State v. Harrell
| Decision Date | 15 February 1994 |
| Docket Number | No. 93-1702-CR,93-1702-CR |
| Citation | 513 N.W.2d 676,182 Wis.2d 408 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Danny G. HARRELL, Defendant-Appellant. dd |
| Court | Wisconsin Court of Appeals |
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
Danny Harrell appeals a judgment of conviction of second-degree sexual assault of a child and third-degree sexual assault and an order denying postconviction relief. Harrell contends that he is entitled to withdraw his plea of no contest because he was not adequately informed of his right to a unanimous jury verdict. Harrell also contends that he should be able to withdraw his plea because there was no factual basis for the acceptance of the plea of third-degree sexual assault. We affirm the judgment and order.
Harrell was charged with three counts of first-degree sexual assault of a child, in violation of § 948.02(1), STATS. 1 After the preliminary hearing, where the victim, C.A.W., testified, an information was filed charging Harrell with four counts of first-degree sexual assault of a child in violation of § 948.02(1).
Harrell negotiated a plea agreement that provided that the prosecutor would dismiss the four counts of first-degree sexual assault of a child and allow him to enter a plea of no contest to one count of second-degree sexual assault of a child in violation of § 948.02(2), STATS., 2 and one count of third-degree sexual assault in violation of § 940.225(3), STATS. 3 At the plea hearing, without objection from Harrell, the trial court agreed to use the probable cause section of the criminal complaint and the preliminary hearing testimony as the factual basis for Harrell's plea of no contest to these charges.
After Harrell's attorney successfully moved for substitution of attorney at Harrell's request, Harrell's new attorney filed and then withdrew a motion for withdrawal of the plea. Harrell was then sentenced. Harrell filed a postconviction motion requesting withdrawal of his plea. The motion for postconviction relief was denied, and this appeal followed.
The trial court's decision regarding the withdrawal of a plea of guilty or no contest is discretionary and will not be upset on review unless there has been an erroneous exercise of discretion. State v. Spears, 147 Wis.2d 429, 434, 433 N.W.2d 595, 598 (Ct.App.1988). A postconviction motion for the withdrawal of a plea should only be granted when necessary to correct a manifest injustice. State v. Duychak, 133 Wis.2d 307, 312, 395 N.W.2d 795, 798 (Ct.App.1986). Harrell has the burden of showing by clear and convincing evidence that withdrawal of the plea is necessary to correct a manifest injustice. See State v. Schill, 93 Wis.2d 361, 383, 286 N.W.2d 836, 846-47 (1980).
A plea of guilty that is not knowingly, voluntarily or intelligently entered creates a manifest injustice. State v. Bangert, 131 Wis.2d 246, 257, 389 N.W.2d 12, 19 (1986); see also § 971.08, STATS. 4 To satisfy due process requirements, the trial court must affirmatively establish that Harrell's no contest plea was entered voluntarily and understandingly. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); Bangert, 131 Wis.2d at 259, 389 N.W.2d at 20. "This includes a showing or an allegation and evidence which shows that the effective waiver of federal constitutional rights was knowing and intelligent." Bangert, 131 Wis.2d at 257, 389 N.W.2d at 19.
Harrell contends that the trial court did not follow the § 971.08, STATS., procedure because it did not explain his right to a unanimous jury to him, and, therefore, his plea was not knowingly, voluntarily and intelligently made. "Whenever the sec. 971.08 procedure is not undertaken or whenever the court-mandated duties are not fulfilled at the plea hearing, the defendant may move to withdraw his plea." Bangert, 131 Wis.2d at 274, 389 N.W.2d at 26. The burden initially rests with Harrell to make a prima facie showing that his plea was not accepted in conformance with § 971.08, or other mandated procedures. Bangert, 131 Wis.2d at 274, 389 N.W.2d at 26. The burden then shifts to the State to show by clear and convincing evidence that, despite an inadequate plea transcript, Harrell's plea was knowingly, voluntarily and intelligently entered. See id.
Harrell met his burden of making a prima facie showing that his plea was not accepted in conformance with § 971.08, STATS. The trial court acknowledged at the postconviction hearing that the plea hearing transcript showed that Harrell was not advised of his right to a unanimous jury verdict. Therefore, the burden shifted to the State.
Whether Harrell was advised of his right to a unanimous jury verdict is an issue of fact. The trial court's "findings of fact will not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Section 805.17(2), STATS.
The trial court based its finding on the postconviction testimony of Harrell's attorney at the time of the plea, Ronald Colwell. Colwell testified that he was an experienced criminal attorney, and that it was his "routine practice" to discuss all of the constitutional rights covered in the guilty plea questionnaire with his client, including the right to a unanimous jury verdict. The trial court was therefore entitled to infer that Colwell followed this routine with Harrell. Based on Colwell's testimony, the trial court found that Harrell was advised of his right to a unanimous jury verdict. Because this finding is supported by the evidence, the trial court's refusal to allow Harrell to withdraw his plea on this basis was not an erroneous exercise of discretion.
Harrell next contends that his plea should have been withdrawn because there is no factual basis in the record to support third-degree sexual assault, as defined by § 940.225(3), STATS. The complaint alleged four counts of first-degree sexual assault of a child, contrary to § 948.02(1), STATS. The trial court used the preliminary hearing and the probable cause section of the criminal complaint as the factual basis for the reduced charges of second-degree sexual assault of a person who has not attained the age of sixteen contrary to § 948.02(2), and third-degree sexual assault contrary to § 940.225(3). Because the eleven-year-old victim's lack of consent was not an element of the initial crimes charged, it was not alleged in the criminal complaint or the preliminary hearing. Harrell argues, therefore, that there is no factual basis for the acceptance of his plea of no contest to third-degree sexual assault because lack of consent is an element of that crime.
This issue was not raised before the trial court. Harrell contends that this court should address it nevertheless because the defect in the plea transcript constitutes "plain error." Plain error is so fundamental that a new trial or other relief must be granted even though a proper objection was not made to the trial court. State v. Sonnenberg, 117 Wis.2d 159, 177, 344 N.W.2d 95, 103 (1984). We do not have to determine whether there was plain error to address this issue. While we generally do not review an issue raised for the first time on appeal, this is a rule of judicial administration and does not affect our power to deal with the issue. Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980). Because both parties have briefed the issue and the issue is of constitutional magnitude, whether or not the acceptance of Harrell's plea violated his right to due process, we will review it. See L.K. v. B.B., 113 Wis.2d 429, 448, 335 N.W.2d 846, 856 (1983) (). Additionally, we will address the issue in the interest of judicial economy. 5
As stated, to satisfy due process requirements the trial court must affirmatively establish that Harrell's no contest plea was entered voluntarily and understandingly. See Boykin, 395 U.S. at 242, 89 S.Ct. at 1711; Bangert, 131 Wis.2d at 259, 389 N.W.2d at 20. A plea cannot be "truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). Therefore, a plea cannot be accepted unless the trial court addresses "the defendant personally and determine[s] that the plea is made voluntarily with...
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