COURT OF APPEALS

DECISION

DATED AND FILED

 

February 4, 2014

 

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 No.

2013AP1004-CR

Cir. Ct. No. 2012CF1325

STATE OF WISCONSIN

IN COURT OF APPEALS

 

DISTRICT I

 

 

 

 

State of Wisconsin,

 

Plaintiff-Respondent,

 

v.

 

Ryan P. O達oyle,

 

Defendant-Appellant.

 

 

 

APPEAL from a judgment and an order of the circuit court for Milwaukee County: Mary E. Triggiano, Judge. Judgment affirmed as modified; surcharge order vacated.

1 CURLEY, P.J.[1]    Ryan P. O達oyle appeals the judgment convicting him of disorderly conduct, as an act of domestic abuse, contrary to Wis. Stat. ァァ 947.01(1) and 968.075(1)(a) (2011-12).[2] He also appeals the order denying his postconviction motion. On appeal, O達oyle argues that he should be allowed to withdraw his plea because his attorney was ineffective for: (1) failing to file a motion to strike any reference to domestic abuse in the complaint; and (2) inadequately explaining to him the charge to which he pled guilty. O達oyle also argues that he should be allowed to withdraw his plea because it was not knowingly, voluntarily, and intelligently made. Alternatively, he argues that the charge of disorderly conduct as a result of domestic abuse is not a chargeable offense and domestic abuse modifiers are unlawful.

2 This court concludes that trial counsel was not ineffective because the specific motion to strike that O達oyle claims his attorney should have made預 motion seeking removal of any reference to domestic abuse based on a theory that Wis. Stat. ァ 968.075 is 渡ot a separate and distinguishable prohibited conduct that can be punished迫would not have been granted. This court also concludes that trial counsel was not ineffective because, despite some minor omissions in the guilty plea questionnaire, the record supports the fact that O達oyle was well aware of the charge to which he was pleading guilty. For this reason, O達oyle痴 plea was knowingly, voluntarily, and intelligently made. Additionally, O達oyle痴 argument that the charge of disorderly conduct as a result of domestic abuse is not a chargeable offense and domestic abuse modifiers are unlawful fails because it is insufficiently developed. Finally, this court concludes that the only evidence in this record concerning O達oyle痴 disorderly conduct fails to fulfill the statutory definition of domestic abuse found in Wis. Stat. ァァ 968.075(1) and 973.055. As a consequence, the reference to domestic abuse in the judgment roll should be stricken, and the $100 domestic abuse surcharge, found in ァ 973.055, should be vacated. Cf. State v. Cherry, 2008 WI App 80, カ11, 312 Wis. 2d 203, 752 N.W.2d 393 (where Court of Appeals remanded for revision of surcharge).

Background

3 O達oyle痴 charges stemmed from an incident that occurred in the early morning hours of March 23, 2012. According to the complaint, O達oyle had been living with his child痴 mother, K.E., and K.E.痴 mother, N.E., and late in the evening of March 22, 2012, K.E. told O達oyle to leave. Early the next morning, K.E. awoke to noises that sounded like rocks hitting her second-story window and then heard someone on the roof. Scared and frightened, she called 9-1-1. N.E., who also decided to call the police, advised the police that she awoke at approximately 2:00 a.m. because she heard something hitting the upstairs portion of her house. She looked out the window and saw O達oyle throwing what she believed to be rocks in the area where K.E. sleeps. This went on for approximately thirty minutes. While on the phone with the police, N.E. heard a loud noise on the roof.

4 When the police arrived, they saw a man later identified as O達oyle on the roof, and with the help of a ladder, he was able to climb down. O達oyle gave a statement to the police. He said he went to a tavern where he became intoxicated. He then went back to the home of K.E. and N.E., where he had been living. According to O達oyle, he was unable to find the spare key and he remembers climbing a tree and climbing onto the roof of the home.

5 O達oyle was charged with misdemeanor disorderly conduct as an act of domestic abuse, and, because he was out on bail for two felonies and a condition of his bail was that he was not commit any crimes, he was also charged with felony bail jumping. Because he was charged with disorderly conduct as an act of domestic abuse, as defined in Wis. Stat. ァ 968.075(1)(a), Wis. Stat. ァ 973.055(1) required the trial court to impose a domestic abuse surcharge of $100 if O達oyle were found guilty.

