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COURT OF APPEALS
DECISION
DATED AND FILED
December 18, 2007
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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State of Wisconsin,
Plaintiff-Respondent,
v.
Eugene Deiondre Rhodes,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Milwaukee County: JEFFREY
A. WAGNER, Judge. Affirmed.
Before Wedemeyer, Fine and Kessler, JJ.
¶1 WEDEMEYER,
J. Eugene Deiondre Rhodes appeals from a judgment
entered after he pled guilty to one count of second-degree sexual assault of
a child, contrary to Wis. Stat. § 948.02(2)(2005-06). Rhodes
claims the trial court erroneously exercised its discretion when it denied his
motion seeking plea withdrawal. Because Rhodes failed to establish a “fair and just reason”
sufficient to require plea withdrawal, we affirm.
BACKGROUND
¶2 On January 24, 2005, Rhodes
was incarcerated on an armed robbery charge.
While incarcerated, Rhodes was
interrogated about a separate, unrelated crime involving the sexual assault of
a minor. Rhodes
admits that he consented to a DNA test to see if he was connected to the
assault, but claims he refused to be questioned about the incident itself. Milwaukee Police Detective, Jason Dorava,
testified that Rhodes provided a three-page
statement detailing what had occurred.
At the Miranda-Goodchild hearing,
the trial court found the detective’s version of events to be more credible and
denied the motion to suppress the confession.
¶3 On August 10, 2005, the date set for trial in this matter, Rhodes pled guilty to one count of second-degree sexual
assault of a child. A plea colloquy was
conducted and a plea questionnaire/waiver of rights form was submitted. The trial court ordered an update to the
presentence investigation report and sentencing was set for September 7,
2005. On that date, the case was
adjourned and sentencing was reset for October 26, 2005. On that date, sentencing was adjourned until
November 23, 2005. On November 23,
defense counsel filed a motion to withdraw due
to “a breakdown in communication that is irreconcilable.” Defense counsel advised the trial court
that Rhodes would be filing a motion to
withdraw his guilty plea.
¶4 The State Public Defender’s office appointed new
counsel. Eventually on March 17, 2006, Rhodes filed a motion to withdraw his guilty plea,
claiming he was coerced into pleading guilty by his former counsel. The trial court conducted an evidentiary hearing
on May 8, 2006, at the end of which, the motion was denied. On August 9, 2006, Rhodes
was sentenced to twenty years in prison, consisting of eleven years of initial
confinement, followed by nine years of extended supervision. Judgment was entered. Rhodes now
appeals.
DISCUSSION
¶5 The sole issue in this case is whether the trial court
erroneously exercised its discretion in denying Rhodes’s
motion to withdraw his guilty plea. We
are not convinced.
¶6 To satisfy due process rights, a guilty plea must be entered
knowingly, voluntarily and intelligently.
See State v. Hampton, 2004 WI 107, ¶22, 274 Wis. 2d 379, 683 N.W.2d
14. This means that the defendant has to
be aware of the nature of the crime with which he is charged, the
constitutional rights he is waiving by pleading guilty, and the direct
consequences of the plea. Id., ¶¶22-24. Wisconsin
Stat. § 971.08(1)(a) protects the defendant’s due process
rights by requiring that the trial court “[a]ddress 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.”
¶7 A defendant seeking to withdraw a plea before sentencing must
present a fair and just reason which the trial court finds credible, and
rebut evidence offered by the State that the State will be substantially
prejudiced by the plea withdrawal. State
v. Jenkins, 2007 WI 96, ¶43, 303 Wis.
2d 157, 736 N.W.2d 24. A decision to
grant or deny a motion to withdraw is within the discretion of the trial
court. Id., ¶30. “Fair and just” means some other adequate
reason besides the defendant simply changing his mind. See
State v. Canedy, 161
Wis. 2d 565,
583, 469 N.W.2d 163 (1991).
¶8 Here, Rhodes makes two
arguments. First, he contends that he
presented a fair and just reason for plea withdrawal: he entered the plea under the duress of his
trial counsel’s coercive conduct.
Second, he contends the trial court applied the incorrect legal standard
when it denied the motion, finding that the plea was voluntarily and knowingly
entered and was valid under Wis. Stat. § 971.08, pursuant to State
v. Bangert, 131 Wis.
2d 246, 274, 389 N.W.2d 12 (1986). We
reject each argument for the reasons that follow.
¶9 Citing State v. Basley, 2006 WI App 253, ¶9
& n.4, 298 Wis. 2d 232, 726 N.W.2d 671, Rhodes contends that his former
trial counsel’s conduct improperly coerced him into pleading guilty at that
last moment, when he really wanted to go to trial. The record reflects that trial counsel
concedes that he was “forceful” in his belief that Rhodes
should take the plea offer. Counsel
explained that after the trial court denied the motion to suppress, there was
no chance of acquittal at trial, and Rhodes
had a better chance of getting a shorter sentence by accepting the plea
offer. The record also demonstrates that
trial counsel advised Rhodes that it was Rhodes’s
decision whether to proceed to trial or plead guilty. Rhodes
admits this fact. After hearing both the
testimony of trial counsel and Rhodes, the trial court ruled:
[T]here’s no
issue as to whether or not the plea was taken pursuant to the requirements of
Bangert. So … that was met as far as the
criteria.
