State ex rel. Washington v. State

• Decision Date: 12 June 2012
• Docket Number: Nos. 2009AP746–W, 2010AP1064.,s. 2009AP746–W, 2010AP1064.
• Citation: 343 Wis.2d 434,819 N.W.2d 305,2012 WI App 74
• Parties: STATE of Wisconsin ex rel. Jerred Renard WASHINGTON, Petitioner, v. STATE of Wisconsin, Respondent. State of Wisconsin, Plaintiff–Respondent, v. Jerred Renard Washington, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

343 Wis.2d 434

819 N.W.2d 305

2012 WI App 74

STATE of Wisconsin ex rel. Jerred Renard WASHINGTON, Petitioner,^†

v.STATE of Wisconsin, Respondent.

State of Wisconsin, Plaintiff–Respondent,

v.Jerred Renard Washington, Defendant–Appellant.^†

Nos. 2009AP746–W, 2010AP1064.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 28, 2012.

Opinion Filed June 12, 2012.

On behalf of the petitioner/defendant-appellant, the cause was submitted on the briefs of Ellen Henak, Assistant State Public Defender, Milwaukee, WI.

On behalf of the respondent/plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and James M. Freimuth, assistant attorney general.

Before FINE, KESSLER and BRENNAN, JJ.

BRENNAN, J.

[343 Wis.2d 439]¶ 1 In this decision, we first address Jerred Renard Washington's petition for a writ of habeas corpus, filed as an original proceeding in this court under State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), and asserting ineffective assistance of appellate counsel. Second, we address Washington's appeal from the circuit court's order denying his postconviction motion to withdraw his no-contest plea to third-degree sexual assault. ¹ For the reasons set forth below, we deny Washington's habeas petition and affirm the circuit court's order denying Washington's postconviction motion.

Background

¶ 2 In January 1997, the State filed a complaint charging Washington with one count of second-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(2) (1997–98).² According to the complaint and preliminary hearing testimony, in April 1996, Washington, who was twenty-five years old, forced a fourteen-year-old girl to have penis-vagina intercourse with him in the back seat of his vehicle.

¶ 3 In July 1997, pursuant to a plea agreement, Washington pled no contest as a habitual offender to the reduced charge of third-degree sexual assault, contrary to Wis. Stat. §§ 940.225(3) and 939.62(1)(b) (1997–98). ³ Trial counsel Scott Phillips represented Washington at the plea hearing and attempted to negotiate the plea to avoid a charge that would subject Washington to a later petition for commitment as a sexually violent person under Wis. Stat. ch. 980. At the time, third-degree sexual assault was not a crime that would render an individual eligible for such a commitment. SeeWis. Stat. §§ 980.01(6) & 980.02(2) (1997–98).

¶ 4 The circuit court sentenced Washington on the third-degree sexual assault charge to an indeterminate sentence not to exceed ten years, consecutive to any other sentence, and advised him of his right to appeal. The judgment of conviction was entered in October 1997.

¶ 5 Days after the entry of judgment, Washington filed a notice of intent to pursue postconviction relief. Thereafter, he hired Attorney Michael J. Backes to represent him in postconviction proceedings.

¶ 6 In September 1998, after being granted an extension of time, Attorney Backes filed a motion for plea withdrawal, arguing that Attorney Phillips, Washington's trial counsel, rendered ineffective assistance of counsel in that he failed to properly investigate and explain problems with the State's potential witnesses, rendering Washington's plea involuntary. The trial court denied the motion.⁴

¶ 7 The deadline for Washington to appeal the circuit court's denial of his postconviction motion was October 6, 1998. Washington did not file a notice of appeal.

¶ 8 In June 2001, Washington filed his second postconviction motion, a pro se motion for sentence modification, which the circuit court denied. In July 2001, Washington wrote the circuit court a letter, asking for approval for visits from his fiancée's children. The circuit court treated the letter as Washington's third postconviction motion and denied the motion.⁵

¶ 9 In August 2006, as Washington neared the end of his sentence, the State filed a sexually-violent-person petition, seeking Washington's commitment pursuant to Wis. Stat. ch. 980. Earlier in 2006, the legislature had amended ch. 980 to permit commitment for individuals convicted of third-degree sexual assault. See 2005 Wis. Act 434, § 65 (enacted May 22, 2006); Wis. Stat. §§ 940.225(3) & 980.01(6). Attorney Robert W. Peterson was appointed to represent Washington on the commitment petition. Attorney Peterson moved to dismiss the commitment petition on the grounds that the circuit court should enforce the plea agreement in the underlying criminal case, arguing that Washington's plea had been conditioned on an agreement that a ch. 980 petition would not be brought against him. In June 2008, following an evidentiary hearing at which Attorney Phillips, Washington's trial counsel, testified, the circuit court denied the motion to dismiss the ch. 980 petition. The ch. 980 action is still pending.⁶

