COURT OF APPEALS
DATED AND FILED
August 17, 2010
Acting Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
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.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
Timothy Ray Anderson,
from a judgment and an order of the circuit court for Milwaukee County: DANIEL
L. KONKOL, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 KESSLER, J. Timothy Ray Anderson
appeals from a judgment of conviction for taking and driving a vehicle without
the owner’s consent, contrary to Wis.
Stat. § 943.23(2) (2005-06),
and from an order denying his motion for postconviction relief. Anderson
argues that the trial court erred when it denied his postconviction motion
without an evidentiary hearing. We conclude
was not entitled to a hearing on his postconviction motion and that the trial
court did not erroneously exercise its discretion in denying him one. We affirm the judgment and the order.
was charged with taking and driving a vehicle without the owner’s consent, a
Class H felony, see id.,
as well as armed robbery with threat of force, a Class C felony, contrary to Wis. Stat. § 943.32(2) (2005-06). According to the criminal complaint, Anderson approached a
woman at a gas station, pushed her and then said, “This is a stick-up,
bitch!” The woman told police that after
what the woman believed was a gun from his left pants leg, the woman exited her
car and ran to her sister’s car, which was nearby. The woman said Anderson drove away in her car.
admitted to police that he took the car and drove it without the woman’s
consent. However, he said that he
actually knew the victim, that they had an argument and that he drove off in
her car. He denied threatening her.
¶4 The State and Anderson reached a plea agreement. The plea questionnaire/waiver of rights form
stated that the agreement was as follows:
“Dismiss (outright) Armed Robbery charge—both sides free to argue for
appropriate sentence.” Anderson did not admit to the facts in the
criminal complaint, but rather offered his own version of events (both in
writing and orally at the plea hearing) to provide a factual basis for his plea
on the lesser charge. Anderson told the trial court: “We was out drinking because I know the
victim. We been to Atlanta together and grew up in the same
neighborhood and we got into a little confrontation and she gave me the keys
and I drove off ... because I was upset.”
Anderson told the trial court that
although the victim gave Anderson
the car keys, she told him to give them back.
Rather than doing that, Anderson
took the car and drove off. The trial
court accepted Anderson’s
guilty plea and found him guilty.
¶5 At sentencing, the State argued for imposition of the maximum
sentence: three years of initial
confinement and three years of extended supervision, consecutive to any other
sentence. The State argued that Anderson either had a weapon or made the
victim think he had a weapon when he took her car. The State said that the maximum sentence was
appropriate because of Anderson’s
lengthy criminal history, including fourteen convictions for robbery, not including
dismissed or read-in charges. The State
characterized Anderson as “one of the most
prolific robbers in Milwaukee County history,” noting that Anderson continued to commit robberies even
after losing a leg in one of his robberies.
¶6 Anderson’s trial counsel
acknowledged Anderson’s criminal history, but
asserted that Anderson
had sought drug and alcohol treatment since the crime was committed. Trial counsel also emphasized Anderson’s version of the
there is a tremendous difference in terms of the
severity of the offense when somebody ... basically pulls you out of your car
at gunpoint, drives off, it’s a stranger, you[’ve] never seen him before, as
opposed to you have been drinking with some people, you get in an argument, you
get mad and drive off with the car.
Trial counsel suggested that an
appropriate disposition would be to impose and stay the maximum period of
incarceration and extended supervision and place Anderson on probation.
¶7 The trial court discussed the parties’ arguments concerning
what occurred when the car was taken. It
stated: “Each side has a different
version as to how the events took place, but let me point out, the armed
robbery was dismissed and it was not read in for any type of sentencing
purposes, so I’m not considering that there was an armed robbery.” The trial court sentenced Anderson to three years of initial
confinement and three years of extended supervision. The trial court cited numerous reasons for imposing
the maximum sentence, including Anderson’s lengthy record, the fact that Anderson
committed this crime within six months of being released from prison, and the
trial court’s assessment that Anderson presented “an extremely high risk to
reoffend” from which the public needed protection.
