State v. Carter, No. 2006AP680-CR (Wis. App. 12/21/2006), 2006AP680-CR.

• Decision Date: 21 December 2006
• Docket Number: No. 2006AP680-CR.,2006AP680-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Renardo L. Carter, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

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State of Wisconsin, Plaintiff-Respondent, v. Renardo L. Carter, Defendant-Appellant.

No. 2006AP680-CR.

Court of Appeals of Wisconsin, District IV.

Opinion Filed: December 21, 2006.

APPEAL from an order of the circuit court for Wood County: EDWARD F. ZAPPEN, JR., Judge. Reversed and cause remanded with directions.

Before Dykman, Vergeront and Higginbotham, JJ.

¶ 1 DYKMAN, J

Renardo Carter appeals from a judgment of conviction and an order denying his postconviction motion to withdraw his pleas of no contest to attempted eluding an officer, contrary to WIS. STAT. § 346.04(3)(2003-04),¹ and possession with intent to deliver cocaine in the amount of one gram or less, contrary to WIS. STAT. § 961.41(1m)(cm)1g. Carter contends that his pleas were not knowingly, voluntarily, and intelligently entered because he did not understand the nature of both charges. Because we conclude the State did not meet its burden to show that Carter entered a valid plea as to the eluding charge, we reverse and remand for proceedings consistent with this opinion.²

Background

¶ 2 The following facts are taken from the motion hearings. In November 2004, Renardo Carter was driving his vehicle in Wisconsin Rapids. Wood County Drug Investigator Michael Webster instructed Deputy Raymond Starks to stop Carter's car on information Carter was carrying drugs. Starks located and followed Carter, and eventually observed him drive through a yellow light. In response, Starks activated his lights and siren to initiate a traffic stop. Starks testified that Carter looked at him in his rearview mirror, and then increased his speed.

¶ 3 Starks and Webster individually pursued Carter for more than two miles. During the course of the chase, which reached speeds of up to fifty m.p.h., Carter's vehicle swerved and struck Webster's vehicle. Carter drove onto the grass, exited his vehicle, and went over a wall and into the Wisconsin River, where he was apprehended by the officers. Starks testified he observed Carter tearing baggies with his teeth and dumping their white, powdery contents into the river. The officers recovered two baggies of cocaine from Carter's car and scooped some additional cocaine from the river.

¶ 4 The State charged Carter with four offenses: eluding an officer, recklessly endangering safety, possession with intent to deliver cocaine, and resisting an officer. Carter then entered into a plea agreement with the State. Cater pled no contest, as a repeat offender, to eluding an officer and possession with intent to deliver, and the other two counts were dismissed but read in for sentencing purposes. The parties also agreed on the sentencing recommendation.

¶ 5 After Carter entered his pleas and the court sentenced him, Carter moved the court to withdraw his pleas because they were not knowingly, intelligently, and voluntarily entered. The State conceded that Carter had made a prime facie showing that the plea colloquy was deficient as to the eluding charge, but argued he had not done so as to the possession charge. The court agreed with the State and thus held a hearing limited to the issue of Carter's understanding of the eluding charge. The only witness to testify at the hearing was Carter, and the State relied exclusively on the hearing transcripts to establish that Carter's plea was validly entered. The court concluded that the State had established that, despite the deficiency in the plea colloquy, Carter's plea was knowingly, intelligently, and voluntarily entered, and thus denied Carter's motion to withdraw his plea. Carter appeals from the court's denial of his postconviction motion to withdraw his pleas.

Standard of Review

¶ 6 A defendant seeking to withdraw a guilty plea after sentencing must prove by clear and convincing evidence that refusal to allow withdrawal would result in manifest injustice. State v. Brown, 2006 WI 100, ¶18, _ Wis. 2d _, 716 N.W.2d 906. Manifest injustice is established if a defendant did not knowingly, intelligently, and voluntarily enter his or her plea. Id. Such a plea may be withdrawn as a matter of right because it violates due process. Id., ¶19.

¶ 7 The issue of whether a plea was knowingly, intelligently, and voluntarily entered presents a question of constitutional fact, which we decide independently. Id. However, we will not disturb the circuit court's findings of historical and evidentiary facts unless they are clearly erroneous. Id.

