State v. Black

• Decision Date: 05 April 2001
• Docket Number: No. 99-0230-CR.,99-0230-CR.
• Citation: 624 N.W.2d 363,2001 WI 31,242 Wis.2d 126
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Tyren E. BLACK, Defendant-Appellant.
• Court: Wisconsin Supreme Court

242 Wis.2d 126

2001 WI 31

624 N.W.2d 363

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Tyren E. BLACK, Defendant-Appellant.

No. 99-0230-CR.

Supreme Court of Wisconsin.

Oral argument January 5, 2001.

Decided April 5, 2001.

For the plaintiff-respondent-petitioner the cause was argued by Chris R. Larsen, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief by Michael S. Holzman and Rosen and Holzman Ltd., Waukesha, and oral argument by Michael S. Holzman.

¶ 1. JON P. WILCOX, J.

This case presents two questions. First, we must decide whether the circuit court conducted an appropriate "inquiry" under Wis. Stat. § 971.08(1)(b)(1997-98)¹ before accepting Tyren E. Black's (Black) no contest plea to a charge of felon in possession of a firearm. Wis. Stat. § 941.29(2). We conclude that the circuit court did so. Second, we must determine whether the statement in the complaint —accepted by Black at the plea hearing—that he "stated that he handled the pistol" meets the elements of the crime of felon in possession of a firearm. We conclude that it does.

¶ 2. The State charged Black with a two-count criminal complaint. Count one alleged that on December 31, 1997, Black knowingly possessed marijuana² and count two alleged that on December 29, 1997, Black, a felon, possessed a firearm in violation of Wis. Stat. § 939.62. The Circuit Court for Milwaukee County, Jeffrey A. Kremers, Judge, accepted Black's no contest pleas to both charges and Black was sentenced. Black then moved to withdraw his no contest plea to the second count, which the Circuit Court for Milwaukee County, Timothy G. Dugan, Judge, denied. In an unpublished opinion, the court of appeals reversed the circuit court's order. State v. Black, No. 99-0239-CR, unpublished slip op. at ¶ 12 (Wis. Ct. App. May 30, 2000).

I

¶ 3. The facts are largely undisputed for the purposes of this review. On December 31, 1997, several Milwaukee police officers went to 1928 North 34th Street to investigate a narcotics complaint. The officers were admitted to Felicia Ferguson's (Ferguson) upper residence and given permission to search. During the search, the officers found six bags of marijuana together with a black semi-automatic Ruger pistol between Ferguson's mattress and box spring in her bedroom. Black lived in the lower unit and was Ferguson's boyfriend.

¶ 4. Black informed the police that he owned the marijuana. He also stated that he "handled the pistol on Monday [two days earlier] in Felicia's bedroom," but that he did not know to whom the gun belonged. On January 2, 1998, the State charged Black with possession with intent to deliver a controlled substance and possession of a firearm by a felon. The complaint also charged Black with habitual criminality in violation of Wis. Stat. § 939.62. Black subsequently entered into plea negotiations with the State, wherein the State agreed to dismiss the habitual criminality penalty enhancer as to the second count in exchange for no contest pleas to both counts. Black signed and filed a completed plea questionnaire listing "felon in possession of firearm" as one of the two offenses to which he was entering a no contest plea. In this signed questionnaire, Black acknowledged that: (1) he read the complaint and understood "the elements of the offense and their relationship to the facts in this case and how the evidence establishes [his] guilt;" (2) by pleading guilty he was giving up any possible defenses and the right to challenge the sufficiency of the complaint; (3) he was giving up his "right to make the State prove [him] guilty by evidence beyond a reasonable doubt to each element of the crime charged"; and (4) if the court allowed a plea of no contest, he would be giving up all of the same rights, defenses, and motions that he would give up with a plea of guilty.

¶ 5. On January 26, 1998, prior to Black's plea hearing, the circuit court received a letter from Ferguson. In that letter, Ferguson stated that she purchased the semi-automatic pistol from someone in her neighborhood on December 29, 1997, and further wrote that Black "only touched [the pistol] once looking at it after I purchased it. And at that moment he said to me that I didn't need it."

¶ 6. The circuit court held Black's plea hearing on February 16, 1998. There, the court engaged Black in a colloquy and found that Black was entering his no contest pleas voluntarily and with full knowledge of the nature of the charges and the possible penalties. After so finding, the court asked the parties the following:

THE COURT: May I use the complaint as a factual basis?

MS. CORNWALL [Black's attorney]: Yes.

MS. LOEBEL [Prosecutor]: Yes.

