COURT OF APPEALS
DATED AND FILED
April 19, 2011
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,
Christian R. Colon,
from an order of the circuit court for Milwaukee County: PATRICIA
D. MCMAHON, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 KESSLER, J. Christian R. Colon appeals
a decision and order of the circuit court denying his motion for postconviction
relief. Colon argues that: (1) the State breached a plea agreement by
unilaterally withdrawing it when Colon refused to testify against a
co-defendant because the State played a direct role in Colon’s decision not to
testify and thereby violated his right to due process; (2) he was entitled to a
hearing on the issue; (3) his trial counsel was ineffective for not objecting
to the State’s withdrawal and sentence recommendation and for not advising
Colon that he could seek to withdraw his plea; and (4) he was entitled to a Machner hearing
on his ineffective assistance of counsel claim. We affirm.
¶2 According to the criminal complaint, on January 7, 2007,
three armed and masked suspects entered Marty’s Party Bar in the City of Milwaukee. One of the suspects, later identified as Joel
Rivera, confronted the bar patrons and demanded money. One of the patrons, Nicholas Knutowski,
approached the masked men with a paint scraper and was shot twice and killed by
Rivera. The group left without taking
was arrested in connection with the armed robbery. He admitted to participating in the robbery,
but said that he shouted “don’t shoot” right before Knutowski approached the
group, and that he fled the bar as Rivera was shooting. Colon
also confessed to participating in three other armed robberies of businesses
that took place on December 22, 2006.
¶4 Colon was charged with one count of felony murder, attempted
armed robbery, as party to a crime, and six counts of armed robbery with the
threat of force, as party to a crime.
Pursuant to a plea agreement, Colon
pled guilty to felony murder and two counts of armed robbery with the threat of
force, party to a crime, and agreed to testify against Rivera. In exchange for the pleas and Colon’s promise
to testify, the State agreed to dismiss and read-in the remaining four charges
and agreed not to make a specific recommendation about Colon’s sentence. The agreement also stated that if Colon materially breached
any of the terms of the agreement, the State would be relieved of the
negotiation and that the State had the sole authority to determine what
constituted a material breach. Colon indicated that he
understood the terms and conditions of the agreement at his plea hearing.
was to testify against Rivera at Rivera’s preliminary hearing on February 5,
2009. The night before the hearing, Colon and Rivera were
placed in the same cell by a deputy sheriff.
was produced for the hearing, however declined to testify. He indicated that he had concerns for his
safety, though he did not reveal what, if anything, was said to him while he
and Rivera were in the same cell. The
State advised Colon and his trial counsel that Colon’s refusal to testify violated the terms of the plea
agreement and that the State would not be bound by the agreement if Colon did not
testify. Colon conferred with his trial counsel and
indicated that he still would not testify.
The State subsequently dismissed the charges against Rivera.
¶6 At Colon’s sentencing hearing, the State informed the circuit
court that Colon
had breached the plea agreement. When
the circuit court asked Colon’s trial counsel
had breached the agreement, trial counsel responded, “[u]nfortunately I think
that [the State] is correct.” Colon’s trial counsel later explained that he thought Colon’s placement in the same cell as Rivera led Colon to fear for his family’s safety, though counsel did
not state that Colon
was actually threatened. The State did
not reinstate the read-in charges, but it proceeded to make a sentencing
recommendation, which was followed by the circuit court. Colon
was sentenced to twenty-eight years for the felony murder charge, comprised of twenty-two
years of initial confinement and six years of extended supervision. He was sentenced to sixteen years for each of
the armed robbery charges, comprised of twelve years of initial confinement for
each charge and four years of extended supervision for each charge, to be
¶7 Colon filed a postconviction
motion on December 23, 2009, alleging that the State unilaterally and unfairly
withdrew from the plea agreement because the deputy sheriff, as an agent of the
State, negligently placed Rivera and Colon
in the same cell despite an order to keep the two separate. Colon
also alleged that his counsel was ineffective for various reasons. The circuit court denied Colon’s motion. This appeal follows.
¶8 Colon argues on appeal that
the State breached the plea agreement when it unilaterally withdrew from the
agreement and that Colon would have fulfilled
the requirements of the agreement had the State not negligently placed Colon and Rivera in the
same holding cell the night before Rivera’s preliminary hearing. He contends that he was entitled to an
evidentiary hearing to determine whether a breach occurred. Colon also
argues that his trial counsel was ineffective for failing to object to the
State’s withdrawal from the plea agreement and its subsequent sentencing
recommendation and for failing to inform Colon
that he could seek to withdraw his plea. Colon
further contends that the circuit court erred when it denied his motion without
holding a Machner hearing. We
conclude that: (1) Colon breached the
terms of the plea agreement when he refused to testify against Rivera; (2) the
circuit court did not err when it denied Colon’s motion without a hearing; (3)
Colon’s trial counsel was not ineffective; and (4) Colon did not allege
sufficient facts in his motion that would entitle him to a Machner hearing. We affirm.
