COURT OF APPEALS DECISION DATED AND FILED January 7, 2014 Diane M. Fremgen 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. |
Cir. Ct. No. 2009CF2761 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Jerome Thomas Walker, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Milwaukee County: kevin e. martens and RICHARD J. SANKOVITZ, Judges. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Jerome Thomas Walker appeals a judgment of conviction, entered after he
pled guilty on the second day of trial to one count of second-degree reckless
homicide by use of a dangerous weapon and one count of first-degree recklessly
endangering safety. He also appeals an
order denying postconviction relief.[1] He seeks plea withdrawal or, in the
alternative, sentence modification.
Because we conclude that Walker fails to show that his guilty pleas were
infirm or that the circuit court improperly exercised its sentencing
discretion, we affirm.
BACKGROUND
¶2 According
to the criminal complaint, Walker drove into a Milwaukee neighborhood on a May
evening in 2009 and fired a gun numerous times through the car window in the
direction of two pedestrians. The bullets
struck and killed one man and injured another.
Police arrested Walker, and the State charged him with one count of
first-degree intentional homicide while armed and one count of attempted
first-degree intentional homicide while armed.
He was unable to post bail, and he was in custody when his trial began
on November 9, 2010.
¶3 On
the first day of trial, the State moved to admit evidence of a letter mailed on
November 6, 2010, from the Milwaukee County Jail to Walker’s sister. The letter was unsigned, but the return
address block on the envelope included Walker’s name, prisoner number, date of
birth, and bed and cell location. In the
text of the letter, its author asked Walker’s sister to contact “Sherita” and
direct her to tell witnesses not to appear at Walker’s trial, and the letter
contained threatening language about the consequences for witnesses who testified. At the top of the letter, the author
wrote: “[t]ell Sherita to call my
attorney cell phone right away,” and included the cell phone number of Walker’s
trial counsel.
¶4 The
parties recognized that the letter had evidentiary value to the State, but, as
the circuit court observed, the inclusion of trial counsel’s cell phone number
and the related instruction to “tell Sherita to call” that number raised “concern
because the jury might start to speculate or infer th[at] [trial counsel] ha[d]
some knowledge [of] or involvement with” the letter. To prevent jurors from drawing such
inferences, Walker’s trial counsel proposed redacting the letter by deleting
the cell phone number and the instruction to “call my attorney.” The State opposed that suggestion, arguing
that the entire text of the letter was significant and relevant. The parties then discussed alternatives to
redaction, namely: (1) defense counsel
withdrawing from the case; (2) the State affirmatively arguing that defense
counsel was unaware of the letter and its content; and/or (3) the parties
stipulating that defense counsel had no involvement with the letter.
¶5 The
circuit court ruled that the State would be required both to tell the jury
during closing argument that the State did not believe defense counsel had any
involvement with the letter and to ask the jury not to draw such an
inference. The circuit court also
offered to read a stipulation to the jury if the parties so desired.
¶6 Soon
after trial began, the parties resolved the case with a plea bargain. Under its terms, Walker pled guilty to
amended charges of second-degree reckless homicide by use of a dangerous weapon
and first-degree recklessly endangering safety, and the State was free to argue
for whatever sentences it believed were appropriate. At sentencing, the circuit court imposed a
twenty-seven-year term of imprisonment for second-degree reckless homicide,
bifurcated as twenty years of initial confinement and seven years of extended
supervision. The circuit court imposed a
consecutive, evenly bifurcated ten-year term of imprisonment for first-degree recklessly
endangering safety.
¶7 Walker
moved for postconviction relief, seeking plea withdrawal on various grounds or,
alternatively, sentence modification. Without conducting a hearing, the circuit
court rejected his claim for sentence modification and most of his claims for
plea withdrawal. The circuit court then
held a hearing on Walker’s claims that trial counsel’s alleged ineffectiveness
warranted plea withdrawal. Following the
hearing, the circuit court entered a written order denying the remaining claims,
and Walker appeals.
