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COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 20, 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. 96-0284-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
NICODEMUS LEONARD,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Marathon County: RAYMOND F. THUMS, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Nicodemus Leonard appeals a judgment convicting him of
first-degree reckless injury while armed and an order denying his motion to
withdraw his Alford[1]
plea. Leonard argues that the trial
court failed to find "strong proof of guilt" when accepting his Alford
plea and that his plea was improperly coerced by the State's offer to return
$5,000 bail money to his family. We
reject these arguments and affirm the judgment and order.
Leonard was initially
charged with recklessly causing great bodily harm (§ 940.23, Stats.) and one count of recklessly
endangering another's safety (§ 941.30(1), Stats.) based on an incident in which he was alleged to have
stabbed his cousin, Richard Leonard with a knife, and burned his face. While he was released on bail pending trial
with a condition that he not drink, Leonard was involved in a traffic accident
and was found to be intoxicated.
Leonard was then charged with two counts of felony bail jumping based on
his consumption of alcohol. Pursuant to
a plea agreement, Leonard entered an Alford plea to one count of
first-degree reckless injury while armed and one count of bail jumping. The State dismissed the other two charges
and agreed that it would not seek forfeiture of the $5,000 cash bond posted by
Leonard's family.
Whether to allow
withdrawal of a guilty plea is a matter committed to the trial court's
discretion. Its discretionary decision
will be sustained if it is made upon facts appearing in the record and in
reliance on the appropriate and applicable law. State v. Canedy, 161 Wis.2d 565, 579-80, 469 N.W.2d
163, 169 (1991). The burden is on
Leonard to establish by clear and convincing evidence that withdrawal of the
plea is necessary to correct a manifest injustice. State v. Schill, 93 Wis.2d 361, 383, 286 N.W.2d
836, 846-47 (1980). "Strong proof
of guilt" is necessary before the trial court may accept an Alford
plea. State v. Garcia,
192 Wis.2d 845, 859-60, 532 N.W.2d 111, 116-17 (1995).
Contrary to Leonard's
argument, the trial court specifically found strong evidence to support
Leonard's guilt and the record supports that finding. Police reports and the transcript of the preliminary hearing
establish a sufficient basis for accepting an Alford plea. Before he was transported to the hospital,
the victim told police "Nic stabbed me." Leonard told police on the day of the stabbing that he got into a
fight with his cousin and that he stabbed his cousin in the neck with a
knife. At the preliminary hearing, a
neighbor testified that Leonard came to his home, intoxicated and covered with
blood, and told the neighbor that he had cut his cousin Richard's jugular area
and stated that he had killed him. A
detective testified that on the day of the stabbing, Leonard volunteered that
his cousin had asked Leonard to kill him but that Leonard was not drunk
enough. Leonard then stated that he
"just killed him" and wanted to know if he was right or wrong. The detective also found evidence in the
residence that there had been a fight, including items overturned in the
kitchen, a broken shower stall in the bathroom, and blood throughout the
house. Both men were found with
bloodstained knifes. The police reports
and the testimony from the preliminary hearing establish strong evidence of
Leonard's guilt.
At the sentencing
hearing, the defense called a chemist, Melvin Neuman, who offered his opinion
that the burns and the cut to the victim's neck could have been caused by an
exploding battery. The trial court
noted that it is "a real stretch to believe that a clean knife cut, or a
clean cut in the man's neck that severs blood vessels is going to come off
something that explodes off a battery."
The exploding battery theory does not account for the victim's
statements, Leonard's statements to the police and to the neighbor, and does
not account for the bloody knives.
Neuman's testimony does not undermine the State's strong evidence of
Leonard's guilt.
The trial court found
that Leonard failed to establish that his plea was coerced by the State's offer
not to seek forfeiture of the $5,000 cash bond and the record supports that
finding. Leonard's father testified
that in his opinion, the return of the money was the only reason Leonard
entered a plea "because his attorney advised him that they had a good
chance of winning at trial." The trial
court discounted that testimony, noting that Leonard was not concerned about
his family's money when he violated the conditions of his bond. The trial court is the sole judge of the
credibility of witnesses. See Leciejewski
v. Sedlak, 116 Wis.2d 629, 637, 342 N.W.2d 734, 738 (1984). The prospect of the State returning the
$5,000 cash bond to Leonard's family did not present Leonard with "no fair
or reasonable alternative to choose from." See Rahhal v. State, 52 Wis.2d 144, 151-52,
187 N.W.2d 800, 804 (1971). The
distinction between a motivation that induces and a force that compels the
human mind to act must be kept in focus.
Id. The State's
agreement not to pursue forfeiture of the $5,000 bond cannot reasonably be
described as a force that would compel acceptance of the plea agreement.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.