State v. Burton, No. 2011AP450–CR.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtDAVID T. PROSSER
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Julius C. BURTON, Defendant–Appellant–Petitioner.
Decision Date10 July 2013
Docket NumberNo. 2011AP450–CR.

349 Wis.2d 1
832 N.W.2d 611
2013 WI 61

STATE of Wisconsin, Plaintiff–Respondent,
v.
Julius C. BURTON, Defendant–Appellant–Petitioner.

No. 2011AP450–CR.

Supreme Court of Wisconsin.

Argued Jan. 11, 2013.
Decided July 10, 2013.


[832 N.W.2d 615]


For the defendant-appellant-petitioner, there were briefs by Esther Cohen Lee and Hall, Burce and Olson, S.C., Milwaukee, and oral argument by Esther Cohen Lee.

For the plaintiff-respondent, the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

[832 N.W.2d 616]


DAVID T. PROSSER, J.

[349 Wis.2d 9]¶ 1 This is a review of an unpublished decision of the court of appeals, 1 affirming a judgment of conviction and an order of the Milwaukee County Circuit Court denying Julius C. Burton's (Burton) postconviction motion to withdraw his guilty pleas. The case involves the merits of this postconviction motion.2

¶ 2 Burton pled guilty to two counts of attempted first-degree intentional homicide. Initially, he had entered pleas of not guilty and then not guilty by reason of mental disease or defect (NGI),3 but later he withdrew his not guilty pleas as part of a plea agreement. After he was sentenced to lengthy consecutive periods of initial confinement, however, Burton moved to withdraw his guilty pleas.

¶ 3 For purposes of this review, Burton's postconviction motion stated two grounds for plea withdrawal. First, Burton alleged that his two trial counsel were ineffective for permitting him to withdraw his NGI pleas inasmuch as there was no evidence in the record that counsel had informed him of the possibility of a bifurcated plea with the right to a jury trial focused solely on the issue of his mental responsibility.

[349 Wis.2d 10]¶ 4 Second, Burton alleged that the circuit court erred in not advising him of the bifurcated plea and trial option during the plea colloquy, so that Burton's resulting pleas were not knowing, intelligent, and voluntary.

¶ 5 The first ground alleging ineffective assistance of counsel is usually categorized as a Nelson/Bentley motion.4 The second ground alleging a defective plea colloquy is usually described as a Bangert motion.5 The circuit court denied both grounds of Burton's single motion without conducting an evidentiary hearing, and the court of appeals affirmed. We now affirm the court of appeals.

¶ 6 We conclude, first, that Burton's Nelson/Bentley motion was insufficient. The motion asserted that Burton's two trial counsel were ineffective in not pursuing an NGI or “insanity” defense. The motion claimed that Burton's explicit withdrawal of that defense as part of a plea agreement must have been based upon a failure by trial counsel to inform Burton that he had the option of pleading guilty to the crimes but also not guilty by reason of mental disease or defect. Significantly, Burton's motion never alleged that his trial counsel failed to inform Burton of this option. Instead, it merely pointed to the absence of evidence in the record that indicated that counsel had explained this option to Burton. The absence of record evidence in this situation is not enough. A defendant must affirmatively plead facts that, if true, would constitute deficient performance of counsel. Moreover, even if deficient [349 Wis.2d 11]performance had been properly pled, Burton's motion did not affirmatively assert that if trial counsel had informed him of the option of a trial focused solely upon mental

[832 N.W.2d 617]

responsibility, he would have chosen that option and why he would have chosen it.

¶ 7 The sufficiency of a Nelson/Bentley motion is critical because the defendant has the burden of proof in a Nelson/Bentley hearing. A Nelson/Bentley hearing is an evidentiary hearing in which a defendant is permitted to prove a claim that his attorney was constitutionally ineffective, producing a manifest injustice. It is not a fishing expedition to try to discover error.

¶ 8 We conclude, second, that Burton's claim of a Bangert violation also was insufficient. Burton failed to state that, due to a defect in the plea colloquy, he did not enter his pleas knowingly, intelligently, and voluntarily. Because Burton did not allege his lack of personal understanding about some aspect of the plea process, no evidentiary hearing was necessary. In any event, we do not find any defect in the plea colloquy. The circuit court properly inquired as to whether Burton was entering his guilty pleas knowingly, intelligently, and voluntarily. The circuit court's inquiry not only followed standard procedure, but also asked whether Burton was knowingly, intelligently, and voluntarily withdrawing his NGI plea and giving up the right to present an insanity defense.

