remand, Kohler then
advised the Cauleys to immediately pursue a pro se § 974.06, Stats., motion in the trial court,
raising the question of the voluntariness of their pleas. Kohler, however, in reliance upon his
discharge from further responsibility in the matter of the no merit sentence
modification decision, failed to advise the Cauleys of the significance of the Escalona-Naranjo
decision. Escalona-Naranjo
requires a party to show good reason for raising an issue for the first time in
a § 974.06 motion after direct appeal.
Id. at 186, 517 N.W.2d at 164. The Cauleys thus sought plea withdrawal relief under
§ 974.06 without setting forth any reason, let alone a good reason, for
not having raised the matter in their appeal.
The trial court, and later this court in a second appeal, denied relief
on grounds of their failure to comply with Escalona-Naranjo.
Because Kohler advised
the Cauleys to pursue a § 974.06, Stats.,
motion, he should have advised them that Escalona-Naranjo
required them to show sufficient reason why they did not raise the plea
withdrawal issue on appeal. The reason,
of course, was Kohler's failure to investigate the Cauleys' written
communications setting forth their contentions. Whether or not his omission constituted ineffective counsel in
the constitutional sense, his conduct constitutes a "sufficient
reason" for not asserting the plea withdrawal motion earlier. We therefore review the trial court's
decision on the merits of this second § 974.06 motion.
WITHDRAWAL OF NO CONTEST PLEAS
When a party seeks to
withdraw a guilty or no contest plea after conviction and disposition,
Wisconsin applies the "manifest injustice" test set forth in the
American Bar Association Project on Minimum Standards for Criminal Justice in a
tentative draft on Standards Relating to Pleas of Guilty. State v. Reppin, 35 Wis.2d
377, 385-86, 151 N.W.2d 9, 13-14 (1967).
These standards reflected Rule 32(d) of the Federal Rules of Criminal
Procedure. Id. at 386,
151 N.W.2d at 14. The four factual situations set forth in the standards are
not exhaustive of situations that might constitute manifest injustice. Id. The defendant must meet a higher standard of proof, proof by
clear and convincing evidence. State
v. Walberg, 109 Wis.2d 96, 102-03, 325 N.W.2d 687, 691 (1982). This higher burden is used because the
presumption of innocence is no longer applicable and, when the record on its
face shows a defendant was afforded constitutional safeguards, the defendant
should bear the heavier burden. Id.
at 103, 325 N.W.2d at 691. Once the
defendant waives his constitutional rights and enters the plea, the State's
interest in finality requires a higher standard to disturb that plea. Id. This court may not reverse a trial court's findings of fact
unless they are clearly erroneous.
Section 805.17(2), Stats.
Michael alleged as
grounds to withdraw his plea that he did not make it knowingly and
intelligently, that it was coerced and involuntary and that the interests of
justice compelled a withdrawal. The
factual allegation to support the motion was a claim of coercion by his trial
attorney, Jill Schilling. She allegedly
told him she would withdraw from representation prior to trial unless he made
an additional payment of $2,500 toward her attorney fee. Michael did not call Schilling to admit or
deny this allegation at the postconviction hearing. The trial court did not expressly find whether Schilling made the
alleged statement. The trial court did,
however, find that it did not believe Michael's claim that Schilling's
statement was the reason for his plea.
This court concludes
that Michael's testimony raised two independent factual issues, each relevant
to the merits of his motion: (1) Did
Schilling make the statement; and (2) if she did, was it a cause of Michael's change
of plea. The court addressed the second
question directly. It held that it did
not believe Michael when he testified that Schilling's statement was the reason
for his change of plea. Rather, the
court found, Michael weighed the unappealing alternatives of a trial on
numerous counts of theft against the offer of a plea bargain and a
recommendation for probation, and voluntarily opted for the latter. The trial court's finding that Michael's
plea was knowing and voluntary is not clearly erroneous. See § 805.17(2), Stats.
The court recited some
of the evidence upon which it relied to reach its finding. First, the court concluded that Michael, who
testified that Schilling's threat to withdraw was the only reason he changed
his plea, was not a credible witness.
To support the factual finding that Michael was not credible, the court
pointed to several factors. First, the
court found an implied inconsistency between his testimony that he was abusive
toward his wife, Linda, to get her to change her plea and his testimony that he
himself did not reach his decision to change his own plea until the weekend
before trial, after his altercation with Linda.
The court also relied
upon stronger and more direct evidence.
