State v. Harris, 02-2433-CR.

• Decision Date: 18 June 2003
• Docket Number: No. 02-2433-CR.,02-2433-CR.
• Citation: 266 Wis.2d 200,2003 WI App 144,667 N.W.2d 813
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Kevin HARRIS, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

266 Wis.2d 200

2003 WI App 144

667 N.W.2d 813

STATE of Wisconsin, Plaintiff-Appellant,¹ v. Kevin HARRIS, Defendant-Respondent.

No. 02-2433-CR.

Court of Appeals of Wisconsin.

Submitted on briefs April 23, 2003.

Decided June 18, 2003.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Diane M. Welsh, assistant attorney general, and James E. Doyle, attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of Steven A. Koch of Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.P., Elkhorn.

Before Nettesheim, P.J., Brown and Anderson, JJ.

¶ 1. ANDERSON, J.

The State appeals from a circuit court order granting Kevin Harris's postconviction motion to withdraw his guilty plea to the charge of first-degree sexual assault, as a repeater, of a child who had not attained the age of thirteen years contrary to Wis. STAT. § 948.02(1) (2001-02).² The State contends that the circuit court erred when it allowed Harris to withdraw his guilty plea because of the prosecutor's failure to turn over information—prior to the entry of the plea—that the child had reported being sexually assaulted by her grandfather. The circuit court did not err in its decision. Accordingly, we affirm.

Facts

¶ 2. On April 24, 2001, the State filed a criminal complaint against Harris alleging that he had sexual contact with six-year-old B.M.M. and that he had failed to comply with the terms of his bond. Harris was a thirty-one-year-old mentally ill individual with a ninth grade education. The charges were based on a report given by B.M.M. B.M.M. related that when she was looking for a friend in her neighborhood, Harris invited her into his apartment. She said that once she was in his apartment, Harris asked her if she wanted to learn what boyfriends did; he kissed her and touched her vaginal area. She said that she began to cry, left Harris's apartment, and walked home. She told her parents several days later. When contacted by the police, Harris first denied having had a child in his apartment at all. Later, he contacted the police and informed them that B.M.M. had been in his apartment and that he had touched her leg and head.

¶ 3. Harris waived his preliminary hearing on May 2, 2001. The arraignment occurred at that same time. At the arraignment, Harris entered pleas of not guilty to all of the counts, reserving his right to supplement those pleas at a later date. A twelve-person jury trial was set for August 6-8, 2001, and a status hearing date was set for June 6, 2001.

¶ 4. On May 30, 2001, Harris filed a demand for discovery and inspection with the court and the State. In it, Harris demanded that the State provide all exculpatory evidence, including evidence that would lead to further investigation.³

¶ 5. Additionally, Harris changed his plea to a plea of not guilty by reason of mental disease or defect (NGI). The court ordered a psychological examination, which was conducted by Dr. Steven Braam and filed with the court on July 11, 2001. After reviewing Dr. Braam's report, Harris decided not to pursue an NGI plea and informed the court that the defense would be seeking its own expert to conduct an evaluation. However, Harris later informed his attorney that he did not wish to pursue a consultation with the second doctor and that he wished to enter a guilty plea.

¶ 6. On July 25, 2001, Harris pled guilty to first-degree sexual assault of a child, as a repeater. As part of the plea agreement, a bail jumping count in this case, plus one count of disorderly conduct while armed, and one count of carrying a concealed weapon would be dismissed and read in for the purposes of sentencing. On September 21, 2001, the court sentenced Harris to an initial period of thirty years' confinement, followed by fifteen years of extended supervision, for a total sentence of forty-five years.

¶ 7. Shortly after sentencing, based on the directive of District Attorney Phillip Koss, Assistant District Attorney Maureen Boyle informed Harris's trial counsel that in June 2001, B.M.M. made an allegation that her grandfather had sexually assaulted her in February 2001. In her allegation, B.M.M. reported that her grandfather had touched her vaginal area as well as her "butt crack." Boyle had not previously disclosed this information to the defense.

¶ 8. Harris filed a Motion for Postconviction Discovery and a Motion to Withdraw Guilty Plea. The court conducted a hearing on July 25, 2002. Following arguments by both attorneys, the court granted Harris's motion to withdraw his guilty plea and entered an order to that effect. The court found that the State failed to turn over potentially exculpatory evidence in violation of Harris's constitutional rights. The court found that Harris was unaware of the potential challenges to the case because of the violation. The court noted Harris's offer of proof that he would not have pled guilty if the evidence had been disclosed to him. The State appeals.

