PUBLISHED OPINION
Case No.: 94-3310-CR
† Petition
for review filed.
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
†
v.
KAMAU KAMBUI BENTLEY, JR.,
Defendant-Appellant.
Submitted on Briefs: May 3, 1995
Oral Argument: ---
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: June 27, 1995
Opinion Filed: June
27, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If
"Special", JUDGE: PATRICIA D. McMAHON
so indicate)
JUDGES: Wedemeyer, P.J., Fine and Schudson, JJ.
Concurred: ---
Dissented: ---
Appellant
ATTORNEYSFor the defendant-appellant the cause was submitted on
the briefs of Mark Lukoff, assistant state public defender.
Respondent
ATTORNEYSFor the plaintiff-respondent the cause was submitted on
the briefs of James E. Doyle, attorney general, and Daniel J. O'Brien,
assistant attorney general.
|
COURT OF APPEALS DECISION DATED AND RELEASED June
27, 1995 |
NOTICE |
|
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. 94-3310-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KAMAU
KAMBUI BENTLEY, JR.,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge. Reversed and cause remanded with directions.
Before
Wedemeyer, P.J., Fine and Schudson, JJ.
SCHUDSON,
J. Kamau Kambui Bentley, Jr., was
convicted of one count of felony murder, party to a crime, and one count of
first-degree intentional homicide, party to a crime. He appeals from the denial of his postconviction motion to
withdraw his guilty pleas based on the alleged ineffective assistance of
counsel.[1] He argues that the trial court erred in
denying his request for an evidentiary hearing on his motion. We agree and remand for a Machner
hearing.[2]
Bentley
pled guilty to felony murder and first-degree intentional homicide, each as
party to the crime, as a result of his participation in drug-related killings
in which he procured the murder weapon and acted as the “lookout.” Pursuant to a plea negotiation, the State
recommended at the guilty plea proceeding
that Bentley receive forty years imprisonment for felony murder and
concurrent life imprisonment for first-degree intentional homicide. The State did not recommend a specific
parole eligibility date.[3] On May 16, 1994, the trial court sentenced
Bentley to thirty-five years for the felony murder and to a concurrent term of
life imprisonment for first-degree intentional homicide with a parole
eligibility date of May 16, 2039.
Bentley filed a motion for postconviction
relief seeking an order to vacate the judgment and to withdraw his guilty pleas
on the grounds that they were neither voluntary nor informed. Bentley also sought an evidentiary hearing
in support of his contention that his trial counsel was ineffective and that
his trial counsel's ineffective assistance resulted in the guilty pleas. The trial court denied the request for a
hearing and denied the motion, concluding that “the record conclusively shows
the defendant is not entitled to relief.”
We conclude, however, that Bentley's motion offered sufficient specific
allegations to require an evidentiary hearing.
In his postconviction motion, Bentley
alleged that his trial counsel incorrectly advised him and his family that he
would be eligible for parole after serving approximately eleven years and some
months (trial counsel allegedly gave various estimates of the number of
months). The motion stated, in part,
“[d]efendant will testify that he entered his guilty pleas only because he was
informed by his trial attorney ... that the parole eligibility date for
first-degree intentional homicide would be 11 years and 5 months.” The motion also alleged that Bentley's trial
counsel “will testify that he told defendant he would try to get parole
eligibility set under the ‘old law’ which would result in parole eligibility of
11 years, 4 months.” In fact, as also
alleged in the motion, Bentley's trial counsel recommended at sentencing that
the trial court “make his eligibility for parole on the life sentence the same
length of time it normally gives of eleven years, three months.”
Concluding
that no evidentiary hearing was necessary, the trial court denied the motion,
explaining, “even if [Bentley] thought he faced a potential of 11 years and 5
months on the life sentence, he also knew he could have faced as much, or more
... —and that it might not have been concurrent as the State recommended.” The trial court further reasoned:
[E]ven if trial counsel had represented ... that
[Bentley's] parole eligibility date would be 11 years and 5 months ..., the
court's inquiry of the defendant at the guilty plea hearing and his signature
on the Guilty Plea Questionnaire and Waiver of Rights form unequivocally
override that assertion. The defendant
clearly apprehended that his exposure was life plus forty years.
