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COURT OF APPEALS DECISION DATED AND RELEASED October 29, 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. 95-2856-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Bryan Lee Hudson,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Curley, JJ.
PER CURIAM. Bryan Lee Hudson appeals from a judgment of
conviction entered upon his Alford plea[1]
to one count of felony murder, contrary to §§ 943.32(1)(a)(2) and 940.03, Stats.
He also appeals from an order denying his postconviction motions. Hudson claims that: (1) he should be allowed to withdraw
his plea because it violates public policy; (2) the trial court
erroneously exercised its discretion in accepting the plea; (3) he
received ineffective assistance of trial counsel; (4) the trial court
erroneously exercised its sentencing discretion; and (5) we should
exercise our discretionary reversal power pursuant to § 752.35, Stats., to reverse his conviction.
Because the plea was not
violative of public policy; because the trial court did not erroneously
exercise its discretion in accepting the plea; because he received effective
assistance of trial counsel; because the trial court did not erroneously
exercise its sentencing discretion; and because we decline to exercise our
discretionary reversal authority, we affirm.
I. BACKGROUND
Hudson was charged with
felony murder in the shooting death of Michael Wolter. The basis for the charge relied on three
pieces of evidence: (1) he was
identified in a line-up; (2) a phone call from his home was placed to the
victim's home prior to the shooting; and (3) he confessed to the police.
Hudson filed a motion to
suppress the confession, claiming that the police beat him with a phone book to
coerce him into confessing. The trial
court found that the confession was not coerced and, therefore, denied the
motion to suppress.[2]
After the suppression
hearing, the State filed an amended information changing the charge to
first-degree intentional homicide. A
plea agreement was reached that would allow Hudson to enter an Alford
plea to the original charge of felony murder.
As a part of the agreement, Hudson agreed to retract his earlier claims
that the confession was coerced.
The plea was
entered. The trial court accepted the
plea[3]
and Hudson was sentenced to forty years in prison. Hudson filed postconviction motions seeking to withdraw his plea
and alleging ineffective assistance of trial counsel. The trial court denied these motions. Hudson now appeals.
II. DISCUSSION
A. Public
Policy.
Hudson claims that
public policy should bar the use of Alford pleas under
circumstances where the defendant claims his confession was coerced, at least
absent a searching inquiry by the court.
We reject Hudson's public policy argument for two reasons: (1) Alford pleas are
legally allowed, see State v. Garcia, 192 Wis.2d 845,
532 N.W.2d 111 (1995), and Hudson fails to present any authority to support his
general assertion that they violate public policy; and (2) this case does
not present a situation involving a coerced confession.
The trial court
specifically found both that Hudson's claim that he was coerced into confessing
was not credible and that Hudson confessed voluntarily and of his own free
will. There is nothing in the record to
convince us that the trial court's findings in this regard are clearly
erroneous. See § 805.17(2),
Stats. We review this case, therefore, on the premise that Hudson's
confession was not coerced.
Hudson also suggests
that the trial court should engage in a “very searching inquiry” before
accepting an Alford plea where there is a claim of coerced
confession. Hudson, again, however,
fails to cite any authority which requires the trial court to do as he
suggests.[4]
See State v. Pettit,
171 Wis.2d 627, 646-47, 492 N.W.2d 633, 642 (Ct. App. 1992). Inasmuch as the trial court did make a
finding that the confession was voluntary and the product of his free will,
nothing else is required.
B. Trial
Court's Acceptance of Plea.
Hudson next claims that
the trial court erred in accepting his plea.[5] Hudson claims the trial court erred because
it did not engage in sufficient inquiry under the facts of this case before
accepting the plea and because it failed to find “strong proof of guilt.”
A trial court's decision
to accept a plea is a discretionary determination that we will not disturb
unless there has been an erroneous exercise of discretion. Garcia, 192 Wis.2d at 856, 532
N.W.2d at 115-16. A trial court may, in
its discretion, accept a plea where there is strong proof of guilt. Id. The record in the instant case satisfies this standard.