DISCUSSION
¶8 A
defendant who wishes to withdraw a plea after sentencing must establish by
clear and convincing evidence that plea withdrawal is necessary to correct a
manifest injustice. State v. Fosnow, 2001 WI
App 2, ¶7, 240 Wis. 2d 699, 624 N.W.2d 883. Examples of manifest injustice include
circumstances where the defendant entered a plea that was not knowing,
intelligent, and voluntary, and where the defendant received ineffective
assistance of trial counsel. See State
v. Cain, 2012 WI 68, ¶¶26-27, 342 Wis. 2d 1, 816 N.W.2d 177.
¶9 “The
withdrawal of a plea under the manifest injustice standard rests in the circuit
court’s discretion.” State
v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997). We will sustain a circuit court’s exercise of
discretion if that court relied on the facts in the record and applied a proper
legal standard to reach a reasonable decision. See State
v. Thiel, 2012 WI App 48, ¶6, 340 Wis. 2d 654, 813 N.W.2d 709.
¶10 Walker first contends that he should be permitted to withdraw his guilty pleas because, in his view:
a manifest injustice occurred when the [circuit] court failed to remove counsel or permit counsel to withdraw after the court ruled that the [November 6] letter without redaction would be permitted to be used as evidence at the jury trial. The unredacted letter evidence negatively and falsely implicated Walker’s trial counsel as having conspired to intimidate witnesses, and resulted in Walker being required to either proceed with tainted defense counsel, i.e. counsel being rendered ineffective, or to plead guilty.
We understand Walker to argue that he entered his pleas involuntarily
because the circuit court forced him to plead guilty, either by: (1) denying his trial lawyer’s motion to
withdraw; or (2) failing to discharge an ineffective trial lawyer sua sponte.
¶11 Whether
Walker entered his pleas voluntarily presents a question of constitutional
fact. See State v. Merten, 2003 WI App 171, ¶5, 266
Wis. 2d 588, 668 N.W.2d 750. We
uphold a circuit court’s underlying findings of historical or evidentiary fact
unless they are clearly erroneous, but we independently determine the constitutional
issues involved. See State v. Bollig, 2000
WI 6, ¶13, 232 Wis. 2d 561, 605 N.W.2d 199.
¶12 We
reject the claim that the circuit court compelled Walker’s guilty pleas by erroneously
denying trial counsel’s motion to withdraw, because Walker fails to show that
his trial counsel made such a motion.
Rather, when the issue of the letter arose, trial counsel indicated that
he had considered withdrawing but had not discussed such a step with his
client. The circuit court observed: “you did not indicate that you were asking
for leave to withdraw or that your client asked you to do that.” Trial counsel answered, “correct.”
¶13 During
the postconviction hearing, Walker questioned trial counsel extensively about whether
trial counsel’s remarks and argument in regard to the November 6 letter
constituted a motion to withdraw. Trial
counsel testified that he had not made such a motion.
¶14 Walker
nonetheless insists on appeal that his trial counsel’s remarks on the first day
of trial about the possibility of withdrawing from the case must be understood
as “expressing [counsel’s] desire to be removed from the case.” He does not, however, identify any point in
the record at which trial counsel moved to withdraw or any corresponding order
denying such a motion. Moreover,
following the postconviction hearing, the circuit court found that Walker did
not ask trial counsel to withdraw and that trial counsel “was fully determined
to try the case if Mr. Walker preferred to do so.” These findings are supported by the record,
and we will not disturb them. See id. Walker thus wholly fails
to support his contention that he was forced to enter guilty pleas because the
circuit court denied trial counsel’s motion to withdraw.
¶15 We
turn to Walker’s related contention that, if his trial lawyer did not move to
withdraw, then he is entitled to withdraw his guilty pleas because the circuit
court forced those pleas by not removing the lawyer from the case sua sponte. Walker’s position is based on his view that
his trial counsel would have been “rendered ineffective” as soon as the State
offered the November 6 letter as evidence. Building on this belief, he faults the circuit
court for refusing to discharge a lawyer who could not, he says, provide him
with effective representation throughout the trial and, as his argument
unfolds, he also alleges that his trial lawyer was ineffective for failing to
insist on withdrawing from the case.
