COURT OF
APPEALS DECISION DATED AND
RELEASED July
3, 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. 95-3165-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CARLOS
L. VASQUEZ,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Clark County: MICHAEL W. BRENNAN, Judge. Reversed and cause remanded with
directions.
Before
Eich, C.J., Dykman and Vergeront, JJ.
VERGERONT,
J. Carlos L. Vasquez appeals from a judgment of conviction for
robbery in violation of § 943.32(1)(a), Stats.,
and intimidation of a victim in violation of §§ 940.44 and 940.45(2), Stats.
Vasquez's primary contention is that the trial court erred in not
permitting him to withdraw his Alford plea[1]
to the charge of robbery before sentencing.
We conclude that Vasquez has met the two threshold requirements for plea
withdrawal. We therefore reverse the
judgment and remand for further proceedings.
BACKGROUND
The
criminal complaint charged Vasquez with armed robbery contrary to
§ 943.32(1)(b) and (2), Stats.,
and burglary contrary to § 943.10(1)(a), Stats. Vasquez pleaded not guilty to the
information containing those charges.
An amended information changed the burglary count to armed burglary
contrary to § 943.10(1) and (2)(a), and added a third count of intimidation of
a victim contrary to §§ 940.44 and 940.45(2), Stats.
After
a twenty-minute adjournment of a hearing on various motions held on February
15, 1995, the prosecution introduced a second amended information and presented
a plea agreement. The second amended
information amended the first count from armed robbery to robbery in violation
of § 943.32(1)(a), Stats.,
eliminated the burglary charge and kept the intimidation of a victim charge.[2] The prosecutor explained that Vasquez would
plead as follows:
The first one is simple robbery, that would have been
amended over from armed robbery. So
that's a fine not to exceed $10,000, and not to exceed 10 years, or both. And the second count is the count that we
had added to the Information today.
That being the grabbing the phone and the damaging of the telephone in
an effort to prevent the victim from reporting the crime.... It is my understanding that they want to
enter an Alford plea to these counts. I have no objection to that sort of a plea given the fact
situation.... Both sides would ask for a presentence investigation. That's my understanding, and we are free to
argue as we please.
Defense
counsel stated, "That is correct, your Honor," and went on to explain
the reasons for the Alford pleas. The court asked Vasquez whether it was his wish "to enter
these Alford pleas to these two charges," and Vasquez
answered "yes."
Vasquez
had signed and submitted a Plea Advisement and Waiver of Rights form (Plea
Advisement form) to the court. The
court asked Vasquez whether he had gone over every line of this form with his
attorney and Vasquez answered "yes."
Pertinent
portions of the Plea Advisement form are:
10. I have (have not) entered
in a plea agreement. My understanding
of the plea agreement is:
Amended Information--simple burglary (Class C
fel) and intim. of witness (Class D felony.)--both sides free to argue.
....
12. I understand that by pleading
guilty or no contest, I am admitting each and every element of every offense
charged. These elements are:
1) burglary--intentionally
enter a building without consent of person in lawful possession and w/ intent
to steal; 2) knowingly and maliciously attempt to prevent a victim of a
crime from reporting the crime to law enforcement.
The
trial court questioned Vasquez on his understanding of the rights he was giving
up by entering Alford pleas, including the right to have the
district attorney "prove each and every element of the offense beyond a
reasonable doubt that are listed in paragraph 12." The court also questioned Vasquez on his
understanding of the maximum sentence and the significance of an Alford
plea. The district attorney summarized
the evidence from the preliminary hearing that provided a factual basis for the
pleas. The trial court did not, other
than by its above-cited reference to paragraph 12 of the Plea Advisement form,
question Vasquez on his understanding of the elements of the crimes to which he
was pleading, and no one at the hearing stated what the elements of the crimes
were. After the initial statement by
the prosecutor, no one, including the trial court, referred by name to the
charges to which Vasquez was pleading.
