COURT OF APPEALS DECISION DATED AND RELEASED April 16, 1996 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
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This opinion is subject to
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official version will appear in the bound volume of the Official Reports. |
No. 95-2639-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JESUS SERRANO,
a/k/a JESSE SERRANO,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. KREMERS, Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
FINE,
J. Jesus Serrano appeals from a judgment convicting him of
possession of marijuana with intent to deliver, as a second or subsequent
offense, see §§ 161.14(4)(t), 161.41(1m)(h)(2), and 161.48, Stats., and possession of a firearm by
a felon, see § 941.29(2), Stats. He also appeals from the trial court's
denial of his motion for post-conviction relief. The judgment was entered on Serrano's guilty pleas. He claims that the trial court erred in not
permitting him to withdraw the plea to the marijuana charge. We affirm.
I.
This case was plea
bargained. As reflected by the comments
of both the prosecutor and by Serrano's trial lawyer at the plea hearing, the
State agreed to recommend incarceration of between three and four years on the
marijuana charge, and a concurrent eighteen-month sentence on the firearm
charge. In fulfillment of its obligations
under § 971.08(1)(a), Stats.,
the trial court informed Serrano that he faced “imprisonment not less than 3
months, no [sic] more than 5 years” on the marijuana charge.[1] Although this is also what the criminal
complaint recited, the trial court was wrong.
Serrano was charged as a second or subsequent offender; accordingly, the
“applicable ... minimum and maximum periods of imprisonment” were
“doubled.” Section 161.48(2), Stats.
Therefore, Serrano, contrary to what he was told by the trial court at
the plea hearing, faced a period of incarceration on the marijuana charge of
between six months and ten years. This
error was disclosed by the prosecutor at the sentencing hearing when he
explained that he was increasing his recommended sentence on the marijuana
charge to five years in prison, which was the maximum penalty that Serrano was
told at the plea hearing that he faced.
Serrano did not seek to either withdraw his plea or enforce the plea
bargain. Rather, his lawyer argued that
the trial court should put Serrano on “probation with conditional time as the
Court sees fit.” The trial court
sentenced Serrano to five years in prison on the marijuana charge.
II.
This case presents two
issues: first, whether Serrano is
entitled to withdraw his guilty plea to the marijuana charge because the State
did not fulfill the terms of the plea bargain; second, whether Serrano is
entitled to withdraw his guilty plea to the marijuana charge because the trial
court did not advise him accurately of his “potential punishment if convicted”
on that charge. See §
971.08(1)(a), Stats. We discuss these issues in turn, although
the defendant folds the breach-of-the-plea-bargain argument into his claim that
his guilty plea was not voluntary because the trial court did not comply fully
with § 971.08(1)(a), Stats.
A. Breach of the plea bargain. A defendant is entitled to have a plea
bargain enforced according to its terms.
State v. Poole, 131 Wis.2d 359, 364, 394 N.W.2d 909, 911
(Ct. App. 1986). The State's failure to
abide by a plea-bargained sentencing recommendation does not permit the
defendant to withdraw his or her guilty plea; the appropriate remedy is a
re-sentencing. Id., 131
Wis.2d at 365, 394 N.W.2d at 911–912.
Even that relief, however, is beyond a defendant's reach when he or she
does not object timely to the breach. State
v. Smith, 153 Wis.2d 739, 741, 451 N.W.2d 794, 795 (Ct. App.
1989). Serrano did not object timely to
the prosecutor's breach of the plea bargain.
B. Compliance with § 971.08(1)(a), Stats. A guilty plea is not voluntary unless the defendant knows his or
her potential punishment. State
v. Bartelt, 112 Wis.2d 467, 472–475, 334 N.W.2d 91, 93–95 (1983). Thus, § 971.08(1)(a), Stats., requires that the trial court
determine that a defendant who wishes to plead guilty have an “understanding of
the ... potential punishment if convicted.”
