State v. Brown, s. 97-1941-C
| Decision Date | 20 August 1998 |
| Docket Number | Nos. 97-1941-C,97-1942-CR,s. 97-1941-C |
| Citation | 221 Wis.2d 596,586 N.W.2d 699 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Norman O. BROWN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from judgments and orders of the circuit court for Dane County: MICHAEL B. TORPHY, JR., and JACK AULIK, Judges. Affirmed in part; reversed in part and causes remanded with directions.
Before DYKMAN, P.J., EICH and VERGERONT, JJ.
Norman Brown appeals two judgments 1 convicting him of six counts of being party to the crimes of forgery and theft, and also the orders denying him postconviction relief. He raises a number of issues relating to an adverse suppression ruling, his attempted plea withdrawal, and his sentence. 2 For the reasons discussed below, we affirm the trial court on the suppression issues and most of the plea issues, but remand for a hearing to establish the facts necessary to determine whether the prosecutor breached the plea agreement. We also modify Brown's sentence to reflect an additional two days of sentence credit.
According to the first complaint and police reports, Brown and Rita Jackson used a forged check to pay for groceries at Woodman's supermarket. The checker's suspicions were aroused by Brown's persistence that the transaction be speeded up. The supervisor who was called recognized the check as belonging to an account being used by a ring of people cashing stolen payroll checks. Supermarket employees detained Brown and Jackson and contacted the authorities.
Brown initially gave police a false name and date of birth. They arrested Brown for obstructing justice, located keys and the title to Jackson's car on his person, and searched the parking lot until they found the car. Observing through the car window a stack of yellow slips of paper the same size as the forged check, they towed the car and recovered more stolen checks from it. Additional investigation linked Brown to a series of forged checks cashed at various Kohl's stores throughout Dane County.
Brown challenged the search of the car. The State then filed a second complaint charging Brown with the Kohl's offenses, and the cases were consolidated. After his initial suppression motion was denied, but while an additional motion to suppress evidence based on an unlawful arrest was still pending, Brown entered no contest pleas in both cases. He moved to withdraw the pleas before sentencing but withdrew his motion on the advice of counsel. The trial court then sentenced Brown to three consecutive five-year terms in prison, followed by a fifteen-year probationary period with sentence withheld on the other counts in the Kohl's case. The court imposed an additional sixteen-year term of probation in the Woodman's case, concurrent to the probationary sentences on counts six and seven of the Kohl's case. Brown renewed his plea withdrawal motion after sentencing. 3
The Fourth Amendment to the United States Constitution and art. I, § 11 of the Wisconsin Constitution each prohibit unreasonable searches and seizures. State v. Drogsvold, 104 Wis.2d 247, 264, 311 N.W.2d 243, 251 (Ct.App.1981). 4 The test for determining whether an individual has the capacity, or standing, to raise a Fourth Amendment issue is "whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (citation omitted). A legitimate expectation of privacy is one which "society is prepared to recognize as reasonable." Id. at 96 (citations omitted).
When we review a suppression motion, we will sustain the circuit court's findings of fact unless they are clearly erroneous. State v. Roberts, 196 Wis.2d 445, 452, 538 N.W.2d 825, 828 (Ct.App.1995). However, we will independently determine if the facts establish standing as a question of law. State v. Rhodes, 149 Wis.2d 722, 724-25, 439 N.W.2d 630, 632 (Ct.App.1989). The proponent of a motion to suppress bears the burden of establishing the reasonableness of a subjective privacy expectation by a preponderance of the credible evidence. State v. Whitrock, 161 Wis.2d 960, 972, 468 N.W.2d 696, 701 (1991).
Brown maintains that he had a legitimate expectation of privacy in Jackson's car because he had used the car in the past and stored his luggage and personal effects in the trunk. First, we note that there is a reduced expectation of privacy in an automobile. State v. Weber, 163 Wis.2d 116, 138, 471 N.W.2d 187, 196 (1991). This limited privacy expectation is further attenuated where, as here, the person asserting an interest in the vehicle is not its owner and therefore lacks "complete dominion and control" over it. See Whitrock, 161 Wis.2d at 974, 468 N.W.2d at 702. Taking into account the additional fact that Brown was not in the immediate vicinity of the car when he was taken into custody, we conclude that he had no reasonable privacy expectation in the car based upon past use of the car or association with its owner.