A. Breach of the
argues that because he and Rivera were placed in the same holding cell contrary
to an order to keep the two separate, the
State’s “hands were unclean” and the State was therefore unable to withdraw
from the agreement without an evidentiary hearing. Colon contends
that because a deputy sheriff is an arm of the State, the State played a direct
role in Colon’s decision not to testify because
it gave Rivera the opportunity to threaten Colon.
Because we find that no evidence in the record suggests that Colon was threatened, we
¶10 We have previously stated that “a plea agreement is analogous
to a contract and, therefore, we draw upon contract law principles to interpret
a plea agreement.” State v. Toliver, 187 Wis. 2d 346, 355, 523
N.W.2d 113 (Ct. App. 1994). The
construction of a written contract is a question of law that we review de novo. Id. We will construe a contract as it stands if
the language is plain and unambiguous. Id. “The analogy to contract law, however, is not
entirely dispositive because a plea agreement also implicates a defendant’s due
process rights.” Id.
prosecutor is relieved from the terms of a plea agreement where it is
judicially determined that the defendant has materially breached the conditions
of the agreement.” State v. Rivest, 106 Wis. 2d 406, 414, 316
N.W.2d 395 (1982). “[A] material and
substantial breach of a plea agreement is one that violates the terms of the
agreement and defeats a benefit for the nonbreaching party.” State v. Bowers, 2005 WI App 72,
¶15, 280 Wis.
2d 534, 696 N.W.2d 255.
language of the plea agreement in the case at bar clearly and unambiguously
states that Colon’s
refusal to testify against Rivera would constitute a material and substantial
breach and that the State possessed sole discretion to determine whether a
breach is material and substantial.
Specifically, the agreement states:
Should the defendant agree to testify and for whatever
reason fails to cooperate fully and answer all questions put to him at the
trial or any other hearing regarding the co-defendants the State would consider
that a material breach to these negotiations.
A further condition precedent to this offer is that the
defendant must agree that should he violate any of the terms and conditions of
this negotiation including after pleading guilty and before sentencing, that
the defendant should the State, at the State’s sole discretion, believe that
the defendant has violated any of these negotiations that the defendant does
know and agree that any material breach by the defendant of these negotiations
or violation of the conditions precedent set forth above will be considered as
a material breach to the negotiations which would relieve the State of its
promised negotiation as set forth above and would allow the State, at
sentencing, to make whatever recommendation it felt to be appropriate.
¶13 Colon agreed to these
provisions. He contends, however, that he
decided not to testify against Rivera because he feared for his family’s safety
after erroneously being placed in the same holding cell as Rivera. Nothing in the record supports Colon’s insinuation that
he was threatened. Prior to the start of
Colon’s sentencing hearing, the State introduced a memorandum prepared by
Assistant District Attorney David Robles, the prosecutor handing Rivera’s case,
in which the assistant district attorney discusses the decision to dismiss the
charges against Rivera based on Colon’s refusal to testify. The memorandum states that Colon
indicated safety concerns for his family after being placed in the same cell as
Rivera, but that Colon
did not divulge any information about any conversation he may have had with
Rivera. The State also called Detective
Katherine Hein, one of the detectives who investigated the Knutowski murder, to
testify about the contents of the memo.
Detective Hein, who was present when Colon indicated his decision not to testify,
confirmed that the contents of the memo were correct.
¶14 Colon’s counsel also attempted to explain Colon’s decision at the sentencing hearing,
however he did not state anything definitively pointing to a threat made by
Rivera. Colon’s counsel stated:
I’m not sure what all happened … but apparently the
jailers at the County Jail for some reason put Mr. Colon and Mr. Rivera in the
same cell even though there was an order to keep separate and I think at that
point I think Mr. Colon did get scared and did get concerned.
think what occurred, and I was told by [Colon] about that, I was also told by
his mother … and his aunt and his brother … that Mr. Colon was utterly
concerned about the safety of his family because unfortunately the Riveras and
the Colons live essentially in the same geographic area. And Mr. Colon felt he would sacrifice himself
so-to-speak in regard to making the deal for less time to cooperate because he
didn’t want the Rivera people to then take revenge on the family. That’s I think … the situation.
assertion that his cell placement led him to fear for his family fails also because
Colon must have been aware of the fact that his family and Rivera’s family
lived in the same vicinity prior to Colon’s acceptance of the plea. Further, had Colon fulfilled his obligation to testify, he
would have been in Rivera’s presence at the preliminary sentencing hearing. Presumably, Colon would have been fearful for his family
at that point as well.
