COURT OF APPEALS DECISION DATED AND RELEASED March 26, 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. 95-2572-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SHAMSELDIN ALI
ABDELWARRESS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
THOMAS COOPER, Judge. Affirmed.
FINE,
J. Shamseldin Ali Abdelwarress appeals from a judgment
convicting him, on his guilty plea, of battery. See § 940.19, Stats. He claims that the trial court erred in not
permitting him to withdraw that plea prior to sentencing. We affirm.
Whether a defendant may
withdraw a guilty plea is vested in the trial court's discretion. State v. Canedy, 161 Wis.2d
565, 579, 469 N.W.2d 163, 169 (1991).
“‘A discretionary determination, to be sustained, must demonstrably be
made and based upon the facts appearing in the record and in reliance on the
appropriate and applicable law.'” Id.,
161 Wis.2d at 579–580, 469 N.W.2d at 169 (citation omitted). Prior to sentencing, as here, “a defendant should
be allowed to withdraw a guilty plea for any fair and just reason, unless the
prosecution would be substantially prejudiced.” Id., 161 Wis.2d at 582, 469 N.W.2d at 170 (emphasis
in original). 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.
Abdelwarress submitted
an affidavit in support of his motion to withdraw his guilty plea. In that affidavit, he asserted that: (1) he was a native of Egypt and that
English was his second language; (2) he never discussed with his trial counsel
the entering of a guilty plea; (3) he always maintained his innocence; (4) he
never discussed with his trial counsel the consequences of entering a guilty
plea; (5) he “was fearful” that his trial lawyer, then in the middle of a trial
defending Abdelwarress on another criminal charge, would be angry if
Abdelwarress did not plead guilty to the battery charge; (6) he needed
additional time to decide whether to plead guilty or not; and (7) he was
“confused regarding the elements [of battery] and specifically, the legal
requirements of `intent' to commit a battery.”
The trial court held a hearing on Abdelwarress's motion, but
Abdelwarress declined to testify.
In denying
Abdelwarress's motion to withdraw his guilty plea, the trial court applied the
standards enunciated in Canedy. The trial court also recounted that Abdelwarress was not rushed in
his plea. Indeed, although Abdelwarress
entered the guilty plea in the middle of the trial on the other charge
(endangering safety by use of a dangerous weapon), the transcript of the guilty-plea
hearing and the written guilty plea questionnaire executed by Abdelwarress
support the trial court's finding that the plea was voluntary, and that the
assertions in Abdelwarress's affidavit were not true.[1]
Further, Abdelwarress testified during the trial on the other charge that he
came from Egypt on a scholarship, that he planned on attending law school in
the fall of that year, and that he had a “post-graduate diploma in psychology.”
The trial court's
determination that Abdelwarress was attempting to “manipulate the court” is
supported by the record. Accordingly,
the trial court's conclusion that Abdelwarress did not satisfy the first prong
of the Canedy test is supported by the record.[2] The trial court's denial of Abdelwarress's
motion to withdraw his guilty plea was well within its discretion.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Thus, the transcript
of the plea hearing reveals that the trial court appropriately and patiently
indicated that it would refuse to accept Abdelwarress's plea if Abdelwarress
did not intend to injure the alleged victim:
THE
COURT: Mr. Abdelwarress, are you
pleading guilty because you're admitting on October 10th of 1994 at 2514 North
Kramer in the City of Milwaukee you did cause bodily harm to Darlene Stark with
an act done to -- with the intent to cause bodily harm to Darlene Stark, and
that was done without the consent of Darlene Stark contrary to Wisconsin
Statutes?
I
am asking, are you pleading guilty because you did what they said you did?
THE
DEFENDANT: Well --
[DEFENSE
ATTORNEY]: Did you hit her with an ice
scraper?
THE
DEFENDANT: But there was no intent to
bodily harm. I was asleep and I don't
have total recollection.
THE
COURT: If you did not intend to batter
her, I cannot accept the plea.
THE
DEFENDANT: No, I plead guilty.
THE
COURT: Pardon me?
THE
DEFENDANT: I am pleading guilty.
THE
COURT: Did you intend to hit her with
that?
THE
DEFENDANT: Yes.
THE
COURT: It's okay either way. I mean we can try the case. We're right in the middle of it.
So
you intended to hit her with the ice scraper?
THE
DEFENDANT: Yes.
[PROSECUTOR]: I'm sorry, I didn't hear his answer.
THE
COURT: Yes. Is that what the response was?
THE
DEFENDANT: Yes.
THE
COURT: I am satisfied, based upon that,
there is sufficient grounds to support a finding of guilt.
The
State stipulating to factual basis in the complaint, [prosecutor]?
[PROSECUTOR]: Yes, Judge.
THE COURT: I will find the defendant guilty of the charge of battery.