The issue that has been brought up is whether
or not the defendant really voluntarily, knowingly entered his plea without any
type of coercion by his then lawyer. And
based upon what’s been represented on the record and the Court assessing the
credibility of the witnesses who testified, that there’s no doubt that [defense
counsel] acted as an advocate in his role as a defense lawyer, as far as
discussing with the defendant the pros and cons of entering a plea or going to
trial and, apparently, had the case investigated by his investigator and
afforded the defendant the opportunity, which he’s supposed to have, of knowing
the results of that discovery.
They may have -- the defendant may have gone
back and forth as to whether or not to plead, but the bottom line is it was his
decision to plead after discussing all the considerations; going through the
plea questionnaire .… And it was [Rhodes’s] decision, ultimately, to make that decision,
and he did so voluntarily. I don’t see
anything that would -- in the record that would come close to him being
pressured by anybody to accept the plea.
¶10 Thus, the trial court concluded that Rhodes fails to present
sufficient evidence that he was improperly coerced into pleading guilty—therefore,
there was no fair and just reason to grant plea withdraw. We cannot conclude that the trial court
erroneously exercised its discretion in deciding to deny the motion seeking
plea withdrawal.
¶11 Rhodes proffers his attorney’s
“forceful advice” as the coercion present here.
We reject such a contention.
Defense counsel’s professional belief was that if Rhodes
went to trial, he would be convicted.
This was based on the ruling that the detailed confession would be
admitted and upon defense counsel’s investigation of potential alibi witnesses
that simply did not pan out. Under such
circumstances, a defense counsel would be remiss to advise a defendant to go to
trial, knowing that a conviction was highly likely. Moreover, it was undisputed fact that after
the “forceful advice,” defense counsel told Rhodes
that whether to go to trial was ultimately his decision. Rhodes
concedes this fact, but still elected to plead guilty.
¶12 Rhodes also proffers that several of the factors to consider in
deciding whether to grant a plea withdrawal motion set forth in State v.
Shanks, 152 Wis. 2d 284, 290, 448 N.W.2d 264 (Ct. App. 1989) are
supportive of his claim: (1) Rhodes
claims he is innocent; (2) the plea was entered hastily; (3) there was coercion
by defense counsel and (4) he swiftly filed a motion to withdraw the plea. We have already rejected coercion as a
factor. There is no indication that the
plea was entered hastily. Rhodes argues that because it was done on the date set
for trial, this suggests a rushed plea.
We are not convinced. There was
no evidence that Rhodes was rushed through the
plea colloquy. Rather, the record
indicates the opposite—that there was a period of discussion prior to Rhodes agreeing to plead guilty. The next factor is quickly filing a motion to
withdraw following the entry of the plea.
That did not happen here. The
guilty plea was entered on August 10, 2005, and the motion to withdraw the plea
was filed on March 17, 2006. Such timing
does not strike this court as “swift.” Rhodes also argues that although the motion was not filed
quickly, there was indication early on that he had a change of heart. We acknowledge that former defense counsel
advised the trial court during the counsel-withdrawal motion of Rhodes’s desire to withdraw his plea. Still, this was not until November 23, 2005,
over three months after the plea was entered.
Thus, this factor does not favor Rhodes.
¶13 The final factor Rhodes
presents is claiming that he is innocent.
A claim of innocence alone is insufficient to support a motion to
withdraw a guilty plea. The claim must
be backed up with credible evidence to support it. See State v.
Kivioja, 225 Wis.
2d 271, 289, 592 N.W.2d 220 (1999). The
trial court did not find this factor to be
persuasive, thus either explicitly or implicitly concluding that Rhodes’s claim was disingenuous. In light of the detail provided within
Rhodes’s confession, together with the trial court’s credibility findings, we
are not convinced that Rhodes’s innocence
claim, standing alone, renders the trial court’s decision erroneous. Accordingly, we must conclude that the trial
court appropriately exercised its discretion in denying the motion seeking to
withdraw the guilty plea.
¶14 We are further not convinced that the trial court applied the
incorrect legal standard. The emphasis
in the trial court by Rhodes was that he was
coerced by counsel into pleading guilty.
In assessing that claim, the trial court analyzed whether the plea was
entered knowingly, voluntarily and intelligently. Thus, the trial court examined this factor to
determine whether coercion existed. Such
procedure has been found to be appropriate.
See Jenkins, 736 N.W.2d 24, ¶62. Being coerced into pleading guilty is the
direct antithesis to entering a voluntary plea.
Based on our review of this record, we cannot conclude that the trial
court erroneously exercised its discretion when it denied Rhodes’s
motion seeking plea withdrawal.
Therefore, we affirm the judgment of the trial court.
By the Court.—Judgment affirmed.