6 Several months later O達oyle pled guilty to disorderly conduct as an act of domestic abuse charge, and the bail jumping charge was dismissed and read into the record. The trial court sentenced O達oyle to seventy‑four days in jail and gave him credit for the seventy‑four days he was in jail. In addition, the trial court assessed a $100 domestic abuse surcharge.[3] O達oyle brought a postconviction motion which was denied.

Analysis

7 O達oyle presents several arguments on appeal. He first argues that he should be allowed to withdraw his plea because his attorney was ineffective for: (1) failing to file a motion to strike any reference to domestic abuse in the complaint; and (2) inadequately explaining to him the charge to which he pled guilty. O達oyle also argues that he should be allowed to withdraw his plea because it was not knowingly, voluntarily, and intelligently made. Alternatively, he argues that the trial court erred in denying his postconviction motion because the domestic abuse is not a chargeable offense and domestic abuse modifiers are unlawful. This court addresses each argument in turn.

Standard of Review

8 This court determines whether a defendant痴 postconviction motion alleges sufficient facts to entitle the defendant to a hearing under a mixed standard of review. State v. Allen, 2004 WI 106, カ9, 274 Wis. 2d 568, 682 N.W.2d 433. First, this court determines whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief. See id. This is a question of law subject to de novo review. Id. If the motion raises such facts, the trial court must hold an evidentiary hearing. Id. 滴owever, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing. Id.

9 A defendant who seeks to withdraw his or her pleas after sentencing must establish by clear and convincing evidence that plea withdrawal is necessary to correct 殿 manifest injustice. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 635, 579 N.W.2d 698 (1998). Ineffective assistance of counsel may constitute a manifest injustice. State v. Berggren, 2009 WI App 82, カ10, 320 Wis. 2d 209, 769 N.W.2d 110. Additionally, a manifest injustice occurs when a plea is not voluntarily, knowingly, and intelligently entered. See Warren, 219 Wis. 2d at 635-36.

10 泥etermining whether particular actions constitute ineffective assistance of counsel is a mixed question of law and fact. State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 (1996). This court will not overturn the trial court痴 findings of fact unless they are clearly erroneous; however, 努hether counsel痴 performance was deficient and whether the deficient performance prejudiced the defense are questions of law which this court decides without deference. See id. To establish a claim for ineffective assistance of counsel, a defendant must show that trial counsel痴 performance was deficient and that this deficient performance was prejudicial. See State v. Mayo, 2007 WI 78, カ33, 301 Wis. 2d 642, 734 N.W.2d 115. To establish deficient performance, O達oyle must show facts from which a court could conclude that trial counsel痴 representation was below the objective standards of reasonableness. See State v. Wesley, 2009 WI App 118, カ23, 321 Wis. 2d 151, 772 N.W.2d 232. To demonstrate prejudice, he 杜ust show that there is a reasonable probability that, but for counsel痴 unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See Strickland v. Washington, 466 U.S. 668, 694 (1984). If O達oyle fails to make a sufficient showing on one Strickland prong, we need not address the other. See id. at 697.

11 Likewise, whether a plea was knowingly, voluntarily and intelligently entered is a question of constitutional fact. See State v. Bangert, 131 Wis. 2d 246, 283, 389 N.W.2d 12 (1986). The defendant has the burden of making a prima facie showing that the court did not comply with Wis. Stat. ァ 971.08(1) or other court-mandated duties, and must allege he did not know or understand the information that should have been provided at the plea hearing. State v. Brown, 2006 WI 100, カ39, 293 Wis. 2d 594, 716 N.W.2d 906. If the defendant meets these obligations, the burden shifts to the State to establish by clear and convincing evidence that the plea was knowing, intelligent and voluntary despite the identified inadequacy of the plea colloquy. Id., カ40.

12 With the proper standards in mind, this court turns to O達oyle痴 contentions.

A.  O達oyle痴 attorney was not ineffective.

13 O達oyle claims his attorney was ineffective, first, for failing to file a motion to strike any reference to domestic abuse in the complaint. Specifically, he argues that his attorney should have moved to strike the domestic abuse reference from the complaint because, 泥omestic Violence Sec. 968.075, standing alone, is not a separate and distinguishable prohibited conduct that can be punished, and, had trial counsel made such a motion, 妬t would have been apparent to the court that domestic abuse is not a separate charge and 殿ny references to domestic abuse may have been stricken from the complaint.

