State v. Harvey
| Decision Date | 19 June 1987 |
| Docket Number | No. 86-0024-CR,86-0024-CR |
| Citation | 139 Wis.2d 353,407 N.W.2d 235 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Phillip Wayne HARVEY, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Donald J. Hanaway, Atty. Gen., argued, for plaintiff-respondent-petitioner; Michael R. Klos, Asst. Atty., on brief.
Louis B. Butler, Jr., Asst. State Public Defender, for defendant-appellant.
This is a review of an unpublished decision of the court of appeals, dated October 8, 1986, 134 Wis.2d 453, 397 N.W.2d 157, which reversed a judgment of conviction and sentence entered by the Milwaukee county circuit court, Circuit Judge John E. McCormick, and which affirmed in part and reversed in part an order by the circuit court for Milwaukee county, Reserve Judge Leo B. Hanley, denying defendant Phillip Wayne Harvey's (Harvey) post-conviction motions. 1
Harvey was sentenced on February 8, 1985, to a total of one hundred years. The sentence was imposed after the defendant had entered a guilty plea to the kidnapping and armed robbery charges and an Alford plea 2 as to the remaining first-degree sexual assault charges.
On August 26, 1985, defendant moved to withdraw his plea on grounds that: the plea was not knowingly and voluntarily made; published statements made by the attorney who represented him through sentencing allegedly created an impermissible conflict of interest; and the alleged conflict, when considered in conjunction with counsel's failure to pursue suppression motions and his alleged failure to adequately explain the effect of an Alford plea to his client, constituted ineffective assistance of counsel.
The trial court denied defendant's motion in an order dated December 30, 1985, and filed January 2, 1986, for reasons stated in its oral decision (rendered on December 30). The defendant appealed from the order on January 2, 1986. The trial court's written findings of fact were filed on January 16, 1986, after the notice of appeal had already been filed, but within the sixty-day limitation period for the filing of findings and conclusions as set forth in section 805.17(2), Stats.
The court of appeals affirmed the trial court in most respects; it reversed only on a limited aspect of the effective assistance of counsel issue. It thus remanded the case to allow defendant to plead anew. The state petitioned this court for review of the appeals court decision, and we granted review on January 20, 1987.
The parties raise a number of issues on review. They are summarized as follows:
We hold that the appeals court improperly ignored findings made by the trial court when it decided that counsel's actions denied the defendant effective assistance of counsel. The trial court's fact findings are supported by credible evidence, and the appeals court impermissibly made independent fact findings of its own. Even if counsel did misrepresent certain facts to the defendant, the defendant was not induced by these representations to enter his pleas and, therefore, suffered no prejudice. We therefore reverse the court of appeals' determination that counsel's actions deprived defendant of effective assistance of counsel. We affirm the appeals court decision insofar as it held that counsel's failure to pursue the suppression motions did not deny Harvey effective assistance of counsel.
We also hold that Harvey's guilty and Alford pleas were knowingly and voluntarily made. The defendant was sufficiently aware of the significance of his actions and was adequately apprised of the elements of the crimes with which he was charged. Finally, even if a conflict of interest did in fact exist, the defendant knowingly and voluntarily waived that conflict. We thus affirm the decision of the court of appeals with respect to each of these issues.
The events giving rise to this action occurred during the evening hours of July 14, 1984, and the early morning hours of July 15, 1984. On July 14, 1984, P.K., then eighteen years old, parked her car in downtown Milwaukee. As P.K. unlocked and exited her car, she observed two black males approach her vehicle. One of the men (Suspect A) pointed a long-barrelled handgun at her head and ordered her to get back into her car on the passenger side, which she did. The two men entered the car, both in the front seat. Suspect A then instructed the other individual (Suspect B) to "get the money" and remove P.K.'s jewelry. Two rings, a necklace, a wristwatch, and a minimal amount of cash were taken.
