State v. Gruenberg, No. 2007AP381 (Wis. App. 3/27/2008)

• Decision Date: 27 March 2008
• Docket Number: No. 2007AP381.,2007AP381.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Darrin A. Gruenberg, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

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State of Wisconsin, Plaintiff-Respondent, v. Darrin A. Gruenberg, Defendant-Appellant.

No. 2007AP381.

Court of Appeals of Wisconsin, District IV.

Opinion Filed: March 27, 2008.

APPEAL from an order of the circuit court for Green County: JAMES R. BEER, Judge. Affirmed.

Before Vergeront, Lundsten and Bridge, JJ.

¶ 1 PER CURIAM.

Darrin Gruenberg appeals an order which denied most of his postconviction claims for relief under WIS. STAT. § 974.06 (2005-06).¹ We affirm the order for the reasons discussed below.

¶ 2 In May 1999, Gruenberg entered no-contest pleas to three counts of burglary to a building or dwelling, as a repeat offender, in exchange for the dismissal of several other counts. The State offered the statements and reports of the police as set forth in the complaint as a factual basis for the pleas, and the court found that the record supported the crimes charged.

¶ 3 In July 2006, Gruenberg filed a Wis. Stat. § 974.06 motion with several supplements seeking to set aside his convictions on multiple grounds. He claimed there was no factual basis to support counts 2 and 4; that the plea colloquy was defective in that the court misinformed him about the maximum penalty for count 6 and failed to advise him either that he could refuse counsel or that a lawyer might find defenses he was unaware of; and that counsel provided ineffective assistance by failing to challenge the timeliness of the initial appearance and the violation of his Miranda² rights.

¶ 4 At the hearing, Gruenberg attempted to argue the last two points on their own merits, rather than within the framework of ineffective assistance. He argued that counsel was ineffective for allowing him to enter pleas on charges for which there was no factual basis shown in the complaint. Gruenberg also made several requests for the appointment of counsel, which were denied. The trial court vacated count 4,³ but denied Gruenberg's other claims for relief and reconsideration, and Gruenberg now appeals.

¶ 5 First, Gruenberg claims that he was improperly denied counsel on his postconviction motion. However, the United States Constitution guarantees counsel in a criminal case only through an appeal as of right. See Douglas v. California, 372 U.S. 353, 356-357 (1963). There is no right to counsel for a postconviction motion brought under Wis. Stat. § 974.06, after the right to a direct appeal has expired. See State v. Alston, 92 Wis. 2d 893, 895, 288 N.W.2d 866 (Ct. App. 1979).

¶ 6 Second, Gruenberg asserts that he was never advised of his Miranda rights, which he further contends rendered his arrest unlawful. As the State correctly points out, however, Gruenberg waived the right to challenge any nonjurisdictional defects by entering his guilty pleas. State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886. Neither a Miranda violation nor an unlawful arrest constitutes a jurisdictional defect. Rather, they are typically grounds for a suppression motion. Nor can Gruenberg raise this issue in the context of ineffective assistance of counsel at this stage, because he did not preserve it at his postconviction hearing by asking counsel about his failure to raise the issue.

¶ 7 Third, Gruenberg argues that the search of his apartment was unlawful due to a defective warrant. This suppression issue was also waived by the entry of his pleas, and was not preserved in the context of an ineffective assistance of counsel claim.

¶ 8 Fourth, Gruenberg argues that counts 2 (the Ready Mix count) and 6 (the Monroe Construction count) were unsupported by a factual basis. Because these contentions go to the validity of the pleas, they are not waived by the pleas. See generally State v. Krieger, 163 Wis. 2d 241, 250-51, 471 N.W.2d 599 (Ct. App. 1991). However, Gruenberg failed to preserve his challenge to the factual basis for count 6, because he challenged only the factual bases for counts 2 and 4 at his postconviction hearing. With regard to count 2, the record contained the allegation in the complaint that Ready Mix had been burglarized, and an affidavit stating that a credit card which had been reported stolen from the business had been recovered on Gruenberg's person. In addition, Gruenberg had blue fingers from detection powder which linked him to the robbery of Monroe Construction right around the corner from Ready Mix. These facts were sufficient to create an inference that Gruenberg had committed the Ready Mix burglary as well as the Monroe Construction burglary. Contrary to Gruenberg's apparent belief, it was not necessary for the facts in the complaint to prove beyond a reasonable doubt that he had committed the Ready Mix burglary. He waived his right to have the State produce evidence rising to that level of proof by entering his plea. The information before the court was sufficient to satisfy the lower standard of providing a simple factual basis to believe that Gruenberg had in fact committed the charged crimes.

¶ 9 Fifth, Gruenberg makes a related claim that the allegations in the complaint were insufficient to establish the elements of burglary. He points out that a complaint which fails to allege all of the elements of a crime known to law is jurisdictionally void and that such a jurisdictional problem cannot be waived. We note, however, the complaint in this case did allege each element of burglary with respect to each count.⁴ Any insufficiency could only be in the subsequent factual portion of the complaint, and a challenge to the factual sufficiency of the complaint can be waived, as it was here, by the entry of a plea.

¶ 10 Sixth, Gruenberg argues that he was unconstitutionally detained for an unreasonably long period before having a...