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COURT OF APPEALS DECISION DATED AND RELEASED July 2, 1996 |
NOTICE |
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A party may file with the
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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. 95-2567-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ANTHONY MURRAY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DIANE S. SYKES, Judge. Judgment affirmed; order affirmed in
part, reversed in part and cause remanded with directions.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
FINE, J. Anthony
Murray appeals from a judgment convicting him of three counts of armed robbery
contrary to § 943.32(1)(b) & (2), Stats. He also appeals the denial of his
postconviction motion to withdraw his guilty plea based on the alleged
ineffective assistance of counsel. He
argues that the trial court erred in denying his request for an evidentiary
hearing on his motion.[1] He also argues that his guilty plea was not
entered knowingly, voluntarily and intelligently. We affirm in part and reverse in part.
Murray was charged with
four counts of armed robbery. Prior to
trial, Murray agreed to plead guilty to three counts under a plea bargain to
dismiss the fourth count. Murray was
sentenced on each count to thirty years, to run concurrently. The trial court ordered the parole
eligibility date to be set at the mandatory release date, which was two-thirds
of the sentence imposed. See
§ 973.0135(2), Stats.[2] Murray filed a motion for postconviction
relief seeking an order to vacate the judgment and to withdraw his guilty pleas
on the grounds that his trial counsel failed to sufficiently advise him
regarding his parole eligibility.
Specifically, Murray argued that his pleas were not knowingly and
voluntarily entered because he was not informed that the trial court could set
a parole eligibility date equal to that of the mandatory release date. Murray also argued that trial counsel was
ineffective for refusing to withdraw his guilty pleas prior to sentencing. Finally, Murray argues that trial counsel
was ineffective for failing to file a request for substitution against Judge
Sykes. The trial court denied Murray's
postconviction motion without a hearing, concluding that Murray failed to
allege sufficient facts to warrant a hearing.
“The Constitution sets
forth the standard that a guilty or no contest plea must be affirmatively shown
to be knowing, voluntary, and intelligent.”
State v. Bangert, 131 Wis.2d 246, 266, 389 N.W.2d 12, 20
(1986). After sentencing, a defendant
wishing to withdraw his guilty plea must show by clear and convincing evidence
that the plea was not voluntarily entered and that withdrawal is necessary to
correct a manifest injustice. State
v. Woods, 173 Wis.2d 129, 136, 496 N.W.2d 144, 147 (Ct. App.
1992). Trial courts have considerable
discretion in their post-sentencing plea-withdrawal decisions. State v. Canedy, 161 Wis.2d
565, 579–580, 469 N.W.2d 163, 169 (1991).
We will uphold the trial court's findings of fact on such matters unless
they are clearly erroneous. State
v. Johnson, 193 Wis.2d 382, 387, 535 N.W.2d 441, 442 (Ct. App.
1995). The trial court reasonably found
that Murray's guilty pleas were knowingly, voluntarily and intelligently
made. First, the record reflects that
the trial court carefully questioned Murray about his decision to plead
guilty. Murray had consulted with his attorney
and filled out a plea questionnaire.
The trial court discussed with Murray the nature of the charges and the
potential penalties. The trial court
stated:
I have also drawn counsel's attention in
chambers to the new statute which was enacted last year effective April 21st of
1994 which requires me under the circumstances presented by this case to set a
parole eligibility date if I sentence the defendant to a prison term on any of
these counts. It is [§] 973.0135[, Stats.,] and applies where the
individual who has committed a serious felony within the definition of that
statute, when an armed robbery is a serious felony within the definition of
that statute....
After
the trial court's recitation of the above, counsel for Murray stated that he
had explained to Murray that it is within the trial court's discretion to allow
the standard parole eligibility date to be used or to set a deferred date. Murray acknowledged that he understood the
parole consequences of his pleas. We
conclude that the record reflects a knowing, voluntary and intelligent
plea.
Next, Murray argues that
he received ineffective assistance of counsel because his trial counsel did not
inform him of the parole consequences of his plea. The trial court determined that Murray's postconviction motion
failed to allege sufficient facts to warrant a hearing on his claim.
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).][3]
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,
Murray must show both that his attorney's performance was deficient and that
such performance prejudiced his defense.
Id.
We agree with the trial
court that Murray failed to raise an issue of fact in connection with his
ineffective-assistance-of-counsel claim on the parole-eligibility matter that
would warrant an evidentiary hearing.
Murray's postconviction motion alleged that he was not informed that the
trial court could set a parole eligibility date equal to that of the mandatory
release date or two-thirds of his sentence.
To the contrary, as noted, the record indicates that Murray was advised
by the trial court of the parole consequences of his pleas. Murray, therefore, has not established prejudice. Murray's allegation that his trial counsel
did not explain the parole consequences of his plea is thus insufficient to
warrant a Machner hearing.
Murray also claims that
trial counsel was ineffective for refusing to withdraw his guilty pleas prior
to sentencing. The State does not
address this issue. Although under
ordinary circumstances this would be a confession of error by the State, see
Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis.2d
97, 109, 279 N.W.2d 493, 499 (Ct. App. 1979), Murray has failed to even make a
colorable claim for relief on this issue.
