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COURT OF APPEALS
DECISION
DATED AND FILED
April 29, 2010
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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DISTRICT IV
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State of Wisconsin,
Plaintiff-Respondent,
v.
Tyrees O. Murray,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Dane County: STUART
A. SCHWARTZ, Judge. Affirmed.
Before Dykman, P.J., Vergeront and Higginbotham, JJ.
¶1 PER CURIAM. Tyrees Murray, pro se, appeals
from an order denying postconviction relief.
Murray
argues he is entitled to withdraw his guilty plea based on an alleged misunderstanding
of extended supervision. Murray also contends the
plea colloquy was deficient because the circuit court did not ascertain that he
understood the elements of the offenses to which he pled guilty. We reject his arguments and affirm.
¶2 Murray
pled guilty to first-degree intentional homicide and kidnapping. In exchange for the plea, the State agreed to
recommend the dismissal of a weapon enhancer and also agreed not to pursue additional
charges in connection with eighty-three rocks of crack cocaine found on Murray’s person.
¶3 The convictions arose from the murder of Maurice Washington
in a Madison
parking lot. Immediately after shooting
Washington, Murray told fifteen-year-old T.T., who was in the car with Murray
and Washington, and had witnessed the shooting, that she had to remain with him
until he got safely out of Madison and that he was going to take her to Chicago
with him. When she tried to flee, Murray told her that he
would shoot her, but she was eventually able to escape and flag down
police. The circuit court imposed life
imprisonment and accepted a joint recommendation of eligibility for extended
supervision after twenty-seven years and six months of confinement on the
homicide conviction. The court imposed a
concurrent sentence of eight years’ initial confinement and two years’ extended
supervision on the kidnapping charge.
¶4 Murray
filed four motions to withdraw his guilty pleas and the circuit court held two
evidentiary hearings on those motions. He
appeals the denial of the latest of those motions.
¶5 Murray filed his first motion on the grounds that he
allegedly believed that the extended supervision eligibility date that the
parties would recommend to the court was a “mandatory release, and that it was
not optional or up to some board, that it would happen.” Murray
alleged that had he known that the court could not set an “absolute release
date, a sure release date” he would not have entered the guilty pleas.
¶6 The circuit court held an evidentiary hearing at which Murray was represented by
new counsel, R. Alan Bates. Murray testified that he
understood that his sentence on the first-degree intentional homicide charge
would be twenty-seven-and-one-half years, as jointly recommended by the
parties. Murray’s
trial counsel, Daniel Dunn, testified that he discussed with Murray several times that “it wasn’t an
automatic thing that he was going to get released after 20 years or 35 years or
whatever number of years it was that we ended up with.”
¶7 The circuit court denied the motion, finding Murray’s claim of confusion and misconception
implausible, and applying the manifest injustice standard applicable to plea
withdrawal motions made after sentencing. The court found Murray
did not meet the standard because Murray
was not credible in claiming that he was “confused and did not understand the
nuances of a bifurcated sentence particularly as it pertained to extended
supervision eligibility.” The court
further found that Murray
“understood the consequences of his pleas and the distinction between extended
supervision eligibility and mandatory release.”
¶8 Murray’s
second plea withdrawal motion alleged his plea was not knowingly and
intelligently entered because he did not understand that he would be sentenced
to life and he believed that he would be sentenced to no more than twenty-seven-and-one-half
years in prison. The motion further
alleged that Dr. Jonathan Lewis evaluated Murray
and found him in the borderline to mildly retarded range, and that Murray had a “mild impairment in terms of understanding
legal process,” and that under stress, Murray
would have even more difficulty understanding.
¶9 The circuit court held another evidentiary hearing at which Murray was represented by
attorney Patricia FitzGerald. Murray and
Dr. Lewis testified. The circuit court
denied the second plea withdrawal motion.
The court held Dr. Lewis’ testimony did not demonstrate that Murray lacked the intellectual capacity to understand his
guilty plea and that Murray
had not met his burden of proving that his plea was not knowingly and intelligently
entered.
