District II
March 19, 2014
To:
Hon. Sandy A. Williams
Circuit Court Judge
Ozaukee County Circuit Court
1201 South Spring Street
Port Washington, WI 53074-0994
Marylou Mueller
Clerk of Circuit Court
Ozaukee County Circuit Court
1201 South Spring Street
Port Washington, WI 53074-0994
Adam Y. Gerol
District Attorney
P.O. Box 994
Port Washington, WI 53074-0994
Trisha R. Stewart Martin
Stewart Law Offices
P.O. Box 18243
Milwaukee, WI 53218
Maura F.J. Whelan
Asst. Attorney General
P. O. Box 7857
Madison, WI 53707-7857
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Cristian X. Sanchez (L.C. #2012CF49) |
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Before Brown, C.J., Neubauer, P.J., and Gundrum, J.
Cristian X. Sanchez appeals from a judgment of conviction and an order denying his motion for postconviction relief. He contends that the circuit court erred in denying his motion to withdraw his no contest plea. He further contends that the court erred in denying his request for resentencing before a different judge. Based on our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21 (2011-12).[1] We affirm the judgment and order of the circuit court.
Sanchez was convicted following a no contest plea of
battery by a prisoner, as a repeater.
During the plea colloquy, the circuit court failed to inform Sanchez
that the victim’s lack of consent was an element of the crime. During the subsequent sentencing, the court
imposed a sentence of four years of initial confinement and four years of
extended supervision. The extended
supervision portion of the sentence exceeded the statutory maximum by one
year. See Wis. Stat. §§ 940.20(1)
and 973.01(2)(d)5.
After sentencing, Sanchez filed a postconviction motion
seeking withdrawal of his no contest plea or resentencing before a different
judge. The motion alleged that Sanchez
did not know that the State was required to prove that the victim did not
consent to the battery. It also alleged
that the extended supervision portion of his sentence exceeded the statutory
maximum.
The circuit court held a hearing on Sanchez’s motion. At that hearing, the State presented
testimony from Sanchez’s trial counsel who recalled telling Sanchez multiple times
that one of the elements of the crime was that Sanchez caused bodily harm to
the victim without the victim’s consent.
In addition, the State presented a plea questionnaire form from
Sanchez’s previous battery by a prisoner conviction two years earlier. Attached to the form was the applicable jury
instruction, which spelled out the lack of consent element.
Ultimately, the circuit court denied withdrawal of
Sanchez’s no contest plea, finding that he understood the elements the State
had to prove and was advised of them.
The court also denied the request for resentencing before a different
judge. The court acknowledged that it
had imposed too much extended supervision and explained that it would reduce
the number from four years to three years, as that was consistent with its
original sentencing intent. The court
then signed an order denying the postconviction motion. This appeal follows.
On appeal, Sanchez first contends that the circuit court erred in denying his motion to withdraw his no contest plea. Specifically, he asserts that the State failed to meet its burden of proving that his plea was knowing, intelligent, and voluntary.
A defendant who seeks to withdraw a plea after
sentencing must establish by clear and convincing evidence that withdrawal is
necessary to avoid a manifest injustice.
See State v. Brown, 2006 WI
100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906.
“One way for a defendant to meet this burden is to show that he [or she]
did not knowingly, intelligently, and voluntarily enter the plea.” Id.
A defendant who demonstrates that the plea was not knowingly,
intelligently, and voluntarily entered may withdraw that plea as a matter of
right. Id., ¶19.
To ensure that pleas are knowing, intelligent, and
voluntary, circuit courts must engage defendants in adequate plea colloquies
that comply with Wis. Stat. § 971.08
and case law. See Brown, 293 Wis. 2d 594, ¶35. Where, as here, a defendant shows that the
plea was deficient, the burden shifts to the State to show by clear and
convincing evidence that the plea was knowing, intelligent, and voluntary
despite the inadequacy of the colloquy. Id.,
¶40.
When reviewing a decision on a motion to withdraw a
plea, this court accepts the circuit court’s findings of evidentiary or
historical fact unless they are clearly erroneous. Id., ¶19. However, whether a plea was knowingly,
intelligently, and voluntarily entered is a question of constitutional fact
that this court reviews independently. Id.
Upon review of the record, we conclude that the
circuit court properly denied Sanchez’s motion to withdraw his no contest
plea. As noted, the State relied on two
pieces of evidence to show Sanchez’s knowledge and understanding of the nature
of the charge against him: (1) the
testimony of Sanchez’s defense counsel, who unequivocally stated that he had
explained the nonconsent element on multiple occasions and (2) a plea agreement
form (and attached jury instruction) from two years earlier involving the same
crime. We view this evidence as
sufficient to establish that Sanchez’s plea was knowing, intelligent, and
voluntary despite the inadequacy of the colloquy.
Sanchez next contends that the circuit court erred in denying his request for resentencing before a different judge. Sanchez maintains that he was entitled to such relief to correct his sentence which was in excess of the statutory maximum.
Again, we conclude that the
circuit court properly denied Sanchez’s request. There is no dispute that the extended supervision portion
of Sanchez’s original sentence exceeded the statutory maximum by one year. However, the circuit court corrected the
error and explained its reason for the revised sentence at the hearing denying
Sanchez’s motion. Although Sanchez
believes that he is entitled to resentencing before a different judge, he provides
no authority for this proposition.
Accordingly, we decline to discuss the issue further. See
State
v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (1992) (court of
appeals need not consider undeveloped arguments).
Upon the foregoing reasons,
IT
IS ORDERED that the judgment and order of the circuit court are summarily
affirmed, pursuant to Wis. Stat. Rule
809.21.
Diane M. Fremgen
Clerk of Court of Appeals