State v. Gray, 97-1754-CR
| Decision Date | 15 July 1998 |
| Docket Number | No. 97-1754-CR,97-1754-CR |
| Citation | 584 N.W.2d 233,221 Wis.2d 221 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Tommie S. Gray, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Ozaukee County: THOMAS R. WOLFGRAM, Judge. Affirmed.
Before Snyder, P.J., Brown and Anderson, JJ.
Tommie S. Gray appeals pro se from a judgment of conviction of eluding a police officer, first-degree recklessly endangering safety as a habitual criminal, and obstructing a police officer, and from an order denying his postconviction motion to withdraw his plea. Gray argues that for various reasons, including deficient trial counsel, he should be permitted to withdraw his guilty plea to the charge of first-degree recklessly endangering safety and that he was entitled to an evidentiary hearing on his postconviction motion. We affirm the judgment and the order.
Gray was observed driving at an excessive speed on an interstate highway. He stopped his vehicle in response to the state trooper's signal to pull over, but he sped away as the trooper approached his vehicle. A chase ensued during which Gray operated his vehicle at speeds in excess of 100 miles per hour, wove in and out of 4:00 p.m. traffic, and passed on the right-hand shoulder. Eventually, Gray pulled over and fled on foot.
In order to withdraw a guilty plea after sentencing, a defendant must show that a manifest injustice would result if the withdrawal were not permitted. See State v. Booth, 142 Wis.2d 232, 235, 418 N.W.2d 20, 21 (Ct.App.1987). The defendant bears the burden to establish manifest injustice by clear and convincing evidence. See id. at 237, 418 N.W.2d at 22. A motion to withdraw a plea is addressed to the trial court's discretion and we will reverse only if the trial court has failed to properly exercise its discretion. See id.
Ineffective assistance of counsel is a recognized factual scenario that could constitute "manifest injustice." See State v. Washington, 176 Wis.2d 205, 213-14, 500 N.W.2d 331, 335 (Ct.App.1993). Determining whether a defendant who has entered a plea has been denied effective assistance of counsel requires the application of a two-part test. See State v. Littrup, 164 Wis.2d 120, 135, 473 N.W.2d 164, 170 (Ct.App.1991). The first half of the test considers whether trial counsel's performance was deficient. See id. If counsel's performance is found to be deficient, the second half of the test considers whether the deficient performance prejudiced the defense. See id. To prove prejudice, the defendant must show there is a reasonable probability that, but for counsel's errors, he or she would not have pled to the charges and would have insisted on going to trial. See State v. Harvey, 139 Wis.2d 353, 378, 407 N.W.2d 235, 246 (1987).
The standard of review we utilize for determining whether trial counsel's conduct was ineffective is a mixed question of fact and law. See id. at 376, 407 N.W.2d at 245. The trial court's findings of what counsel did or did not do and the basis for the challenged conduct are findings of fact that will be upheld unless they are clearly erroneous. See id. However, whether counsel's conduct deprived the defendant of the effective assistance of counsel is a question of law that we review without deference to the trial court. See id.
Gray claims that trial counsel was ineffective in advising him to enter a guilty plea without informing him that intent to do harm was an element of the offense of first-degree recklessly endangering safety. 1 This claim, as well as many of Gray's other claims for plea withdrawal, rests on his belief that because he did not intend to harm any person and no one was harmed, he lacked the requisite intent to be found guilty of first-degree recklessly endangering safety.
There are three elements to the offense of first-degree recklessly endangering safety under § 941.30(1), STATS: (1) the defendant endangered the safety of another human being (2) by criminally reckless conduct and (3) that the circumstances of his or her conduct showed utter disregard for human life. See State v. Holtz, 173 Wis.2d 515, 518, 496 N.W.2d 668, 669 (Ct.App.1992). There is no requirement that the defendant intended harm to anyone. See State v. Kanarowski, 170 Wis.2d 504, 510, 489 N.W.2d 660, 662 (Ct.App.1992).
