State v. Birk
| Decision Date | 09 February 2021 |
| Docket Number | Appeal Nos. 2020AP349-CR,2020AP350-CR |
| Citation | 396 Wis.2d 704,958 N.W.2d 169 (Table),2021 WI App 20 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Michael James BIRK, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Michael Birk contends that the circuit court erred when it denied his pre-sentencing and postconviction motions to withdraw his guilty pleas. According to Birk, his trial counsel provided inaccurate information and coerced him to plead guilty with empty promises. Birk argues that he is entitled to withdraw his pleas because the plea colloquy was defective, the pleas he entered were not knowing, voluntary, or intelligent, and his trial counsel provided ineffective assistance of counsel.
¶2 Based primarily on the circuit court's findings of fact, which are not clearly erroneous, we conclude that Birk has not demonstrated that he should have been able to withdraw his pleas. Accordingly, we affirm.
¶3 The State charged Birk with six felonies, all arising out of a homeinvasion and sexual assault. After his arrest, Birk allegedly solicited a fellow inmate to murder the victim of these crimes, and the State filed a second complaint charging Birk with conspiracy to commit first-degree intentional homicide. The cases were consolidated for trial, which commenced on January 29, 2018.
¶4 After the proceedings had adjourned on the first day of trial, Birk and his trial counsel met for several hours to review evidence that the State intended to present. This evidence included a recording of Birk's conversation with the inmate he solicited to murder the victim and a recording of Birk's confession to police regarding the conspiracy charge.
¶5 On the morning of the second day of trial, Birk's trial counsel announced that Birk had decided to accept a plea agreement. Pursuant to the agreement, Birk would plead guilty to one count of first-degree sexual assault while using a dangerous weapon and one count of conspiracy to commit first-degree intentional homicide. All other charges would be dismissed and read into the record for consideration at sentencing. The State agreed to recommend no more than thirty-five years of initial confinement in prison, and Birk would be free to ask the court for a sentence he thought appropriate.
¶6 The circuit court conducted a colloquy to determine whether Birk was knowingly, voluntarily, and intelligently entering his pleas. In so doing, the court referred to the plea questionnaire forms and addendums for each case, which Birk reviewed with his trial counsel and signed prior to the plea hearing.
¶7 During the colloquy, the circuit court confirmed with Birk that, among other things, his ability to understand the charges and the proceeding was not impaired, he had discussed "everything" with trial counsel and was satisfied with his representation, and nobody made any promises or threats to get him to plead guilty. The court also confirmed Birk's understanding of the effect of the plea agreement and maximum penalties he faced. Regarding the constitutional rights that Birk was waiving, the circuit court asked, "[s]o you're going to be waiving those constitutional rights that are contained in the guilty plea questionnaire and waiver of rights form that you've signed?" Birk responded in the affirmative. Later in the colloquy, the court mentioned some, but not all, of the specific rights that Birk was waiving by pleading guilty. Pertinent here, the court did not specifically mention that Birk had the right to either testify in his defense or remain silent, and that if he chose to remain silent, his silence could not be used against him.
¶8 The circuit court also questioned trial counsel, who assured the court that Birk was competent to proceed with the guilty pleas, and that Birk was knowingly, voluntarily, and intelligently waiving his constitutional trial rights. The court accepted Birk's guilty pleas after finding that the complaint's allegations provided a factual basis for the charges.
¶9 According to Birk, he immediately regretted his decision to plead guilty and attempted to contact trial counsel to pursue a plea withdrawal. However, Birk was unable to speak with counsel until the day before sentencing.