Other than the court's first question to Vasquez--whether he wished to
enter Alford pleas to these two charges--the court did not ask
him to state that he was pleading to specifically-named crimes, and he did not
so state.
The
court found there was a substantial probability that Vasquez would be found
guilty by a jury, and that he entered his Alford pleas and waived
his rights freely, voluntarily and intelligently. In making these findings, the court did not name the
charges. The court then ordered a
presentence report.
At
the beginning of the sentencing hearing, defense counsel advised the court
that, after Vasquez had reviewed the presentence report, which included
recommended sentences for the robbery charge and the intimidation of a victim
charge, Vasquez told his attorney that he had not pleaded to robbery, he had
pleaded to burglary. Defense counsel
acknowledged that he had written out the elements for burglary, not robbery, on
the Plea Advisement form. According to
defense counsel, even though both the burglary charge and the robbery charge
are Class C felonies, there is a difference in how the parole board looks at
the two offenses because robbery is considered a violent crime while burglary
is not. Defense counsel made an oral
motion to withdraw the plea to the robbery charge and proceed to trial on the
first amended information.
The
sentencing hearing was adjourned so that a transcript of the plea hearing could
be prepared. The court heard argument
on the motion for a plea withdrawal at a later date. The court acknowledged that the Plea Advisement form referred to
burglary and described the elements of burglary. However, based on the transcript of the plea hearing, in
particular the initial comments by the prosecutor about the plea agreement and
the defense's response to the court's questions immediately following, the
court determined that Vasquez understood "the effect of this charge ...
[and] the facts of the charge ... and what the charge was worth." The court did not permit withdrawal of the
plea and sentenced Vasquez to eight years on the robbery count and five years
on the intimidation of a victim count, to be served consecutively to each other
and consecutively to the term he was presently serving.
DISCUSSION
As a matter of
constitutional right, a defendant is entitled to withdraw a plea if he
demonstrates it was not knowingly, voluntarily and intelligently made. State v. Bangert, 131 Wis.2d
246, 260, 389 N.W.2d 12, 20 (1986).[3] A plea is not voluntary unless the defendant
has a full understanding of the charges against him. Id. at 257, 389 N.W.2d at 19.
Bangert establishes the procedure a trial court must follow
when accepting a plea of guilty or no contest.
As required by § 971.08(1)(a), Stats.,
the court must ascertain the defendant's understanding of the nature of the
charge. Bangert, 131
Wis.2d at 267, 389 N.W.2d at 23. In
addition, the court has the mandatory duty to first inform the defendant of the
charge's nature or, instead, to ascertain the defendant possesses such
information. Id. Methods by which the court may fulfill this
requirement include summarizing the elements of the crime charged by reading
from the appropriate jury instructions; asking defense counsel whether he or
she has explained the nature of the charge to the defendant and requesting that
counsel summarize the explanation, including a reiteration of the elements of
the crime, at the plea hearing; and referring to documents in the record,
including a statement signed by the defendant which demonstrates that the
defendant has notice of the nature of the charge. Bangert, 131 Wis.2d at 268, 389 N.W.2d at 23-24.
When
a defendant maintains that the § 971.08, Stats.,
procedure is not undertaken or the court-mandated duties are not fulfilled at a
plea hearing, the defendant must meet two threshold
requirements: (1) a prima facie showing of a violation
of § 971.08(1)(a) or other mandatory duties, and (2) an allegation
that the defendant did not know or understand the information that should have
been provided at the plea hearing. State
v. Giebel, 198 Wis.2d 207, 216, 541 N.W.2d 815, 818 (Ct. App.
1995). Once these threshold
requirements are met, the burden shifts to the State to show by clear and
convincing evidence that the defendant's plea was knowingly, voluntarily and
intelligently entered. Bangert,
131 Wis.2d at 274, 389 N.W.2d at 26.
The State may examine the defendant or defendant's counsel and may rely
on the entire record to demonstrate the defendant's knowledge and
understanding. Id. at
275, 389 N.W.2d at 26. Whether a
defendant has made a prima facie showing that his plea was accepted
without compliance with § 971.08(1)(a) or other mandatory duties is a question
of law, which we review de novo. State
v. Hansen, 168 Wis.2d 749, 755, 485 N.W.2d 74, 77 (Ct. App. 1992).