¶8 Anderson filed a motion for postconviction relief, seeking to
withdraw his plea on “grounds that his plea was not entered knowingly,
voluntarily, and intelligently because he misunderstood the plea agreement, in
particular the legal ramifications at sentencing of dismissed charges.” In the alternative, Anderson alleged that he should be allowed to
withdraw his guilty plea based on ineffective assistance of counsel. He claimed his trial counsel provided
ineffective assistance because counsel “misunderstood the legal ramifications
of dismissed charges at sentencing, specifically bargained for the [armed
robbery] charge to be dismissed and not ‘read-in’ because of that
misunderstanding, and incorrectly advised Anderson
of the legal consequences of the plea agreement.” Anderson
sought an evidentiary hearing on both claims.
¶9 The trial court denied Anderson’s
motion without a hearing, in a written decision. With respect to Anderson’s
first argument, the trial court found that the effect of the dismissed armed robbery
charge at sentencing (i.e., the fact that it could be referenced) was a
collateral consequence that Anderson
misunderstood. Recognizing that some Wisconsin cases have permitted plea withdrawal where a
defendant misunderstood a collateral consequence, the trial court concluded
that the facts in this case did not support that remedy. The trial court noted that neither the State
nor the trial court had made affirmative statements that contributed to Anderson’s
misunderstanding, and that Anderson had signed a factual basis form that
advised him “that the State was not precluded from asserting other facts beyond
what the defendant was offering as a factual basis for his guilty plea to the
operating a vehicle without owner’s consent charge.” (Emphasis omitted.)
¶10 With respect to Anderson’s allegations that his trial counsel
provided ineffective assistance, the trial court found that Anderson had not
been prejudiced by the erroneous advice trial counsel allegedly gave, because
the trial court did not consider the disputed facts concerning the taking of
the vehicle when it imposed the maximum sentence, as the trial court stated on
the record at sentencing.
¶11 For those reasons, the trial court denied Anderson’s postconviction motion to withdraw
his guilty pleas. This appeal follows.
¶12 “After sentencing, a defendant who seeks to withdraw a guilty
or no contest plea carries the heavy burden of establishing, by clear and
convincing evidence, that withdrawal of the plea is necessary to correct a
manifest injustice.” State
v. McCallum, 208 Wis. 2d 463, 473, 561
N.W.2d 707 (1997), modified on other
grounds, State v. Kivioja, 225 Wis.
2d 271, 293-96, 592 N.W.2d 220 (1999); see
also State v. Hoppe, 2009 WI 41, ¶60, 317 Wis. 2d 161, 765 N.W.2d
794 (“[A] defendant is entitled to withdraw his [or her] guilty plea if the
[trial] court’s refusal to allow withdrawal of the plea would result in a
manifest injustice.”). “The withdrawal
of a plea under the manifest injustice standard rests in the [trial] court’s
discretion.” McCallum, 208 Wis. 2d at 473. On appeal, we will reverse the trial court
only if it failed to properly exercise its discretion, such as if it bases its
exercise of discretion on an erroneous application of the law to the
¶13 “A defendant may demonstrate a manifest injustice by showing
that [the] guilty plea was not made knowingly, intelligently, and voluntarily,”
317 Wis. 2d 161, ¶60, or that the defendant was denied the effective assistance
of counsel, State v. Wesley, 2009 WI App 118, ¶22, 321 Wis. 2d 151, 772
N.W.2d 232. When a defendant alleges
that he or she should be allowed to withdraw his or her plea because the plea
was not made knowingly, intelligently, and voluntarily, this court is presented
with a question of constitutional fact. Hoppe,
317 Wis. 2d
161, ¶61. “We accept the [trial] court’s
findings of historical and evidentiary fact unless they are clearly erroneous …
[but w]e independently determine whether those facts demonstrate that the
defendant’s plea was knowing, intelligent, and voluntary.” Id.
