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COURT OF APPEALS DECISION DATED AND RELEASED November 5, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0085-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DARRIN L. BRITT,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Curley, JJ.
PER
CURIAM. Darrin Britt, pro se, appeals from an order
denying him postconviction relief.
Britt raises the following arguments:
(1) that the trial court erred in denying his motion to withdraw his Alford
plea because the State did not file an amended information to the reduced
charge of felony murder; (2) that his Sixth Amendment rights were violated by the
Milwaukee Police during questioning; (3) that he was not informed of the nature
of felony murder; (4) that trial counsel was ineffective for allegedly placing
biased jurors on the jury; (5) that the trial court violated his right to
effective assistance of counsel by refusing to allow his attorney to withdraw
prior to trial; (6) that trial counsel was ineffective for failing to inform
him that an Alford plea is the same as a guilty plea for
conviction purposes; (7) that the identification procedure utilized by the
Milwaukee Police was unduly suggestive; (8) that the State failed to establish
probable cause at the bindover; (9) that the enactment of the “three strikes”
law is a new factor justifying resentencing; (10) that the trial court
improperly considered his juvenile record when sentencing him; (11) that
appellate counsel was ineffective; and (12) that the trial court erred in
denying his request for an evidentiary hearing on his postconviction motion.[1] We affirm.
On January 7, 1992,
Britt was charged with first-degree intentional homicide while armed and armed
robbery, both as party to a crime. See
§§ 940.01(1), 939.63, 939.05, and 943.32(1)(b) & (2), Stats.
On August 3, 1992, after trial began, trial counsel advised the
trial court that Britt wanted him to withdraw from the case. The trial court denied the request, finding
insufficient grounds to allow withdrawal in the middle of trial. Later that day, Britt entered an Alford
plea to a reduced charge of felony murder.
See §§ 940.03 and 943.32(1)(b)2, Stats. Sentencing was
set for September 29, 1992. On
September 17, 1992, Britt filed a motion to withdraw his Alford
plea. On the sentencing date, however,
Britt withdrew his motion to withdraw his Alford plea and
proceeded with sentencing. Britt was
sentenced to thirty-five years in prison.
On May 22, 1995, Britt
filed a postconviction motion requesting that he be allowed to withdraw his Alford
plea, have the charge of armed robbery dismissed, and receive an evidentiary
hearing on his ineffective-assistance-of-counsel claims. The trial court denied his motion without a
hearing. Britt then filed a
supplemental postconviction motion alleging that his Alford plea
was void because an amended complaint was never filed as to the reduced charge
of felony murder, and that trial counsel was ineffective for advising him to
enter a plea to an offense with which he was never charged. That motion was also denied by the trial court.
The entry of an Alford
plea is an admission of factual guilt. See
State v. Garcia, 192 Wis.2d 845, 856-857, 532 N.W.2d 111, 115
(1995). Therefore, an appeal from a
sentence following an accepted Alford plea is severely
limited. See Menna v. New York,
423 U.S. 61, 62-63 n.2 (1975). The
entry of an Alford plea waives all non-jurisdictional defects in
the proceeding and all non-jurisdictional defenses to the charges, including
claims of constitutional violations arising prior to entry of the plea. See State v. Washington,
142 Wis.2d 630, 635-636, 419 N.W.2d 275, 277 (Ct. App. 1987). Thus, the scope of our review is limited to
any points of error challenging the voluntary and understanding nature of the
plea, jurisdictional defects that occurred before the entry of the plea,
jurisdictional defects that occurred after the entry of the plea, and matters
that occurred after the entry of the plea.
Upon consideration of
the foregoing, Britt has waived the following non-jurisdictional and
constitutional arguments by entering his Alford plea: (1) that he should be permitted to withdraw
his Alford plea because an amended information was not filed; (2)
that his Sixth Amendment rights were violated; (3) that trial counsel was
ineffective for allegedly placing biased jurors on the panel; and (4) that the
trial court violated his right to effective assistance of counsel by refusing
to permit his attorney to withdraw prior to trial.
Britt also asserts that
he received ineffective assistance of counsel because he was not advised by
trial counsel that an Alford plea is the same as a guilty plea
for conviction purposes. The trial
court determined that Britt's postconviction motion failed to allege sufficient
facts to warrant a hearing on this ineffective-assistance-of-counsel
claim. We review a trial court's
decision on whether to hold a Machner hearing under the two-part
test enunciated in State v. Bentley, 201 Wis.2d 303, 548 N.W.2d
50 (1996):
If the motion on its face alleges facts
which would entitle the defendant to relief, the circuit court has no
discretion and must hold an evidentiary hearing....
However, if the motion fails to allege
sufficient facts, the circuit court has the discretion to deny a postconviction
motion without a hearing based on any one of the three factors enumerated in Nelson
[v. State, 54 Wis.2d 489, 497–498, 195 N.W.2d 629, 633 (1972).]
Id., 201
Wis.2d at 310, 548 N.W.2d at 53 (citation omitted). To prevail on this argument, Britt must show that: (1) his trial
counsel's performance was deficient; and (2) the deficient performance
prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). Because representation is not constitutionally ineffective unless
both elements are satisfied, State v. Guck, 170 Wis.2d 661, 669,
490 N.W.2d 34, 37 (Ct. App. 1992), aff'd, 176 Wis.2d 845, 500 N.W.2d 910
(1993), we may dispose of an ineffective-assistance-of-counsel claim where the
defendant fails to satisfy either element.
