State v. Damaske
| Decision Date | 28 May 1997 |
| Docket Number | No. 96-1762-CR,96-1762-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Craig DAMASKE, Defendant-Appellant. d . Oral Argument |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Warren D. Weinstein, Assistant Attorney General. There was oral argument by Warren D. Weinstein.
Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.
Craig Damaske appeals from a judgment, entered on a "no contest" plea, convicting
him of one count of second-degree sexual assault, see § 940.225(2)(a), STATS., and from the trial court's order denying his motion for postconviction relief. 1 He claims: (1) that his request-for-substitution-of-judge [212 Wis.2d 176] filed against the Honorable Diane S. Sykes prevented her from hearing his case; (2) that the trial court erred in denying his motion to withdraw his plea; (3) that the trial court erred in considering evidence during the sentencing hearing that Damaske had previously sexually assaulted other women; and (4) that he did not have effective assistance of counsel. We affirm.
A criminal complaint charging Damaske with four counts of second-degree sexual assault was filed on May 3, 1995. It alleged that a young woman went to a tavern where Damaske worked to apply for a job as an exotic dancer at a stag party he was planning for a friend. Later, according to the complaint, after Damaske and the woman went to a number of other taverns, they returned to Damaske's tavern where she auditioned for the job. The complaint alleged that Damaske raped the woman during the audition--engaging in three different acts of penis-to-vagina penetration, and one act of tongue-to-vagina penetration. All the time, the complaint charged, the woman told Damaske " 'no' " and " 'stop it' " "but did not resist because she feared the defendant would harm her." On May 15, 1995, the State filed an Information that charged all four counts.
On May 22, 1995, Damaske's lawyer and the prosecutor appeared before the Honorable David A. Hansher for a scheduling conference. Judge Hansher's clerk advised them that August 21, 1995, would be the date for the final pretrial conference, and that the trial would start on August 30, 1995. Judge Hansher then told them that the Honorable Diane S. Sykes would preside over the pretrial conference and the trial, but that he, Judge Hansher, was willing to take Damaske's plea if he wanted to enter one before August 1. 2 Damaske was not present. When he appeared later that afternoon, Judge Hansher reiterated: "Make sure your client knows it goes trial [sic ] before Judge Sykes in a different building." Damaske filed his substitution request against Judge Sykes on August 10, 1995.
Damaske filed a motion in limine to exclude "other acts" evidence authorized by RULE 904.04(2), STATS. 3 The State, on the other hand, sought an order in limine under On August 21, 1995, Judge Sykes denied Damaske's request for substitution as untimely because he had "actual notice" of the reassignment from Judge Hansher on May 22. Judge Sykes also granted Damaske's motion to adjourn the trial to permit him to review the material that the State sought to have admitted under RULE 904.04(2), STATS. The trial was set for October 23, 1995. At a pretrial hearing on September 12, 1995, Judge Sykes granted the State's motion in limine to permit introduction of the prior sexual assaults under RULE 904.04(2).
RULE 904.04(2) permitting the introduction of evidence that Damaske had raped three other women, at the tavern and at his residence, in 1983 and 1986. Damaske was never charged in connection with those alleged incidents.
At an October 13, 1995, pretrial conference, the parties told Judge Sykes that they had plea-bargained the case: Damaske would plead "no contest" to one count, the other counts would be dismissed; the State would recommend the maximum penalty of ten years in prison, and the trial court would order a presentence report. After hearing from the victim, who told Judge Sykes that she did not object to the plea bargain, Judge Sykes adjourned the case until October 23, 1995, for entry of Damaske's plea.
On October 23, 1995, after going through an extended personal colloquy with Damaske, as required by § 971.08(1), STATS., and after making certain that Damaske understood that she could sentence him to prison for ten years and that the State was recommending such a sentence, Judge Sykes accepted Damaske's "no contest" plea, and remanded him into custody until the sentencing date, which was set for November 17, 1995. On November 17, 1995, sentencing was adjourned because Damaske had not cooperated with the presentence writer, apparently on the advice of lawyers who now represent him on this appeal. 4 Damaske reaffirmed, however, that he wanted to keep the lawyer who was then representing him, and told Judge Sykes that he would cooperate with the presentence writer. The matter was adjourned to December 8, 1995, for sentencing.
On December 8, 1995, Damaske appeared before Judge Sykes for sentencing. Damaske's lawyer affirmed that he had reviewed the presentence report with Damaske and that they had no corrections. Damaske's lawyer objected, however, to the trial court's consideration for sentencing of the evidence it had ruled admissible under RULE 904.04(2), STATS. The trial court rejected Damaske's objection, noting correctly:
The case law is clear that the state can submit uncharged, unproven offenses, dismissed Damaske requested that the sentencing be adjourned, which Judge Sykes granted. The case was adjourned until January 5, 1996.
cases and so on all for consideration for what they are worth in terms of the Court fashioning an appropriate sentence.
