State v. Bembenek

• Decision Date: 06 September 2006
• Docket Number: No. 2004AP1963-CR.,2004AP1963-CR.
• Citation: 724 N.W.2d 685,2006 WI App 198
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Lawrencia Ann BEMBENEK, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: Wisconsin Court of Appeals

724 N.W.2d 685

2006 WI App 198

STATE of Wisconsin, Plaintiff-Respondent, v. Lawrencia Ann BEMBENEK, Defendant-Appellant.^†

No. 2004AP1963-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs August 02, 2006.

Opinion Filed September 6, 2006.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Mary L. Woehrer of Woehrer Law Office, Milwaukee and Joseph F. Owens of Arthur & Owens S.C., New Berlin.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general and Peggy A. Lautenschlager, attorney general.

Before CURLEY, KESSLER and ANDERSON, JJ.

¶ 1 KESSLER, J

Lawrencia A. Bembenek appeals from an order denying her motion requesting that the State pay for postconviction deoxyribonucleic acid ("DNA") testing of items in the State's possession which Bembenek "believes will exonerate her."

¶ 2 On December 9, 1992, Bembenek entered into a plea agreement wherein she agreed to plead no contest to the charge of second-degree murder of Christine Schultz in exchange for the vacating of her conviction of the first-degree murder of Schultz, a sentence recommendation by the State of twenty years, credit for all time served,¹ and a waiver of any and all of her appeal rights or rights to collaterally attack any of the underlying evidence, including her right to assert any claim of innocence to the murder.² On April 14, 2002, Bembenek was released from parole, her sentence fully completed. Because we conclude that Bembenek's action in bringing the underlying motion and this appeal³ is a breach of her plea agreement, and the appropriate remedy for this breach is the dismissal of her appeal, we affirm.

BACKGROUND

¶ 3 We briefly summarize the lengthy saga of Bembenek's litigation in Wisconsin courts to put this appeal in context. In 1981, Schultz was found shot to death in the bedroom of her home. In 1982, Bembenek was convicted by a jury of first-degree intentional homicide in the death of Schultz and sentenced to life in prison. On direct appeal from that conviction, the court of appeals affirmed the conviction, rejecting all nine issues raised by Bembenek. In 1985, Bembenek filed a motion for a new trial alleging newly discovered evidence. That motion was denied. In 1987, Bembenek filed a motion for post-conviction relief alleging ineffective assistance of counsel. The trial court denied relief. In 1990, the court of appeals affirmed. Bembenek then filed a petition for review with the Wisconsin Supreme Court which the Court dismissed due to Bembenek's escape from prison and her fugitive status.⁴

¶ 4 In 1991, a John Doe proceeding was convened to investigate charges of mismanagement and improprieties in the investigation and prosecution of the murder of Christine Schultz by the Milwaukee Police Department and the Milwaukee County District Attorney's Office. In August 1992, the John Doe judge found that while significant mistakes were made in the investigation of Schultz's murder, there was no probable cause to believe that these mistakes were intentional. The John Doe judge further found that there was no probable cause to believe that:

(1) "perjury was encourage [sic] or procured or that there was any other criminal wrongdoing on the part of law enforcement personnel . . ." or that

(2) "the Milwaukee County District Attorney's Office knowingly used false testimony, intentionally or otherwise, failed to disclose exculpatory evidence to the defense, or engaged in any other impropriety in the prosecution of Lawrencia Bembenek ... [including] no probable cause to believe that any law enforcement agency or personnel engaged in a conspiracy to frame Lawrencia Bembenek."

¶ 5 In 1992, Bembenek filed a motion for a new trial again alleging newly discovered evidence. Before this motion was decided, Bembenek and the State reached an agreement wherein Bembenek would plead no contest to second-degree intentional homicide in exchange for a reduction of the charge for which she had been convicted, a sentencing recommendation effectively to time served, and her waiver of a number of rights, including all future appeals or collateral attacks on her conviction. On December 9, 1992, at the hearing originally set on Bembenek's motion for new trial or to vacate judgment, the parties informed the trial court that a plea agreement had been reached "that obviated the need for the court to decide that motion." The plea agreement provided that Bembenek's "first-degree murder conviction would be vacated and that she would enter a no contest plea to a charge of second-degree murder."

¶ 6 The trial court, in its plea colloquy, specifically confirmed that Bembenek understood that she was:

• "waiving her right to litigate any defenses, including the defense of actual innocence";

• waiving her "right of direct appeal, the right of some collateral attack on the judgment, the right to bring motions to withdraw this plea at some point in the future"; and

• waiving "any challenges that might be brought to the underlying factual basis for this plea." (Emphasis added.)

