State v. Dallas, 95-0654-CR
| Decision Date | 12 December 1995 |
| Docket Number | No. 95-0654-CR,95-0654-CR |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Londell DALLAS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before WEDEMEYER, P.J., FINE and SCHUDSON, JJ.
Londell Dallas appeals from the judgment of conviction for three counts of armed robbery, party to a crime, and from the trial court order denying his motion for postconviction relief. He argues that the trial court erred in denying his motion to withdraw his guilty plea. He also argues that his sentence was unduly harsh. We affirm.
On February 14, 1994, the juvenile court entered an order granting the State's petition for waiver of jurisdiction on five charges of armed robbery, party to a crime, and operating a motor vehicle without the owner's consent. Dallas's trial counsel in the juvenile court proceeding failed to advise Dallas of his right to appeal the order waiving jurisdiction.
On May 3, 1994, Dallas pled guilty to three charges of armed robbery, party to a crime. Dallas had a different lawyer in the adult court proceedings who also failed to inform Dallas that, by pleading guilty, he was waiving his right to appeal the juvenile court order waiving jurisdiction. On June 24, 1994, the trial court sentenced Dallas. On December 28, 1994, Dallas moved the trial court to withdraw his guilty plea.
In his postconviction motion Dallas maintained that when he entered his guilty pleas he was unaware that he was waiving his right to appeal the juvenile court order waiving jurisdiction. Thus, he contended, both his trial attorneys had provided ineffective assistance of counsel. Denying Dallas's postconviction motion, the trial court concluded "beyond a reasonable doubt that the Court of Appeals would have found that the juvenile court properly exercised its discretion in waiving jurisdiction," and, therefore, "that Dallas has not established that counsel's performance in this case prejudiced his defense."
On appeal, Dallas maintains that "a guilty plea entered without the knowledge that in so doing the defendant waives appellate rights is, as a matter of law, not a knowing and voluntary plea." Therefore, he contends, "the 'harmless error' rule does not apply to a motion to withdraw a guilty plea where the defendant is able to establish that he was actually operating under a misapprehension as to his rights." (Emphasis in original.) Accordingly, Dallas argues, the trial court erred in denying him an evidentiary hearing at which he would have had the opportunity to establish that he was actually operating under such a misapprehension.
A motion to withdraw a guilty plea after sentencing is addressed to the discretion of the trial court. See Nelson v. State, 54 Wis.2d 489, 496, 195 N.W.2d 629, 632 (1972). A trial court's discretionary determination will be upheld on appeal if it is "consistent with the facts of record and established legal principles." Lievrouw v. Roth, 157 Wis.2d 332, 358-359, 459 N.W.2d 850, 859-860 (Ct.App.1990). A defendant seeking to withdraw a guilty plea after sentencing must show by clear and convincing evidence that the plea was not knowingly and voluntarily entered and that withdrawal is necessary to prevent manifest injustice. Birts v. State, 68 Wis.2d 389, 392-393, 228 N.W.2d 351, 353 (1975).
Generally, a guilty plea waives all nonjurisdictional defects and defenses, see State v. Bangert, 131 Wis.2d 246, 293, 389 N.W.2d 12, 34 (1986). However, a defendant who pleads guilty while assuming that he or she has preserved the right to appeal has not pled in a knowing or voluntary manner. State v. Riekkoff, 112 Wis.2d 119, 128, 332 N.W.2d 744, 749 (1983). Thus, under Riekkoff, Dallas ordinarily would be permitted to withdraw his plea. We may, however, consider the merits of his argument in order to determine whether the trial court appropriately denied his motion to withdraw his guilty plea. See State v. Kazee, 192 Wis.2d 213, 220, 531 N.W.2d 332, 335 (Ct.App.1995) ().
In Kazee, the defendant also challenged the trial court's denial of his motion to withdraw his plea after sentencing. Kazee, 192 Wis.2d at 217, 531 N.W.2d at 334. When entering his Alford plea, Kazee had attempted to preserve his right to appeal from the trial court's earlier denial of his motion to change his not guilty plea to a special plea of not guilty by reason of mental disease or defect. Id. at 218-219, 531 N.W.2d at 334. We considered the merits of his claim despite what otherwise would have been a waiver by virtue of his Alford plea. We noted that the defendant has the burden "to demonstrate why the change of plea is appropriate," and that Kazee had failed to "show a basis for a plea raising the defense of not guilty by reason of mental disease or defect." Id. at 222-223, 531 N.W.2d at 336.
Similarly, in this case, Dallas maintains that he should have been allowed to withdraw his guilty plea because he did not realize that his plea waived the right to appeal the juvenile court waiver order. We agree with the State, however, that "the record in this case nevertheless conclusively demonstrates that Dallas is not entitled to relief." Indeed, in this case, we need not prolong the discussion by detailing the substantial basis for the juvenile court's order waiving jurisdiction because, as the State points out, "Dallas has not argued on this appeal ... that the circuit court was wrong in concluding that he would not have been successful on appeal of the order waiving him into adult court." Thus, even assuming that both of Dallas's trial attorneys were deficient for failing to advise him of his appellate rights, the trial court correctly...
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