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COURT OF APPEALS DECISION DATED AND FILED August 4, 2010 A.
John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. John L. Henry,
Defendant-Appellant. |
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APPEAL
from judgments and an order of the circuit court for
Before Brown, C.J., Neubauer, P.J., and
¶1 PER CURIAM. John L. Henry appeals from judgments convicting him of seven counts of repeated sexual assault of the same child who had not yet attained the age of sixteen. He also appeals from an order denying his postconviction motion seeking plea withdrawal based on ineffective assistance of counsel or resentencing based on the circuit court’s alleged failure to consider sentencing guidelines. None of his arguments are persuasive. We affirm.
¶2 Henry was charged with twenty-nine counts of repeatedly sexually a child, contrary to Wis. Stat. § 948.025(1).[1] The child was the daughter of the woman with whom he lived. The assaults began when the girl was seven and continued into her teens. Henry pled guilty to seven charges; the other twenty-two were dismissed and read in for sentencing. The negotiated plea reduced Henry’s prison exposure from 1,420 years to 240 years.
¶3 Four of the charges of which he was convicted were pre-Truth-in-Sentencing (TIS); three were TIS. The court sentenced Henry to indeterminate sentences of not more than twenty years on each of the four pre-TIS counts. On the TIS counts, it sentenced him to an aggregate 110 years’ initial confinement followed by thirty-five years’ extended supervision. The court ordered all of the sentences to be served consecutively.
¶4 Henry moved for postconviction relief on two grounds. First, he sought to withdraw his guilty pleas
on the basis that trial counsel rendered ineffective assistance. Second, Henry claimed that he should be
resentenced because the circuit court did not consider sentencing
guidelines.
¶5 To withdraw a guilty plea after sentencing, a defendant must
demonstrate by clear and convincing evidence that plea withdrawal is necessary
to correct a manifest injustice, such as ineffective assistance of
counsel. State v. Bentley, 201
¶6 Henry’s motion alleged that he pled guilty only because his
lawyer promised he would be sentenced to no more than ten or twenty years. Inaccurate legal information may render a
plea unknowing and involuntary.
¶7 In response to Henry’s claim, the circuit court held a Machner[2]
hearing. Both trial counsel and Henry
testified. The court made an express
finding that trial counsel was more credible than Henry. This court “must be sensitive” to the circuit
court’s assessment of credibility, and we will uphold that factual
determination unless clearly erroneous. State
v. Thiel, 2003 WI 111, ¶23, 264
¶8 Trial counsel testified that she told Henry she would do her best for him in recommending a sentence but made him no promises and, in fact, “never” promises a defendant what a judge will do. Henry acknowledged telling the court at his plea hearing that he understood it was not bound by any recommendation and could sentence him to the maximum but that he thought everything was “worked out.” He testified that he pled guilty only because his lawyer “promised” that if he cooperated and behaved himself he would get ten to twenty years.
¶9 The circuit court found that counsel, a twenty-year veteran of the public defender’s office, was the more credible and made no promise of any kind to Henry. It flatly rejected Henry’s claim that he had no reason to lie, noting Henry’s admitted involvement in crimes exposing him to centuries in prison. The court termed “nonsense” Henry’s alleged misunderstanding that it was not bound by any recommendations and “wishful thinking” that Henry’s guilty pleas to such “despicable” conduct would net him only ten or twenty years. The circuit court’s assessments are supported by the record and we will not disturb them. We agree with the court’s conclusion that Henry established neither deficient performance nor prejudice, and conclude that his plea was knowing and voluntary.
¶10 We also reject Henry’s claim that he merits resentencing due to
an asserted Grady violation. A
circuit court’s obligation to consider sentencing guidelines and to indicate on
the record that it had done so would not even apply.
(2) General Requirement. When a court makes a sentencing decision concerning a person convicted of a criminal offense committed on or after February 1, 2003, the court shall consider all of the following:
(a) If the offense is a felony, the sentencing guidelines adopted by the sentencing commission under s. 973.30 or, if the sentencing commission has not adopted a guideline for the offense, any applicable temporary sentencing guideline adopted by the criminal penalties study committee created under 1997 Wisconsin Act 283.
The offenses in all of the seven counts to which Henry pled occurred before February 1, 2003. Further, Henry’s offenses were violations of Wis. Stat. § 948.025(1), which was not a guideline offense.
¶11 Even if Henry were able to convince this court that Wis. Stat. § 948.025(1), repeated
sexual assault of a child, embraces Wis.
Stat. § 948.02(2), sexual assault of a child, it would be to no
practical legal effect. There no longer
are any sentencing guidelines. The
legislature has repealed Wis. Stat. § 973.017(2)(a),
see 2009 Wis. Act 28, § 3386m (eff. July 1, 2009), and its repeal
applies retroactively. State
v. Barfell, 2010 WI App 61, ¶9, 324
By the Court.—Judgments and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.