¶14 When a defendant alleges ineffective assistance as a basis to
withdraw a plea, the defendant must show that (1) counsel’s performance was
deficient; and (2) the deficient performance prejudiced the defendant. See
321 Wis. 2d 151,
¶23. Applying the ineffective assistance
standard in the plea withdrawal context, a defendant may establish a manifest
injustice by showing that counsel’s conduct or advice was objectively
unreasonable and that, but for counsel’s error, the defendant would not have
entered the plea. See State v. Bentley, 201 Wis. 2d 303, 311-12, 548 N.W.2d 50 (1996).
argues that the trial court erroneously denied his postconviction motion
without a hearing. Where, as here, the
defendant alleges that plea withdrawal is necessary to avoid manifest injustice
but does not assert a Bangert violation, the Nelson/Bentley
standard is used to determine whether a hearing is required. See
v. Allen, 2004 WI 106, ¶¶12-13, 274 Wis. 2d 568, 682 N.W.2d 433 (describing the
procedure for determining whether a postconviction hearing is required outside
of the Bangert context). The postconviction
motion must allege “who, what, where, when, why, and how.” Id.,
¶23. If “the motion on its face alleges
sufficient material facts that, if true, would entitle the defendant to
relief,” the trial court must hold an evidentiary hearing. Id.,
¶9. Whether the motion raises such facts
“is a question of law that we review de novo.”
Id. “[I]f 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 [trial] court has the discretion to grant or deny a
On appeal, we review the trial court’s exercise of discretion using “the
deferential erroneous exercise of discretion standard.” Id.
¶16 In this case, we agree with the trial court that Anderson was not entitled
to an evidentiary hearing, but on different grounds than those cited by the
trial court. See State
v. Earl, 2009 WI App 99, ¶18 n.8, 320 Wis. 2d 639, 770 N.W.2d 755 (“On
appeal, we may affirm on different grounds than those relied on by the trial
court,” and when we do so, “we need not discuss our disagreement with the trial
court’s chosen grounds of reliance.”).
A. Misunderstanding of the plea agreement.
¶17 We begin with the first ground for relief alleged in Anderson’s motion: “that his plea was not entered knowingly,
voluntarily, and intelligently because he misunderstood the plea agreement, in
particular the legal ramifications at sentencing of dismissed charges.” Our supreme court has recognized that “in
some situations, a mistaken understanding of the law can result in manifest
injustice.” State v. Denk, 2008 WI
130, ¶73, 315 Wis. 2d 5, 758 N.W.2d 775 (citing State v. Brown, 2004 WI
App 179, 276 Wis. 2d 559, 687 N.W.2d 543, and State v. Riekkoff, 112
Wis. 2d 119, 332 N.W.2d 744 (1983)). For
instance, the court in Brown held that “a manifest
injustice occurred when the defendant’s plea resulted in the precise legal
consequence he entered the plea to avoid.”
Denk, 315 Wis.
2d 5, ¶73. Specifically, Brown believed
that the charges to which he entered no-contest pleas did not require him to
register as a sex offender or subject him to Wis.
Stat. ch. 980 commitment. See Brown, 276 Wis. 2d 559, ¶2.
¶18 In Denk, the defendant entered into a plea agreement with the
State, pursuant to which Denk was “to plead guilty or no contest to felony
possession of methamphetamine” and “[i]n exchange, the State dismissed the
felony methamphetamine paraphernalia charge and the misdemeanor charges for
possession of marijuana and marijuana-related paraphernalia.” Id., 315 Wis. 2d 5, ¶21. After sentencing, he sought to withdraw his
plea on grounds that it was not entered knowingly or voluntarily because “he,
his attorney, the prosecutor, and the judge were all under the misapprehension
that he could have been convicted of felony possession of paraphernalia, the
charge that was dismissed.” Id., ¶65.