¶10 Murray’s third motion alleged attorney Bates was ineffective
for several reasons: (1) he
“conceded that the standard for determining whether Mr. Murray should be
allowed to withdraw his plea was whether there was a manifest injustice rather
than … whether there was a fair and just reason to withdraw the plea”;
(2) he failed to provide evidence that attorney Dunn “was not sure that
Murray understood the consequences of his plea; and (3) he failed to
present evidence that supported Murray’s claim that he did not understand the
written material provided to him prior to the plea. The parties agreed the court could resolve
those claims without an evidentiary hearing, relying on the existing record
supplemented by a new affidavit from attorney Dunn.
¶11 The circuit court denied Murray’s
third motion, agreeing that the “fair and just reason” standard was the
appropriate standard by which Murray’s
first motion should have been evaluated.
However, the court held that Murray’s
attorney had not conceded the application of the higher standard. Applying the fair and just reason standard,
the court found Murray’s statements “lacking in
both credibility and merit,” and concluded that “Murray clearly understood the implications of
entering his pleas.”
¶12 We affirmed the judgment of conviction and the orders denying
plea withdrawal in State v. Tyrees O. Murray, Case No. 2004AP786-CR, unpublished
slip op. (July 20, 2006). Applying the
fair and just reason standard, we rejected Murray’s claim that the circuit court should
have allowed him to withdraw his guilty plea prior to sentencing. Our supreme court denied Murray’s petition for review.
¶13 Murray,
pro se, filed a fourth plea withdrawal motion under Wis. Stat. § 974.06 (2007-08).
Murray alleged that he should be allowed
to withdraw his plea because “he was never informed of [the] extended
supervision portion of [the] sentence, [and] therefore [was] not informed of
direct consequences of [the] plea” and because he was “never informed of [the]
elements of [the] first degree intentional homicide charge by counsel or the
court.” Murray also asserted that his sentence “was
an abuse of discretion where he was sentence[d] to life in prison directly
after plea then had his extended supervision extended on a later date.” Murray
alleged that his reason for not asserting these claims in his direct appeal was
that his postconviction/appellate counsel provided ineffective assistance.
¶14 The circuit court denied the motion under State v. Escalona-Naranjo,
185 Wis. 2d
168, 517 N.W.2d 157 (1994). The court
further held that even if Murray were not barred
from challenging his pleas, “it would also find that Murray fails to present a prima facie case that his guilty plea
was not knowingly, intelligently, and voluntarily entered.” This appeal followed.
¶15 Murray first argues on appeal that his plea to the homicide
charge was not knowingly, intelligently and voluntarily entered because he was
erroneously informed that he was potentially eligible for parole release rather
than for release on extended supervision.
We note at the outset that Murray’s claim contradicts
the allegations he made in his prior plea withdrawal motions and the testimony
he gave at the hearings on those motions.
¶16 The basis for Murray’s
first plea withdrawal motion was his contention that he believed that he would
be automatically released from prison after serving twenty-seven-and-one-half
years. Murray alleged that he “believed that this
was a mandatory release, and that it was not optional or up to some board, that
it would happen.” Yet, Murray now claims that he is entitled to
withdraw his plea because “he believed that he would be eligible for parole”
and that his release would be determined by the parole board. We will not countenance a litigant playing
fast and loose with the judicial system.
¶17 Regardless, Murray
is not entitled to withdraw his guilty plea to the homicide charge based on an
alleged misunderstanding of extended supervision. Because Murray’s
crime was committed after December 31, 1999, he is subject to the extended
supervision provisions of Wis. Stat. § 973.014,
rather than the statute’s parole provisions.
See Wis. Stat. §§ 973.014(1), (1g)(a). Moreover, the court was required during the
plea colloquy to inform Murray “that it possesse[d]
the authority to fix the [extended supervision] eligibility date,” State
v. Byrge, 2000 WI 101, ¶¶54, 68, 237 Wis. 2d 197, 614 N.W.2d 477. Here, the court did just that.
¶18 Murray argues that because the court and his counsel sometimes
referred to parole eligibility rather than extended supervision eligibility, he
was not properly informed of, and did not understand, extended supervision
before entering his plea. Murray notes the court stated
at the plea hearing that “I will then set this on for a hearing for the
purposes of sentencing as to Count 2 and then a determination of parole
eligibility date as it relates to Count 1.”
However, the court made that statement after accepting Murray’s
plea, so it could not have had any effect on Murray’s knowledge or understanding when he
entered his plea.