¶10 At the outset of the sentencing hearing, trial counsel described the situation and made an oral motion for plea withdrawal. Counsel acknowledged that he could not find any defect in the colloquy and had not identified any basis for Birk to withdraw his pleas under Bangert .1 However, he argued that Birk was entitled to a Nelson /Bentley2 hearing to demonstrate that there was an extrinsic factor outside of the colloquy that rendered the pleas invalid. According to counsel, Birk's decision to plead had been "done relatively hastily" in the middle of the trial after counsel had been unable to locate an important defense witness. Counsel had advised Birk that "the likelihood of him getting out of prison" if he lost after a trial "was probably slim to none," and that "the better pathway of getting out of prison was that he should take the deal and basically throw himself at the mercy" of the circuit court. Counsel stated that he might have "overmaster[ed] [Birk] to get him to accept an offer." He did not "think so," but it was "something that somebody else should take a look at." Counsel asked the court to adjourn the sentencing hearing and appoint new counsel to file a Nelson/Bentley motion. The court denied this request, determining that there was no error in the plea colloquy, and that it had not heard a "fair and just reason" to allow Birk to withdraw his pleas.
¶11 The circuit court then turned to sentencing. Consistent with the plea agreement, the prosecutor recommended a combined thirty-five years of initial confinement in prison for both offenses. Birk argued for twenty to twenty-five years initial confinement and twenty-five years extended supervision. As the court had advised Birk, a sentencing court is not bound by the parties’ sentencing recommendations,3 and here, the court imposed consecutive sentences totaling sixty-three years of initial confinement followed by twenty-two years of extended supervision.
¶12 Birk filed a postconviction motion to withdraw his pleas. In an affidavit accompanying the motion, Birk averred that his mental state had been compromised at the time of trial because his mental health problems had been aggravated by the conditions of his confinement in the Milwaukee County Jail. He averred that trial counsel told him that he would be compelled to testify in his defense if he proceeded to trial. Birk also averred that counsel told him that he would serve no more than twenty to thirty-five years in prison if he took the plea deal, but that he would spend the rest of his life in prison if he went to trial. According to Birk, he did not have the capacity to understand what was happening during the plea colloquy and felt coerced to accept the plea deal. Birk also averred that he has always maintained his innocence, and he would have continued with the trial if he had known that he would not be required to testify and had not been pressured by counsel to enter guilty pleas.
¶13 Birk and his trial counsel both testified at an evidentiary hearing, which was held almost two years after Birk entered his plea. For his part, trial counsel testified that he and Birk had "heated discussions" the evening before Birk entered his guilty pleas because their options were limited. Initially, Birk had planned to defend against the sexual assault charge by testifying that he had not been present at the victim's home and was not the person who committed the assault. However, after Birk learned that the State intended to present DNA evidence identifying him as the perpetrator, Birk changed course and wanted to defend against the charge on the basis that the victim invited him into her home and consented to a sexual encounter. This presented a challenge because "the only way to refute directly ... what the victim was going to say had to come from [Birk]." Counsel testified that it would be very difficult to prevail based on a defense that the victim had consented to sexual contact without Birk's testimony.
¶14 During the evidentiary hearing, trial counsel acknowledged that he lacked independent recollection of his specific discussions with Birk about the plea agreement offered by the State. Regarding the right to testify or remain silent, counsel testified that he "would have gone over it" with Birk because that is what he does with all of his clients—not just at the time they decide to enter a plea agreement, but "all the way through [the] representation." He also may have advised Birk that it would "be very hard to win unless you get up on the stand, otherwise our defense of consent is very weak." Counsel testified that it was "[Birk's] decision," and that he would have gone ahead with the trial without Birk's testimony if that is what Birk desired. When pushed about his lack of a specific recollection of the discussion, counsel testified that he was "sure" that he had discussed the right to remain silent with Birk because he discusses that right "with all [his] clients."
¶15 Regarding his assessment of likely outcomes, counsel testified that he "may have" said that Birk would "probably get 20 to 30 years if he plead guilty," and that he "may have" predicted that "he would spend the rest of his life in prison" if he went to trial—but again, he did not have any specific recollection of this discussion. Counsel testified that he did not "push" Birk to enter a plea, that he was "ready to go to trial," and that he was "frankly" surprised the following morning when Birk said he wanted to accept the plea deal.
¶16 Birk also testified at the hearing. He explained that when he met with his trial counsel after the first day of trial, counsel told him "we weren't able to get any witnesses, no medical experts, no alibis, no witnesses in the case[.]" According to Birk, ...
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