The trial court relied
on the criminal complaint and the representations of counsel in concluding that
a sufficient factual basis existed to accept Hudson's plea. Counsel noted three items of evidence
showing a sufficient factual basis: an
eyewitness identification; the phone call; and the confession. The confession alone clearly provides a
“strong proof of Hudson's guilt.”
Although the trial court did not use these specific words, it did make a
finding based on this evidence that a sufficient factual basis existed to
accept the plea. Because the evidence
that the trial court relied on demonstrates a “strong proof of guilt,” the
trial court's failure to use the magic words was not fatal. See State v. Spears,
147 Wis.2d 429, 435, 433 N.W.2d 595, 602 (Ct. App. 1988); State v.
Johnson, 105 Wis.2d 657, 664, 314 N.W.2d 897, 900-901 (Ct. App. 1981).
C. Ineffective
Assistance.
Hudson next claims that
he received ineffective assistance of trial counsel. Specifically, he argues that his counsel was ineffective for: (1) not calling an alibi witness to
testify at the suppression hearing; and (2) not calling himself (trial
counsel) to testify at the suppression hearing. The trial court rejected Hudson's ineffective assistance claim
without holding an evidentiary hearing.
We reject his claim as well.
Hudson has a Sixth
Amendment right to the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668, 686 (1984).
In order to prove that he has not received effective assistance, Hudson
must show two things: (1) that his
lawyer's performance was deficient; and, if so, (2) that “the deficient
performance prejudiced the defense.” Id.
at 687. A lawyer's performance is not
deficient unless he committed errors so serious that he was not functioning as
the counsel guaranteed by the Sixth Amendment.
Id. In order to
show that counsel's performance was prejudicial, Hudson must prove that the
errors committed by counsel were so serious that they deprived Hudson of a fair
proceeding, whose result is reliable. See
id. In other words, in
order to prove prejudice, Hudson must show that “there is a reasonable
probability that, but for counsel's unprofessional error, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694.
In assessing Hudson's
claim that his counsel was ineffective, we need not address both the
deficient-performance and prejudice components if Hudson cannot make a
sufficient showing on one. See id.
at 697. The issues of performance and
prejudice present mixed questions of fact and law. State v. Sanchez, 201 Wis.2d 219, 236, 548
N.W.2d 69, 76 (1996). Findings of
historical fact will not be upset unless they are clearly erroneous. Id. Further, the questions of whether counsel's performance was
deficient, and, if so, whether it was prejudicial are legal issues we review de
novo. Id.
Hudson argues that his
counsel should have called an alibi witness who would have testified at the
suppression hearing that he saw Hudson between 8 and 9 p.m. the night of
the murder. Even if this failure
constituted deficient performance, it was not prejudicial. The police were not dispatched to the
shooting until 8 p.m., which means that the shooting had already occurred
before that time. Accordingly, a
witness who testifies that he saw Hudson between eight and nine is really not
an alibi witness at all because this time period was not the time at which the
crime was committed. Accordingly, this
witness's testimony would not have changed the result of the proceeding.
Hudson also argues that
his counsel should have testified at the suppression hearing regarding the
efforts made to locate Hudson after he was arrested. Counsel stated that about three days before Hudson was charged,
counsel had attempted to locate Hudson for several days and that when he did
locate Hudson, Hudson said that his repeated requests for an attorney had been
ignored. This testimony would
apparently show that the police refused to provide Hudson with an attorney so
they could coerce him into confessing.
The record, however,
does not support Hudson's claim that this failure prejudiced him. According to the record, Hudson was charged
on April 19, 1994, which means that counsel started looking for Hudson on
April 16 (three days prior to the charging date), which was two days after
Hudson had already confessed. Based on
these dates, counsel's testimony would have been irrelevant and, therefore, was
not prejudicial.