Withdrawal
of a guilty plea after sentencing may be based on the ineffective assistance of
counsel. See State v.
Washington, 176 Wis.2d 205, 213-214, 500 N.W.2d 331, 335 (Ct. App.
1993). A trial court must grant a
defendant's request to withdraw a guilty plea after sentencing only “if a
defendant successfully ‘carries the heavy burden of establishing, by clear and
convincing evidence, that the trial court should permit the defendant to
withdraw the plea to correct a “manifest injustice.”’” State v. Woods, 173 Wis.2d
129, 136, 496 N.W.2d 144, 147 (Ct. App. 1992) (defendant permitted to withdraw
plea that was based in part on inaccurate information regarding potential disposition)
(citation omitted).
A
defendant in a criminal case has a right to the effective assistance of
counsel. Strickland v. Washington,
466 U.S. 668, 686 (1984); State v. Ludwig, 124 Wis.2d 600, 606,
369 N.W.2d 722, 725 (1985). To
establish ineffective assistance, a defendant must demonstrate that counsel's
performance was both deficient and prejudicial. Strickland, 466 U.S. at 687; Ludwig,
124 Wis.2d at 607, 369 N.W.2d at 725.
Generally, an evidentiary hearing at which trial counsel testifies
regarding the alleged deficient performance is required for the trial court's
consideration of an ineffective assistance of counsel claim. State v. Machner, 92 Wis.2d
797, 804, 285 N.W.2d 905, 908, (Ct. App. 1979). Such a hearing, however, is not automatic:
The mere assertion of a claim of “manifest
injustice,” in this case the ineffective assistance of counsel, does not
entitle a defendant to the granting of relief or even a hearing on a motion for
withdrawal of a guilty plea. A
conclusory allegation of “manifest injustice,” unsupported by any factual
assertions, is legally insufficient....
... [I]f a motion
to withdraw a guilty plea after judgment and sentence alleges facts which, if
true, would entitle the defendant to relief, the trial court must hold an
evidentiary hearing.
Washington, 176 Wis.2d at 214-215, 500 N.W.2d at 335-336 (quoting Nelson v.
State, 54 Wis.2d 489, 497-498, 195 N.W.2d 629, 633 (1972)). Where, as here, a trial court refused to
hold a Machner evidentiary hearing, we independently review the
defendant's motion “to determine whether it alleges facts sufficient to raise a
question of fact necessitating a Machner hearing.” State v. Toliver, 187 Wis.2d
346, 360-361, 523 N.W.2d 113, 118 (Ct. App. 1994).
In
this case Bentley presented a specific allegation of deficient
performance. There is no dispute that
minimum incarceration for a first-degree intentional homicide conviction for
which the trial court does not set a parole eligibility date is approximately
thirteen years and four months. See
§§ 973.014 and 304.06(1), Stats.;
State v. Borrell, 167 Wis.2d 749, 765-767 n.6, 482 N.W.2d 883,
889 n.6 (1992). According to the
motion, Bentley's trial counsel would acknowledge that he inaccurately advised
Bentley and his family about the potential length of Bentley's mandatory
minimum incarceration, and the record of his sentencing recommendation confirms
counsel's misunderstanding. Thus, from
the allegations in Bentley's motion and from the sentencing record, it is
apparent that trial counsel's performance was deficient because he provided
Bentley with inaccurate information regarding the minimum mandatory length of
incarceration.
Thus,
the remaining issue is whether trial counsel's deficient performance was
prejudicial. To establish 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.” Ludwig, 124
Wis.2d at 609, 425 N.W.2d at 726. Here,
Bentley's motion alleged that he pled guilty only because of the incorrect
information his lawyer provided.
“[W]hen ... inaccurate legal information renders a plea an uninformed
one, it can also compromise the voluntariness of the plea.” Woods, 173 Wis.2d at 140, 496
N.W.2d at 149. Thus, Bentley's motion
contained sufficient allegations to raise the issue of whether there is a
reasonable probability that Bentley would not have pled guilty but for the inaccurate
information counsel provided.