14 This court disagrees. Had trial counsel filed such a motion, the trial court would have denied it because the State was not claiming that Wis. Stat. ァ 968.075 was a separate charge. The primary purpose of ァ 968.075 is to establish when an arrest is mandatory, and it also requires law enforcement and prosecutors to establish policies concerning domestic abuse cases. See id. In addition, the statute defines what conduct constitutes domestic abuse. Id. According to the statutory scheme, once domestic abuse is proven, the trial court must assess a $100 surcharge pursuant to Wis. Stat. ァ 973.055(1). The State did not, however, charge O達oyle with two separate acts. Had trial counsel moved to strike the ァ 968.075 modifier on the basis O達oyle now argues, that motion would not have been granted. Consequently, trial counsel was not ineffective for failing to file the motion. See State v. Simpson, 185 Wis. 2d 772, 784, 519 N.W.2d 662 (Ct. App. 1994) (if the motion would have been unsuccessful, there can be no prejudice and the claim of ineffective assistance of counsel fails).

15 O達oyle next contends that trial counsel was ineffective for inadequately explaining to him the charge to which he pled guilty. O達oyle claims that he thought he was entering a plea to simple disorderly conduct, and that his attorney was ineffective because he was unaware of the domestic abuse modifier. O達oyle argues that had his attorney properly explained the charge, he would have pled guilty to disorderly conduct, not disorderly conduct as an act of domestic abuse. O達oyle claims not to have understood that his plea was to the charge of disorderly conduct as an act of domestic abuse as opposed to just disorderly conduct, and he points to the guilty plea questionnaire as proof.

16 Again, this court disagrees. While it is true that the guilty plea questionnaire contains no statutory references to domestic abuse, nor, for that matter, does it list the statute prohibiting disorderly conduct, there were many other references to domestic abuse in the record to support the conclusion that O達oyle knew he was pleading guilty to disorderly conduct as an act of domestic abuse.

17 Assuming that O達oyle痴 attorney never mentioned that the disorderly conduct charge would be considered to be a crime of domestic abuse, O達oyle was repeatedly reminded that his charge was disorderly conduct as an act of domestic abuse. The complaint states that, 吐urther, invoking the provisions of sec. 968.075(1)(a), Wis. Stats., because this charge is an act of domestic abuse, costs upon conviction would include the domestic abuse assessment imposed under ァ 973.055(1). Additionally, O達oyle was informed of the full charge擁ncluding the domestic abuse modifier傭y the court commissioner at the initial appearance and the judge following the bindover at the preliminary hearing. Also, on the day of his guilty plea, the clerk read the charges when the case was called, and the trial court not only informed O達oyle that he was charged with disorderly conduct domestic abuse related, but also told him that he would be responsible for the domestic abuse assessment. Moreover, when O達oyle was asked if he understood the charge and penalties, he replied that he did. O達oyle痴 claim that he was unaware of the actual charge is unavailing. Thus, there was no ineffective assistance of counsel.

B.  O達oyle entered his plea knowingly, intelligently and voluntarily.

18 O達oyle separately argues that he did not enter his plea knowingly, intelligently, and voluntarily. See Warren, 219 Wis. 2d at 635-36. This court disagrees for all of the reasons explained more fully above. As is clear from the record, O達oyle repeatedly was advised of the charge against him, and he understood that information.

C.  O達oyle痴 argument that the charge of disorderly conduct as a result of
     domestic abuse is not a chargeable offense and domestic abuse modifiers are
     unlawful fails because it is insufficiently developed.

19 O達oyle argues that the charge of disorderly conduct as a result of domestic abuse is not a chargeable offense and domestic abuse modifiers are unlawful. This court will not consider this argument because it is insufficiently developed. See State v. McMorris, 2007 WI App 231, カ30, 306 Wis. 2d 79, 742 N.W.2d 322.


 

D.  The domestic abuse surcharge must be vacated because O達oyle痴 acts did
     not fall within the definition of domestic abuse found in Wis. Stat. ァ 968.075.

20 O達oyle was originally charged with disorderly conduct as an act of domestic abuse and felony bail jumping. He decided to plead guilty to the misdemeanor charge when the State agreed to dismiss the felony charge. The victims did not attend the guilty plea hearing and sentencing. O達oyle did not testify. Thus, the only information concerning the incident came from the complaint, which was used as a factual basis for the guilty plea.

