State v. Washington, s. 92-1071-C
| Citation | 176 Wis.2d 205,500 N.W.2d 331 |
| Decision Date | 30 March 1993 |
| Docket Number | 92-1072-CR,Nos. 92-1071-C,s. 92-1071-C |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Shawnta WASHINGTON, Defendant-Appellant. d |
| Court | Court of Appeals of Wisconsin |
Before WEDEMEYER, P.J., and SULLIVAN and FINE, JJ.
Shawnta Washington appeals from judgments of conviction for two counts of armed robbery, party to a crime, contrary to secs. 943.32(1)(b), 943.32(2) and 939.05, Stats., and for one count of operating a motor vehicle without owner's consent, contrary to sec. 943.23(3), Stats. Washington also appeals from orders denying his request for postconviction relief.
Washington raises two issues of error: (1) the trial court improperly denied his motion for postconviction relief requesting a guilty plea withdrawal based on ineffective assistance of counsel without an evidentiary hearing, and (2) the trial court erred in deciding his postconviction motion for modification of sentence based upon new factors without a hearing. Because Washington's postconviction motion failed to allege sufficient facts to warrant a Machner hearing, and because his postconviction motion failed to present sufficient facts for a hearing regarding sentence modification, we affirm.
On July 24, 1990, Washington pled guilty to a charge of operating a motor vehicle without the owner's consent (OMVWOC), a Class E felony with a two-year maximum sentence. See secs. 943.23(3) and 939.50(3)(e), Stats. Approximately two months later, while free on bail waiting to be sentenced for the OMVWOC charge, Washington was arrested and charged with two counts of armed robbery, party to a crime. Armed robbery is a Class B felony, punishable by up to twenty years incarceration. See secs. 943.32(2) and 939.50(3)(b), Stats.
At a joint appearance in the two cases, Washington indicated that he wanted to resolve both cases at the same time. Consequently, the cases were consolidated. The case was then set over for the expected entry of guilty pleas to the armed robberies and a joint sentencing.
On January 4, 1991, Kathy Kappas, appointed counsel for Washington, informed the court that the defendant did not wish to proceed with a guilty plea and, in fact, wished to exercise his right to a speedy trial. Ms. Kappas stated that she would be unable to try the case within the speedy trial parameters and that another attorney would be appointed promptly to represent Washington. It was agreed that the armed robbery case would be tried on March 13, 1991.
On the morning of March 13, Washington appeared with Sandra Ruffalo, his newly appointed counsel, and indicated that he was prepared to proceed to trial on the armed robbery charges. The trial court informed Washington that his trial would commence shortly after lunchtime. Before the trial began, however, Washington reappeared before the trial court and stated that a plea agreement had been reached whereby he would plead guilty to the armed robbery charges. 1
The trial court proceeded to conduct a plea colloquy with Washington:
....
Now, sir, has anybody promised you anything other than what I've been told or threatened you in any way in order to get you to plead guilty to these charges?
SHAWNTA WASHINGTON: No.
....
....
The attorneys then stipulated that the facts alleged in the complaint provided a factual basis for the plea. The trial court questioned Washington as to whether he and Ms. Ruffalo had gone over the complaint. Washington answered that he had read the complaint, understood the statements contained therein, and found those statements to be substantially true. Based upon the stipulation of counsel, Washington's statements and the plea of guilty, the trial court found the defendant guilty as to each count.
The trial court proceeded to sentencing, based in part, on a presentence report that had been prepared after Washington's earlier guilty plea to the OMVWOC charge. Ms. Ruffalo and Washington stated that they had reviewed the presentence report and had no corrections to offer. Both Washington and Ruffalo addressed the trial court before sentencing was pronounced. The trial court sentenced Washington to a ten-year prison sentence on the first armed robbery count, a withheld sentence and a ten-year consecutive probation term on the second armed robbery count, and a concurrent two-year prison sentence on the OMVWOC count.
Subsequently, Washington filed a motion for postconviction relief. Because our resolution of the case relies on the lack of factual assertions contained within the motion, we cite heavily from the text of the motion:
The above named defendant ... pursuant to Wisconsin Statute sec. 809.30(2)(h) hereby moves the circuit court of Milwaukee County as follows:
1. For an Order allowing the defendant to withdraw his guilty plea, ... based upon the fact that the defendant was not fully apprised in the nature and effect of his guilty plea and was unaware of the consequences of the guilty plea at the time it was made, thereby constituting manifest injustice.
2. For an Order allowing the defendant to withdraw his guilty plea on the grounds that he was denied effective assistance of counsel and that the attorney representing the defendant at the time of the plea, Sandra Ruffalo, failed to keep him fully apprised of the events transpiring within his case, failed to completely review all of the necessary discovery material and other factual matters involved in the determination of the plea, failed to completely and fully investigate any and all matters which would be of importance in determining whether motions should be brought prior to the trial, whether the trial should proceed, and failing to completely investigate all matters which would be of importance in allowing the defendant to make a determination as to whether to proceed with a guilty plea, or continue to trial.
....
4. For an order modifying the sentence of the defendant to a lesser term based upon the grounds that new factors exist, which were not brought forth to the court during the sentencing phase, and that such relevant information, would have a direct bearing on the sentence which the court rendered.
The motion was denied by written order of April 7, 1991. Washington now appeals.
Washington first argues that the trial court erred by denying his motion to withdraw his guilty plea due to his counsel's ineffectiveness. More specifically, Washington asserts that the trial court was in error because it denied the motion without an evidentiary hearing.
Following sentencing, a defendant who seeks to withdraw a guilty or nolo contendere plea 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." See State v. Booth, 142 Wis.2d 232, 235, 237, 418 N.W.2d 20, 21, 22 (Ct.App.1987). As noted by the supreme court:
The rationale behind the use of this higher standard of proof is that once the guilty plea is entered the presumption of innocence is no longer applicable, and when the record on its face shows that the defendant was afforded constitutional safeguards, the defendant should bear the heavier burden of showing that his plea should be vacated. Once the defendant waives his constitutional rights and enters a guilty plea, the state's interest in finality of convictions requires a high standard of proof to disturb that plea.
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