|
COURT OF
APPEALS DECISION DATED AND
RELEASED March
28, 1996 |
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. 95-2907
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF JEFFERSON,
Plaintiff-Respondent,
v.
MATTHEW
RILEY,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Jefferson County: ARNOLD SCHUMANN, Judge. Affirmed.
SUNDBY,
J. Defendant-Appellant Matthew Riley appeals from an order
entered July 26, 1995, denying his motion to vacate the judgment convicting him
of violating § 346.57(4)(h), Stats.
(speeding).[1] Riley discovered that after he had entered a
no contest plea pursuant to a stipulation with the district attorney that his
operating privilege was revoked as an habitual traffic offender under
§ 351.025, Stats. He argues that his lack of knowledge as to
the effect of his plea permitted the trial court to reopen the judgment,
pursuant to §§ 345.51 and 806.07(1)(h), Stats. Riley argues that the trial court
erroneously exercised its discretion because it made an error of law when it
concluded that Lewandowski v. State, 140 Wis.2d 405, 411 N.W.2d
146 (Ct. App. 1987), compelled it to deny Riley's motion. Riley claims that the trial court did not
consider whether he had shown "good cause" to reopen the judgment.
We
disagree with Riley's view of the court's oral decision. In response to Riley's argument that the
trial court could and should exercise its discretion to reopen the judgment
under § 806.07(1)(h), Stats.,
the trial court responded:
My response would be that I hesitate to ... use
my discretion in this instance to recognize any collateral consequence [the
administrative revocation] as something that should permit the defendant to
withdraw his plea and to set aside his conviction. I guess when I look at a dozen violations ..., it's probably
appropriate that he be found to be an habitual traffic offender.... I'm not so sure that in the interest of
justice that it is appropriate that this defendant should be allowed to say, well,
I didn't know it was my twelfth.... So
is that a factor? I didn't know this
was my twelfth conviction? ... I
believe under Lewandowski that there was no duty to inform the
defendant of [the administrative revocation].
If he proceeded to plead and he lacked some knowledge at the time he pled,
it was his duty to have that knowledge.
It was not somebody else's duty to inform him. And I do not want to exercise my discretion in such a way to
reopen when a defendant is lacking certain knowledge about collateral matters
because that concerns me. ... I could
be opening a tremendous amount of litigation ....
So I reiterate
that I believe it is inappropriate to set aside this conviction and vacate the
judgment. [I'm] trying to exercise the
discretion being fair to both sides, but I think under these circumstances
that's something Mr. Riley should have known or been aware of. And if he was not, ... it may have affected
his desire to plead ...[.] [Y]es, there
may have been some mistake and perhaps on both sides in not anticipating the
result; but that is ... a result which I think is preferable to permitting
collateral attack, if you will, on judgments which have been entered on the
basis of, ["]I didn't know all the things that might happen to me when I
was convicted.["]
The
trial court demonstrated that it understood the holding in Lewandowski. We concluded that a judge is not required to
give notice to a defendant that a conviction for a traffic offense could lead
to classification as an habitual traffic offender under § 351.02, Stats.
140 Wis.2d at 408, 411 N.W.2d at 148.
The
trial court also demonstrated that it realized it could exercise its discretion
to reopen the judgment. However, it
found that "inappropriate."
The court expressed its opinion that it believed that Riley should have
been aware of the number of convictions he had for violating traffic laws. In these circumstances, the trial court
concluded that requiring him to live with the consequences of his own acts was
preferable to permitting a collateral attack on the judgment. We conclude that the trial court correctly
exercised its discretion.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.