21 Wisconsin Stat. ァ 968.075 lists the definition of domestic abuse as follows:

(1)  Definitions. In this section: (a) 泥omestic abuse means any of the following engaged in by an adult person against his or her spouse or former spouse, against an adult with whom the person resides or formerly resided or against an adult with whom the person has a child in common:

1.  Intentional infliction of physical pain, physical injury or illness.

2.  Intentional impairment of physical condition.

3.  A violation of s. 940.225 (1), (2) or (3).

4.  A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described under subd. 1., 2. or 3.

22 While the relationship between O達oyle and K.E. appears to qualify under Wis. Stat. ァ 968.075(1)(a) because O達oyle resided with K.E. and O達oyle and K.E. have a child together, it is not enough to constitute domestic abuse here because the complaint does not allege conduct that falls under the statutory definition. The complaint must contain allegations that fit the crimes stated in subparts 1. through 4. in order to qualify for domestic abuse status. Comparing the allegations in the complaint with the crimes listed in ァ 968.073(1)(a)1.4. reveals that: (1) there is no allegation in the complaint that O達oyle intentionally inflicted physical pain, physical injury or illness; (2) there is no allegation in the complaint that O達oyle intentionally impaired K.E.痴 physical condition; (3) no sexual assault is alleged; and (4) while K.E. may have been frightened, it would not have been reasonable for her to fear imminent engagement in any of the conduct described in ァ 968.075(1)(a)1., 2., or 3., as O達oyle never entered the dwelling, and no threats or, for that matter, conversation, took place between the parties.

23 The statute authorizing the surcharge is Wis. Stat. ァ 973.055(1). It directs the court to impose the surcharge under certain conditions. One of them is if the domestic abuse occurs between people who currently or formerly lived together or have a child together:

(1)  If a court imposes a sentence on an adult person or places an adult person on probation, regardless of whether any fine is imposed, the court shall impose a domestic abuse surcharge under ch. 814 of $100 for each offense if:

(a)  1. The court convicts the person of a violation of a crime specified in s. ... 947.01(1) and

2.  The court finds that the conduct constituting the violation under subd. 1. involved an act by the adult person against his or her spouse or former spouse, against an adult with whom the adult person resides or formerly resided or against an adult with whom the adult person has created a child.

24 Although not specifically mentioned, implicit in Wis. Stat. ァ 973.055 is that the complained of conduct must fall within the definition of domestic abuse found in Wis. Stat. ァ 968.073(1)(a)1.4. As noted, none of the crimes listed in subparts 1. through 4. were alleged against O達oyle.

25 Even considering the definition of domestic abuse independent of the definition found in Wis. Stat. ァ 968.073(1)(a), O達oyle痴 conduct did not meet the definition found in Wis. Stat. ァ 973.055(1)2. because the actions of O達oyle were not 殿gainst an adult with whom the adult person resides or against an adult with whom the adult person has created a child. O達oyle was intoxicated and attempting to enter the house where he resided. None of his actions were directed at K.E. or N.E., nor was he hostile or violent. As the State remarked at the plea hearing:

[I]n the continuum of disorderly conducts that we see, this case is not the most aggravated. The behavior here, while inappropriate and certainly would leave someone to be very frightened, there was no violence against the victim nor any sort of threats made by the defendant.

Moreover, the trial court apparently agreed, stating that: 甜W]e would say it痴 not that egregious, there weren稚 any threats or any physical contact. Under either definition, O達oyle痴 actions did not qualify as domestic abuse. As a result, the reference to domestic abuse should be removed from the judgment and the surcharge vacated. Cf. Cherry, 312 Wis. 2d 203, カ11 (where Court of Appeals remanded for revision of surcharge).

By the Court.憂udgment affirmed as modified; surcharge order vacated.

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.

 


 



[1]  This appeal is decided by one judge pursuant to Wis. Stat. ァ 752.31(2) (2011‑12).

[2]  All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.

[3]  The court originally told O達oyle that he also could no longer wear body armor. At the postconviction motion, the trial court lifted that condition, and a condition not mentioned at the guilty plea hearing, but placed on the judgment of conviction that he not possess a firearm.