¶ 9 We reject Burton's claim of a Bangert violation because defendants do not have a fundamental right to an insanity plea, and it is not essential to conduct an extensive colloquy about NGI procedure before a defendant withdraws his plea of not guilty by reason of mental disease or defect. Looking forward, we do think it is better practice for circuit courts to conduct a personal colloquy on the bifurcated NGI plea and trial [349 Wis.2d 12]option to confirm the defendant's understanding of the law and to head off later claims of a Bangert violation or ineffective assistance of counsel.

I. FACTUAL BACKGROUND

¶ 10 The underlying facts of this case are undisputed. On June 9, 2009, Milwaukee Police Officers Graham Kunisch (Officer Kunisch) and Bryan Norberg (Officer Norberg) were on routine patrol in the area of 3rd Street and West National Avenue on the southeast side of Milwaukee. As the officers drove their marked police van 6 eastbound on National Avenue, they spotted 18–year–old Burton riding his bicycle on the sidewalk, in violation of a Milwaukee city ordinance. They did not suspect that Burton was carrying a concealed weapon.

¶ 11 Because of the ordinance violation, the officers decided to stop Burton and conduct a field interview. Officer Norberg called out to Burton to stop, but after making brief eye contact with them, he turned away and continued riding his bicycle. Officer Norberg exited the vehicle, followed Burton, and continually asked him to stop, while Officer Kunisch followed in the police van.

¶ 12 Officer Norberg caught up to Burton after he turned onto South 2nd Street. Officer Norberg grabbed Burton from behind to gain control of him. Officer Kunisch got out of the police van to help, as Burton was resisting. While Kunisch was trying to gain control of Burton to perform a pat-down search, Burton pulled out a pistol and shot Officer Norberg in the face from a distance of about six inches. The bullet went through Officer Norberg's lip, under his left nostril, [349 Wis.2d 13]through bone and teeth, and exited out his face. A second and third bullet wounded his shoulder and grazed his right knee.

[832 N.W.2d 618]

¶ 13 Burton also shot Officer Kunisch several times. Officer Kunisch suffered gunshot wounds to his left hand, right shoulder, and the back of his neck. More serious, Burton shot Officer Kunisch in his face, destroying his left eye and causing severe damage to the left side of his skull.

¶ 14 Burton fled the scene and was later arrested after a local homeowner reported that someone might be hiding in his basement. The homeowner left his residence when he heard the commotion from the shooting, and Burton likely entered an open basement door while the homeowner was absent. Police ordered Burton out of the basement, found a pistol magazine with bullets on his person, and discovered a semi-automatic pistol in the basement. After the police took Burton into custody, and after Burton was advised of his Miranda rights, he confessed to shooting Officers Norberg and Kunisch. A videotape from the scene of the shooting corroborated Burton's account.

II. PROCEDURAL HISTORY

¶ 15 Burton was charged with two counts of attempted first-degree intentional homicide by use of a dangerous weapon, contrary to Wis. Stat. §§ 939.32, 939.63(1)(b), and 940.01(1)(a).7 At the initial appearance, upon the request of Burton's counsel, the court ordered that Burton's competency be evaluated. Dr. Kenneth Smail prepared an initial report recommending further evaluation. The subsequent evaluation, [349 Wis.2d 14]conducted by Dr. Tracy Luchetta at the Winnebago Mental Health Institute, determined that Burton was competent to stand trial. Neither Burton's newly retained trial counsel, Attorneys Julius Kim (Kim) and Jonathan LaVoy (LaVoy), nor Burton himself objected to the evaluation's conclusion.8

¶ 16 Following a preliminary hearing at which Officers Norberg and Kunisch testified, the State filed an Information charging the same counts stated in the Complaint. Defense counsel entered a plea of not guilty to both charges. Approximately one month later, defense counsel added pleas of not guilty by reason of mental disease or defect.

¶ 17 Dr. Smail, a psychologist, again was appointed to examine Burton. Dr. Smail's report 9 did not support Burton's NGI plea.