State v. Johnson, 153 Wis.2d 121, 128, 449 N.W.2d 845, 848
(1990). The standard for the element of
prejudice is whether “there is a reasonable probability that, but for counsel's
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694. Here, Britt has failed to show
prejudice. His argument, that trial
counsel did not advise him that an Alford plea is the same as a
guilty plea for purposes of conviction, could not prejudice his defense because
the trial court advised Britt of the plea consequences as did the plea questionnaire. Britt's allegation that his trial counsel
did not explain to him the consequences of his plea is thus insufficient to
warrant a Machner hearing.
Britt also argues that
he should be permitted to withdraw his Alford plea because he was
not informed of the nature of felony murder.
After sentencing, a plea may be withdrawn only if doing so is necessary
to correct a manifest injustice. State
v. Booth, 142 Wis.2d 232, 235, 418 N.W.2d 20, 21 (Ct. App. 1987). A plea is manifestly unjust if it was not
entered knowingly, voluntarily, and intelligently. State v. Giebel, 198 Wis.2d 207, 212, 541 N.W.2d
815, 817 (Ct. App. 1995). In order to
assure that a plea is so entered, the trial court is obligated by §
971.08(1)(a), Stats., to
ascertain that a defendant understands the nature of, and potential punishment
for, the charge and that a factual basis exists for a finding of guilt. State v. Bangert, 131 Wis.2d
246, 260-261, 389 N.W.2d 12, 20 (1986).
To withdraw a plea, a defendant must first make a prima facie
showing of noncompliance by the trial court, and allege that he or she did not
understand the information that “should have been provided at the plea
hearing.” Id., 131 Wis.2d
at 274, 389 N.W.2d at 26.
The trial court ruled
that Britt had not alleged sufficient facts to entitle him to postconviction
relief. We agree. Britt signed a very extensive plea
questionnaire, which indicated the charge of felony murder carried with it a
forty-year maximum period of incarceration.
A completed plea questionnaire is competent evidence of a knowing and
voluntary plea. State v.
Moederndorfer, 141 Wis.2d 823, 827-828, 416 N.W.2d 627, 629-630 (Ct.
App. 1987). Further, the record reveals
that the trial court conducted an oral colloquy with Britt and ascertained that
he understood that by pleading guilty pursuant to an Alford plea,
that the trial court could sentence him to the maximum despite any plea
recommendation. We conclude that the
record reflects a knowing, voluntary and intelligent plea.
Britt also argues that
the identification procedure utilized by the Milwaukee Police was unduly
suggestive. The record indicates,
however, that Britt never filed a motion to suppress prior to the entry of his
plea; therefore, this issue was waived.
See § 971.31(2), Stats.;
Madison v. State, 64 Wis.2d 564, 572-573, 219 N.W.2d 259, 262-263
(1974) (a claim of a constitutional right will be deemed waived unless timely
raised in the trial court).
Further, Britt argues
that there was insufficient evidence to order a bindover following his
preliminary hearing. “[A] defendant who
claims error occurred at his preliminary hearing may only obtain relief before
trial.” State v. Webb,
160 Wis.2d 622, 628, 467 N.W.2d 108, 110 (1991), cert. denied, 502 U.S.
889 (1991). Here, Britt failed to
challenge the bindover before trial; he may not challenge the bindover now.
Britt also claims that
the trial court erred in not allowing him to withdraw his Alford
plea because of the enactment of the “three strikes” law. See § 939.62(2m)(b), Stats.
He argues that the enactment of the “three strikes” law is a new factor
that frustrated the purpose of his pleading to felony murder because the
purpose of his plea was to avoid being exposed to a life sentence and that the
“three strikes” law exposes him to the possibility of being sentenced to life
in prison for the next crime he commits.
Britt misapplies the “new factor” test.
An analysis under the “new factor” test requires a request for sentence
modification. See State v.
Michels, 150 Wis.2d 94, 99, 441 N.W.2d 278, 280 (Ct. App. 1989). Here, Britt seeks to withdraw his plea. The enactment of the “three strikes” law
does not rise to the level of “manifest injustice,” which all litigants must
show in order to withdraw a plea after sentencing. See State v. Krieger, 163 Wis.2d 241, 249,
471 N.W.2d 599, 602 (Ct. App. 1991). As
the State points out, Britt will never be subject to penalty under the “three
strikes” law unless he commits another crime.
Britt also claims that
the trial court erroneously exercised its discretion by giving primary
consideration to his juvenile record when it sentenced him. This appeal is from the denial of his
postconviction motion brought pursuant to § 974.06, Stats.
“A sec. 974.06 proceeding[] may properly challenge the authority to
impose sentence but cannot be used to challenge a sentence because of an
alleged [erroneous exercise] of discretion” when a sentence is within the
statutory maximum. Smith v. State,
85 Wis.2d 650, 661, 271 N.W.2d 20, 24–25 (1978). Here, Britt received a thirty-five year sentence, well within the
forty-year maximum set by statute. This
issue raised by Britt, therefore, is not cognizable under § 974.06.
Further, Britt claims
that the trial court erred in failing to consider his claim of ineffective
assistance of appellate counsel. The
trial court held that such a claim could not be considered in a postconviction
proceeding. We agree. See State v. Knight,
168 Wis.2d 509, 520, 484 N.W.2d 540, 544 (1992) (claims of ineffective
assistance of appellate counsel are not cognizable in a motion for
postconviction relief; such claims should be presented in a petition for writ
of habeas corpus in the appellate court).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.