COURT OF APPEALS DECISION DATED AND FILED August 21, 2008 David R. Schanker Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of
Plaintiff-Respondent, v. Nelson Garcia, Jr.,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Dykman, Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Nelson Garcia, Jr., appeals a judgment convicting him of one count of first-degree sexual assault of a child. He also appeals the order denying him postconviction relief. In his postconviction motion, Garcia alleged that he did not enter a knowing, voluntary, and intelligent plea to the charge, and that he received ineffective assistance from his trial counsel. On appeal, he challenges the trial court’s decision to deny those claims without a hearing. We conclude that a hearing on the postconviction motion is necessary, and we therefore reverse.
¶2 Garcia pleaded guilty to the charge, and conceded a factual basis for it consisting of evidence that he touched the private parts of the victim. In exchange for Garcia’s plea, the State dismissed three other counts of first-degree sexual assault of a child, and one count of exposing a child to harmful material. The dismissed sexual assault charges contained allegations of far more serious assaults on the victim. They were dismissed, rather than dismissed and read-in.
¶3 At sentencing, trial counsel objected when the prosecutor began discussing the more serious assaults, arguing that the court should not consider the allegations in the dismissed counts. The court responded that there was no plea agreement to limit the sentencing arguments, and that the court could consider unproven offenses in evaluating the defendant’s character. Garcia received a sentence that exceeded the State’s recommendation.
¶4 After his conviction Garcia moved to withdraw his plea, alleging that he pleaded without realizing that the trial court could consider the facts underlying the dismissed charges. He further alleged that trial counsel never advised him to the contrary, but instead stressed the fact that the dismissed charges would not be read-ins. The motion indicated that trial counsel would confirm in testimony that he was responsible for Garcia’s mistaken belief that the dismissed charges would not be considered at sentencing. In fact, according to the motion, counsel negotiated a dismissal of the charges without a read-in based on that misunderstanding. Garcia also claimed that counsel’s mistake amounted to ineffective assistance.
¶5 Although both parties requested a hearing on the motion, the trial court denied the motion without a hearing. Essentially, the trial court concluded that Garcia was not entitled to withdraw his plea, even if all of his allegations were true. The court cited and followed the reasoning in an unpublished opinion from this court that affirmed a conviction on comparable facts. The State concedes that the court erred by citing to and relying on an unpublished opinion of this court, and argues that we should affirm on other grounds.
¶6 The constitution requires a knowing, voluntary, and
intelligent plea. State v. Rodriguez, 221
¶7 Garcia’s mistaken belief about the dismissed charges, if
proven at a hearing, would entitle him to withdraw his plea. That would not be the case were the mistake
solely Garcia’s. See State v. Brown, 2004 WI App 179, ¶¶11-12, 276
¶8 The State does not dispute that in some circumstances the
defendant’s mistaken view of the legal consequences of the plea entitles the
defendant to withdraw the plea. However,
the State contends that those circumstances are limited to where the error is
attributable to both defense counsel and the prosecutor, and where the trial
court acquiesces in the error. That, in
the State’s view, is the holding of Brown and the case on which Brown
principally relies, State v. Riekkoff, 112
¶9 We conclude that the State’s interpretation of Brown
and Riekkoff
is too narrow. In Brown and Riekkoff,
the prosecutor and trial court shared defense counsel and the defendant’s
misunderstanding of the law. See Brown,
276
¶10 Our decision makes it unnecessary to address the arguments concerning Garcia’s claim of ineffective counsel. We remand for an evidentiary hearing on whether Garcia entered a knowing and voluntary plea.
By the Court.—Judgment and order reversed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.