State v. Francis

• Decision Date: 15 June 2005
• Docket Number: No. 2004AP1360-CR.,2004AP1360-CR.
• Citation: 2005 WI App 161,285 Wis.2d 451,701 N.W.2d 632
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jennifer E. FRANCIS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

285 Wis.2d 451

2005 WI App 161

701 N.W.2d 632

STATE of Wisconsin, Plaintiff-Respondent, v. Jennifer E. FRANCIS, Defendant-Appellant.¹

No. 2004AP1360-CR.

Court of Appeals of Wisconsin.

Submitted on briefs April 14, 2005.

Decided June 15, 2005.

On behalf of the defendant-appellant, the cause was submitted on the brief of Hans P. Koesser of Koesser Law Offices, S.C. of Kenosha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sally L. Wellman, assistant attorney general.

Before Brown, Nettesheim and Snyder, JJ.

¶ 1. BROWN, J.

Jennifer E. Francis appeals from a judgment of conviction and an order denying her motion for postconviction relief. The basis for the conviction arose out of an attempt to commit "suicide by cop" by taking hostages at a Kenosha tavern. Francis initially entered joined pleas of not guilty and not guilty by reason of mental disease or defect, i.e., insanity. She later accepted a plea bargain in which she pled guilty to several counts and no contest to another. Francis offers a host of reasons why we should permit her to withdraw these subsequent pleas, but the only argument we deem to be of any arguable merit is her contention that the circuit court erred when it accepted her pleas of guilty and no contest without conducting a personal colloquy to ensure that she waived her NGI plea knowingly, voluntarily, and intelligently. We reject this argument. Courts engage in personal colloquies in order to protect defendants against violations of their fundamental constitutional rights. Neither the federal constitution nor our state constitution confers a right to an insanity defense or plea. The court therefore had no obligation to personally address Francis with respect to the withdrawal of her NGI plea.

¶ 2. On July 14, 2001, Francis, after drinking heavily, obtained a gun from a recent boyfriend's apartment, intending to commit suicide. Fearing she would not succeed in killing herself, she entered Rickie's Greyhound Tavern, intending to cause an altercation that would induce police officers to fatally shoot her. After several more drinks, she started an argument by removing batteries from a patron's cell phone and a tavern phone and refusing to return them. Francis pulled the pistol out of her purse and began brandishing it at other guests and employees, threatening to kill them. She also locked the doors of the tavern and demanded that the other patrons hand over their cell phones and batteries.

¶ 3. One man eventually managed to strike Francis from behind with a pool cue. He and several other patrons wrestled her to the ground, overpowered her, and wrested the gun away. They summoned the police.

¶ 4. Within the next thirteen days, the State committed Francis pursuant to WIS. STAT. ch. 51 (2003-04).² She spent two weeks at St. Luke's Hospital and then was discharged to the Kenosha County Jail.

¶ 5. The circuit court bound Francis over for trial at the conclusion of an August 7 preliminary hearing. The State filed a twenty-four-count information. These counts included one count of disorderly conduct using a dangerous weapon, ten counts of intentionally aiming and pointing a firearm at a person, ten counts of first-degree recklessly endangering safety with a dangerous weapon, two counts of attempted armed robbery, and one count of battery.

¶ 6. At the arraignment on September 14, Francis entered pleas of not guilty and not guilty by reason of mental disease or defect. The court also ordered a mental examination of Francis. The order asked the examining doctor to explore Francis' mental responsibility at the time of the July 14 incident.

¶ 7. A November 21 hearing addressed certain of Francis' mental health issues. Francis had been moved to the county jail by this time, and counsel complained that the jail doctor had taken her off of the medicine her personal doctor had prescribed and expressed concern that the jail staff's practice of isolating her when she expressed suicidal urges or feelings of depression was not adequately addressing her treatment needs. Francis' counsel also acknowledged receipt of the examiner's report and requested an opportunity to review and discuss it with Francis before deciding whether to request another evaluation.

