State v. Cain, No. 2010AP1599–CR.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtMICHAEL J. GABLEMAN
Citation342 Wis.2d 1,816 N.W.2d 177,2012 WI 68
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Lee Roy CAIN, Defendant–Appellant–Petitioner.
Decision Date28 June 2012
Docket NumberNo. 2010AP1599–CR.

342 Wis.2d 1
816 N.W.2d 177
2012 WI 68

STATE of Wisconsin, Plaintiff–Respondent,
v.
Lee Roy CAIN, Defendant–Appellant–Petitioner.

No. 2010AP1599–CR.

Supreme Court of Wisconsin.

Argued March 6, 2012.
Decided June 28, 2012.


[816 N.W.2d 179]


For the defendant-appellant-petitioner, there were briefs by Patrick R. Donnelly and Faun M. Moses, and oral argument by Faun M. Moses, assistant state public defender.

For the plaintiff-respondent the cause was argued by Thomas Balistreri, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.


MICHAEL J. GABLEMAN, J.

[342 Wis.2d 5]¶ 1 We review an unpublished decision of the court of appeals 1 affirming an order of the Marquette County Circuit Court, Richard O. Wright, Judge.

[816 N.W.2d 180]

¶ 2 The question before us is whether Lee Roy Cain (“Cain”) should be allowed to withdraw his plea of no contest to correct a manifest injustice. Cain argues that this court should review whether his plea was knowing, intelligent, and voluntary, and if it was not, determine that he is entitled to automatic withdrawal of his plea in order to correct a manifest injustice.

¶ 3 We conclude that the record, when viewed in its totality, does not support withdrawal of Cain's plea. [342 Wis.2d 6]Accordingly, we conclude that Cain has not met his burden of showing by clear and convincing evidence that allowing the withdrawal of his no contest plea is necessary to correct a manifest injustice.

I. FACTS AND PROCEDURAL HISTORY

¶ 4 Cain, a sixty-five year old resident of Montello, Wisconsin, makes his living by creating and marketing ceramic lawn ornaments and garden art. On November 26, 2007, law enforcement officers executed a search warrant issued for Cain's property. While searching Cain's residence and workshop, they discovered a hidden room. According to the resulting report from law enforcement, the hidden room contained a marijuana growing operation, complete with gymnasium-style lighting, a ventilation system, and 16 healthy, adult marijuana plants that were capable of yielding a substantial quantity of marijuana.

¶ 5 Consequently, a criminal complaint was filed on December 7, 2007, charging Cain with four separate crimes: 1) maintaining a drug trafficking place in violation of Wisconsin Statutes section 961.42(1); 2) possession with intent to deliver tetrahydrocannabinol (“THC”) 2 in an amount of more than 200 grams but not more than 1,000 grams, or more than four plants containing THC but not more than twenty plants containing THC in violation of § 961.41(1m)(h)2.; 3) manufacturing THC in an amount of more than 200 grams but not more than 1,000 grams, or more than four plants containing THC but not more than twenty [342 Wis.2d 7]plants containing THC, in violation of § 961.41(1)(h)2.; 3 and 4) possession of drug paraphernalia, in violation of § 961.573(1). The criminal complaint accurately reflected that a violation of § 961.41(1)(h)2. is a Class H felony, punishable by a fine in an amount up to $10,000, imprisonment for up to six years, or both. See § 939.50(3)(h).

¶ 6 Cain waived his right to a preliminary hearing, and the State filed an information alleging the four charges set forth in the criminal complaint. At the arraignment, Cain entered a plea of not guilty as to all counts, and the case was set for jury trial. However, the morning that the case was scheduled for trial, Cain entered into a plea agreement with the State. In exchange for Cain's plea of no contest on Count III, the manufacturing charge, the State agreed to dismiss the remaining three counts recited in the information.

¶ 7 The record reflects that at the plea hearing, Cain was actively engaged, sometimes

[816 N.W.2d 181]

in response to questioning from the circuit court, and sometimes on his own initiative. During the course of the hearing, Cain stated, inter alia, that he did not believe that he “would have a fair trial,” that the only person in “the system” that he had any respect for was the circuit court judge, that “everyone ... is a buncha liars,” and that his current situation was a result of “having a [342 Wis.2d 8]dispute with a little rich horse guy.” As part of the lengthy plea colloquy (13 pages of transcript), the following exchange took place between the circuit court and Cain and his attorney:

THE COURT: Before I can accept that plea I need to determine whether or not it's being entered knowingly, voluntarily, and intelligently. [Defense counsel], you have had enough contact with him [Cain] that you believe that he is making this plea freely and voluntarily?