¶16 When
considering whether a lawyer was ineffective, we apply the two-element test set
forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, a criminal defendant
must show both that counsel’s performance was deficient and that the deficient
performance was prejudicial. Id.
To demonstrate deficient performance,
the defendant must show that counsel’s actions or omissions fell “outside the
wide range of professionally competent assistance.” Id. at 690. To demonstrate prejudice, “[t]he defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
¶17 To
support the claim that trial counsel was “rendered ineffective” by the circuit
court’s rulings, Walker points to his lawyer’s arguments on the first day at
trial urging the circuit court to exclude or redact the November 6 letter. He refers us to trial counsel’s contention
that the jury might “get the impression ... that [counsel] was in cahoots with
[Walker] in terms of telling these people not to show up” and he emphasizes trial
counsel’s related concern that such an impression “might prejudice
[Walker].” In the same vein, he points
to the observations of the circuit court during postconviction proceedings
that, when the November 6 letter surfaced, “everyone” recognized its potential
to lead the jury to draw inferences that could seriously undermine the trial
lawyer’s credibility.
¶18 The
circuit court, however, addressed these concerns before jury selection. The circuit court determined that it could
alleviate the risk of the jury drawing negative inferences about Walker’s trial
counsel by requiring the State to assert affirmatively that, in its view, trial
counsel had no knowledge of or involvement with the letter or its contents. The circuit court further ruled that it would
read a stipulation to the jury that trial counsel had no involvement with the
letter if the parties so desired.
¶19 A
circuit court has “‘broad discretion to admit or exclude evidence.’” State v. Nelis, 2007 WI 58, ¶26, 300
Wis. 2d 415, 733 N.W.2d 619 (citation omitted). Similarly, to limit the risk of unfair
prejudice, a circuit court may “provide limiting instructions, give a
cautionary instruction, edit the evidence, or restrict a party’s arguments.” State v. Marinez, 2011 WI 12, ¶41, 331
Wis. 2d 568, 797 N.W.2d 399. Here,
the circuit court selected several measures to avoid prejudice. Walker believes that the measures chosen
would have been inadequate to protect his rights to effective assistance of
counsel and a fair trial, but he does not offer any authority to support his
position. He merely insists that, as a result
of the circuit court’s rulings, his lawyer could not have been effective at
trial. His insistence is not
enough. We require citations
specifically supporting relevant legal propositions. See
State
v. Shaffer, 96 Wis. 2d 531, 545-46, 292 N.W.2d 370 (Ct. App. 1980).
Absent some citation to case law or
statute showing that the circuit court erred and undermined his right to
effective assistance of counsel, Walker’s arguments are nothing more than conclusory
assertions, and thus, they warrant no relief.
See State v. Allen, 2004 WI 106, ¶15, 274 Wis. 2d 568, 682
N.W.2d 433 (“It has been said repeatedly that a postconviction motion for
relief requires more than conclusory allegations.”).
¶20 Walker
also alleges that his trial counsel was ineffective for failing to advise him that,
by pleading guilty, he gave up “his right to proceed with the assistance of
effective counsel during a jury trial.”
The State responds that it is “unsure of exactly what Walker means.” In his reply brief, Walker offers a clarification,
asserting that “trial counsel[] fail[ed] to properly advise Walker of issues
waived by pleading [guilty], specifically his right to proceed with effective
counsel after the court’s ruling concerning the letter evidence.”
¶21 In
fact, a defendant does not give up the right to effective assistance of counsel
by pleading guilty. See State v. Kelty, 2006 WI 101, ¶43, 294 Wis. 2d 62, 716
N.W.2d 886. We are therefore unable to
determine exactly what Walker believes his trial lawyer should have told him
about the right to counsel.