Vasquez
contends that he has met the two threshold requirements for proving that he did
not knowingly plead to the charge of robbery.
He has met the first threshold requirement, he argues, because the trial
court at the plea hearing did not ascertain that he understood the nature of
the charge to which he was pleading. He
has met the second requirement, he argues, because he alleged, through counsel
when he orally made the motion to withdraw his plea, that he did not understand
that he was pleading to robbery rather than burglary. According to Vasquez, the burden has shifted to the State to
prove by clear and convincing evidence that he did knowingly, voluntarily and
intelligently plead to that charge and the State has not met its burden.
The
State responds that Vasquez has not met the two threshold requirements and
therefore the burden has not shifted.
The State acknowledges that at the plea hearing the trial court did not
summarize the elements of robbery for the defendant or otherwise fulfill its
obligation to ascertain the defendant's understanding of those elements. However, the State contends that Vasquez has
not alleged that he did not understand those elements and so has not met the
second threshold requirement.
The
State draws a distinction between understanding the elements of the charge of
robbery and understanding that one has pleaded to robbery rather than
burglary. According to the State, since
Vasquez has alleged that he did not understand he was pleading to robbery
rather than burglary, in order to meet the first threshold requirement, he must
make a prima facie showing that the court did not ascertain that he
understood he was pleading to robbery rather than burglary. Vasquez cannot make this showing, the State
contends, because the transcript of the plea hearing shows that Vasquez
answered "yes" when the court asked if he wanted to enter Alford
pleas "to these two charges" following the prosecutor's description
of the plea agreement as relating to a charge of robbery and a charge of
intimidation of a victim.
The
State's distinction between understanding the elements of a robbery charge and
understanding that one has pleaded to robbery rather than burglary is not a
meaningful distinction. Bangert
requires that the court provide the defendant with information on the elements
of the charge, or ascertain that the defendant has such information, precisely
in order to establish that the defendant understands the nature of the charge. After outlining possible methods for
providing the defendant with information on the elements of the charge or
ascertaining that he has such information, the Bangert court
stated:
[I]t
is no longer sufficient for a trial judge merely to perfunctorily question the
defendant about his understanding of the charge. Likewise, a perfunctory affirmative response by the defendant
that he understands the nature of the offense, without an affirmative showing
that the nature of the crime has been communicated to him or that the defendant
has at some point expressed his knowledge of the nature of the charge, will not
satisfy the requirement of sec. 971.08.
Whether the trial court communicates the
elements of the crime at the plea hearing or whether the court refers to a
document or portion of the record predating the plea hearing, the operative
time period for determining the defendant's understanding of the nature of the
charge remains the plea hearing itself.
The defendant must understand the nature of the crime at the time of the
taking of the plea.
Bangert, 131 Wis.2d at 268-69, 389 N.W.2d at 24.
The
trial court did not read the elements of robbery and did not ask defense
counsel whether he had explained the nature of the charge of robbery to
Vasquez. Although the prosecutor
referred to the amended information, which described the statutory requirements
for robbery without using the word "robbery," the trial court did not
ascertain that Vasquez understood the nature of the charge based on the second
amended information. The trial court
did ascertain that Vasquez had gone over the Plea Advisement form line by
line. But that listed the elements of
burglary, not robbery. We conclude that
Vasquez has made a prima facie showing that his plea was accepted
without the trial court conforming with § 971.08(1)(a), Stats., and the mandatory procedures
stated in Bangert for ascertaining that Vasquez knew the nature
of the crime to which he was pleading.
