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COURT OF APPEALS DECISION DATED AND RELEASED June 25, 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. 95-2526-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
QUENTIN ANTONIO
CARSON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: VICTOR MANIAN, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Quentin Antonio Carson, pro se, appeals from a
judgment convicting him of two counts of armed robbery, as party to a
crime. See §§ 943.32(1)(b)
and (2), and 939.05, Stats. He also appeals from an order denying him
postconviction relief. On appeal,
Carson argues: (1) that his conviction
should be vacated because he did not affirmatively enter any guilty pleas; (2)
that the State breached its plea bargain by failing to advocate for probation;
and (3) that he received ineffective assistance of counsel. We affirm.
On November 16, 1993,
Carson was charged with two counts of first-degree recklessly endangering
safety, as party to a crime; two counts of armed robbery, as party to a crime;
and two counts of false imprisonment, as party to a crime. On May 13, 1994, in exchange for the
State's agreement to dismiss four of the counts, Carson completed and signed
two guilty plea questionnaire and waiver of rights forms that indicated he was
pleading guilty to the two counts of armed robbery, as party to a crime. Carson then appeared before the trial court
and the following exchange occurred:
QSo, you're going to plead guilty to two
counts of armed robbery, is that correct?
AYes.
QAnd all the other charges are going to
be dismissed?
AThat's
right.
The
trial court then informed Carson what the maximum penalties were for two counts
of armed robbery, party to a crime, and had the following exchange:
QKnowing all of that, do you wish to
continue with your pleas of guilty to these two counts of armed robbery?
AYes.
The
trial court, however, did not proceed to directly ask Carson how he wished to
plead. Thereafter, Carson was sentenced
to consecutive twenty-year sentences on each of the armed robbery counts.
Carson filed a motion
for postconviction relief, arguing that his conviction was void because he
never directly entered a guilty plea, that the State breached the plea bargain,
that the sentence imposed was an erroneous exercise of discretion, and that he
received ineffective assistance of counsel.
The trial court rejected all of Carson's arguments and denied his motion
for postconviction relief without a hearing.
First, Carson argues
that he never affirmatively pled guilty because the trial court never directly
questioned him on whether he wanted to plead guilty. Section 972.13(1), Stats.,
allows a judgment of conviction to “be entered upon ... a plea of
guilty....” Section 972.13(1), however,
does not indicate how a defendant is to make such a plea nor does it mandate an
exact line of questioning by the court or what type of terminology should be
used by a defendant wishing to plead guilty.
Here, as noted, the trial court engaged Carson in an exchange regarding
Carson's desire to plead guilty by first asking him whether he was going to
plead guilty. Carson stated
“yes.” The trial court then asked Carson
whether he still wished to plead guilty after learning of the possible
penalties involved. Carson, again,
answered “yes.” The trial court,
however, did not proceed with a direct question regarding how Carson wished to
plead. Although a more precise question
would have been more effective in order to guarantee direct evidence of a
guilty plea, the exchange between Carson and the trial court adequately
indicated Carson's desire to plead guilty and that he did, in fact, enter
guilty pleas.
Next, Carson argues that
the State breached its plea bargain, stating that the prosecutor failed to
advocate for probation with respect to one of the robbery counts. There was, however, no objection by defense
counsel regarding the allegedly breached plea bargain before the court
proceeded to sentencing and, accordingly, this issue is waived. See State v. Smith, 153
Wis.2d 739, 741, 451 N.W.2d 794, 795 (Ct. App. 1989) (“the right to object to
an alleged breach of a plea agreement is waived when the defendant fails to object
and proceeds to sentencing”).
Finally, Carson raises
an ineffective-assistance-of-counsel claim regarding defense counsel's failure
to raise an objection on the State's alleged breach of the plea bargain. The trial court denied Carson's postconviction
motion on this issue without a Machner hearing.[1] We review a trial court's decision on
whether to hold a Machner hearing under the two-part test
enunciated in State v. Bentley, No. 94-3310-CR (Wis. May 22,
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.” (Citation omitted.) “However, if the motion fails to allege sufficient
facts, the circuit court has the discretion to deny a postconviction motion
without a hearing based on any one of the three factors enumerated in Nelson”
[v. State, 54 Wis.2d 489, 497–498, 195 N.W.2d 629, 633 (1972).]
Id.,
slip op. at 6. The motion must raise an
issue of fact regarding whether trial counsel's performance was deficient and,
if so, whether the deficient conduct prejudiced the defendant. See Strickland v. Washington,
466 U.S. 668, 687 (1984). To prevail, Carson
must show both that his attorney's performance was deficient and that such
performance prejudiced his defense. Id.
Prior to sentencing, the
State agreed, in a letter to Carson's previous counsel, to recommend
consecutive probation on one of the two counts of armed robbery but also
indicated that it would recommend that Carson should be incarcerated for a
substantial amount of time on the other armed robbery count:
Just so that this is technically correct,
my negotiation letter to Robin Shellow [previous defense counsel], dated
December 3rd, included pleas to some other offenses.
....
However,
the negotiation in that letter states that the defendant -- the State would
recommend that the defendant be incarcerated for a substantial period of time.
....
I would recommend, on the fourth count, which
is armed robbery, that he receive a consecutive sentence, but that it be stayed
in favor of consecutive probation.
A review of the record
indicates that the State followed through on its plea bargain during the
sentencing hearing:
The
State's agreed to recommend, and this was in a letter dated December 3rd, 1993
to prior counsel, that the State would recommend that the defendant be
incarcerated for substantial period of time.
....
The first two counts, and now the third count,
which is armed robbery, that he receive a consecutive sentence, but that that
be stayed in favor of consecutive probation.
The
State's recommendation during sentencing was in accord with the plea bargain
made with Carson's previous counsel.
Carson, therefore, has failed to establish prejudice under Strickland.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.