State v. Harvey
| Decision Date | 08 October 1986 |
| Citation | 397 N.W.2d 157,134 Wis.2d 453 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. PHILLIP WAYNE HARVEY, Defendant-Appellant. 86-0024-CR. |
| Court | Wisconsin Court of Appeals |
Appeal from an order and a judgment of the circuit court for Milwaukee county: John E. McCormick, Judge, and Leo B. Hanley, Reserve Judge.
Before MOSER, P.J., WEDEMEYER and SULLIVAN, JJ.
Phillip Wayne Harvey (Harvey) appeals an order denying his postconviction motions and a judgment convicting him of one count of false imprisonment while armed, three counts of armed robbery, and seven counts of first-degree sexual assault, contrary to secs. 940.31(1)(b), 939.63(1)(a)2., 943.32(1)(a) and (2), and 940.225(1)(b), Stats. Harvey was convicted of all counts as party to a crime, contrary to sec. 939.05, and was sentenced to a total of one hundred years' imprisonment. Harvey poses six issues on appeal, three of which are closely related and will be considered together. We affirm the trial court's determinations that Harvey's pleas were knowingly, voluntarily and intelligently made; that Harvey waived any conflict of interest which may have existed between himself and his trial counsel; and that the trial court did not participate in the plea bargaining process. We reverse the trial court's determination that Harvey was afforded effective assistance of counsel and remand this case to allow Harvey to plead anew.
Harvey was arrested on July 17, 1984, in connection with a sexual assault on a Milwaukee woman which received much media attention. A complaint was filed against Harvey the next day, the same day the national press published a statement by attorney Alan D. Eisenberg (Eisenberg) to the effect that he hoped the perpetrators of the crime would 'fry in hell' if caught and convicted. Harvey's mother, Mollie Harvey, then retained attorney Eisenberg to represent her son. The district attorney brought a motion to voir dire Harvey and attorney Eisenberg regarding a potential conflict of interest. At the hearing Harvey affirmed that he knew of the statement and he still wanted attorney Eisenberg to represent him. The trial court thus ruled that Harvey knowingly and voluntarily waived any appearance of impropriety.
Harvey pled guilty to the false imprisonment and armed robbery charges, but entered Alford pleas to the seven sexual assault charges. The testimony is controverted as to whether Harvey entered his pleas thinking that the trial judge, Judge John E. McCormick, would give him seventy-five years' imprisonment. The trial court did sentence Harvey to a total of one hundred years' imprisonment.
Harvey then moved to withdraw his pleas on the grounds that they were not knowing, intelligent and voluntary, that Eisenberg had a conflict of interest in representing him and that Eisenberg afforded him ineffective representation. Extensive testimony was taken on this motion. After Judge McCormick recused himself from the hearing, Judge Leo B. Hanley denied the motion, concluding that Harvey failed to show that his pleas were not knowingly and voluntarily entered, that attorney Eisenberg effectively represented Harvey and that either no conflict of interest existed or any such conflict was waived. Judge Hanley ruled that Judge McCormick had not written the number '75' on a piece of paper as an indication of how many years in prison Harvey would receive. Harvey appeals.
Harvey initially contends that his pleas were involuntary, unknowing and without understanding of the charges in violation of his due process rights. He bases his argument on the trial court's failure to inform him at the plea hearing of the elements of the offenses with which he was charged and the court's failure to relate those elements to the facts of the case, as formerly required by State v. Cecchini, 124 Wis. 2d 200, 368 N.W.2d 830 (1985). Harvey argues that the trial court's failure to follow Cecchini renders his pleas faulty as a matter of course.
In State v. Bangert, 131 Wis. 2d 246, 252, 389 N.W.2d 12, 16 (1986), our supreme court overruled Cecchini's mandate that the trial court demonstrate on the record at the plea hearing the defendant's understanding of the elements of the crime charged and their relation to the facts. See Cecchini, 124 Wis. 2d at 213, 368 N.W.2d at 837. The Bangert court determined that 'Cecchini circumscribed too narrowly the postconviction review of the voluntariness of a guilty or no contest plea.' Bangert, 131 Wis. 2d at 273, 389 N.W.2d at 26. Because the new rule of Bangert is prospective only, we must determine the validity of Harvey's plea under pre-Cecchini law. See id. at 281, 389 N.W.2d at 29.