The
State, however, argues:
If, in fact, counsel had erroneously told the appellant
that he would be eligible for parole after eleven years and three, four, or
five months, ... without any input by the trial court in setting a minimum
eligibility date, then there would arguably be a valid claim of prejudicially
deficient performance which caused the appellant to waive his right to a trial
and enter a guilty plea that he would otherwise not have entered. The problem for the appellant is that the
record conclusively shows this was not the case—the record is clear that the
appellant knew the trial judge was free to set any parole eligibility date he
saw fit.
This argument misses the mark. The issue presented by Bentley's motion is not whether he
understood the potential maximum, but rather, whether he would have entered
guilty pleas had he known of the minimum mandatory incarceration preceding
parole eligibility. Although the record
confirms Bentley's apparent understanding of the trial court's authority to
sentence him to incarceration extending far beyond any recommended parole
eligibility date, the record also supports Bentley's allegation that he was
misinformed regarding the minimum mandatory period of incarceration.
The
State also argues, “[c]onspicuous by its absence from the appellant's motion is
any claim that he would not have pled guilty had he known the minimum parole
eligibility date for first-degree intentional homicide.” We conclude, however, that Bentley must not
be denied a hearing merely because of such a slight semantic shift. Bentley alleged that “he entered his guilty
pleas only because” of the misinformation provided by trial counsel. Although he did not, in addition,
specifically allege that he would not have entered his pleas had he known the
accurate information, that would be a reasonable inference to be drawn from his
allegation, which, of course, can be a proper area for examination at the Machner
hearing.
Erroneous
advice regarding parole eligibility can form the basis for a finding of
ineffective assistance of counsel thus permitting withdrawal of guilty
pleas. As the Eighth Circuit Court of
Appeals has explained:
The failure of
[the defendant's] lawyer to ascertain, through minimal research, the applicable
statute governing parole eligibility ... and to inform his client accurately
when asked about that eligibility, fell below the objective standard of
reasonableness required by the Sixth Amendment. We agree ... that the “earliest potential parole eligibility date
... [is] normally one of the most important factors to a criminal client.” The basic minimum amount of time that a
defendant will have to serve is an integral factor in plea negotiation; it is a
direct, not a collateral, consequence of the sentence. While the state has no federal
constitutional duty to inform a defendant about parole, counsel owes a duty to
provide accurate information about his client's earliest possible release date,
especially when the client asks for it.
Hill v. Lockhart, 877 F.2d 698, 703 (8th Cir. 1989) (citations omitted),
aff'd en banc on rehearing, 894 F.2d 1009 (8th Cir. 1990),
cert. denied, 497 U.S. 1011 (1990).[4]
Bentley's
motion presented specific, substantial allegations well beyond “[a] conclusory
allegation of ‘manifest injustice,’ unsupported by any factual assertions” that
would have been insufficient to require an evidentiary hearing. Washington, 176 Wis.2d at 214,
500 N.W.2d at 335. Bentley is entitled
to an evidentiary hearing for the court to determine whether his guilty pleas
were involuntary as a result of ineffective assistance such that a manifest
injustice occurred. Therefore, we
remand this case to the trial court for a Machner hearing.
By
the Court.—Order reversed and
cause remanded with directions.
[1] Bentley appeals from both the judgment of
conviction and the order denying postconviction relief. This decision reverses only the order and
remands for further proceedings.
[3] We note that at sentencing the State
recommended twenty-five years for the felony murder count, to be served
concurrently with the life sentence for first-degree intentional homicide. The State also specifically recommended
“that the Court set a parole eligibility date for Mr. Bentley at 45
years.” Bentley, however, has not
raised any issue related to the variance between the agreement articulated at
the guilty plea proceeding and the recommendation made at the sentencing.
[4] We do note, however, that a defendant's
misunderstanding of the parole eligibility date, based on the deficient
performance of counsel, does not necessarily require a court to grant a request
to withdraw a plea. “In some situations
incorrect advice about parole will be merely a collateral matter, not significant
enough” to require plea withdrawal. Hill
v. Lockhart, 894 F.2d 1009, 1010 (8th Cir. 1990). The “misadvice” must be “of a solid nature,
directly affecting [the defendant's] decision to plead guilty.” Id.