Brown also asserts that, as a bailee, he has standing to challenge the search of the car. See State v. Wisumierski, 106 Wis.2d 722, 736-37, 317 N.W.2d 484, 491 (1982). He bases his assertion on the claim that Jackson gave him the keys and title to the car shortly before they entered the grocery store, and asked him to deliver it to a relative for him. The trial court, however, found that Brown did not knowingly accept the title and keys to the car since he never unfolded the slip of paper which Jackson handed him, and therefore, no bailment existed. While the evidence might also support a contrary determination, the trial court's finding was not clearly erroneous, and we will not disturb it. In light of our determination that Brown lacked Fourth Amendment standing, we need not address whether the seizure of the vehicle was supported by probable cause.
Every warrantless arrest must be supported by probable cause. Molina v. State, 53 Wis.2d 662, 670, 193 N.W.2d 874, 878 (1972); U.S. CONST. amend. IV; WIS. CONST. art. I, § 11, § 968.07(1)(d), STATS. A law enforcement officer has probable cause to arrest when the totality of the circumstances within that officer's knowledge at the time of the arrest would lead a reasonable officer to believe that the defendant probably committed a crime. State v. Koch, 175 Wis.2d 684, 701, 499 N.W.2d 152, 161 (1993). This is a practical test, based on "considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Drogsvold, 104 Wis.2d at 254, 311 N.W.2d at 247 (citation omitted). The objective facts before the police officer need only lead to the conclusion that guilt is more than a possibility. State v. Richardson, 156 Wis.2d 128, 148, 456 N.W.2d 830, 838 (1990). We will review whether the established facts constitute probable cause without deference to the decision of the circuit court. State v. Babbitt, 188 Wis.2d 349, 356, 525 N.W.2d 102, 104 (Ct.App.1994).
Here, the arresting officer knew that a group of individuals was involved in a stolen check ring and that the group was possibly responsible for millions of dollars in damages. He knew that Brown had been with Jackson when she attempted to pass a forged check linked to the ring, that the checker noted his restiveness, and that Brown had given a false name. The totality of the circumstances within the officer's knowledge would reasonably lead to the conclusion that Brown was more than possibly guilty of passing a fraudulent check, as well as obstruction of justice. The trial court properly denied Brown's suppression motion.
Any fair and just reason, including a genuine misunderstanding of the consequences of a plea, may justify withdrawal of the plea prior to sentencing, so long as the prosecution has not been substantially prejudiced by reliance on the plea. State v. Shanks, 152 Wis.2d 284, 288-90, 448 N.W.2d 264, 266-67 (Ct.App.1989). Relief is appropriate after sentencing, however, only when the defendant can demonstrate by clear and convincing evidence that plea withdrawal is necessary to correct a manifest injustice, such as ineffective assistance of counsel, evidence that the plea was involuntary or unsupported by a factual basis, or failure of the prosecutor to fulfill the plea agreement. State v. Krieger, 163 Wis.2d 241, 250-51, 471 N.W.2d 599, 602 (Ct.App.1991).
Brown alleges that counsel assisted him ineffectively by: (1) advising him that he could raise suppression issues after his no contest pleas; (2) advising him to withdraw his motion for plea withdrawal and bring it later; (3) failing to object to the repeater allegations; and (4) approaching the prosecutor to discuss plea negotiations without his consent and leading him to believe that the prosecution could not penalize him if he rejected the plea offer.
The test for ineffective assistance of counsel has two prongs: (1) a demonstration that counsel's performance was deficient, and (2) a demonstration that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whether counsel's actions were deficient or prejudicial is a mixed question of law and fact. Id. at 698. The circuit court's findings of fact will not be reversed, unless they are clearly erroneous. Section 805.17(2), STATS; State v. Pitsch, 124 Wis.2d 628, 634, 369 N.W.2d 711, 714 (1985). However, whether counsel's conduct violated the defendant's right to effective assistance of counsel is a legal determination, which this court decides de novo. Id. at 634, 369 N.W.2d at 715.
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