State v. Griffin, No. 2007AP2781-CR (Wis. App. 6/17/2008)
| Decision Date | 17 June 2008 |
| Docket Number | No. 2007AP2781-CR.,2007AP2781-CR. |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Willie D. Griffin, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
APPEAL from a judgment and an order of the circuit court for Milwaukee County: PAUL R. VAN GRUNSVEN, Judge. Affirmed.
Willie D. Griffin appeals from an order denying his motion to withdraw his guilty pleas after sentencing based on ineffective assistance of trial counsel. Griffin argues that the trial court erroneously denied his motion without granting him a Machner2 hearing. We affirm.
¶ 2 As part of a plea negotiation involving ten misdemeanor counts in seven separate criminal cases, Griffin pled guilty to six counts of violating a domestic abuse injunction, one count of bail jumping (relating to a violation of the no-contact order while he was on bail for one of the previous injunction violations), and had three counts dismissed and read in for sentencing. During his plea hearing, Griffin indicated displeasure with his counsel, responding "Not really" to the trial court's inquiry, "Are you satisfied with the way your attorney is representing you?" Upon the trial court's further inquiry, Griffin stated, The following discussion then took place:
The court then inquired whether it could use the facts as stated in the criminal complaints as the factual basis for Griffin's pleas, to which Griffin's counsel answered yes, "except for all of the facts in the case ending in 383 as to Count I" in that Griffin admitted to being at the victim's residence but denied breaking her patio door. The trial court specifically asked if Griffin "admit[ted] to having contact at the location as stated in the complaint in violation of the domestic abuse injunction and in violation of the terms and conditions of bond" and Griffin's counsel answered, "Correct." The trial court then accepted Griffin's pleas.
¶ 3 Thereafter, as the court and parties discussed what would be needed for the sentencing hearing, Griffin requested that he be allowed to withdraw his pleas. The trial court then adjourned the hearing to determine which case would continue to trial that day and to give Griffin the opportunity to talk with his counsel.
¶ 4 The trial court reconvened in the late afternoon that same day. The trial court asked Griffin if he still wished to withdraw his pleas and Griffin stated that he wanted to plead guilty. The court then set a sentencing date for one week later where the trial court sentenced Griffin to nine months in jail (no Huber release privileges) on the violation of injunction count, consecutive to any other sentence, and nine months (with Huber privileges) on the bail jumping count, to be served consecutively to the sentence for count one.3
¶ 5 Through appellate counsel, Griffin filed a motion to withdraw his guilty pleas based upon his trial counsel's failure to investigate his alibi for the incident underlying the two counts in this case. The motion set forth the grounds for the withdrawal, an ineffective assistance of counsel claim, as follows:
1. [Griffin] notified his counsel that he was at work during the time at which the offense is alleged to have occurred and that she should contact his supervisor to confirm that he was "punched in";
2. his counsel performed deficiently when she did not investigate his defense of an alibi nor give notice of his alibi;
3. without the alibi defense and without notice of the alibi to the state, he pled guilty to the charge at his counsel's recommendation;
4. not having an alibi defense prejudiced [Griffin] who pled guilty and was sentenced to nine months consecutive to any other sentence; and
5. [Griffin] would have asked for a trial if his defense counsel had notified the state of his alibi that would testify at trial that he was at work and could not have committed the alleged offense.
¶ 6 The trial court held a hearing on the motion to withdraw plea, including whether Griffin had presented sufficient facts to warrant withdrawal based on an ineffective assistance of counsel claim. The trial court found that Griffin had made only conclusory allegations in his motion, was therefore not entitled to a Machner hearing and, based on the record, denied the motion. Griffin appealed.
I. Plea withdrawal
¶ 7 A postconviction motion to withdraw a plea is within the discretion of the trial court. State v. Duychak, 133 Wis. 2d 307, 312, 395 N.W.2d 795 (Ct. App. 1986). We will reverse only upon an erroneous exercise of the trial court's discretion. State v. Thomas, 2000 WI 13, ¶13, 232 Wis. 2d 714, 605 N.W.2d 836
¶ 8 When a defendant moves to withdraw a plea after sentencing, the defendant "carries the heavy burden of establishing, by clear and convincing evidence, that the trial court should permit the defendant to withdraw the plea to correct a `manifest injustice.'" State v. Thomas, 232 Wis. 2d 714, ¶16; State v. Schill, 93 Wis. 2d 361, 383, 286 N.W.2d 836 (1980). "The `manifest injustice' test requires a defendant to show `a serious flaw in the fundamental integrity of the plea.'" Thomas, 232 Wis. 2d 714, ¶16 (citation omitted).
¶ 9 Ineffective assistance of counsel has been recognized as a manifest injustice requiring a guilty plea to be withdrawn. State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996). A trial counsel's failure to investigate an alibi can constitute ineffective assistance. State v. Crooks, 2006 WI App 262, ¶¶63-65, 297 Wis. 2d 633, 726 N.W.2d 322.
¶ 10 Under WIS. STAT. § 971.08(1)(b), when accepting a guilty plea, a court must make sufficient inquiries to satisfy it that the defendant did in fact commit the crime. The purpose for this requirement is to make certain the defendant is pleading guilty to a crime he actually committed. See State v. Lackershire, 2007 WI 74, ¶33, 301 Wis. 2d 418, 734 N.W.2d 23 . The defendant's admitting the facts supporting each element of the crime charged, even if he or she does not agree with other, non-dispositive facts included in these documents or testimony, is also sufficient to support a plea. Cf. State v. Black, 2001 WI 31, ¶16, 242 Wis. 2d 126, 624 N.W.2d 363 (); Thomas, 232 Wis. 2d 714, ¶¶19-23. We review a trial court's determination of a sufficient factual basis under a clearly erroneous standard. State v. Harvey, 2006 WI App 26, ¶10, 289 Wis. 2d 222, 710 N.W.2d 482 ().
¶ 11 Here, the trial court conducted a thorough plea colloquy.4 The court asked whether it could use the criminal complaint as a basis for Griffin's guilty pleas and Griffin agreed that the facts in the complaint—that alleged that he was with the victim on the dates specified, in violation of the injunction and no-contact order—were correct. The plea colloquy further demonstrates that when Griffin was informed of the crimes that he was charged with and what the maximum penalties were for those crimes, Griffin answered that he understood. Griffin, upon questioning by the court, also stated that he understood that the trial court was not bound by the sentencing recommendations, but could sentence Griffin to the maximum sentence allowable for the crimes to which he was pleading guilty. When Griffin asked to withdraw his pleas, the trial court adjourned the hearing, allowing Griffin time to speak with his counsel and upon reconvening, the court had a lengthy discussion with Griffin ensuring that Griffin did want to plead guilty. Based on our review of the record, we determine that the trial court properly accepted Griffin's guilty pleas as knowingly, voluntarily and intelligently given.
1. Ineffective assistance of counsel standard
¶ 12 In order to prove an ineffective assistance claim, the defendant must satisfy a two-part test: the defendant must prove both that counsel's performance was deficient and that the deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). Performance is deficient if it falls outside the range of professionally competent representation, Pitsch, 124 Wis. 2d at 636-37, i.e., if the attorney "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990) (citation omitted). We measure performance by the objective standard of what a reasonably prudent attorney...
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