THE COURT: Mr. Black, have you read the complaint?

MR. BLACK: Yes.

THE COURT: You understand that I'm going to use the facts in the complaint as a basis for your plea and sentencing?

MR. BLACK: Yes.

The court then found that a factual basis existed for Black's pleas and accepted them. Black was sentenced to six years on the narcotics charge and two years on the felon in possession of a firearm charge. Black subsequently filed a postconviction motion seeking to withdraw his no contest plea to the firearm charge. The circuit court rejected Black's motion, finding that Black agreed and understood that the court could use the complaint to establish a factual basis for his plea. The court further asserted that Black's admission that he had "handled" the pistol provided an adequate factual basis for the plea. ¶ 7. The court of appeals reversed the circuit court's order, indicating that Ferguson's letter, which stated that Black "only touched [the pistol] once" conflicted with the complaint, which stated that Black "handled the pistol." This, the court concluded, threw into question whether Black's conduct met the elements of the crime of felon in possession of a firearm. See Black, unpublished slip op. at ¶ 8. The court of appeals then stated that it "cannot conclude, as a matter of law, that `handling' the gun for a brief instance, coupled with the instruction to the owner to get rid of it, constitutes possession." Id. at ¶ 11.

¶ 8. This court then granted the State's petition for review.

II

[1, 2]

¶ 9. We review the circuit court's denial of Black's motion to withdraw his no contest plea as to the felon in possession charge under an erroneous exercise of discretion standard. State v. Thomas, 2000 WI 13, ¶ 13, 232 Wis. 2d 714, 605 N.W.2d 836. "`[T]his court will find an [erroneous exercise] of discretion if the record shows that the trial court failed to exercise its discretion, the facts fail to support the trial court's decision, or this court finds that the trial court applied the wrong legal standard.'" J.L. Phillips & Assoc. v. E&H Plastic Corp., 217 Wis. 2d 348, 364-65, 577 N.W.2d 13 (1998) (quoting Oostburg State Bank v. United Sav. & Loan Ass'n, 130 Wis. 2d 4, 11-12, 386 N.W.2d 53 (1986)). To allow Black to withdraw his plea, the circuit court would had to have found that he established by clear and convincing evidence that failure to allow a withdrawal would result in a manifest injustice. Thomas, 2000 WI 13 at ¶ 17. This high standard flows from the State's interest in the finality of convictions. Id. at ¶ 16. The two questions in this case both involve statutory interpretation. Accordingly, we begin by analyzing the first statute at issue, Wis. Stat. § 971.08(1)(b), which requires the circuit court to "[m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged."

A

[3-6]

¶ 10. Statutory interpretation is a question of law that we review de novo. County of Jefferson v. Renz, 231 Wis. 2d 293, 301, 603 N.W.2d 541 (1999). The purpose of statutory interpretation is to discern and give effect to the intent of the legislature. Id. We do so by first looking to the plain language of the statute. Id. When the statutory language clearly and unambiguously sets forth the legislative intent, we may not look beyond the language to determine its meaning. Id. at 301-02. On the other hand, if the statutory language is ambiguous or unclear, we may examine the statute's history, scope, context, subject matter, and objective in our efforts to ascertain the legislative intent. Id. at 302.

[7]

¶ 11. As noted, Wis. Stat. § 971.08(1)(b) requires a circuit court to "[m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged." We have previously observed that § 971.08(1)(b) is a codification of Rule 11(f) of the Federal Rules of Criminal Procedure, which asserts: "`[n]otwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.'" Thomas, 2000 WI 13 at ¶ 19 (citation omitted). Although both statutes utilize the word "inquiry," neither defines it. In the "absence of statutory definitions, this court construes all words according to their common and approved usage, which may be established by dictionary definitions." Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 162, 558 N.W.2d 100 (1997). The definition of "inquiry" is "a seeking or request for truth, information, or knowledge." Random House Unabridged Dictionary 985 (2d ed. 1993). Interpreting these parallel statutes, we have noted that if a circuit court "fails to establish a factual basis that the defendant admits constitutes the offense pleaded to, manifest injustice has occurred." Thomas, 2000 WI 13 at ¶ 17. In conducting this inquiry into whether there is a factual basis for the offense, "the trial court may consider hearsay evidence, such as testimony of police officers, the preliminary examination record and other records in the case." Morones v. State, 61 Wis. 2d 544, 552-53, 213 N.W.2d 31 (1973). However, "[n]owhere in our case law interpreting Rule 11(f) do we require a judge to make a...