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COURT OF APPEALS DECISION DATED AND RELEASED November 28, 1995 |
NOTICE |
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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. 94-3314-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TURHAN V. TAYLOR,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JANINE P. GESKE and
DAVID A. HANSHER, Judges.[1] Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Turhan V. Taylor appeals pro se from a judgment of
conviction for first-degree reckless homicide, as a habitual criminal, and from
an order denying his postconviction motion to withdraw his plea. The conviction results from a bifurcated
proceeding in which Taylor entered an Alford plea on the question
of guilt, and received a bench trial on the question of his responsibility for
the offense. He presents this court
with three issues for our review: whether the trial court erred by failing to
grant his postconviction motion to withdraw his Alford plea;
whether the trial court erroneously found that at the time of the crime he had
the substantial capacity to either appreciate the wrongfulness of his conduct
or conform his conduct to the requirements of law; and whether the trial court
erred by including the “habitual criminality” penalty enhancer in his judgment
of conviction. We reject all three of
Taylor's arguments and affirm.
The trial court accepted
the following facts, as provided in the criminal complaint, Taylor's statement
to police, and the preliminary hearing testimony, as a factual basis for
Taylor's Alford plea.
Taylor met the victim, Charles Hiler, on the evening of November 13,
1992, outside a City of Milwaukee tavern.
Hiler offered Taylor money in exchange for sex, and when Taylor agreed,
Hiler took him to his apartment. They
had sexual relations and Taylor spent both that night and the following day
with Hiler.
The next night, Taylor
and Hiler got into an argument. Taylor
tried to leave the apartment, but the door was bolted, preventing his
exit. When he tried to leave through
another door, Hiler demanded that he stay.
According to Taylor, at that point he picked up a carving knife in order
to “persuade” Hiler to let him leave.
Hiler then threw an afghan blanket at Taylor. Taylor “freaked out” and fatally stabbed Hiler in the chest. Taylor took the keys to Hiler's car and left
the apartment with the vehicle.
Police arrested Taylor
and the State charged him with first-degree intentional homicide while armed
and operating a motor vehicle without owner's consent, both as a habitual
criminal. Taylor's counsel sought the
appointment of a psychiatrist in order to evaluate a possible plea of not
guilty by reason of mental disease or defect, based on a claim that at the time
of the homicide Taylor was suffering from post-traumatic stress disorder
resulting from one or more gang rapes Taylor had experienced while incarcerated
in the Missouri prison system. One week
before the trial, the prosecutor orally informed Taylor that he was going to
amend the information and add an armed robbery count to the original charges.
On the scheduled trial
date, the parties informed the court that a plea had been negotiated. In exchange for Taylor's Alford
plea in the guilt phase of the bifurcated proceeding, the prosecutor agreed to
reduce the first-degree intentional homicide charge to first-degree reckless
homicide as a habitual criminal, and to dismiss the operating a motor vehicle
without the owner's consent charge. The
prosecutor additionally agreed that, in the event that Taylor were found responsible
in the second phase of the bifurcated proceeding, the prosecutor would not
recommend a specific prison term during sentencing.
At the hearing on the
plea agreement, Taylor stated that it was his understanding of the agreement
that first-degree reckless homicide was a 30‑year felony and habitual
criminality added a potential 10‑year enhancement. The trial court and Taylor had a prolonged
colloquy concerning Taylor's understanding of the agreement and its
ramifications. The court repeatedly
asked the defendant if he understood the plea agreement he had made with the
prosecutor and he stated a number of times that he did.
Taylor waived a jury
trial on the second phase of the bifurcated proceedings and it was conducted to
the bench. During this phase, the
parties presented conflicting expert testimony on the issue of Taylor's mental
state at the time of the homicide.
Psychologists Kenneth Smail and Calvin Langmade testified that they
believed Taylor suffered from post-traumatic stress disorder at the time of the
homicide, but while Langmade testified that the defendant was not able to
appreciate the wrongfulness of his conduct at the time of the incident, Smail
concluded that he was. Doctor George
Palermo testified that Taylor was not suffering from post-traumatic stress
disorder, but only suffering from an antisocial personality disorder and from
cocaine abuse. The trial court
ultimately concluded that Taylor had been suffering from a mental defect at the
time of the slaying, but that he had failed to meet his burden of showing that he
was substantially unable to appreciate the wrongfulness of his conduct or to
conform his behavior to the law at the time of the homicide. Thereafter, the trial court sentenced Taylor
to a fifteen‑year term of incarceration.
