State v. Barney
| Decision Date | 18 September 1997 |
| Docket Number | No. 96-3240-CR,96-3240-CR |
| Citation | 213 Wis.2d 344,570 N.W.2d 731 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Benjamin J. BARNEY, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before VERGERONT, ROGGENSACK and DEININGER, JJ.
Benjamin Barney appeals a judgment of conviction for sexually assaulting a child contrary to § 948.02(2), STATS., and an order denying his motion for postconviction relief. Barney had pleaded guilty to the charge and entered into a diversion agreement with the State, which was subsequently revoked. We reject Barney's claim that he should be allowed to withdraw his guilty plea because he did not understand the diversion agreement. He also claims, however, that the trial court erred by failing to consider whether there were any "reasonable and appropriate alternatives" to revocation, as required by the diversion agreement. Because the record fails to demonstrate that the trial court considered any "reasonable and appropriate alternatives" to revoking the diversion agreement, we reverse the judgment of conviction and remand for further proceedings.
On June 25, 1991, Barney, then sixteen years old, went to the home of M.T., a fourteen-year-old female. The two went to a neighbor's house that M.T.'s family was watching while the neighbor was out of town. At the house, M.T. and Barney engaged in sexual intercourse to which M.T. allegedly did not consent. In March 1993, nearly two years after the incident, a police officer came to M.T.'s house to investigate harassing phone calls for which Barney was a possible suspect. It was during this visit that M.T. first revealed to the police officer and her mother that Barney had nonconsensual sexual contact and intercourse with her during the June 1991 incident. The State filed a complaint charging Barney with one count of third-degree sexual assault, contrary to § 940.225(3), STATS.
Barney subsequently pleaded guilty, pursuant to a negotiated plea agreement, to second-degree sexual assault of a child, a violation of § 948.02(2), STATS. Under the terms of the plea agreement, Barney would not be convicted on the sexual assault charge but instead would be subject to a two-year diversion agreement. Additionally, as part of the plea agreement, the State agreed to dismiss an unrelated charge of operating a motor vehicle without the owner's consent and to reduce a pending felony bail jumping charge to misdemeanor bail jumping. The State further agreed to recommend probation, with jail time, on the reduced bail jumping charge.
The diversion agreement contained nine conditions which Barney was required to follow. The three specific conditions at issue here are:
1. [Barney is t]o commit no further violations of state or federal criminal law. For purposes of this agreement a "violation" will be found if a court of law finds probable cause from a criminal complaint to believe that the defendant has committed a criminal offense. Violations of the law do not include traffic forfeitures of Chapter 300's of the Wisconsin Statutes.
....
7. The defendant also must abide by all terms and conditions of his probationary sentence entered in Court File No. 93-CF-849. The defendant understands that any judicial reviews or revocation of said probation may result in the revocation of this Diversion Agreement.
....
9. If the defendant is alleged to have violated a condition of the agreement, the State may bring a motion to revoke the Diversion Agreement. A hearing on the State's motion shall be held by the court. At such hearing, the defendant is entitled to the right to counsel and the right to present evidence. If the court finds by a preponderance of the evidence that the defendant has committed a violation of the agreement and there are no "reasonable On July 1, 1993, Barney appeared in the trial court to enter his pleas pursuant to the agreement described above. After the court completed a colloquy with Barney, however, the proceeding was continued when Barney, through his counsel, indicated some reluctance to proceed with the pleas. Barney's pleas were ultimately accepted by the court on July 8, 1993. The court approved the diversion agreement, and determined that Barney intelligently and voluntarily entered his pleas, understood the nature of the offenses, and comprehended the implications of the pleas. The court then: (1) adjudged Barney guilty of misdemeanor bail jumping but withheld sentence and placed Barney on two years probation, with conditions; and (2) accepted the guilty plea to second-degree sexual assault of a child but "divert[ed] th[e] matter pursuant to the Diversion Agreement to Monday, July 10th, 1995."
and appropriate alternatives" to revocation of the agreement, the court shall then revoke the Diversion Agreement. If the court denies the State's motion, the Diversion Agreement shall remain in full force and effect until its expiration or a further motion to revoke the Diversion Agreement is filed.