Gray misreads State v. Dolan, 44 Wis.2d 68, 72, 170 N.W.2d 822, 824 (1969), as holding that a general "intention to do harm" is an element of the offense of first-degree recklessly endangering safety. The description of the offense in Dolan has been considered overbroad and not specifically related to the "depraved mind" element which is equated with the third element noted above--that the defendant's conduct showed utter disregard for human life. 2 See Wagner v. State, 76 Wis.2d 30, 47, 250 N.W.2d 331, 341 (1977). Indeed the "depraved mind" element does not
require the existence of a[ny] particular state of mind in the actor at the time of the crime but only requires that there be conduct imminently dangerous to human life, which conduct evinces a depraved mind. The qualities of conduct which render it imminently dangerous and evincing a depraved mind regardless of life are to be found in the conduct itself and in the circumstances of its commission. [T]he only intent necessary for the purposes of establishing the element of "depraved mind" is the intent to do the act and not the intent to cause any harm.
State v. Blanco, 125 Wis.2d 276, 281, 371 N.W.2d 406, 409 (Ct.App.1985) (quoted sources omitted).
Moreover, Dolan itself approved of the then-existing standard jury instruction, WIS J I--CRIMINAL 1345, which illustrates that the elements are not focused on the defendant's internal state of mind but rather simply on what he or she did. See Blanco, 125 Wis.2d at 281, 371 N.W.2d at 409. The approved instruction provided in part:
The depravity of mind referred to exists when the conduct endangering the safety of another demonstrates an utter lack of concern for the life and safety of another and for which conduct there is no justification or excuse. It is not necessary that there be an intent to endanger the safety of another, but it is sufficient if the safety of another is endangered by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life.
Dolan, 44 Wis.2d at 74 n. 2, 170 N.W.2d at 825.
Inasmuch as a general intent to do harm is not an element of the offense of first-degree recklessly endangering safety, Gray's trial counsel was not deficient by not suggesting that Gray lacked the requisite intent to be convicted if the matter had gone to trial. Trial counsel did not render assistance under a mistaken view of the law. 3
Gray's other claims of ineffective counsel are that counsel failed to appear at several status hearings, failed to keep in touch with Gray, allowed personal problems to interfere with his representation, and failed to negotiate with the prosecution. Although Gray suggests that his confidence in his attorney was undermined, he has not demonstrated that had counsel appeared and been in more frequent contact that Gray would have insisted on going to trial. Indeed, it was Gray himself who indicated to the court his desire to enter a guilty plea in order to "get this over with." Gray, aware of and apparently unhappy about the alleged inattentiveness of trial counsel, indicated a desire to proceed pro se but he did not follow through on the request. Rather, Gray entered his guilty plea. There is no connection between the alleged deficiencies of trial counsel and Gray's decision to enter a guilty plea. 4
Gray contends that his plea was not properly entered because he denied an element of the offense--an intent to do harm. 5 We have already explained that an intent to do harm is not an element of the offense of first-degree recklessly endangering safety. 6 The trial court was not obligated to reject Gray's plea because he denied any intent to harm anyone. Nor did the trial court's failure to ascertain Gray's understanding that an intent to harm was an element of the offense render the plea colloquy inadequate. Gray's alleged failure to understand a nonexistent element of the offense is of no consequence to the validity of the plea. 7
Finally, that Gray denied an intent to harm anyone did not negate a factual basis for his plea. The complaint was used as a factual basis for Gray's plea. It establishes that by fleeing police at an excessive speed on a public interstate highway, weaving between other vehicles and passing on the shoulder, Gray engaged in criminally reckless conduct which endangered the safety of others and showed a disregard for human life. It is ridiculous to suggest that Gray did not act in disregard for human life because he slowed down periodically to save himself from collision and eventually pulled off the road rather than slamming into another police car in an attempt to pass. Prior to such action, Gray's conduct had already crossed the threshold for endangering safety. See Holtz, 173 Wis.2d at 520, 496 N.W.2d at 670 (). The factual basis was adequate to establish the elements of the offense. 8
Gray argues that the trial court erred in denying his request to proceed pro se. Apparently Gray contends that because he was forced to proceed with previously retained counsel, he could not make the choice to proceed to trial and, therefore, his plea was involuntary.
When presented with Gray's request to proceed pro se, the trial court attempted to impress upon Gray...
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