Prior to sentencing “a
defendant should be allowed to withdraw a guilty plea for any fair and just
reason, unless the prosecution would be substantially prejudiced.” Canedy, 161 Wis.2d at 579–580,
469 N.W.2d at 169 (citation omitted). A
“fair and just reason” requires that the defendant demonstrate, by a
preponderance of the evidence, that there is an “adequate reason for the
defendant's change of heart” other than “the desire to have a trial.” Id., 161 Wis.2d at 583–584,
469 N.W.2d at 170–171. Murray has
failed to set forth a fair and just reason for withdrawal, and thus has not
satisfied the prejudice prong of Strickland. We, therefore, find these allegations
insufficient to warrant a Machner hearing.
Finally, Murray argues
that trial counsel was ineffective for failing to file a motion to substitute
based upon Judge Sykes's alleged bias.
Again, the State does not address this issue. If Murray's allegations are true, his counsel may have been
ineffective, and he may be able to establish prejudice. Thus, under this circumstance, the State's
failure to address Murray's argument regarding judicial bias is a confession of
error. See Charolais
Breeding Ranches, 90 Wis.2d at 109, 279 N.W.2d at 499. Accordingly, we remand to the trial court
for a Machner hearing.
By the Court.—Judgment
affirmed; order affirmed in part, reversed in part and cause remanded with
directions.
Publication in the
official reports is not recommended.
No. 95-2567-CR (CD)
SCHUDSON, J. (concurring
in part; dissenting in part). I
concur in the majority's rejection of most of Murray's arguments. I disagree, however, with the majority's
decision to reverse for a Machner hearing on Murray's claim that
he was denied the effective assistance of counsel by virtue of his attorney's
failure to file a motion for substitution.
The majority notes that
the State failed to address this issue in its brief to this court. I assume, however, that the State failed to
do so because Murray failed to specifically address this issue. In his brief, Murray notes that his
postconviction motion alleged ineffective assistance for numerous reasons
including his lawyer's failure “to file a substitution request.” His brief also quotes fourteen paragraphs
from his postconviction motion including the two that did relate to the
substitution issue. His brief also
includes the full fifteen paragraph motion as an appendix. On the substitution issue, that's it.
Also in Murray's
appendix, however, is the trial court's decision denying Murray's
postconviction motion. On this issue,
the trial court wrote:
Finally,
Murray claims that his counsel was ineffective for failing to investigate and
file a request for substitution of judge on the grounds that I would be
prejudiced against him. He asserts that
I was upset with him in another case because a victim refused to proceed
against him in a battery case. The case
was a misdemeanor, Case No. 2-301412, wherein three separate, nonsubstantive
appearances occurred before me. On
March 2, 1993, nothing significant happened, and I adjourned the case for
further proceedings and for a review of a no contact order. On March 8, 1993, the victim requested that
the no contact order be lifted; I ordered the no contact order modified to “no
violent contact” based on her request.
On June 24, 1993, I issued a bench warrant for the defendant when he
failed to appear for trial.
Subsequently, I rotated to the felony division. On February 22, 1994, the Hon. Thomas R.
Cooper, upon a motion by the state, presumably due to problems with the victim
testifying against Murray, dismissed the case against Murray. I was not involved in this proceeding.
I find that there was nothing defense counsel
could have investigated relating to potential bias on my part. I had no substantive involvement in Case No.
2‑301402, other than to modify the terms of the no contact order at the
request of the victim and the defendant.
I had no recollection of the defendant when he came before me in
F-942915 and F-943936, and I did not dismiss the case due to the victim's
failure to testify against Murray.
Counsel's acts were not deficient in this respect, nor do they afford a
basis for sentence modification as the defendant requests.
Murray
offers no argument disputing the facts or challenging the findings in these
trial court comments. On this issue as
well as others, “Murray has failed to even make a colorable claim for
relief.” See majority slip op.
at 6. Thus, the majority's inconsistent
application of Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp.,
90 Wis.2d 97, 109, 279 N.W.2d 493, 499 (Ct. App. 1979), is perplexing.
Therefore, I conclude
that Murray has abandoned any argument on this issue or, at the very least, has
failed to brief it adequately. Murray
has provided no
basis
on which a Machner hearing is required. Accordingly, on this issue, I respectfully dissent.
[2] Section 973.0135(2), Stats., provides:
Except as provided in sub. (3),
when a court sentences a prior offender to imprisonment in a state prison for a
serious felony committed on or after April 21, 1994, the court shall make a
parole eligibility determination regarding the person and choose one of the
following options:
(a)
The person is eligible for parole under s. 304.06 (1).
(b) The person is eligible for parole on a date set by the court. Under this paragraph, the court may not set a date that occurs before the earliest possible parole eligibility date as calculated under s. 304.06 (1) and may not set a date that occurs later than two-thirds of the sentence imposed for the felony.
[3] In Nelson, the supreme court stated that “if the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusionary allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing.” Nelson v. State, 54 Wis.2d 489, 497–498, 195 N.W.2d 629, 633 (1972).