[DEFENSE COUNSEL]: Yes, Your Honor. We've discussed all the various counts, the consequences, what we would plan to do, the procedure, and so on, yes.

THE COURT: Okay. Is that true, Mr. Cain?

MR. CAIN: Somewhat.

[DEFENSE COUNSEL]: We've discussed the evidence in the case and the benefits of entering a plea, the risks of going to trial.

THE COURT: And you understand what you're doing?

MR. CAIN: I had four plants in my house[,] okay? That's it. And I—whatever this guy is—I have no other choice....

THE COURT: Well, that's—might be your wise choice, but that's—

MR. CAIN: Yup.

THE COURT: You know there's different reasons for entering a plea?

MR. CAIN: Right.

THE COURT: The most basic reason is whether or not you think you're gonna win or lose. That's the way I look at it.

(emphasis added).


[342 Wis.2d 9]¶ 8 Regarding what the State would be required to prove to convict him of manufacture of THC, the circuit court held the following exchange with Cain:

THE COURT: On this charge they would have to show that—you know, “manufacture” sounds like a funny word, but growing would be manufacture. Controlled substance in this case containing the [THC]. 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?

MR. CAIN: Yup....

¶ 9 Based on the plea colloquy, the circuit court determined that “the plea [was] entered knowingly, voluntarily, and intelligently.”

¶ 10 The circuit court next turned to a discussion of the factual basis for the plea. Cain, through his attorney, stipulated that the criminal complaint, which states that law enforcement officers discovered 16 marijuana plants in Cain's residence, sufficed as the factual basis for the plea. However, the circuit court insisted that the State reiterate on the record, for Cain's benefit, the factual basis for the plea. Complying with the circuit court's instruction, the prosecutor restated the factual basis contained in the criminal complaint—that law enforcement officers discovered 16 marijuana plants in Cain's workshop—

[816 N.W.2d 182]

and the circuit court determined that there was a factual basis for the plea.

¶ 11 At the close of the plea hearing, the circuit court accepted Cain's plea and ordered the preparation of a pre-sentence investigation report (“PSI”). The PSI [342 Wis.2d 10]described the facts surrounding Cain's offense in much the same manner as the criminal complaint: that law enforcement officers discovered 16 marijuana plants in Cain's workshop. The PSI outlined that Cain is a Vietnam War veteran, and that he receives 100% disability because he suffers from post-traumatic stress disorder resultant from his military service. This disability, according to Cain, was the reason that he used marijuana.

¶ 12 The PSI also related a summary of the probation agent's discussion with Cain. In that discussion, Cain told the agent that he had begun growing marijuana “six months prior” and that it was for his own personal use. Additionally, he related to the probation agent that the plants found were not even in the “flowering stage.” Cain told the agent that “he made a mistake” and that “the law is the law,” but that he had made that mistake “within his own home” and that he did not need to be told what to do.

¶ 13 At the sentencing hearing, the court offered Cain the opportunity to contest the accuracy of the PSI. Cain's attorney, speaking on his behalf, declined to do so, stating that he and Cain had reviewed the report, believed it to be accurate, and had nothing to add. At the conclusion of testimony, the State sought a withheld sentence, placement on probation for a period of three years, and four to six months of conditional jail time.

¶ 14 Cain's attorney argued, based on Cain's military service, prior record, self-employment, and “positive character,” that he should receive a lesser sentence. In addressing the court, he stated: “I would ask you to consider this particular infraction, even with the 16 plants, as on the lower end of [the] continuum of [C]lass H felonies.” Accordingly, Cain's attorney requested “straight probation[,] with no jail.”

[342 Wis.2d 11]¶ 15 When the circuit court provided Cain the opportunity to speak at the sentencing hearing, Cain stated that he was not a marijuana dealer, but that he smokes marijuana to help himself deal with post-traumatic stress disorder and to get to sleep. While concluding his statements, Cain related the following to the court:

This last thing, I say, there wasn't no quantity of marijuana in my house. It was a joint. And those five plants which got excavated. That's what was in my house. I have no reason to lie about this[,] okay? And—it—it—I didn't have a whole—you know, like this. And that's what it sounds like: That I had this great amount.