The issue whether a plea was voluntarily and intelligently entered is a question of constitutional fact. Id. at 283, 389 N.W.2d at 30. The trial court's findings of historical fact will not be reversed unless clearly erroneous. Id. The application of the constitutional law to the historical facts is a question of law which we review independently of the trial court. Id.
The rule prior to Cecchini governing whether a defendant could withdraw a plea after sentencing was the 'manifest injustice' rule. Dudrey v. State, 74 Wis. 2d 480, 483, 247 N.W.2d 105, 107 (1976). That rule stated that a defendant is entitled to withdraw a plea only if he or she is able to show that the plea was made, inter alia, involuntarily or without knowledge of the charge or that the sentence actually imposed could be imposed. State v. Rock, 92 Wis. 2d 554, 558, 285 N.W.2d 739, 741-42 (1979) (citation omitted). The defendant has the burden of proving grounds for withdrawal of his plea by clear and convincing evidence. Id. at 559, 285 N.W.2d at 742. To withdraw a plea as a matter of right on constitutional grounds a defendant must show that: (1) a violation of a constitutional right has occurred; (2) the violation caused the defendant to enter a plea of guilty or no contest; and (3) at the time of the plea the defendant was unaware of the potential constitutional challenges to the case because of the violation. Id. A trial court abuses its discretion as a matter of law if it refuses to allow a defendant to withdraw a plea when the defendant has established by clear and convincing evidence a denial of a relevant constitutional right. See id.
A trial judge is required at the plea hearing to ascertain a defendant's understanding of the nature of the crime charged. McAllister v. State, 54 Wis. 2d 224, 229, 194 N.W.2d 639, 642 (1972). However, our inquiry on review should focus on whether the defendant received 'real notice of the nature of the charge.' Bangert, 131 Wis. 2d at 283, 389 N.W.2d at 30.
In applying the manifest injustice test on review, this court may consider the whole record since the issue is no longer whether the guilty plea should have been accepted, but rather whether there was an abuse of discretion in the trial court's denial of the motion to withdraw. Facts adduced at the preliminary hearing and at the motion hearing may be considered in evaluating the denial of the motion to withdraw.
White v. State, 85 Wis. 2d 485, 491, 271 N.W.2d 97, 100 (1978) (emphasis added).
We conclude on the basis of the entire record that Harvey's guilty and Alford no contest pleas were made knowingly, voluntarily and intelligently and that the trial court did not abuse its discretion in refusing to allow him to withdraw his pleas after sentencing. The court correctly concluded that Harvey failed to establish, by clear and convincing evidence, that his pleas were not knowingly and voluntarily entered. The record of the plea hearing shows that the court read to Harvey the charges and factual bases therefor as related in the amended information. The court asked Harvey whether he waived each of his constitutional rights, and Harvey indicated that he did. The court ascertained that no threats or promises had been made to Harvey to make him plead, and reviewed the potential punishment involved in each charge. Harvey also signed a stipulation to the facts and acknowledge that the complaint could serve as a factual basis for his pleas. At the postconviction motion hearing before Judge Hanley, Harvey admitted that prior to entering his pleas he read the police reports that related the facts constituting the charged offenses. On cross-examination, Harvey admitted that he knew what crimes he was pleading to. He also admitted that at the plea hearing the state presented the testimony of a microserologist who related the physical evidence linking Harvey to the sexual assaults. These facts indicate that Harvey's pleas were constitutionally valid and that the trial court correctly refused to allow Harvey to withdraw them.
Harvey next contends that his right to counsel under the sixth amendment and art. I, sec. 7 of the Wisconsin Constitution was violated as a result of conflicts of interest on attorney Eisenberg's part. He argues that one conflict of interest occurred when Harvey's mother retained attorney Eisenberg, and that another occurred because of attorney Eisenberg's statements to the national press that he hoped the perpetrator of the crime would 'fry in hell.'
When constitutional issues are involved, we will sustain findings of fact unless clearly erroneous, but we independently determine whether the facts fit the constitutional standard. State v. Woods, 117 Wis. 2d 701, 715, 345 N.W.2d 457, 465 (1984); see sec. 805.17(2), Stats. A defendant's right to counsel in a criminal case is guaranteed by the United States and Wisconsin Constitutions. State v. Franklin, 111 Wis. 2d 681, 686, 331 N.W.2d 633, 636 (Ct.App. 1983). The right to assistance of counsel means the right to...
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