State v. Cain, Cir. Ct. No. 2007CF133

• Decision Date: 11 August 2011
• Docket Number: Cir. Ct. No. 2007CF133
• Parties: STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. LEE ROY CAIN, DEFENDANT-APPELLANT.
• Court: Wisconsin Court of Appeals

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. LEE ROY CAIN, DEFENDANT-APPELLANT.

Cir. Ct. No. 2007CF133

STATE OF WISCONSIN COURT OF APPEALS DECISION IV

DATED AND FILED: August 11, 2011

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

Appeal No. 2010AP1599-CR

APPEAL from a judgment and an order of the circuit court for Marquette County: RICHARD O. WRIGHT, Judge. Affirmed.

Before Vergeront, Sherman and Blanchard, JJ.

¶ 1 BLANCHARD, J. At a plea hearing in this criminal case, defendant Lee Roy Cain denied a fact that must be proven to support his conviction on the charged offense. However, at the sentencing hearing held two months after the plea hearing, Cain admitted this elemental fact, without havingraised any objection to any aspect of the plea hearing. Cain argues on appeal that the circuit court erred in accepting his plea at the plea hearing, on the grounds that as soon as Cain denied the elemental fact, the court should have adjourned the plea hearing and set the case for trial. Cain also contends that the court's denial of his postconviction motion to withdraw his plea, which rested on the same grounds, results in a manifest injustice.

¶2 We conclude that Cain's first contention is correct, but his second is not. We agree with Cain that the court should not have accepted Cain's plea at the time of the plea hearing, because Cain protested his innocence regarding an elemental fact. However, we also conclude that, based on the entire record of the case, including the court's explanations to Cain of his trial rights as reflected in the extended plea hearing colloquy as well as the record of the sentencing hearing that included his unambiguous admission, Cain has not carried his burden of showing by clear and convincing evidence that allowing him to withdraw his plea is necessary to correct a manifest injustice. Accordingly, we affirm the circuit court.

BACKGROUND

Events Before Plea Hearing

¶3 As relevant to this appeal, Cain was charged with "manufacturing" (in this case, growing) between five and twenty marijuana plants, which is a Class H felony. WIS. STAT. § 961.41(1)(h)2. (2009-10).¹

¶4 The complainant alleged the following. Police executing a search warrant discovered a concealed room in Cain's residence. In the concealed room were sixteen marijuana plants, growing under large lights, and a ventilation system. Police also found a five-gallon bucket containing a "substantial amount" of material that tested positive for the active ingredient in marijuana. This appeal involves Count Three of the complaint, which charged the Class H felony.

¶5 At a bail bond hearing, the prosecutor said that Cain would be charged in the criminal information with "manufacturing a significant number of plants. It appears between fifteen and twenty, although I don't have the exact count yet. Very healthy, thriving plants, from what I viewed on the video from the search warrant." After waiving his right to a preliminary hearing, Cain was arraigned on a criminal information containing charges matching those contained in the complaint.

Plea Hearing

¶6 The parties reached a negotiated plea agreement under which Cain would plead no contest to the Class H manufacturing charge and the other charges (also drug charges arising from the search) would be dismissed. Represented by counsel, Cain told the court that he wanted to enter into this settlement agreement. The district attorney described the charge to which Cain would be pleading as involving growing "in excess of four plants...[,] a class H felony."² Following the agreement, the court dismissed the remaining counts in the information. Cain'sattorney represented to the court that he believed Cain was pleading no contest to Count Three "freely and voluntarily," after he and Cain discussed "the evidence in the case and the benefits of entering a plea, [and] the risks of going to trial."

¶7 The following exchange then occurred.

Court: And you understand what you're doing?

Cain: I had four plants in my house[,] okay? That's it.... I have no other choice.... So I go along with

whatever you people say in here.

(Emphasis added). The court did not address the plant-quantity issue in discussion that immediately followed this exchange. When the court subsequently asked Cain if he was entering his plea voluntarily, Cain responded as follows:

Cain: Yup, yup, yup. I mean, from what I look at, I don't have any other choices. You have a lying detective here that planted stuff in my house....³

Court: This isn't the sentencing.

Cain: Get it done[,] get the hell outta here.

