COURT OF APPEALS

DECISION

DATED AND FILED

 

January 23, 2013

 

Diane M. Fremgen

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

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. ァ 808.10 and Rule 809.62.

 

 

 

 

Appeal Nos.

2012AP1392-CR

2012AP1393-CR

2012AP1394-CR

 

Cir. Ct. Nos. 2009CF384

2009CF745

2010CF83

STATE OF WISCONSIN

IN COURT OF APPEALS

 

DISTRICT III

 

 

 

 

State of Wisconsin,

 

Plaintiff-Respondent,

 

v.

 

Michael C. O達rien,

 

Defendant-Appellant.

 

 

 

 

APPEALS from judgments of the circuit court for Outagamie County: DEE R. DYER, Judge. Affirmed.

Before Hoover, P.J., Mangerson, J., and Thomas Cane, Reserve Judge.

1 PER CURIAM.   Michael O達rien appeals three judgments of conviction entered upon his no contest pleas. O達rien argues he is entitled to withdraw his pleas because his trial attorney did not know he had been previously convicted of an alcohol-related offense that killed two people. We affirm.

BACKGROUND

2 The State filed three complaints against O達rien, charging him with a total of ten criminal offenses.[1] O達rien rejected the State痴 plea offer, which according to O達rien required him to enter into a joint sentencing recommendation in exchange for pleading to some, but not all, charges. Instead, O達rien opted to plead as charged without an offer from the State.

3 O達rien submitted a signed plea questionnaire/waiver of rights form, and the court engaged him in a colloquy regarding his desire to plead to the charges. Ultimately, O達rien pled no contest to all charges except operating with a prohibited alcohol concentration, and the court found him guilty.[2] The court then ordered a presentence investigation (PSI) report. O達rien advised the court that he was familiar with PSI reports, and he had previously been the subject of a PSI report.

4 At the scheduled sentencing hearing, O達rien痴 trial counsel successfully moved to withdraw, citing a conflict based on the PSI report. The court appointed O達rien successor counsel, who ultimately moved to withdraw O達rien痴 pleas.

5 At the hearing on O達rien痴 plea withdrawal motion, O達rien moved to introduce a letter he had received from his former trial counsel before she had withdrawn. The letter stated, in relevant part:

I have received and read the PSI report, and am extremely disturbed at some of its contents. I am utterly at a loss to understand why you would fail to tell me that you have prior federal charges stemming from an alcohol related accident where two people were killed. That is information that an attorney must have if she is to advise you appropriately, and the advice I gave you would have been different had I been aware of that conviction.

At this point, you are going to need to get a new attorney and discuss with them whether you should withdraw your plea[s].

6 O達rien testified that he pled as charged because his former counsel told him his record 電idn稚 look too bad and he assumed counsel knew everything in his criminal record. When asked if he knew about his prior record at the time he choose to plead no contest, O達rien stated that he did. O達rien argued he should be permitted to withdraw his pleas because he pled to the charges based on the advice his attorney gave without knowledge of his full criminal record.

7 The court denied O達rien痴 plea withdrawal motion. It reasoned that, regardless of the letter counsel sent to O達rien,

Mr. O達rien knew perfectly well what his prior record was. He knew perfectly well that he had spent 41 months of a Federal prison sentence back in 1999 for homicide by negligent use of a motor vehicle. He knew his entire record, and he can稚 come into court now and after he痴 seen the presentence report recommendation and pull the rug out underneath these pleas. That does prejudice the State. It would be a serious waste of judicial resources because this defendant is not entitled to a trial. He has waived that clearly. He waived it knowing full well what the results might be regardless of what his attorney may have felt about the fact that she was not apprised by him of his prior record.

It is clear from the case law, Leitner[[3]] in particular, that hoping that a conviction will not show up in a presentence report and then having it show up is not a fair and just reason. Clearly from our case law an unfavorable recommendation in a presentence report is not a fair and just reason. Furthermore, the Court is entitled to consider the fact that the defendant waited until he saw a presentence report to ask to withdraw his pleas. There are no grounds here today. The defendant has not met his burden of proof to show that there is a fair and just reason to withdraw his pleas. Therefore, those motions are denied and I will set a date for sentencing.

The court subsequently sentenced O達rien. He now appeals.

DISCUSSION

8 The decision to grant or deny a motion to withdraw a plea before sentencing is subject to the circuit court痴 discretion. State v. Jenkins, 2007 WI 96, カ30, 303 Wis. 2d 157, 736 N.W.2d 24. We will affirm a court痴 discretionary determination if the record shows 鍍he circuit court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. Id. (quoting Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982)).