¶19 The Wisconsin Supreme Court rejected Denk’s argument. It declined to decide whether Denk could have
been convicted of felony possession of paraphernalia, an issue that Wisconsin’s appellate
courts had not yet decided, after concluding that the case could be decided by
analyzing “whether Denk received the benefit of the bargain.” See id., ¶70.
¶20 Denk began by distinguishing both Brown and Riekkoff—where
plea withdrawal was allowed—because in both cases the dispute involved the
charge to which the defendant actually pled and whether “the consequence for
which the defendant had bargained when he entered the plea to the charge was a
legal impossibility.” See Denk,
315 Wis. 2d
5, ¶75. Denk continued:
In contrast, Denk did not
plead to the charge in question, rather, his argument relates to his
understanding of the charge that was dismissed. Here, the bargain was that in exchange for a
plea to a felony possession of methamphetamine charge, the State would dismiss
the felony drug paraphernalia charge and two other misdemeanor charges. And that is exactly what happened. By entering into a plea agreement, Denk
substantially minimized his exposure. The
maximum sentence for the three dismissed charges was six years incarceration
for the felony, and six months and thirty days respectively for the two
The terms of the plea
agreement further provided that the State would limit its request at sentencing
to jail time rather than prison time for the charge to which he entered a plea.
And it did. The maximum sentence of incarceration for
felonious possession of methamphetamine was three years and six months.
Unlike the cases upon which Denk
relies, this was not a plea based on an illusory promise, but rather it was a
plea where the promise was realized. At
sentencing, Denk received the benefits of his bargain. He avoided exposure to a substantial period of
incarceration. As agreed, the State
dismissed the three charges and argued for a withheld sentence, three years
probation, and six months in jail. The
judge sentenced consistent with the State’s argument, except Denk received only
five months in jail as a condition of probation. Thus, we determine that Denk failed to meet
his burden of showing a manifest injustice, entitling him to a plea withdrawal.
Id., ¶¶76-78 (footnote omitted).
¶21 Applying the same reasoning here, we conclude that Anderson has “failed to meet
his burden of showing a manifest injustice, entitling him to a plea
withdrawal.” See id., ¶78. For purposes
of this decision, we accept as true Anderson’s
assertion that both he and his attorney believed that having the armed robbery
dismissed outright meant that those allegations would not be considered at
sentencing. Ultimately, even though the allegations
concerning what Anderson
said and did when he took the car were discussed at sentencing, the trial court
explicitly stated that it would not consider those facts in fashioning a
sentence. As noted, the trial court
said: “Each side has a different version
as to how the events took place, but let me point out, the armed robbery was
dismissed and it was not read in for any type of sentencing purposes, so I’m
not considering that there was an armed robbery.” Anderson has not
challenged either the trial court’s sentencing statement that it would not consider those facts, or the
same trial court’s statement in its postconviction order that it did not consider those facts in
sentencing Anderson. Thus, we accept those statements as true. Anderson
received the benefits of the plea bargain:
the armed robbery charge was dismissed, which reduced his total exposure
from forty-six years to six years, which “substantially minimized his
exposure.” See id., ¶76. Further, at
sentencing, the allegations related to the dismissed charge were not factored
into his sentence on the lesser charge.
Having received the benefits of the bargain, Anderson has not shown a manifest injustice
that would entitle him to plea withdrawal. See
¶22 Because the record conclusively demonstrates that Anderson is not entitled
to relief, the trial court had the discretion to grant or deny an evidentiary
hearing. See Allen, 274 Wis. 2d 568, ¶9. Anderson
has not challenged the trial court’s exercise of discretion denying his request
for a hearing, electing instead to focus on his argument that a hearing was
required. We decline to disturb the
trial court’s exercise of discretion.