Standards of Review

[1-4]

¶ 9. A motion for withdrawal of a plea ordinarily is addressed to the circuit court's discretion. State v. Sturgeon, 231 Wis. 2d 487, 495, 605 N.W.2d 589 (Ct. App. 1999). When a motion to withdraw a plea is made after sentencing, the defendant must establish by clear and convincing evidence that withdrawal is necessary to correct a manifest injustice. Hatcher v. State, 83 Wis. 2d 559, 564, 266 N.W.2d 320 (1978). To sustain the circuit court's decision, this court must ensure that the circuit court's determination was made upon the facts of record and in reliance on the appropriate and applicable law. Sturgeon, 231 Wis. 2d at 495. We review questions of constitutional fact independently to determine whether any constitutional principles have been offended. Id. at 496. However, the underlying historical facts remain subject to the clearly erroneous standard. Id.

Discussion

¶ 10. The State argues that the circuit court erred when it determined that the prosecutor's failure to disclose information about B.M.M.'s report of a sexual assault by her grandfather violated Harris's constitutional rights. We do not agree and for both constitutional and statutory reasons, we uphold the order of the circuit court.

¶ 11. Constitutional Issue. The leading Wisconsin case on withdrawal of a plea when the State has suppressed exculpatory evidence prior to a plea is Sturgeon. After a complaint was filed against Sturgeon alleging burglary and misdemeanor theft as a party to the crime, Sturgeon filed a Demand for Discovery and Inspection, which included a request for "[a]ll exculpatory evidence." Id. at 490, 492. As a result, Sturgeon's attorney examined the district attorney's file and discovered a police report detailing Sturgeon's confession. Id. at 492. The confession itself was not reduced to writing. Id. At the preliminary hearing, an alleged accomplice in the crimes testified against Sturgeon in accord with Sturgeon's confession, implicating Sturgeon in the planning and execution of the theft and burglary. Id. Sturgeon then filed a motion to suppress his confession, contending that it was not voluntary. Id. The trial court denied Sturgeon's motion.

¶ 12. Plea agreement discussions ensued. Id. at 493. An agreement was negotiated whereby Sturgeon would plead guilty to the burglary charge and the State would dismiss and read in the theft charge. Id. In addition, the State agreed to not seek prison time. Id. Faced with Sturgeon's confession and the incriminating testimony of his alleged accomplice, Sturgeon's attorney recommended that Sturgeon accept the proposal. Id. Sturgeon agreed, and following his plea of guilty, Sturgeon was convicted of burglary as a party to the crime. Id. at 490. The trial court withheld sentence and placed Sturgeon on probation for five years, conditioned on 120 days in the county jail. Id. at 493.

¶ 13. Represented by new counsel, Sturgeon moved to withdraw his guilty plea and sought an order directing the Lake Geneva police department to produce all material related to any statements given by Sturgeon. Id. The motion stated that Sturgeon had reason to believe that his statements to the police included his exculpatory assertion that he was unaware of his alleged accomplice's plan to steal. Id. The State agreed to voluntarily turn over the requested materials. Id. These materials revealed a transcript containing exculpatory assertions made by Sturgeon and given to the police three days after the crimes. Id. at 493-94. The State acknowledged that this exculpatory version of Sturgeon's role in the event was not included in the police report documenting Sturgeon's confession. Id. at 494. The circuit court concluded that Sturgeon had not established a manifest necessity for withdrawal of his guilty plea. Id. at 495.

¶ 14. On appeal, the issue was whether the circuit court properly denied Sturgeon's request to withdraw his guilty plea after sentencing. Id. at 490. We concluded the circuit court erred and reversed because of the State's failure to provide Sturgeon with exculpatory evidence related to his confession to the police and because such failure caused Sturgeon to plead guilty. Id. We concluded that the "relevant inquiry is whether there is a reasonable probability that, but for the failure to disclose, the defendant would have refused to plead and would have insisted on going to trial." Id. at 503-04. The factors that may bear upon this question include:

(1) the relative strength and weakness of the State's case and the defendant's case; (2) the persuasiveness of the withheld evidence; (3) the reasons, if any, expressed by the defendant for choosing to plead guilty; (4) the benefits obtained by the defendant in exchange for the plea; and (5) the thoroughness of the plea colloquy. These are examples of relevant considerations and are not intended to be exhaustive. The particular case may present other relevant considerations.

Id. at 504.

¶ 15. In the appeal at...