The court thus deferred entering a judgment of conviction on the second-degree sexual assault charge. If Barney complied with the conditions of the diversion agreement for two years, the sexual assault charge would be dismissed without a judgment of conviction ever being entered. However, if any of the diversion agreement conditions were violated, Barney faced revocation of the agreement, conviction and sentencing on the felony.
One condition of the diversion agreement was that Barney "abide by all terms and conditions of his probationary sentence" entered in the bail jumping matter. Before consenting to the plea agreement, Barney and his first attorney discussed the diversion agreement requirements. That attorney testified as follows at a hearing on the State's motion to revoke the agreement:
One of the things was, that we [Barney and his attorney] specifically touched on, was the bit about the probation. That was the first time I had seen that put in a diversion agreement.
And we had some discussions about rejecting probation immediately, and then he wouldn't have to follow through with those conditions.
I discussed it with my mentor, Elliott Levine, and he indicated that that wouldn't be acceptable most likely if I were to approach you [the prosecutor] with that. And that the reason they link them all together, that you made that kind of an offer to link them all together, was to get [Barney] on the probation and also to hold him to the diversion agreement.
I discussed that at some length with Mr. Barney, and we decided to go through with the plea anyway.
Barney's probation officer testified that the two met and "thoroughly" went over a written form containing the conditions of Barney's probation and the court order soon after the plea hearing. This involved reading each rule to Barney, having him sign the document containing the rules, and giving him a copy of the document. Additionally, the probation officer discussed the diversion agreement with Barney and informed him that such agreements routinely required that individuals "comply with all conditions of probation."
On September 16, 1993, the State filed a motion to revoke the diversion agreement, alleging Barney's failure to "abide by all terms and conditions of his probationary sentence." The State based its motion on a probation violation investigation report which revealed Barney had violated his probation on four occasions. The first three probation violations occurred on August 12, 1993, and consisted of: (1) suspected criminal damage to property; (2) failure to report police contact within seventy-two hours; and (3) leaving the State of Wisconsin without his probation agent's permission. The fourth violation occurred on September 3, 1993, when Barney tested positive for THC while in a detention facility.
Prior to the hearing on the State's motion to revoke the diversion agreement, Barney moved to vacate the agreement and "reopen"
the case. After clarification from Barney, the trial court determined that Barney's motion was actually one to set aside the entire plea agreement and not just the diversion agreement. After hearing testimony and argument, the trial court denied Barney's motion to withdraw his plea and [213 Wis.2d 353] granted the State's motion to revoke the diversion agreement. The court then adjudged Barney guilty of the second-degree sexual assault charge to which Barney had previously pleaded guilty. The trial court subsequently imposed and stayed a seven-year prison sentence, and placed Barney on probation for seven years, with one year of county jail confinement as a condition.
A defendant who seeks to withdraw a guilty plea after sentencing must show that a "manifest injustice would result if the withdrawal were not permitted." State v. Booth, 142 Wis.2d 232, 235, 418 N.W.2d 20, 21 (Ct.App.1987); State v. Reppin, 35 Wis.2d 377, 385-86, 151 N.W.2d 9, 13-14 (1967). However, a request to withdraw a guilty plea prior to sentencing "may be granted where the defendant presents a fair and just reason for doing so," provided the prosecution has not been greatly prejudiced due to its reliance upon the defendant's plea. Booth, 142 Wis.2d at 235, 418 N.W.2d at 21; citing State v. McKnight, 65 Wis.2d 582, 592, 223 N.W.2d 550, 555 (1974).
Thus, the first issue before us is whether Barney's motion to vacate the plea agreement was before or after "sentencing." This is a question of law which we decide de novo. Ball v. District No. 4 Area Bd. of Vocational, Technical & Adult Educ., 117 Wis.2d...
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