In the discussion that immediately followed, the court addressed the rights that Cain was waiving by entering a plea. As most relevant to this appeal, the court stated in part as follows:

Court: The standard of proof ... is beyond a reasonable doubt. That jury would have to be unanimous in thinking that every element of the charge against you was proved by the evidence at trial beyond areasonable doubt. Do you understand you're waiving that right[?]

Cain: Yes.

Court: On this charge they would have to show ... "manufacture." Controlled substance [alleged to be possessed] in this case [is] tetrahydrocan[n]abinol. They would also have to show in this particular case that it was more than four plants. And they would have to show that you were doing that intentionally. Well, not like it was weeds growing somewhere or anywhere, but that you were doing it intentionally. You understand that you're waiving the right to have those things proved beyond a reasonable doubt?

Cain: Yup. I'm not an attorney so—

Court: It has to be a unanimous decision on the part of the jury. You understand that? [Record does not reflect response to this question] [The] [c]ourt believes that the plea is entered knowingly, voluntarily, and intelligently.

(Emphasis added).

¶8 The court then observed that the criminal complaint could serve to establish a factual basis for the plea. In response, defense counsel said, "So stipulated, Your Honor." The court found that a factual basis was established, and then invited counsel for the State to relate relevant facts, "particularly with regard to the number of plants."

¶9 The prosecutor recited allegations contained in the complaint, including that "underneath those grow lights were 16 plants that had been planted and were growing—were actually, relatively large in size." The following exchange then occurred:

Cain: Do I have to sit and listen to these lies?

Defense counsel: It's just another minute.

Court: That's a factual basis. I will accept the

plea [and] enter the conviction at this time.

¶10 The sentencing hearing was set for about two months after the plea hearing, to provide time for the preparation of a presentence investigation report. Neither Cain nor his attorney raised with the trial court any alleged defect in the plea hearing immediately following the plea hearing, during the two-month interval between the plea and sentencing, or throughout the course of the sentencing hearing.

Sentencing Hearing

¶11 At sentencing, the prosecutor made the following comment regarding the total quantity of marijuana at issue in the case:

[T]here was about a pound and a half of marijuana that was seized as a part of this,⁴ together with 16 plants. And the average is, is about a pound of marijuana per plant on a mature plant is able to be harvested.

....

... And these were very mature plants, very healthy, very well cared for and -

....

.... They were going to yield a substantial [quantity] of marijuana.

¶12 Cain's attorney made reference to the number of plants in the following terms: "I would ask you to consider this particular infraction, even with the 16 plants, as on the lower end of [the] continuum of class H felonies." (Emphasis added.)

¶13 Cain gave an extended allocution, toward the end of which, and not in response to any question posed by or statement made by the court, Cain said:

[T]here wasn't no quantity of marijuana in my house. It was a joint. And those five plants which got excavated.⁵ That's what was in my house. I have no reason to lie about this[,] okay?

Postconviction Motion

¶14 In a motion for postconviction relief, Cain argued for the first time that, because he "directly denied the offense as charged in the Information at the time of his plea[,] Cain must be allowed to withdraw his plea." During oral argument on this motion, Cain's attorney acknowledged that the court had sufficient information before it at the time of the plea hearing to establish a "factual basis" for the plea, including facts supporting a finding of the greater plant quantity. However, Cain's attorney contended that the court erred in accepting the plea in light of Cain's denial of an element, and requested as a remedy allowing Cain to withdraw his plea. The court denied the motion, on the grounds that Cain entered the plea knowingly, voluntarily, and intelligently after a "lengthy colloquy."

DISCUSSION

I. The Nature of the Appeal

¶15 We begin by clarifying the very narrow issue that Cain raises on appeal and identifying several issues that he does not raise. We take this approach because his legal argument is easily confused with legal arguments that he does not make. We conclude that once Cain's ground for appeal is properly understood, it is readily resolved against him under the relevant legal standard given the unusual facts of the case.

¶16 Cain argues that plea withdrawal is required to avoid a manifest injustice, not that the case should be remanded for resentencing. He does not allege any error by the court in connection with sentencing, and indeed asserts that all aspects of the sentencing are "irrelevant" to this appeal. His position is that our analysis should...