In November 1994, Taylor
filed a pro se postconviction motion for withdrawal of his Alford
plea, arguing: (1) that the prosecutor had erroneously exercised his discretion
in overcharging him in the original complaint; (2) that the bindover at the
conclusion of the preliminary hearing was legally insufficient; (3) that the
plea was coerced by the state, evidenced by the prosecutor's stated intention
to file an additional charge at the commencement of the trial; and (4) that
Taylor was denied effective assistance of counsel, which thereby affected the
voluntary, knowing, and intelligent submission of his plea. The trial court denied Taylor's motion
without an evidentiary hearing on December 1, 1994. Taylor now appeals from both the original judgment of conviction
and the order denying his motion for postconviction relief.
Taylor contends that he
should be permitted to withdraw his Alford plea. In addition to his four previous assertions
made in his postconviction motion concerning the alleged deficiencies
surrounding his Alford plea, Taylor further asserts that the
trial court's denial of postconviction relief without an evidentiary hearing
was an erroneous exercise of discretion.
We address each assertion seriatim.
The first issue we
address is whether the trial court erroneously exercised its discretion by
denying Taylor's postconviction motion without an evidentiary hearing. We conclude the trial court properly
exercised its discretion.
If a motion to withdraw
a guilty plea after judgment and sentence alleges facts that, if true, would
entitle the defendant to relief, the trial court must hold an evidentiary
hearing. See State v.
Tatum, 191 Wis.2d 548, 551 n.2, 530 N.W.2d 407, 407 n.2 (Ct. App. 1995)
(citing State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908
(Ct. App. 1979) and State v. Washington, 176 Wis.2d 205, 216, 500
N.W.2d 331, 336 (Ct. App. 1993)). Where
the trial court does not hold such a hearing and the defendant challenges this
determination, we independently review the allegations and moving papers to
determine whether they allege facts sufficient to raise a question of material
fact necessitating a hearing. Id.
at 551, 530 N.W.2d at 408 (citing State v. Toliver, 187 Wis.2d
346, 360-61, 523 N.W.2d 113, 118 (Ct. App. 1994)).
A trial court must grant
a defendant's request to withdraw a guilty or no contest plea after sentencing
only if the defendant establishes by clear and convincing evidence that the
withdrawal of the plea is necessary to correct a manifest injustice. State v. Woods, 173 Wis.2d
129, 136, 496 N.W.2d 144, 149 (Ct. App. 1992).
A conclusory allegation of manifest injustice unsupported by any factual
assertions does not entitle Taylor to an evidentiary hearing on a motion to
withdraw a guilty plea. See Washington,
176 Wis.2d at 214, 500 N.W.2d at 335.
We now review the
allegations made by Taylor in support of his motion to withdraw his plea. Taylor first claimed that the prosecutor
failed to prove intent at the trial court level. The only support for his contention was that “the record is
completely devoid of facts from which intent to cause death can be
inferred.” While Taylor was originally
charged with first-degree intentional homicide, he pleaded to the amended
charge of first-degree reckless homicide.
No proof of intent to kill was necessary on the amended charge and thus
there was simply no reason for mandating an evidentiary hearing on this
allegation.
Taylor next challenged
the adequacy of the bindover for trial, but failed to show how the bindover was
inadequate and failed to cite authority supporting the proposition. In the absence of supporting facts, this
allegation was merely a conclusory statement which was insufficient as a matter
of law for compelling an evidentiary hearing.
Further, this defense was waived when Taylor entered into the Alford
plea knowingly, intelligently and voluntarily, as evidenced by the transcript
of the colloquy at the time his plea was entered.
Taylor's third challenge
to the validity of the plea was alleged prosecutorial coercion by threat of
increased charges. Taylor offered no
additional support for the trial court's consideration, but only reiterated
facts known at the time the plea was entered.
Approximately a week before the scheduled trial date, at the status
hearing, the prosecutor informed Taylor that the charge of armed robbery was
being considered. This charge, however,
was not filed as a condition of the Alford plea. Taylor asserts that “the state[']s stacking
of added potential penalties should the defendant choose to proceed to trial
only served to increase the pressure on (the defendant),” and that the combined
pressures caused him to enter the plea.
The prosecutor was well within his authority to consider additional
charges, and Taylor sets forth no additional facts that warrant an evidentiary
hearing on this issue. Thus, the trial
court could properly reject this argument without a hearing.
Finally, Taylor asserts
that he received ineffective assistance of trial counsel. While alleged ineffective assistance of
counsel is a legitimate basis to request post-sentencing withdrawal of a guilty
plea, Washington, 176 Wis.2d at 213‑14, 500 N.W.2d at 335,
to receive a Machner hearing on the issue defendants must still
advance sufficient allegations in their pleadings to raise a question of
fact. Taylor's pleadings did not meet
this requirement and, therefore, the trial court could properly reject Taylor's
argument without a hearing.