B. Ineffective assistance of counsel.
¶23 As noted, to successfully withdraw his plea based on ineffective
assistance of counsel, Anderson must show that his
trial counsel’s advice was objectively unreasonable and that, but for trial counsel’s
would not have entered the plea. See Bentley, 201 Wis. 2d at 311-12. A reviewing court need not consider both the
deficient performance and prejudice prongs of the ineffective assistance of
counsel test. See Strickland v. Washington, 466 U.S. 668, 697 (1984) (“[T]here is
no reason for a court deciding an ineffective assistance claim ... to address both
components of the inquiry if the defendant makes an insufficient showing on
one.”). Here, the prejudice prong is
dispositive. We conclude that Anderson
was not entitled to a hearing on his postconviction motion because he “‘present[ed]
only conclusory allegations’” with respect to his claim that but for his trial
counsel’s erroneous advice, he would have not have entered a guilty plea. See
201 Wis. 2d
at 309-10 (citation omitted).
¶24 In his postconviction motion, Anderson alleged as follows:
[T]rial counsel ... explained to Mr. Anderson that if
he pled guilty to count 2, then the armed robbery charge would be dismissed
Further, [trial counsel]
explained to Mr. Anderson that if a charge is “dismissed outright,” then the
charge or the allegations of the dismissed charge cannot be mentioned by the
[S]tate at sentencing.
The outright dismissal of the
armed robbery charge, and the meaning of an outright dismissal as Mr. Anderson
understood it due to [trial counsel’s] explanation, was critical to Mr.
Anderson’s decision to accept the plea agreement and plead guilty.
Had Mr. Anderson known that, despite the outright dismissal, the
[S]tate could nonetheless argue the armed robbery allegations, then Mr.
Anderson would have not entered the guilty plea.
(Emphasis added; bulleting
omitted.) We agree with the State that Anderson has failed “to
explain why the possibility that the facts [underlying] the dismissed armed
robbery charge would be used at sentencing was so critical to his decision to
plead that he would not have pled—and would have gone to trial—if he had known.”
has offered only the bald assertion that he would have gone to trial if he had
known the facts concerning the alleged armed robbery would be considered at
sentencing. He offers no explanation why
he would risk going to trial on two counts, including one that carried a maximum
penalty of “a fine not to exceed
$100,000 or imprisonment not to exceed 40 years, or both,” see Wis. Stat. § 939.50(3)(c)
(2005-06), rather than face a maximum penalty of “a fine not to exceed
$10,000 or imprisonment not to exceed 6 years, or both,” see § 939.50(3)(h), where the trial court might consider the
facts related to the dismissed charge at sentencing. Anderson’s
assertion that he would have gone to trial is especially puzzling because he
had already admitted to police that he drove the woman’s car without her
consent, so he could not have realistically hoped for acquittal on that
count. Thus, Anderson, a man with an
extensive criminal history, would have subjected himself to conviction for a
Class H felony, and possible conviction for a Class C felony, simply to avoid
having a dismissed charge mentioned at sentencing for the lesser crime. Anderson’s
postconviction motion makes no attempt to explain his reasoning.
¶26 We conclude that Anderson
has presented only “self-serving” and “‘conclusory allegations’” with respect
to his claim that he would not have entered his guilty plea but for his trial
counsel’s erroneous advice. See State v. Jackson, 229 Wis. 2d 328, 343, 600 N.W.2d 39 (Ct. App. 1999) (“Mere
self-serving conclusions will not suffice.”); Bentley, 201 Wis. 2d at 309-10
(citation omitted). Because the record
conclusively demonstrates that Anderson
is not entitled to relief, the trial court had the discretion to grant or deny
an evidentiary hearing. See Allen,
274 Wis. 2d
568, ¶9. Anderson
has not challenged the trial court’s exercise of discretion denying Anderson’s request for a
hearing. We see no basis to reverse the
trial court’s exercise of discretion.
By the Court.—Judgment and order
recommended for publication in the official reports.