¶22 As
a final ground for plea withdrawal, Walker claims that his trial lawyer was
ineffective for allegedly failing to explain to him that, by pleading guilty,
he gave up the right to a postconviction challenge of the circuit court’s
rulings regarding the November 6 letter.
The general rule is that, by pleading guilty, a defendant forfeits “‘all
nonjurisdictional defects, including constitutional claims.’” See
Kelty,
294 Wis. 2d 62, ¶18 & n.11 (citation and brackets omitted). Walker’s contention, in effect, is that
because trial counsel failed to tell him about this rule, his guilty pleas were
not knowing, intelligent, and voluntary. We are not persuaded.
¶23 A
defendant must be informed of the direct consequences of a guilty plea in order
to enter that plea knowingly, intelligently, and voluntarily. See State
v. Kosina, 226 Wis. 2d
482, 485, 595 N.W.2d 464 (Ct. App. 1999). A defendant who is not so informed is entitled
to withdraw the plea. Id. A defendant is not entitled to plea
withdrawal, however, based on lack of information about collateral consequences
of a plea. See State v. Brown,
2004 WI App 179, ¶7, 276 Wis. 2d 559, 687 N.W.2d 543. Furthermore, “defense counsel’s failure to
advise a defendant of collateral consequences is not a sufficient basis for an
ineffective assistance of counsel claim.” Id., ¶7 n.3. Thus, the contention that trial counsel failed
to inform Walker about limits on his ability to challenge rulings related to
the November 6 letter can only earn Walker relief if he shows that such limits
are a direct consequence of his guilty pleas.
He fails to make that showing.
¶24 “‘A
direct consequence of a plea is one that has a definite, immediate, and largely
automatic effect on the range of a defendant’s punishment.’” Id., ¶7 (citation omitted). By contrast, “[a] collateral consequence ...
is indirect, does not automatically flow from the conviction, and may depend on
the subsequent conduct of a defendant.” Id. Pursuant to these definitions, a limitation
on the ability to raise postconviction challenges to evidentiary rulings
following a guilty plea is plainly a collateral consequence, not a direct
consequence, of the plea. The limitation
does not have any effect on the range of punishment and arises, if at all, only
in the event that the defendant both concludes that the circuit court’s
evidentiary rulings were wrong and elects to pursue postconviction relief.
¶25 A
manifest injustice does not occur merely because a defendant lacked information
about the collateral consequences of his or her guilty plea. See
id.
Accordingly, Walker is not entitled to
withdraw his guilty pleas based on an alleged lack of information about
limitations on the opportunity to challenge the circuit court’s rulings in regard
to the November 6 letter.
¶26 We
turn to Walker’s claims that the circuit court erroneously exercised its
sentencing discretion and imposed sentences that were unduly harsh and
excessive. We disagree.
¶27 Sentencing
is committed to the circuit court’s discretion. State v. Gallion, 2004 WI 42, ¶17,
270 Wis. 2d 535, 678 N.W.2d 197. A
defendant challenging a sentence “has the burden to show some unreasonable or
unjustifiable basis in the record for the sentence at issue.” State v. Lechner, 217 Wis. 2d 392,
418, 576 N.W.2d 912 (1998). We start
with a presumption that the circuit court acted reasonably, and we do not
interfere with a sentence if the circuit court properly exercised its
discretion. See id. at 418-19.
¶28 When
exercising sentencing discretion, the circuit court must consider the primary
sentencing factors of “the gravity of the offense, the character of the
defendant, and the need to protect the public.”
State v. Ziegler, 2006 WI App 49, ¶23, 289 Wis. 2d 594,
712 N.W.2d 76. The circuit court may
also consider a wide range of other factors concerning the defendant, the
offense, and the community. See id.
The circuit court has discretion to determine both the factors that it
believes are relevant in imposing sentence and the weight to assign to each
relevant factor. State v. Stenzel, 2004 WI
App 181, ¶16, 276 Wis. 2d 224, 688 N.W.2d 20. Additionally, the circuit court must “specify
the objectives of the sentence on the record.
