State v. Cooper
| Decision Date | 20 June 2019 |
| Docket Number | No. 2016AP375-CR,2016AP375-CR |
| Citation | 929 N.W.2d 192,2019 WI 73,387 Wis.2d 439 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Tyrus Lee COOPER, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
387 Wis.2d 439
929 N.W.2d 192
2019 WI 73
STATE of Wisconsin, Plaintiff-Respondent,
v.
Tyrus Lee COOPER, Defendant-Appellant-Petitioner.
No. 2016AP375-CR
Supreme Court of Wisconsin.
Oral Argument: April 15, 2019
Opinion Filed: June 20, 2019
For the defendant-appellant-petitioner, there were briefs filed by Nora E. Gierke and Gierke Law LLC, Wauwatosa. There was an oral argument by Nora E. Gierke.
For the plaintiff-respondent, there was a brief filed by Lisa E.F. Kumfer, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Lisa E.F. Kumfer.
DANIEL KELLY, J.
¶1 Mr. Tyrus Lee Cooper moved the circuit court, prior to sentencing, to withdraw his guilty plea. The circuit court refused his request. Two years later, we disciplined his attorney (Michael J. Hicks) for professional misconduct that included his handling of Mr. Cooper's defense.1 Mr. Cooper believes our opinion in that disciplinary proceeding proved his counsel had provided ineffective assistance in his criminal case. That, he says, is a "fair and just reason" for withdrawing his plea. For the following reasons, we disagree.2
I. BACKGROUND
¶2 Mr. Cooper was charged with a single count of armed robbery as a party to a crime.3 The State Public Defender appointed Mr. Hicks to represent Mr. Cooper after the circuit court permitted his previous counsel to withdraw. Shortly afterwards, Mr. Cooper wrote to Mr. Hicks (in January of 2013) requesting a copy of discovery materials and raising concerns about his case—requests and concerns that he would repeat
in subsequent letters. On October 8, 2013, which was approximately two weeks before his scheduled trial, Mr. Cooper personally wrote to the circuit court to claim that Mr. Hicks was interfering with his right to aid in his defense. He said Mr. Hicks had not provided him with a copy of the discovery materials and had failed to subpoena key witnesses. He also said he had not spoken to Mr. Hicks, by phone or in person, and therefore could not be prepared for trial.
¶3 Shortly before trial, the State offered to recommend a sentence of three years of initial confinement and three years of extended supervision if Mr. Cooper pled guilty as charged. He agreed, and on October 21, 2013, the circuit court heard his plea. Prior to accepting it, the circuit court4 confirmed that Mr. Cooper understood
the plea agreement, maximum penalties, and elements of the charge. In response to the circuit court's questions, Mr. Cooper affirmatively asserted that he was aware of the constitutional rights he was waiving. The circuit court confirmed on the record that Mr. Cooper was of sound mind and capable of "freely, knowingly, and voluntarily"5 entering the plea.
¶4 The circuit court specifically asked Mr. Cooper about the allegations he made in his letter of
October 8, 2013. Mr. Cooper stated that he wanted the circuit court to take "[n]o actions" with respect to the letter and indicated that he wanted the letter "disposed of." Mr. Cooper's final statement with respect to his plea was "I fully understand. I feel confident in what I did." The circuit court set sentencing for January 9, 2014.
¶5 Approximately three weeks before sentencing, Mr. Cooper personally sent another letter to the circuit court, this time asking to withdraw his plea "due to the fact of ineffective assistance of counsel." Mr. Cooper wrote that he was unaware that Mr. Hicks had been suspended from practicing law during part of his representation.6 And he claimed Mr. Hicks lied by failing to notify him of his suspension. He also said Mr. Hicks misled him into accepting the plea by stating he was destined to lose at trial. The circuit court allowed Mr. Hicks to withdraw as counsel and rescheduled the sentencing hearing.
¶6 Mr. Cooper's newly-appointed counsel formally moved to withdraw the plea. The motion asserts that the issues raised in the October 2013 letter were not resolved before the circuit court accepted the plea. It repeats many of the concerns Mr. Cooper listed in that letter, including that Mr. Hicks had not met with him from December 2012 until October 8, 2013, to discuss his case, and that Mr. Hicks failed to provide him with a copy of discovery materials. The motion
also repeats the assertion that he had been unaware that Mr. Hicks' law license had been suspended. Finally, Mr. Cooper alleged that he did not knowingly and voluntarily enter his plea.