Then, Suspect A ordered Suspect B to blindfold P.K. He tore off a portion of her skirt and used it as a blindfold. By this time, P.K. had crawled to the back seat, and Suspect A was driving the car. P.K. was then forced to participate in a series of sex acts with Suspect B, with the handgun pointed at her side throughout the ordeal. In a statement made at sentencing, P.K. stated that Suspect A seemed to prompt the assault, giving Suspect B instructions on exactly what to do. The men subsequently traded places, and P.K. was once again subjected to repeated sexual assaults, this time with the gun pointed directly at her head. The car stopped. Suspect A left the car for a short time, during which time Suspect B again attempted to have sexual intercourse with P.K. When Suspect A returned, he gave P.K. a skirt to put on. She was then led from the car and forced to climb into the trunk. P.K. was still blindfolded. The suspects closed the trunk and drove away. P.K. stated that the suspects stopped the car at least twice. Each time, they opened the trunk and "displayed" her to observers. P.K. could hear the voices of individuals who were apparently looking at her. At the first stop, Suspect B was heard to tell observers, "The white bitch is in the trunk." P.K. stated at sentencing that she heard people laughing and "congratulating" the suspects. Shortly afterward, the suspects drove the car to another location in the city, opened the trunk, and Suspect B gave the car keys to P.K., instructing her to stay crouched in the trunk for five minutes longer and to keep her ordeal to herself.
Other crimes were committed that night. Just after midnight on July 15, 1984, S.T. and L.H. were walking in downtown Milwaukee toward S.T.'s car. S.T. observed two black males, Suspect A and Suspect B, approaching her car. She quickly entered her car and locked the door on the driver's side. L.H. hurried to do the same, but could not lock her car door in time. Suspect B pulled the passenger door open and pointed a handgun at the two women. L.H. removed her jewelry and the money from her billfold and gave it to Suspect B. Suspect A then entered the car, sitting between the two women. S.T. gave him her purse; he in turn handed it to Suspect B, who was standing outside the passenger door. Suspect A then ordered S.T. to drive to Seventh and Galena Streets in Milwaukee. S.T. complied with Suspect A's orders. S.T. observed that she was being followed by a car driven by Suspect B. 3 Suspect A then instructed S.T. to stop and get out of the car. She complied and watched Suspect A exit the car and run toward some adjoining housing projects. S.T. got back into her car and observed the car driven by Suspect B pull away. S.T. followed the car around the block and wrote down its license number, reporting it to the police.
A police investigation ensued, during which investigation a statement was obtained from a juvenile. The juvenile admitted his involvement in the crimes. On July 16, police came to Mollie Harvey's house in Milwaukee, looking for her son, Phillip. Mrs. Harvey allowed the officers to enter her home. According to police reports, three rings were found in Phillip Harvey's bedroom, all lying in plain view on top of a bureau. The police showed the rings to Mrs. Harvey, who did not recognize them. She stated that she did not give the officers permission to remove the rings from her home, she did not consent to a search of her living quarters, and she limited her consent to allowing the officers to enter her house to look for Phillip. Later that evening, the police returned to Mollie Harvey's home, this time with a search warrant. The police seized several pieces of evidence.
Shortly thereafter, Mrs. Harvey spoke with her son, Phillip, on the telephone. According to Mrs. Harvey, her son expressed to her a willingness to turn himself in to the police. Mrs. Harvey then accompanied her son to the police administration building downtown, where a statement was taken and where Harvey was taken into custody. According to the criminal complaint, Harvey admitted that he, accompanied by a juvenile referred to by him as "Fat Brains," did kidnap and rob P.K., place her in the trunk of her car and display her to individuals gathered near several "party spots" in the city of Milwaukee. He further admitted his involvement in the robberies of S.T. and L.H. He admitted that he was the individual sitting between the women in S.T.'s car and that "Fat Brains" followed in P.K.'s car. In addition, Harvey stated that the juvenile did sexually assault P.K. He...
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