¶19 Prior to Murray
entering his plea, counsel referred to parole rather than extended supervision. The plea questionnaire and waiver of rights
form stated that the mandatory minimum sentence Murray faced was “Life imprisonment with minimum
parole @ 20 yrs.” However, as the
circuit court noted in its order denying Murray’s
latest motion, “even Murray
acknowledges that under Wis. Stat. § 973.014,
the court’s determinations of either parole or ES eligibility are functionally
indistinguishable.” In either situation,
the court is making a determination when a defendant who is being sentenced to
life imprisonment will first be eligible for supervised release from prison.
¶20 Murray
also focuses on his alleged lack of understanding of the procedure for seeking
extended supervision release. Murray refers to the
provisions set forth in Wis. Stat. § 302.114(5)
governing petitions for release to extended supervision for felony offenders
serving life sentences. See Wis.
Stat. §§ 302.114(1), (5).
There is no requirement, however, that a defendant be informed of those
provisions at the time he enters a guilty plea.
To the contrary, Wis. Stat. § 973.014(1g)(b)
requires that information be provided at sentencing. That is what the court did at Murray’s sentencing
hearing.
¶21 Murray
also argues that his diminished intellectual capacity impaired his ability to
understand extended supervision. After
an evidentiary hearing, at which the neuro-psychologist retained by Murray testified, the court found there was no evidence that
Murray’s ability to understand his lawyer’s
explanations of the plea agreement and its ramifications were impaired by Murray’s intellectual
capacities. The record fails to support Murray’s claim that his
ability to understand his potential sentence was impaired.
¶22 Murray
next argues the plea colloquy was deficient because the court did not ascertain
that he understood the elements of the offenses to which he pleaded
guilty. Murray is incorrect. The transcript of the plea hearing
demonstrates the court fulfilled its obligations to establish Murray’s understanding of the nature of the
charges. See State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
¶23 When it asked Murray for his
pleas, the circuit court described the elements of the offenses in a manner
consistent with the applicable jury instructions and confirmed that Murray understood those
elements. Murray
insists the court merely “recited the State’s burden of proof rather than
informing Murray of the elements, explaining the
elements or determine [sic] whether the elements were explained to Murray and he understands
them.” This is a distinction without a
difference. When the court described to Murray what the State
would have to prove, it was describing the elements of the offenses.
¶24 This is not a case where the court failed to inform a defendant
of an essential element. See, e.g.,
State
v. Jipson, 2003 WI App 222, ¶10, 267 Wis. 2d 467, 671 N.W.2d 18. The court stated all the elements of the
offenses and ascertained from Murray
that he understood them. The court also
informed Murray
of the constitutional rights he waived by pleading guilty and the potential
penalties. Moreover, Murray acknowledged he understood the court
was not a party to the plea negotiations and was free to impose whatever
penalty it deemed appropriate regardless of the parties’ joint
recommendation. Murray was afforded an opportunity to ask
questions or seek clarification regarding any matters that he did not fully
understand or found confusing. His
responses indicated comprehension of the plea process and the joint
recommendation. The plea colloquy was
not deficient.
¶25 Moreover, even if we could somehow assume the colloquy was
inadequate, the record as a whole demonstrates that Murray understood the nature of the homicide
and kidnapping charges to which he pled. Among the issues covered at the evidentiary
hearing on Murray’s first motion to withdraw his
pleas was whether Murray
understood the elements of the offenses.
Attorney Dunn testified that he had reviewed the elements of the
offenses with Murray. The attorney’s testimony went beyond a
conclusory statement that he had reviewed the nature of the charges with Murray. Rather, he testified in detail about how he
discussed the elements of the offenses with Murray prior to the entry of the pleas. The circuit court found that the attorney’s
testimony regarding the pre-plea discussions was “far more credible” than Murray’s. The record amply demonstrates Murray’s understanding of the elements of the
offenses.
¶26 Finally, Murray
argues that in light of his “mildly retarded condition,” his counsel’s
discussions with him were inadequate to inform him of the nature of the
charges. We decline to further address
this contention, given our prior discussion of the lack of evidence that Murray’s intellectual
abilities impaired his ability to understand his plea.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.