¶ 16 After listening to Cain's statement and summarizing the factors 4 it considered in regard to sentencing, the circuit court withheld sentence, and placed Cain on probation for a period of two years.

¶ 17 Six months after the sentencing hearing, Cain filed a motion for post-conviction relief, requesting that the circuit court allow him to withdraw his plea. This motion...

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47 practice notes
  • Black v. City of Milwaukee, No. 2014AP400.
    • United States
    • Wisconsin Supreme Court
    • June 23, 2016
    ...under the [h]ome [r]ule [a]mendment?We do not address these issues because they are not necessary to resolve this case. See State v. Cain, 2012 WI 68, ¶ 37 n. 11, 342 Wis.2d 1, 816 N.W.2d 177 (“[A]n appellate court should decide cases on the narrowest possible grounds.” (quoting Md. Arms Lt......
  • State v. Lopez, No. 2011AP2733–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 7, 2014
    ...the prosecution.” State v. Taylor, 2013 WI 34, ¶ 62, 347 Wis.2d 30, 829 N.W.2d 482 (Prosser, J., concurring) (citing State v. Cain, 2012 WI 68, ¶ 24, 342 Wis.2d 1, 816 N.W.2d 177). ¶ 192 Our case law over the years has developed the contours of the “fair and just reason” standard. ¶ 193 The......
  • State v. Valadez, Nos. 2014AP678
    • United States
    • United States State Supreme Court of Wisconsin
    • January 28, 2016
    ...limits for a motion to withdraw the plea?"I¶ 74 There are long-established principles governing plea withdrawal. See State v. Cain, 2012 WI 68, ¶ 24, 342 Wis.2d 1, 816 N.W.2d 177. Before sentencing, the circuit court should freely allow withdrawal of a plea if the defendant supplies an......
  • State v. Taylor, No. 2011AP1030–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • April 23, 2013
    ...is necessary to correct a manifest injustice.” [347 Wis.2d 38]State v. Cross, 2010 WI 70, ¶ 4, 326 Wis.2d 492, 786 N.W.2d 64;State v. Cain, 2012 WI 68, ¶ 20, 342 Wis.2d 1, 816 N.W.2d 177. Taylor has not demonstrated that withdrawal of his plea is necessary to correct a manifest injustice. A......
  • Request a trial to view additional results
47 cases
  • Black v. City of Milwaukee, No. 2014AP400.
    • United States
    • Wisconsin Supreme Court
    • June 23, 2016
    ...under the [h]ome [r]ule [a]mendment?We do not address these issues because they are not necessary to resolve this case. See State v. Cain, 2012 WI 68, ¶ 37 n. 11, 342 Wis.2d 1, 816 N.W.2d 177 (“[A]n appellate court should decide cases on the narrowest possible grounds.” (quoting Md. Arms Lt......
  • State v. Lopez, No. 2011AP2733–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 7, 2014
    ...the prosecution.” State v. Taylor, 2013 WI 34, ¶ 62, 347 Wis.2d 30, 829 N.W.2d 482 (Prosser, J., concurring) (citing State v. Cain, 2012 WI 68, ¶ 24, 342 Wis.2d 1, 816 N.W.2d 177). ¶ 192 Our case law over the years has developed the contours of the “fair and just reason” standard. ¶ 193 The......
  • State v. Valadez, Nos. 2014AP678
    • United States
    • United States State Supreme Court of Wisconsin
    • January 28, 2016
    ...time limits for a motion to withdraw the plea?"I¶ 74 There are long-established principles governing plea withdrawal. See State v. Cain, 2012 WI 68, ¶ 24, 342 Wis.2d 1, 816 N.W.2d 177. Before sentencing, the circuit court should freely allow withdrawal of a plea if the defendant supplies an......
  • State v. Taylor, No. 2011AP1030–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • April 23, 2013
    ...is necessary to correct a manifest injustice.” [347 Wis.2d 38]State v. Cross, 2010 WI 70, ¶ 4, 326 Wis.2d 492, 786 N.W.2d 64;State v. Cain, 2012 WI 68, ¶ 20, 342 Wis.2d 1, 816 N.W.2d 177. Taylor has not demonstrated that withdrawal of his plea is necessary to correct a manifest injustice. A......
  • Request a trial to view additional results

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