¶7 At the hearing on the plea-withdrawal motion, Mr. Cooper's new counsel said that if Mr. Cooper had known Mr. Hicks' license had been suspended, he would have asked for another lawyer. He also asserted that Mr. Cooper entered his plea in haste because he believed his attorney was not prepared for trial. However, Mr. Cooper's counsel also indicated that, if the circuit court granted his motion, Mr. Cooper might just enter the same plea because he was satisfied with the State's recommendation. Mr. Cooper testified at the hearing and claimed that he had believed part of the plea agreement included reducing the armed robbery charge to something with a lower maximum penalty. He did not say what he believed the reduced charge would have been. The circuit court questioned Mr. Cooper on this point, noting that the charge to which he pled had been read to
him at the plea hearing, as well as its elements and the maximum penalty, and that he had affirmatively responded that he understood and wanted to enter his plea. Mr. Cooper said he thought the circuit court was required to read the original charge, but that he would actually be convicted of a lesser offense.
¶8 The circuit court denied Mr. Cooper's motion on June 27, 2014 (a date that will have some significance to our analysis). It concluded that the plea colloquy demonstrated that Mr. Cooper knowingly, intelligently, and voluntarily entered his plea, and that the matters in the October 8, 2013 letter had been properly addressed. It also concluded that granting Mr. Cooper's motion would cause substantial prejudice to
the State. The circuit court made no factual findings regarding communications between Mr. Hicks and Mr. Cooper. In due course, the circuit court sentenced Mr. Cooper to five years of confinement and five years of extended supervision. Mr. Cooper appealed.
¶9 Two years after Mr. Cooper moved to withdraw his plea (and while his appeal was pending), we decided a disciplinary case brought by the Office of Lawyer Regulation (OLR) against Mr. Hicks. See In re Disciplinary Proceedings Against Hicks, 2016 WI 31, 368 Wis. 2d 108, 877 N.W.2d 848. After initially contesting the charges, Mr. Hicks withdrew his answer and filed a written "no contest" plea, agreeing that the referee could use the complaint's facts as a basis for identifying violations of the Rules of Professional Conduct for Attorneys.7 Id., ¶¶ 6-7. Based on that representation, the referee concluded that Mr. Hicks had engaged in nineteen acts of misconduct, including five that related to his representation of Mr. Cooper. Id., ¶¶ 6, 28.8 The OLR's complaint said that Mr. Hicks
had failed to provide requested discovery documents to Mr. Cooper and failed to notify him and the circuit court of his
license suspension for part of the time he was representing Mr. Cooper. Id., ¶¶ 23, 26. The complaint also said that Mr. Hicks did not discuss preparation for trial with Mr. Cooper, nor did he address the issues raised in Mr. Cooper's letters. Id., ¶¶ 23-24. Based on these facts, the OLR referee concluded, as a matter of law, that Mr. Hicks' misconduct "prevent[ed] [Mr. Cooper] from adequately understanding and participating in his own defense" in violation of SCR 20:1.4(a)(2).9 Hicks, 368 Wis. 2d 108, ¶ 28, 877 N.W.2d 848.
¶10 After reviewing the referee's report, we accepted his "factual findings as taken from the OLR's
complaint." Id., ¶ 39. We also agreed "with the referee that those factual findings are sufficient to support a legal conclusion that Attorney Hicks engaged in the professional misconduct set forth in the 19 counts" contained in the OLR's complaint. Id.
¶11 On appeal, Mr. Cooper argued (in part) that our decision in Hicks established that he had received ineffective assistance of counsel prior to entering his guilty plea. The court of appeals considered the well-known analytical structure we use to assess such claims10 and concluded that Mr. Cooper had failed to show the allegedly deficient performance caused him prejudice. Therefore, the court of appeals affirmed the circuit court. State v. Cooper, No. 2016AP375-CR, unpublished slip op., 380 Wis.2d 508, 2018 WL 1100986 (Wis....
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