¶ 8. The report concluded that Francis had difficulties resulting from depression, alcohol dependence and intoxication, and possibly another disorder at the time she committed the offenses. The report also concluded, however, that these disorders did not impair her psychological functioning to such a degree as to diminish her mental responsibility for her acts. The examiner opined that Francis did not lack capacity either to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of the law. He stated, "It is my opinion that her psychopathology did not relate to the alleged crime in a manner that would satisfy a special plea."

¶ 9. Although not specifically asked by the court to address Francis' current mental status or competency to proceed, the examining doctor also made several observations relevant to that issue. He first observed:

At the beginning of my interview, I explained the purpose of the evaluation to Ms. Francis. I described the issue of exculpatory insanity, a bifurcated trial process, where information obtained from her would be sent, and what may happen to her depending upon the court's adjudication of this issue. She said that she understood those comments and, in fact, she had no evident difficulty understanding them. She said that she had spoken to her attorney about the evaluation and my comments were consistent with her expectations.

The examiner also remarked that Francis was "alert, responsive and cooperative with all aspects of the interview procedures" and "was quite conversational and, thus, an easy source of relevant information." Finally, the report noted, "Throughout the interview, her expressed thoughts were consistently relevant and coherent. No delusional ideation was elicited."

¶ 10. The case had been scheduled for a jury trial on January 28, 2002. However, the State offered Francis a plea bargain. In return for a plea of no contest to one count of attempted armed robbery and a plea of guilty to six of the first-degree reckless endangerment charges, the State would reduce those offenses from first-degree to second-degree reckless endangerment. It would also reduce the remaining four reckless endangerment charges from first to second degree. They were to be read in for sentencing purposes and dismissed. The second count of attempted armed robbery was also to be dismissed and read in. Moreover, the State would dismiss outright the remaining counts, which comprised the disorderly conduct, battery, and the ten aiming and pointing a firearm counts.

¶ 11. Counsel discussed the advantages and disadvantages of a plea bargain versus a trial and encouraged Francis to accept the State's offer. This deal reduced Francis' prison-time exposure by several decades. Moreover, counsel believed the doctor's report revealed a lack of support for a viable NGI defense. Francis accepted the deal and entered her new pleas of no contest and guilty on January 28.

¶ 12. On March 12, 2004, Francis filed her motion for postconviction relief. She alleged several grounds on which the circuit court should permit her to withdraw her subsequent pleas. These included the following: (1) the circuit court erred when it accepted her pleas of guilty and no contest without ascertaining via a personal colloquy that Francis intended to abandon her earlier NGI plea; (2) trial counsel rendered ineffective assistance by not requesting a competency evaluation; (3) her pleas were not knowingly, intelligently, and voluntarily entered because trial counsel coerced her to enter them; (4) her pleas were not knowing, intelligent, and voluntary because neither the court nor trial counsel properly explained to her the essential elements of each charge; and (5) Francis should be allowed to withdraw her pleas because she asked trial counsel to do so but he refused and told her she had relinquished all of her rights.

¶ 13. The circuit court held a postconviction hearing on April 29. The court denied her motion in all respects. Francis appeals on all grounds.

¶ 14. We will address the NGI argument first, given that this is the lone issue with arguable merit. Whether the courts must engage defendants in a personal colloquy before allowing them to abandon an NGI plea requires us to determine the applicable legal rules. This task presents a question of law. See Steven V. v. Kelley H., 2003 WI App 110, ¶ 29, 263 Wis. 2d 241, 663 N.W.2d 817

(determining what legal rules to apply involves a question of law), aff'd on other grounds, 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856. We have not encountered this precise issue in Wisconsin before, but we find three lines of cases helpful in resolving this issue of first impression.

¶ 15. The first line of cases addresses the rationale behind personal colloquies; these cases recognize the important role such colloquies play in protecting fundamental constitutional rights. The United States Supreme Court has recognized the importance of personal colloquies since at least 1969 when it decided Boykin v. Alabama, 395 U.S. 238 (1969). In Boykin, the Court reversed the defendant's conviction because the record did not affirmatively demonstrate that he voluntarily and intelligently entered his pleas of guilty in five cases of robbery. Id. at 240, 242, 244. The Court observed, "So far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court." Id. at 239. Later in the opinion, it proclaimed:

What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to

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