Additionally, as expressly noted on the No Contest Plea Questionnaire and Waiver of Rights Form, Bembenek specifically waived the "right to challenge matters set forth in motions, such as the arrest, suppression of physical evidence, suppression of identification, [or] challenges to the sufficiency of the complaint and/or information."

¶ 7 Bembenek acknowledged, on the record, in response to questioning by the trial court, that she understood each specific constitutional right identified in the No Contest Plea Questionnaire, and that she was waiving those rights with her plea of no contest. Bembenek's counsel specifically noted, when arguing for a sentence to time already served, that giving such a sentence "will certainly help Miss Bembenek get started back on the track toward getting her life in order and beginning a new life. . . . I can tell you that her foremost interest is to put this entire matter behind her once and forever."

¶ 8 On August 23, 2002, after fully completing her sentence, and twenty years after her original conviction, Bembenek filed a Motion for Release of Evidence for DNA Testing Pursuant to WIS STAT. § 974.07.⁵ The State and Bembenek thereafter stipulated to the release of fourteen items to be tested. On December 16, 2002, Bembenek then filed a Motion for Ballistic Testing, requesting further ballistic testing of the gun determined by the jury to be the murder weapon. The State subsequently agreed to have this testing done. In 2003, Bembenek moved the trial court to vacate the judgment of conviction and for an entry of a judgment of acquittal.

¶ 9 The trial court denied all of Bembenek's pending motions, concluding that the results of the DNA testing were insufficient to find that "there is a reasonable probability [Bembenek] would not have been convicted for the Christine Schultz homicide if this evidence had been available before her trial" and further ruling that the related ballistic testing requested was therefore unnecessary. Bembenek appealed.

DISCUSSION

¶ 10 A review of the record in this case convinces us that we must affirm this dismissal on a basis other than the one relied upon by the trial court. Kafka v. Pope, 186 Wis.2d 472, 476, 521 N.W.2d 174 (Ct. App.1994) (acknowledging that the court of appeals "can affirm for reasons not stated by the trial court even if the reasons were not argued before the trial court"); see also Liberty Trucking Co. v. DILHR, 57 Wis.2d 331, 342, 204 N.W.2d 457 (1973) (holding that when an appellate court affirms on other grounds, it need not discuss the trial court's chosen grounds of reliance).

EFFECT OF THE PLEA AGREEMENT

¶ 11 Plea bargaining has been recognized as an "essential component of the administration of justice." Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427, (1971); see also State ex rel. White v. Gray, 57 Wis.2d 17, 21, 203 N.W.2d 638 (1973) ("Plea bargaining is an accepted and necessary part of the process whereby a good many criminal prosecutions are terminated as a result of a guilty plea."). Because a plea bargain is analogous to a contract, we look to contract-law principles to determine a defendant's rights thereunder. State v. Windom, 169 Wis.2d 341, 348, 485 N.W.2d 832 (Ct.App. 1992); State v. Jorgensen, 137 Wis.2d 163, 167, 404 N.W.2d 66 (Ct.App.1987). "A contract is based on a mutual meeting of the minds as to terms, manifested by mutual assent." Goossen v. Estate of Standaert, 189 Wis.2d 237, 246, 525 N.W.2d 314 (Ct.App.1994); see also State v. Bowers, 2005 WI App 72, ¶ 26, 280 Wis.2d 534, 696 N.W.2d 255 (Brown, J. dissenting) (noting that one "major tenet" of contract law is the mutuality of assent; accordingly, "[i]n plea bargaining terms, there must be a promissory exchange and the promise of certain benefits, including the exact penal promises, in return for a defendant's promise to enter a guilty or no contest plea.").

¶ 12 Bembenek and the State reached a mutual assent to the terms, and benefits, of their plea agreement, an agreement into which Bembenek entered knowingly, voluntarily and intelligently. In exchange for having her conviction for first-degree murder vacated (thus eliminating a mandatory life sentence) and obtaining a new sentence which would allow her to be released from prison immediately, Bembenek agreed to plead no contest to second-degree murder and to waive a number of rights, including any right to bring a "collateral attack on the judgment ... [or] any challenges that might be brought to the underlying factual basis for this plea." Bembenek's agreement is reflected in the record. When specifically asked by the trial court, "Do you have any questions about any of the rights that we've discussed here today?" Bembenek answered, "No questions." And when asked if she understood these rights were being given up, she answered "Yes, I...