[349 Wis.2d 15]¶ 18 Dr. Smail reported that Burton had a history of mental health problems starting at age seven, when Burton was treated for hearing voices. Dr. Smail noted that Burton was treated as recently as April 2009 at the Milwaukee County Mental Health Complex. This treatment was less

[832 N.W.2d 619]

than two months before the attempted homicides.10 At various times over the years Burton had been diagnosed with Attention Deficient/Hyperactivity Disorder, Oppositional Defiant Disorder, “mood disorder,” Bipolar Disorder, and Personality Disorder. After his arrest for the attempted homicides, Burton's medical records at the Milwaukee jail indicate that he had a diagnostic history of schizophrenia and Attention Deficit/Hyperactivity Disorder.

¶ 19 Ultimately, Dr. Smail concluded that while Burton suffered from “emotional and behavioral disturbances, ... there is not much objective evidence in his record to...

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27 practice notes
  • State v. Magett, No. 2010AP1639–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 16, 2014
    ...L.Ed.2d 1254 (1968)) (“[W]e have not said that the Constitution requires the States to recognize the insanity defense.”); State v. Burton, 2013 WI 61, ¶ 9, 349 Wis.2d 1, 832 N.W.2d 611 (“[D]efendants do not have a fundamental right to an insanity plea....”); State v. Francis, 2005 WI App 16......
  • State v. Jenkins, No. 2012AP–46–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 11, 2014
    ...trial counsel was deficient for failing to offer a strategic reason for not calling potentially exculpatory witnesses). 19.State v. Burton, 2013 WI 61, ¶ 49, 349 Wis.2d 1, 832 N.W.2d 611 (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). See alsoWis. Stat. § 805.18 (harmless error rule,......
  • State v. Lagrone, No. 2013AP1424–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • April 22, 2016
    ..."[T]he court will find the defendant guilty of the elements of the crimes, and the NGI plea will be left for trial." State v. Burton, 2013 WI 61, ¶ 43, 349 Wis.2d 1, 832 N.W.2d 611. This trial, however, is much different than the criminal trial previously discussed. In this proceeding—which......
  • State v. Dillard, No. 2012AP2044–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • November 26, 2014
    ...has the burden of proof throughout the proceedings; it never shifts to the State, as it may in a Bangert proceeding. State v. Burton, 2013 WI 61, ¶ 7, 349 Wis.2d 1, 832 N.W.2d 611.¶ 144 State v. Denk, 2008 WI 130, 315 Wis.2d 5, 758 N.W.2d 775, is important when analyzing a claim that a defe......
  • Request a trial to view additional results
26 cases
  • State v. Magett, No. 2010AP1639–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 16, 2014
    ...L.Ed.2d 1254 (1968)) (“[W]e have not said that the Constitution requires the States to recognize the insanity defense.”); State v. Burton, 2013 WI 61, ¶ 9, 349 Wis.2d 1, 832 N.W.2d 611 (“[D]efendants do not have a fundamental right to an insanity plea....”); State v. Francis, 2005 WI App 16......
  • State v. Jenkins, No. 2012AP–46–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 11, 2014
    ...trial counsel was deficient for failing to offer a strategic reason for not calling potentially exculpatory witnesses). 19.State v. Burton, 2013 WI 61, ¶ 49, 349 Wis.2d 1, 832 N.W.2d 611 (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). See alsoWis. Stat. § 805.18 (harmless error rule,......
  • State v. Lagrone, No. 2013AP1424–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • April 22, 2016
    ..."[T]he court will find the defendant guilty of the elements of the crimes, and the NGI plea will be left for trial." State v. Burton, 2013 WI 61, ¶ 43, 349 Wis.2d 1, 832 N.W.2d 611. This trial, however, is much different than the criminal trial previously discussed. In this proceeding—which......
  • State v. Dillard, No. 2012AP2044–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • November 26, 2014
    ...has the burden of proof throughout the proceedings; it never shifts to the State, as it may in a Bangert proceeding. State v. Burton, 2013 WI 61, ¶ 7, 349 Wis.2d 1, 832 N.W.2d 611.¶ 144 State v. Denk, 2008 WI 130, 315 Wis.2d 5, 758 N.W.2d 775, is important when analyzing a claim that a defe......
  • Request a trial to view additional results

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