On January 5, 1996, a different prosecutor appeared on the State's behalf, and Damaske objected because the prosecutor's sister had an office-sharing arrangement with the lawyer representing Damaske. Judge Sykes determined that there was no conflict, a ruling that is not challenged on this appeal, and denied Damaske's request to have the original prosecutor appear. Judge Sykes again asked Damaske's attorney whether he had reviewed the presentence report with Damaske and, if so, whether there were "any factual corrections that need to be made to the pre-sentence itself." Damaske's attorney replied that "there is really nothing" other than some typographical errors that had already been mentioned. The presentence report did not mention Damaske's alleged prior sexual assaults.
During the January 5th sentencing hearing Judge Sykes heard from a woman who claimed that Damaske had brutally raped her in 1986, and how that had affected her. Judge Sykes also heard from the victim in this case, and how the rapes had affected her. After statements by both the State and Damaske's lawyer, Damaske attacked the fairness of the proceeding:
Well, I would like to say that these whole court proceedings have been totally unfair. Starting out with four counts that I am allegedly charged with it is almost impossible for a middle class person to defend himself. It is almost impossible. Everybody in the jail, the pod, gets a free attorney. This is like $40,000. You're forced to plead no contest. You're forced by the state and the proceedings.
Everything [Damaske's attorney] motioned that he asked for was denied. He did not get one motion granted to him. But [the prosecutor], everything he asked for the Court was with open arms....
Nobody ever said [one of the lawyers representing Damaske on this appeal] was my attorney. [The lawyer then representing Damaske] has been on my left side ever since this thing started. If I knew there was going to be a trial today, that my attorney could not question these people, these so called witnesses I would not have ever plead no contest. I am an innocent man. That's all I have to say.
In response, Judge Sykes gave Damaske a chance to confer with his lawyer to see if Damaske was going to stand by his plea. After conferring with his lawyer, Damaske indicated that he wanted to withdraw his "no contest" plea. Damaske's lawyer responded that he would seek to withdraw from the case if Damaske withdrew his plea. Judge Sykes set the matter down for further proceedings on January 19, 1996, during which time Damaske could be evaluated by the office of the State Public Defender to see whether he qualified for its representation. Judge Sykes set January 12th as the date by which Damaske would have to file his motion to withdraw his plea, and by which Damaske's lawyer would have to file his motion to withdraw from the case.
On January 30, 1996, Judge Sykes summarized what had happened since January 5:
When we were last in court, the case was scheduled for sentencing....
[Damaske] indicated a desire ... to withdraw his no contest plea and we scheduled the matter for further proceedings accordingly, as well as a deadline for filing of that motion.
[Damaske's attorney] announced his intention, if that motion was going to go forward, to move to withdraw from the case because of conflict of interest created by the situation. Nothing was filed prior to the next court date. That date had to be rescheduled to today. We were informed that the sentencing was going to proceed. The defendant had changed his mind back again and wished to remain in the same posture that the case was in when it was here previously, that is, scheduled Damaske's lawyer explained what had happened:
for sentencing and wished to proceed to sentencing, and then this morning there was filed a pro se motion to withdraw the no contest...
To continue reading
Request your trial
-
State v. Cole
...Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986); State v. Minniecheske, 127 Wis. 2d 234, 378 N.W.2d 283 (1985); State v. Damaske, 212 Wis. 2d 169, 567 N.W.2d 905 (Ct. App. 1997), review denied 212 Wis. 2d 689, 569 N.W.2d ¶ 59. Since Cole, by his guilty plea, waived his right to claim that Wi......
-
State v. Shallcross
...he cannot seek plea withdrawal on the ground that he lacked the documents when he entered his pleas. See State v. Damaske 212 Wis.2d 169, 192–93, 567 N.W.2d 905 (Ct.App.1997) (defendant who learned before sentencing that circuit court would consider statements from alleged victims at senten......
-
State v. Hanson
...all non-jurisdictional defenses and defects. State v. Bangert, 131 Wis. 2d 246, 293, 389 N.W.2d 12 (1986); State v. Damaske, 212 Wis. 2d 169, 188, 567 N.W.2d 905 (Ct. App. 1997). Wisconsin courts have recognized the waiver rule for a long time. See State v. Princess Cinema of Milwaukee, Inc......
-
State v. Harrison
...that a substitution request that has been granted is nevertheless subject to forfeiture, the State relies on State v. Damaske, 212 Wis.2d 169, 567 N.W.2d 905 (Ct.App.1997).21 According to the State, Damaske, which was decided five years after Austin, is inconsistent with Austin.¶ 65 We conc......