These objectives include, but are not limited to, the protection of the
community, punishment of the defendant, rehabilitation of the defendant, and
deterrence to others.” Gallion, 270 Wis. 2d 535, ¶40.
¶29 Here,
the circuit court concluded that the crimes Walker committed were very serious,
and it reminded him that the family of the homicide victim suffered an irreparable
loss. The circuit court viewed the
offenses as aggravated because they involved shooting a gun on a public street,
circumstances that pose a risk to “innocent people nearby.” The circuit court discussed Walker’s character
and found that his “very poor” history of juvenile offenses and adult
convictions demonstrated “difficulty in adapting to the community’s norms and
expectations.” See State v. Fisher, 2005 WI App 175, ¶26, 285 Wis. 2d 433,
702 N.W.2d 56 (criminal record is evidence of character). The circuit court particularly emphasized the
need to protect the community, explaining that members of the public do not
want to feel that they live in “the [W]ild [W]est ... [not knowing] who is
going to take matters in their own hands, so to speak.”
¶30 Walker
believes that the circuit court should have put greater emphasis on his
remorse, his acceptance of responsibility, and his family’s view that he is
“capable of love and compassion and a relationship and support.” He also points out that the author of the
presentence investigation recommended a maximum aggregate sentence of seventeen
years of imprisonment. A sentencing court,
however, is not required to accept the recommendations in the presentence
report. See State v. Hall, 2002
WI App 108, ¶16, 255 Wis. 2d 662, 648 N.W.2d 41. In this case, the circuit court concluded
that the recommendation in the presentence investigation report did not satisfy
the sentencing goals of deterrence and punishment. Further, although the circuit court agreed
that Walker had positive attributes, it found that the community needed
protection from him for a substantial period of time, until he could “make
appropriate pro-social choices.” In sum,
the circuit court did not weigh the sentencing factors as Walker would have
preferred, but that is not an erroneous exercise of discretion. See
State
v. Odom, 2006 WI App 145, ¶8, 294 Wis. 2d 844, 720 N.W.2d 695 (our
inquiry is whether the circuit court exercised discretion, not whether
discretion might be exercised differently).
¶31 We similarly review Walker’s allegation that he received harsh and excessive sentences by considering whether the circuit court erroneously exercised its discretion. See State v. Prineas, 2009 WI App 28, ¶29, 316 Wis. 2d 414, 766 N.W.2d 206. A sentence is unduly harsh when it is “so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.” Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). When we assess a claim that a sentence is unduly harsh, we keep in mind that “[a] sentence well within the limits of the maximum sentence is unlikely to be unduly harsh or unconscionable.” See State v. Scaccio, 2000 WI App 265, ¶18, 240 Wis. 2d 95, 622 N.W.2d 449.
¶32 In this case, Walker
faced a thirty-year term of imprisonment and a $100,000 fine for second-degree
reckless homicide while armed. See Wis.
Stat. §§ 940.06(1) (2009-10),[2]
939.50(3)(d), 939.63(1)(b). He faced
twelve years and six months of imprisonment and a $25,000 fine for recklessly
endangering safety. See Wis. Stat. §§ 941.30(1),
939.50(3)(f). The sentencing court
selected sentences well within the limits of the statutory maximum penalties,
and those sentences were thus presumptively not unduly harsh. See
Scaccio,
240 Wis. 2d 95, ¶18.
¶33 Second,
Walker faced sentencing here after killing one person and jeopardizing the life
of another. We cannot say that the aggregate
sentence of twenty-five years of initial confinement and twelve years of
extended supervision was disproportionate to his crimes or shocking to the
public sentiment. See Ocanas, 70
Wis. 2d at 185. We affirm.
By
the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2011-12).
[1] The Honorable Kevin E. Martens presided over the trial and plea proceedings and imposed the sentences in this case. The Honorable Richard J. Sankovitz presided over the postconviction proceedings and entered the order denying postconviction relief.
[2] All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.