D. Sentencing.
Hudson next claims that
the trial court erroneously exercised its sentencing discretion. His argument, although somewhat muddled,
appears to suggest that the trial court rushed through the sentencing without
providing an adequate explanation for imposing the maximum sentence, and that
the trial court treated Hudson harshly because he insisted on maintaining that
he was innocent.
Our standard of review
when reviewing a criminal sentencing is whether or not the trial court
erroneously exercised its discretion. State v.
Harris, 119 Wis.2d 612, 622, 350 N.W.2d 633, 638 (1984). There is a strong policy against an
appellate court interfering with a trial court's sentencing determination and,
indeed, an appellate court must presume that the trial court acted
reasonably. State v.
Thompson, 146 Wis.2d 554, 565, 431 N.W.2d 716, 720 (Ct. App. 1988).
The sentencing court
must consider three primary factors: (1) the gravity of the offense;
(2) the character of the offender; and (3) the need to protect the
public. Harris, 119
Wis.2d at 623-24, 350 N.W.2d at 639.
The trial court may also consider:
the defendant's past record of criminal offenses; the defendant's
history of undesirable behavior patterns; the defendant's personality,
character and social traits; the presentence investigation results; the
viciousness or aggravated nature of the defendant's crime; the degree of the
defendant's culpability; the defendant's demeanor at trial; the defendant's age,
educational background and employment record; the defendant's remorse,
repentance or cooperativeness; the defendant's rehabilitative needs; the
rehabilitative needs of the victim; the needs and rights of the public; and,
the length of the defendant's pretrial detention. State v. Jones, 151 Wis.2d 488, 495, 444
N.W.2d 760, 763-64 (Ct. App. 1989).
We have reviewed the
sentencing transcript. The trial court
properly considered the three primary factors and, although the sentencing was
somewhat abbreviated, we cannot say that the length of the sentencing
constitutes an erroneous exercise of discretion.
Moreover, the record
belies Hudson's assertion that he was punished for maintaining his
innocence. Although the prosecutor
raised this issue, there is no indication in the transcript that the trial
court relied on the prosecutor's
comments when it imposed sentence.
Further lack of remorse can properly be considered as a factor in a
sentencing decision. State v.
Wickstrom, 118 Wis.2d 339, 355-56, 348 N.W.2d 183, 191-92 (Ct.
App. 1984).
E. Discretionary
Reversal.
Finally, Hudson claims
this case should be reversed under § 752.35, Stats. He argues that
the record demonstrates that the proceedings below were patently unjust and
that the prosecutor was overreaching by requiring Hudson to retract his
coercion claim.
We reject this
argument. Based on our resolution of
the individual issues raised, Hudson has failed to demonstrate that the
proceedings below were unjust.
Moreover, the prosecutor's actions regarding Hudson's retraction are
irrelevant for our purposes because the trial court specifically found that
Hudson's confession was not coerced.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[4] Hudson also suggests that his plea was coerced in part by the trial court's conduct. The record belies such a claim. The decision whether to plead and what type of plea to enter was Hudson's. The prosecutor and the trial court were prepared to try the case. Hudson chose to forgo a trial on the charge of first-degree intentional homicide and plead to the lesser charge of felony murder. He chose to do so because of the strength of the evidence against him and not because of any coercive conduct by the trial court.
[5] As collateral issues,
Hudson argues that the trial court's failure to further explore his claim of
coercion in light of his “wavering” retraction was error. Given the trial court's finding that the
confession was voluntary, we see no merit to Hudson's claim.
Hudson also asserts that he should have been informed that entering an Alford plea would prevent him from challenging the suppression ruling on appeal. We do not agree. The trial court is required to inform a defendant only of the direct consequences of the plea. State v. James, 176 Wis.2d 230, 238, 500 N.W.2d 345, 348 (Ct. App. 1993).