This must be done prior to acceptance of the plea. Ibid.; State v. Bangert,
131 Wis.2d 246, 274–275, 283, 389 N.W.2d 12, 26, 30 (1986). This was not done here. Thus, Serrano could have sought to withdraw
his guilty plea, see Bangert, 131 Wis.2d at 274, 389
N.W.2d at 26, and would have been successful unless the State proved by clear
and convincing evidence that he did understand, at the time he entered his
plea, his “potential punishment,” see id., 131 Wis.2d at
274–275, 389 N.W.2d at 26. Serrano did
not seek to withdraw his guilty plea, however, until after he knew both his
“potential punishment” and his actual sentence.
A defendant may not
withdraw a guilty plea after imposition of sentence unless he or she
establishes by “clear and convincing evidence” that there has been a “manifest
injustice.” State v. Woods,
173 Wis.2d 129, 136, 496 N.W.2d 144, 147 (Ct. App. 1992). Whether this standard has been met is within
the trial court's informed and reasoned discretion. Id., 173 Wis.2d at 136–137, 496 N.W.2d at 147. A trial court erroneously exercises its
discretion, however, if it bases its decision on “an error of law.” Ibid.
The trial court found
that Serrano knew prior to imposition of sentence that the prosecutor had
changed his recommendation. This
finding is supported by the transcript of the sentencing hearing and is thus
not “clearly erroneous.” See Rule 805.17(2), Stats., made applicable to criminal proceedings by
§ 972.11(1), Stats. The trial court also concluded that
Serrano's decision to proceed with sentencing after he knew the correct
“potential punishment,” see § 971.08(1)(a), Stats., “was in essence a reaffirmation of his earlier plea.”[2] We agree.
Although concerned with
a prosecutor's breach of a plea bargain, State v. Paske, 121
Wis.2d 471, 360 N.W.2d 695 (Ct. App. 1984), is instructive here. The defendant in Paske decided
to proceed with sentencing even though he knew, prior to sentencing, that the
prosecutor had breached the bargain. Id.,
121 Wis.2d at 473, 360 N.W.2d at 696–697.
Thus, Paske's decision not to seek to withdraw his no contest pleas was
not induced by the breached plea bargain.
Id., 121 Wis.2d at 475, 360 N.W.2d at 697–698. By the same token, Serrano's decision to
proceed with sentencing after he knew the correct “potential punishment” was
not induced by either the trial court's failure at the plea hearing to
accurately comply with § 971.08(1)(a) or Serrano's erroneous belief that
he faced only a maximum of five years in prison. As the supreme court explained more than two decades ago when a
defendant did not challenge the prosecutor's breach of a plea bargain: “The situation is not so much waiver of
claimed error, rather it is an abandonment of right to object by persisting in
a plea strategy after the basis for the claim of error is known to
defendant.” Farrar v. State,
52 Wis.2d 651, 660, 191 N.W.2d 214, 219 (1971) (parenthetical and footnote
omitted). We apply this rationale
here. Serrano has not established that
failure to permit him to withdraw his guilty plea to the marijuana charge will
result in a “manifest injustice,” and the trial court here acted well within
its discretion in denying that relief.
By the Court.—Judgment
and order affirmed.
Publication in the official
reports is recommended.
[1] Section 971.08(1)(a),
Stats., provides:
971.08 Pleas of guilty and no contest; withdrawal thereof. (1) Before the court accepts a plea
of guilty or no contest, it shall do all of the following:
(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.
[2] Although the trial court made no specific finding that Serrano knew the correct “potential punishment” prior to imposition of sentence, the transcript establishes conclusively that he did know, and such a finding is implicit in the trial court's ruling. See Kolpin v. Pioneer Power & Light Co., Inc., 162 Wis.2d 1, 30, 469 N.W.2d 595, 607 (1991) (appellate court will uphold trial court's discretionary decision if there are facts of record that support it). Moreover, Serrano does not on this appeal contend that he did not know prior to imposition of sentence what the potential penalties were.