Wisconsin uses a
two-pronged test set out by the Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984), to review effectiveness of trial counsel. Tatum, 191 Wis.2d at 555, 530
N.W.2d at 409. The first requirement
focuses on trial counsel's performance and requires that the defendant show
that counsel's performance was deficient.
Tatum, 191 Wis.2d at 555, 530 N.W.2d at 409. This demonstration must defeat a “strong
presumption that counsel acted reasonably within professional norms.” State v. Johnson, 153 Wis.2d
121, 127, 449 N.W.2d 845, 848 (1990).
The second of the Strickland
requirements is that the defendant demonstrate that the errors were
prejudicial; that is, serious enough to render the resulting conviction
unreliable. Tatum, 191
Wis.2d at 555, 530 N.W.2d at 409. We
will accept the trial court's findings of fact unless they are clearly
erroneous; however, the trial court's determinations on counsel's performance
and whether it was prejudicial are questions of law that we review de novo. State v. Pitsch, 124 Wis.2d
628, 634, 369 N.W.2d 711, 714 (1985).
Further, if the defendant cannot show one prong of the test, we need not
address the other. Strickland,
466 U.S. at 697.
Taylor maintained in his
motion that his counsel was ineffective in failing to challenge the
prosecutor's original charging decision; to pursue a motion challenging
bindover at the preliminary hearing; to inform him of a legal basis for
objecting to the State's filing of an amended information; and to advise Taylor
concerning a self-defense defense. He
also alleged that counsel had a conflict of interest arising out of counsel's
alleged acceptance of a position with the United States Attorney in Chicago,
Illinois.
The trial court concluded
both, inter alia, that the plea colloquy completely refuted Taylor's
allegations and that Taylor had failed to allege sufficient facts in his
allegations to raise a question of fact necessitating a hearing. Therefore, as a matter of law, the trial
court concluded that Taylor's allegations of ineffective assistance of counsel
as pleaded in his motion were insufficient to establish by clear and convincing
evidence that withdrawal of his Alford plea was necessary to
correct a manifest injustice. After our
review of the allegations of counsel's performance, we conclude that the trial
court properly denied Taylor's motion without a hearing. None of the allegations raise questions of
fact necessitating a hearing, and, further, none rise to the level of prejudice
necessary under Strickland.
Taylor next challenges
the trial court's determination that he failed to meet his burden of proving
that he was substantially unable to appreciate the wrongfulness of his conduct
or conform his behavior to the law at the time of the offense.
Our standard of review
on a finding of a defendant's responsibility for his or her actions is set
forth in Schultz v. State, 87 Wis.2d 167, 274 N.W.2d 614, (1979):
The
issues of credibility of witnesses and whether the defendant has met his burden
of proving lack of capacity by reason of mental defect are for the trier of
fact to determine. In cases of
conflicting expert testimony, it is the role of the trier of fact to determine
weight and credibility. This role is
not different when the trial court, instead of a jury makes the determination
of capacity under sec. 971.15. Even
when the state presents no expert testimony of lack of capacity, the trier of
fact is not obliged to believe defense experts, at least where other evidence
undercuts their opinion.
Id. at
173, 274 N.W.2d at 617.
Taylor insists that this
court should review the trial court's determination on a de novo
basis. It is, however, the role of the
fact finder—in this case, the bench—to decide issues of fact. The trial court already considered the
conflicting testimony of the two doctors and, based on weight and credibility
attributed to each doctor's testimony, determined that Taylor was responsible
for his actions. The decision of the
fact-finder should stand, if “[t]here is nothing so inherently unreasonable
about [the doctor's] opinion as to make it incredible as a matter of law.” Id. at 173‑74, 274
N.W.2d at 617. Given the evidence
presented at the hearing, it was entirely reasonable for the trial court to
conclude that Taylor had failed to sustain his burden.
The final issue on
appeal is whether Taylor's habitual criminal status, see § 939.62, Stats., contained in the judgment of
conviction, is invalid. Taylor cites State
v. Harris, 119 Wis.2d 612, 350 N.W.2d 633 (1984), as authority for his
argument that the reference to his habitual criminal status, § 939.62, Stats., should be deleted from the
judgment of conviction.
Taylor's reliance on Harris
is misplaced, however, as it involved imposition of an improper sentence which
erroneously allocated a portion of the sentence based on the defendant's
habitual criminal status. Harris
merely condemns the improper allocation of a portion of a sentence to a
defendant's status as a habitual criminal, not the citation of a defendant's
previously-adjudicated habitual criminal status in the judgment of
conviction. Taylor's sentence is
distinguishable in that there is no improper sentence to vacate because the
entire sentence was properly within the ordinary statutory maximum. There is no error here.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.