That evidence was Michael's own statement at the plea hearing. The court had inquired of Michael whether
there had been any coercion or threats to cause him to plead no contest. Michael's answer was an unequivocal
"no." The trial court found the
explanation for Michael's conflicting statements was his dissatisfaction with
the thirty-day jail sentence. Either
Michael's statement to the court at the plea hearing was untrue or his later
claim of coercion was untrue. The fact
finder had to resolve which of two conflicting statements was the truth. The trial court did this, and its finding
cannot be disturbed on appeal. Section
805.17(2), Stats.
The trial court also
found Linda's claims of coercion not credible.
She testified that when she telephoned her trial counsel, Christopher
Buslee, to tell him she did not want to accept the plea bargain, he disagreed
with her. She said he became upset,
raised his voice and implied that he might withdraw as counsel if she did not
accept the bargain. She said he eventually
ended the phone conversation by hanging up on her. She also testified that her husband "push[ed] me just to go
ahead and accept the plea."
Michael told her they did not have the money to continue, he was
"very strong" and "also loud with me." She said this caused her concern because
Michael some twelve years earlier had "become very physical with me"
and broke her ear canal. Michael
corroborated Linda's claim that he pressured her to change her plea. Buslee testified that he did "not
recall" receiving the telephone call from Linda, but acknowledged that he
may have received one. He did not
recall raising his voice, becoming upset with her or threatening to resign as
her attorney. He was not asked whether
his answers meant that he could have made the remarks or that he did not
believe he made them. He also testified that it "would not—certainly would
not be in my character to have done that." The trial court found that Buslee did not engage in the telephone
conduct ascribed to him by Linda. The
court stated that it had problems with the credibility of both the Cauleys.
This court rejects
Linda's argument that because Buslee did not directly deny his conversation
with Linda, her testimony compelled a finding that her statement was the
truth. Linda cites as precedent for her
contention Schulz v. St. Mary's Hosp., 81 Wis.2d 638, 260 N.W.2d
783 (1978). Schulz
repeats an established evidentiary proposition: A fact finder may not disregard positive uncontradicted testimony
as to the existence of some fact, or the happening of some event, in the
absence of something in the case that discredits the same or renders it against
reasonable probabilities. Id.
at 650, 260 N.W.2d at 786-87.
The trial court could
reasonably find that Buslee's statement contradicted Linda's statement, that
Linda's own statement that there had been no threats or coercion contradicted
her hearing testimony, and that she was motivated to change her statement based
upon an unsatisfactory jail term. These
findings do not violate the rule set forth in Schulz.
Finally, both Cauleys
couch part of their argument for withdrawal of plea in terms of ineffective
counsel. Michael says that Schillings'
threat to withdraw, unaccompanied with the advice that she could not withdraw
without the trial court's permission, was ineffective counsel. To prove
ineffective assistance of counsel, a defendant must satisfy the two-part test
established by Strickland v. Washington, 466 U.S. 668, 687
(1984). The defendant must show both
that his or her attorney's performance was deficient and that the deficiency
prejudiced him. Id. A party who wishes to claim trial counsel
was ineffective must give notice to trial counsel so that counsel's testimony
may be presented on the matter. State
v. Lukasik, 115 Wis.2d 134, 139, 340 N.W.2d 62, 64 (Ct. App.
1983). The failure to call Schilling is
reason to deny this aspect of Michael's claim.
Apart from the absence
of Schilling's testimony, Michael would lose his argument on the merits based
upon the trial court's findings of fact previously discussed. Assuming without deciding that Schilling
made the threat and that her statement without the accompanying advice that
withdrawal required court approval, the fact that Michael entered his plea for
a different reason renders Schilling's statement harmless error.
Linda's ineffective counsel
claim is partly based upon a contention that trial counsel's demeanor and
implied threat to withdraw constituted ineffective counsel. The trial court found that her allegations
were untrue.
Linda also supports her
ineffective counsel argument with the claim that Buslee had failed to prepare
for trial, which was "the direct
cause of the pleas [the Cauleys] entered." This argument does not withstand scrutiny. First, the trial court found as a fact that
the evidence did not establish that Buslee was unprepared. Further, Linda did not testify that her plea
was influenced by Buslee's lack of preparation. Linda's ineffective counsel claim must therefore be rejected.
By the Court.—Orders
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[1] Because the Cauleys were charged with identical offenses and raise nearly identical issues, this court ordered their appeals consolidated.
[2] Section 974.06(4), Stats., provides:
All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.