¶16 Colon’s argument that his
due process rights were violated by the State’s withdrawal from the agreement
is also without merit. “The supreme
court stated … that the constitutional due process requirements of ‘decency and
fairness’ are satisfied if the party seeking to vacate a plea agreement
establishes that there is a material and substantial breach of the agreement.” Toliver, 187 Wis. 2d at 357 (citation omitted). The language of the agreement is clear that a
refusal to testify constitutes a material breach and that the sole authority to
make such a determination belongs to the State. Colon
affirmed that he reviewed the terms of the agreement with his counsel prior to
accepting it. The record supports
nothing more than a conclusion that Colon
changed his mind about testifying against Rivera and therefore breached the
plea agreement. That Rivera may have had
the opportunity to threaten Colon is not the
same as actually threatening Colon. No evidence of a threat exists in the record.
Hearing on the Breach.
¶17 Colon contends that the State did not have sole authority
to determine whether to withdraw from the plea agreement after Colon had already entered his plea. He argues that under Rivest, only the circuit
court had the authority to make that determination because the State played a
direct role in Colon’s
decision not to testify. We disagree.
¶18 Our supreme
court in Rivest explained that when the State seeks release from its
obligations under a plea agreement on the basis of an alleged breach by the
defendant, an evidentiary hearing should be held to determine if the alleged
breach was sufficiently material to release the State from the agreement. Id., 106 Wis. 2d at 411. However, in the present case, it cannot
seriously be argued that Colon’s
refusal to testify against Rivera was not material to the agreement. The State’s case against Rivera obviously
depended on Colon’s testimony, otherwise such
serious charges would not have been dismissed by the State when Colon breached the
agreement. The clear language of the
agreement authorized the State to withdraw in the event of a breach by
Colon. See Toliver, 187 Wis. 2d
at 358 (where the agreement to testify against a co-defendant is an essential
part of the plea agreement, a refusal to testify is a material breach that does
not necessarily warrant an evidentiary hearing). The “State did not seek release from the
agreement but in reality was merely enforcing the sanctions of [the
agreement].” See id.
Assistance of Counsel.
¶19 Colon asserts on appeal that
he was denied the effective assistance of counsel when his trial counsel did
not object to the State’s withdrawal of the plea agreement, did not object to
the State’s sentence recommendation and did not advise him that he could seek
to withdraw his plea. He also asserts
that the circuit court erred when it denied his ineffective assistance of
counsel claim without holding a Machner hearing. We disagree.
a defendant’s postconviction motion alleges sufficient facts to entitle the
defendant to a hearing for the relief requested is a mixed standard of review.”
State v. Allen, 2004 WI 106, ¶9, 274
Wis. 2d 568,
682 N.W.2d 433. “First, we determine
whether the motion on its face alleges sufficient material facts that, if true,
would entitle the defendant to relief. This is a question of law that we review de
novo.” Id. If the motion alleges such facts, the
defendant is entitled to a hearing. Id. However, if the motion does not allege such
facts, presents only conclusory allegations, or if the record conclusively
shows that the defendant is not entitled to relief, the circuit court has the
discretion to deny the motion without a hearing. Id.
motion does not allege sufficient facts to succeed on such a claim. To succeed on a claim for ineffective
assistance of counsel under the Sixth Amendment, a defendant must make
sufficient showings under the two-part test put forth in Strickland v. Washington,
466 U.S. 668 (1984). The first part of
the test requires a defendant to show that counsel’s performance was deficient.
at 687. “This requires showing that
counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
The second part of the test requires a
showing that the deficient performance prejudiced the defendant. Id.
denying Colon’s ineffective assistance of
counsel claim, the circuit court noted that it was Colon who materially breached the agreement
and stated that the court would not have allowed him to withdraw his guilty
plea. Colon’s breach, under the clear
terms of the agreement, gave the State the right to withdraw the agreement and
make a sentencing recommendation. Colon was aware of the
conditions of his plea agreement as well as the consequences for not complying
with the agreement, as was made clear by his trial counsel at the change of
plea hearing. The court confirmed with
trial counsel that Colon “[understood] the nature of the charges and the
effects of his pleas.” Further, the
circuit court confirmed with trial counsel and the defendant that the defendant
read the plea and reviewed the terms with trial counsel. Colon’s contention that a hearing would have
revealed the State’s direct role in his decision not to testify also fails
because, as discussed, no evidence exists in the record as to what, if any,
threats were made by Rivera. Therefore, Colon’s counsel was not
ineffective for failing to object to the State’s enforcement of its rights
under the terms of the agreement. This
also includes the State’s right to make a sentence recommendation. Colon also fails to acknowledge that had a
court allowed him to withdraw his guilty plea, he could have been subjected to
four additional charges of armed robbery and possibly could have dramatically
increased his sentence. “[T]rial counsel
[is] not ineffective for failing or refusing to pursue feckless
arguments.” Toliver, 187 Wis. 2d at 360. Colon’s
claims are conclusory and do not, on their face, allege sufficient facts that
would require a hearing.
By the Court.—Order affirmed.
recommended for publication in the official reports.