9 A defendant seeking to withdraw a plea before sentencing must show, by a preponderance of the evidence, that there is a 吐air and just reason for plea withdrawal. Id., カ31; State v. Kivioja, 225 Wis. 2d 271, 283-84, 592 N.W.2d 220 (1999). A fair and just reason 田ontemplates 奏he mere showing of some adequate reason for the defendant痴 change of heart[.]樗 Jenkins, 303 Wis. 2d 157, カ31 (quoting Libke v. State, 60 Wis. 2d 121, 128, 208 N.W.2d 331 (1973)). 甜T]he exercise of discretion requires the [circuit] court to take a liberal, rather than a rigid, view of the reasons given for plea withdrawal. State v. Bollig, 2000 WI 6, カ29, 232 Wis. 2d 561, 605 N.W.2d 199. However, plea withdrawal before sentencing is not an absolute right. Jenkins, 303 Wis. 2d 157, カ32. A fair and just reason must be something other than belated misgivings about the plea or the desire to have a trial. Id. Furthermore, 澱ecause a fair and just reason will nullify both a sufficient plea colloquy and a constitutionally valid plea, the court may consider whether the proffered fair and just reason outweighs the efficient administration of justice. Id., カ63.

10 On appeal, O達rien does not point to any defect in the plea colloquy. Instead, he argues the circuit court should have permitted him to withdraw his pleas because he pled to the charges based on the advice of his attorney. He argues that, because his attorney rendered advice without knowing about his federal conviction, his pleas were not 妬ntelligently made. O達rien also contends the circuit court痴 reasons for disallowing plea withdrawal are 菟roblematic because the circuit court 電isregard[ed] the fact that he proceeded on 殿dmittedly erroneous advice from his trial counsel and it incorrectly assumed he was motivated to withdraw his pleas based on the unfavorable PSI report.

11 We conclude the circuit court did not err by denying O達rien痴 plea withdrawal motion. First, to the extent O達rien suggests he should be permitted to withdraw his pleas because his trial counsel was ineffective for offering advice without knowledge of his federal conviction, O達rien does not develop any argument regarding a claim of ineffective assistance of counsel. We will not consider it. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

12 Second, although counsel gave advice she stated she would not have otherwise given had she known about O達rien痴 federal homicide conviction, the circuit court discounted counsel痴 statement, finding that O達rien both knew of and failed to tell his attorney about the federal homicide conviction before entering his pleas. The court also found that, regardless of what O達rien痴 attorney believed, O達rien knew 吐ull well what the results might be at sentencing. O達rien has not established that his purported reliance on counsel痴 advice, which was based on his own failure to be forthright with his counsel, amounts to a fair and just reason for plea withdrawal.

13 Third, we disagree with O達rien that the circuit court erred by finding his motivation to withdraw his pleas was based on the unfavorable PSI report. In State v. Leitner, 2001 WI App 172, カ33, 247 Wis. 2d 195, 633 N.W.2d 207, we recognized that, when considering a presentence plea withdrawal motion, a circuit court is

entitled to consider the fact that [the defendant] waited until he saw the content of his presentence report before seeking plea withdrawal and infer from that fact, and the surrounding circumstances, that [the defendant痴] true reason for seeking plea withdrawal was his fear of a harsh sentence due to the presentence report.

O達rien argues the court erred by concluding the unfavorable PSI report motivated him to withdraw his pleas because he learned his counsel was unaware of his federal homicide conviction before he reviewed the PSI.

14 Although O達rien correctly points out that he had not yet seen the PSI report when counsel sent him the letter or moved to withdraw, the record indicates that, by the time O達rien moved to withdraw his pleas, approximately six months later, he had seen the PSI report. Specifically, one month before his plea withdrawal motion was filed, O達rien痴 successor counsel advised the court that the matter 努as rescheduled in part because once the PSI came back there were some issues concerning what we believe to be the accuracy of some of the priors listed in the description of those events. The record supports the circuit court痴 determination that O達rien viewed the PSI report and was motivated to withdraw his pleas based on the unfavorable report. We agree with the circuit court that 塗oping that a conviction will not show up in a presentence report and then having it show up is not a fair and just reason for plea withdrawal. This is especially true considering O達rien advised the court at the plea hearing that he was familiar with PSI reports and had been the subject of such a report in the past.

By the Court.憂udgments affirmed.

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2011-12).

 


 



[1]  The State痴 first complaint, No. 2009CF384, charged O達rien with possession of an electric weapon, possession of cocaine, obstructing an officer, and four counts of misdemeanor bail jumping. All the charges in No. 2009CF384 carried the repeater enhancer. The second complaint, No. 2009CF745, charged O達rien with felony bail jumping.  The State痴 third complaint, No. 2010CF83, charged O達rien with operating while intoxicated, fifth or sixth offense, and operating with a prohibited alcohol concentration, fifth or sixth offense.

[2]  Upon accepting O達rien痴 no contest plea to operating while intoxicated, the circuit court dismissed the operating with a prohibited alcohol concentration charge, presumably based on Wis. Stat. ァ 346.63(1)(c) (2011-12).

[3]  State v. Leitner, 2001 WI App 172, カ33, 247 Wis. 2d 195, 633 N.W.2d 207.