We
also conclude that Vasquez has met the second threshold requirement in that he
has alleged, through counsel, that he did not understand the information that
should have been provided at the plea hearing--that is, that he did not
understand the nature of the crime he was pleading to.[4] The burden therefore shifts to the State to
show by clear and convincing evidence that Vasquez did understand the nature of
the charge--robbery--in spite of the inadequacy of the plea colloquy.
We
interpret the trial court's ruling as a determination that Vasquez did not meet
the requirement for making a prima facie showing that the plea colloquy
was inadequate with respect to the robbery charge. It therefore did not determine that the burden had shifted to the
State or provide the State with an opportunity to meet that burden. We reverse the judgment and remand to the
trial court for further proceedings in which the State has the opportunity to
meet its burden with respect to the robbery charge.
Vasquez
also contends that he never actually entered a plea to any charge. In support of this argument, he states
simply that at the plea hearing he never stated affirmatively that he was
entering an Alford plea to a particular charge, but instead responded
to the court's questions. He does not
further develop the argument and does not cite any authority. He does not even contend that he did not
intend to enter Alford pleas to two charges. We conclude there is no merit to this
argument.
Vasquez's
argument that the court never adjudged him guilty of any offense is also
without merit. The court recognized at
the hearing on the plea withdrawal, before proceeding to sentence Vasquez, that
it had not expressly stated at the conclusion of the plea hearing that it found
Vasquez guilty of robbery and intimidating a victim. The court then did find Vasquez guilty of those two offenses.
By
the Court.—Judgment reversed
and cause remanded with directions.
Not recommended for
publication in the official reports.
[1] An Alford plea is a guilty plea
in which the defendant pleads guilty while either maintaining his innocence or
not admitting having committed the crime.
State v. Garcia, 192 Wis.2d 845, 856, 532 N.W.2d 111, 115
(1995).
[2] The first count of the second amended
information stated:
FOR A FIRST COUNT: With intent to
steal, take property from the person or presence of the owner by the threat of
use of force against the person of the owner with intent thereby to over come
her physical resistance to the taking or carrying away of the property,
to-wit: did steal the purse and it's
contents from Lorrine Kostner, contrary to section 943.32(1)(a) Wis. Stats.
PENALTY: Class C
Felony - A fine not to exceed $10,000 or imprisonment not to exceed 10 years or
both.
[3] Prior to sentencing, the court should freely
allow a defendant to withdraw his plea if it finds any fair and just reason for
withdrawal, unless the prosecution has been substantially prejudiced by
reliance on the plea. State v.
Garcia, 192 Wis.2d 845, 861, 532 N.W.2d 111, 117 (1995). After sentencing, the defendant must show a
manifest injustice by clear and convincing evidence. State v. Nawrocke, 193 Wis.2d 373, 378-79, 534
N.W.2d 624, 626 (Ct. App. 1995).
However, as the State concedes, if Vasquez proves that he did not understand
that he was pleading to robbery but instead thought he was pleading to
burglary, there is a ground for withdrawal under either standard.
[4] The State states that it is assuming for the
sake of argument that the allegation of counsel is sufficient, but states that,
in its view, that is not sufficient.
The State "believes that the defendant ought to be required personally
to make the required allegation, preferably under oath either by way of
affidavit or testimony, so that the matter is really put in issue." The State asserts that its position is
supported by a recent decision, State v. Klessig, ___ Wis.2d ___,
544 N.W.2d 605 (Ct. App. 1996), petition for review granted, (Wis. May
7, 1996). Klessig
concerned waiver of the right to counsel, not withdrawal of a plea. We noted that in spite of that difference,
the Bangert analysis was applicable. Since Klessig had not made "a prima facie showing or even a
contention that he did not have the knowledge and understanding necessary for
him to voluntarily and intelligently waive his right to counsel," we
concluded Klessig had not made a minimal showing that he was prejudiced by the
court's failure to inquire whether the waiver was knowing and voluntary. Klessig, ___ Wis.2d at ___,
544 N.W.2d at 608. Klessig
does not hold or suggest that "the contention" a defendant must make
must be by an affidavit or sworn testimony.