Discussion

¶ 8 Under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), a defendant may move to withdraw his or her plea if the plea colloquy violated WIS. STAT. § 971.08³ or other court-mandated procedures. State v. Hampton, 2004 WI 107, ¶46, 274 Wis. 2d 379, 683 N.W.2d 14. The defendant has the burden to make a "pointed showing" that the plea was accepted despite a plea colloquy deficiency. Id. If the defendant's motion shows a plea colloquy deficiency and alleges that the defendant did not, in fact, know or understand the missing information, the court must hold an evidentiary hearing on the plea withdrawal motion. Id. At the hearing, the burden is on the State to establish by clear and convincing evidence that the defendant's plea was, in fact, knowingly, intelligently, and voluntarily entered. Id.

¶ 9 Carter contends that he is entitled to withdraw his plea because the plea colloquy was deficient under WIS. STAT. § 971.08(1)(a) by failing to inform him of the "knowingly" mental state element of attempting to elude a traffic officer under WIS. STAT. § 346.04(3),⁴ and the State did not thereafter meet its burden to establish that Carter's plea was nonetheless knowingly entered. In the postconviction hearing, the State conceded that Carter had made a prime facie showing under Bangert and that the burden had thus shifted to it to show by clear and convincing evidence that the plea was validly entered. Now, however, the state argues that despite its concession before the trial, the burden never shifted because Carter's motion to withdraw his plea did not, in fact, sufficiently allege a defect in the plea colloquy. Thus, the State urges us to independently review Carter's motion to determine whether he made a prime facie showing that the plea colloquy was defective, disregarding its concession. We decline to do so.

¶ 10 The State correctly states the general proposition that concessions of law are not binding on appeal. Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, ¶50, 284 Wis. 2d 573, 701 N.W.2d 440. It further points out that the issue of whether a defendant has sufficiently alleged a Bangert violation is a question of law. See Brown, 2006 WI 100, ¶21. However, we are persuaded that State v. Van Camp, 213 Wis. 2d 131, 569 N.W.2d 577 (1997), governs our review of this issue.

¶ 11 In Van Camp, the supreme court refused to consider the State's argument that the defendant had not made a prime facie showing under Bangert because it had conceded as much at the trial level. Id. at 144. The court explained:

After reviewing the record, we believe the State waived the issue of whether defendant sufficiently alleged that he in fact did not know or understand the information which should have been provided at the plea hearing. Although it appears that the defendant never expressly alleged that he did not know or understand this information, the State conceded during the postconviction hearing that the defendant had made a prima facie showing under Bangert and that the burden had shifted to the State to show that the defendant had entered his plea knowingly, voluntarily, and intelligently. The State failed to challenge the sufficiency of defendant's allegations before the trial court or in the briefs submitted to the court of appeals.

This contention, advanced for the first time in briefs before this court, was waived by the State, and we decline to consider it. As a general rule, this court will not address issues for the first time on appeal. The reason for this general rule is to give trial courts the opportunity to correct errors, thus avoiding appeals. Had the State raised this issue below, the defendant would have had an opportunity to cure, and the trial court would have had the opportunity to consider, this claimed defect. We are unpersuaded that justice would be served here by entertaining the State's arguments where the trial court was not afforded an opportunity to do so.

Id. (citations omitted).

¶ 12 We conclude that, as inVan Camp, the State has waived the issue of whether Carter's motion shifted the burden to the State to prove he knowingly, intelligently, and voluntarily entered his plea.⁵ Thus, we need not address whether Carter sufficiently alleged a defect in the plea colloquy. See id. at 144-45 (concluding that defendant "met his initial burden under Bangert" despite fact that "it appears that the defendant never expressly alleged that he did not know or understand [required] information" because "the State conceded during the postconviction hearing that the defendant had made a prime facie showing under Bangert and that the burden had shifted to the State"). Thus, the dispositive issue is whether the State met its burden during the postconviction motion to establish that Carter's plea was knowingly, intelligently, and voluntarily entered.

¶ 13 The State may rely on the totality of the evidence to meet its burden, including testimony of the defendant and defense counsel, the plea questionnaire and waiver of rights form, and transcripts of prior hearings. Brown, 2006 WI 100, ¶40. However, at the postconviction hearing, the State presented no evidence to show that Carter understood the essential elements of attempting to elude when he entered his guilty plea, instead relying on the records of the hearings leading up to Carter's plea and its doubts as to the credibility of Carter's testimony that he did not understand the "knowingly" element of attempting to elude.

¶ 14 It is undisputed that the...