¶ 10 In January 2007, after the State filed the Wis. Stat. ch. 980 petition, Washington filed a pro se motion for collateral relief from the criminal judgment, self-titled as a “motion for writ of certiorari, and ... for sentence credit.” (Capitalization omitted.) The circuit court denied the motion that same month.⁷ Then, in August 2008, Washington filed a motion he identified as one for sentence modification, which was denied by the circuit court in September 2008.⁸ These were his fourth and fifth postconviction motions respectively.

¶ 11 Next, in November 2008, Washington filed the motion which forms the basis for his appeal consolidated for review here: a pro se motion for postconviction relief under Wis. Stat. § 974.06, alleging eight different claims. Washington also petitioned the circuit court to appoint him counsel to represent him while he pursued the motion, and the circuit court appointed Attorney Peterson, who was familiar with the facts of the case through his representation of Washington in the commitment matter.⁹ In July 2009, Attorney Peterson filed a motion for plea withdrawal on Washington's behalf, amending Washington's November 2008 postconviction motion. The basis of the motion was that Washington's plea was not knowingly and voluntarily entered because “he did not understand the legal impact and ramifications of the consequences of his plea,” to wit, he falsely believed that by pleading no contest to third-degree sexual assault that the State would not later file a Wis. Stat. ch. 980 petition seeking his commitment as a sexually violent person.

¶ 12 In February 2010, the circuit court held an evidentiary hearing on Washington's motion to withdraw his plea. Following the hearing, the circuit court denied the motion, finding that there was no manifest injustice because although Attorney Phillips negotiated the plea agreement with an eye to having Washington plead to an offense that did not qualify for a Wis. Stat. ch. 980 petition, there was no specific agreement that Washington would never be subjected to a ch. 980 petition, and in any event, a change in the law did not render the plea agreement involuntary.¹⁰ Washington appeals the circuit court's order denying his Wis. Stat. § 974.06 motion for plea withdrawal.

¶ 13 In March 2009, while his Wis. Stat. § 974.06 postconviction motion to withdraw his plea was still pending before the circuit court, Washington, proceeding pro se, filed a petition for a writ of habeas corpus in this court, alleging that Attorney Backes, his postconviction counsel, deprived him of his right to a direct appeal in 1998 in the underlying criminal case. The public defender appointed Washington counsel, who filed an amended habeas petition on the same grounds. We remanded the case to the circuit court for an evidentiary hearing to resolve the factual questions raised by Washington's petition and the State's and Attorney Backes's responses.

¶ 14 The circuit court held an evidentiary hearing on remand and made findings of fact on the record.¹¹ Both Washington and Attorney Backes testified. The circuit court found, among other things, that:

• On December 4, 1997, Washington and Attorney Backes entered into a written fee agreement, which was placed into the record as an exhibit. The agreement stated that Attorney Backes was hired for “Post conviction representation [of] Jerrod [sic] Washington—bring any appropriate motion into court.”

• On September 15, 1998, Attorney Backes filed a motion to withdraw Washington's no-contest plea in the circuit court, which was denied by the circuit court on September 16, 1998.¹²

• Washington instructed Attorney Backes by letter of September 12, 1998, to “drop the postconviction issue and try for a sentence modification.”

• The deadline for appealing the circuit court's order denying the postconviction motion filed by Attorney Backes was October 6, 1998.

• Attorney Backes's file on his representation of Washington was destroyed in 2005 or 2006. Attorney Backes had no independent recollection of the representation, but he was able to recover from his computer six letters addressed to Washington, dated between April 24, 2002, and November 17, 2005, and made a part of the record.

• All six letters reflect that they are in answer to letters that Washington sent to Attorney Backes.

• Although Washington denied receipt of any of these six letters, the court found Washington incredible in that denial.

• Attorney Backes informed Washington in a letter dated September 15, 2003, that he did not file an appeal from the order denying the postconviction motion because he was only retained to file the motion, not to file an appeal.

¶ 15 Following entry of the circuit court's written findings, the case was returned to this court for decision on the habeas petition.

¶ 16 Additional facts are included in the discussion section as necessary.

Discussion

I. Washington's petition for a writ of habeas corpus is barred by laches.

¶ 17 In his petition for a writ of habeas corpus, Washington contends that he was deprived of his due process right to appellate review when Attorney Backes failed to inform him of:

(1) the denial of the...