State v. Howell

• Decision Date: 31 August 2006
• Docket Number: No. 2005AP731-CR.,2005AP731-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Andrae D. HOWELL, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: Wisconsin Court of Appeals

722 N.W.2d 567

2006 WI App 182

STATE of Wisconsin, Plaintiff-Respondent, v. Andrae D. HOWELL, Defendant-Appellant.^†

No. 2005AP731-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs October 11, 2005.

Opinion Filed August 31, 2006.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Ellen Henak, assistant state public defender of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

Before LUNDSTEN, P.J., DYKMAN and VERGERONT, JJ.

¶ 1 LUNDSTEN, P.J

Andrae Howell complains that the circuit court wrongly denied his plea withdrawal motion without an evidentiary hearing. After he was convicted and sentenced, Howell filed a motion alleging that his plea was unknowingly entered because he did not understand what the State needed to prove to show that he acted as a party to a crime. Howell's motion requested an evidentiary hearing, but did not allege a plea colloquy defect, therefore, did not seek to shift the burden of proof to the State under Bangert.¹ Instead, Howell's motion contained several factual allegations that, he argues, are sufficient to entitle him to an evidentiary hearing at which he would have the burden of proof. Non-Bangert plea withdrawal motions such as this have long been assessed under what is commonly referred to as the Nelson test or the Bentley test or, as we do here, the Nelson/Bentley test.²

¶ 2 Howell first argues that his plea withdrawal motion should be analyzed under a hybrid test that is a combination of the tests applied to Bangert and non-Bangert motions. His argument is complicated. For now, it must suffice to say that Howell asserts his hybrid test is needed because his case represents a class of cases that do not involve an actual Bangert violation, but are nonetheless "akin" to Bangert.³

¶ 3 In the alternative, Howell argues that, under the Nelson/Bentley test, his motion was sufficient to require an evidentiary hearing because he alleged non-conclusory facts that, if true, entitled him to relief.

¶ 4 We reject both arguments and affirm the circuit court's denial of Howell's plea withdrawal motion without an evidentiary hearing.

Background

¶ 5 The victim in this case is a man named Marcus Pearson. Pearson had a relationship with Howell's sister, April. Because of a dispute between Pearson and April, Howell feared that Pearson would hurt April. According to Howell, he was willing to "physically confront Mr. Pearson if necessary." On February 8, 2004, Howell, along with a cousin and a different sister, got into a car driven by that sister. These three people located Pearson. Howell and his cousin got out of the car and approached Pearson. Pearson was shot twice. One bullet fractured one of Pearson's fingers and another fractured a leg bone.

¶ 6 The State charged Howell with first-degree reckless injury in a complaint that alleged Howell was the shooter. On a date originally set for trial, new information came to light and the case was set over. Approximately one month later, the prosecutor moved to amend the complaint to add party-to-a-crime liability. The amendment was based on the possibility that the evidence at trial might show that Howell's cousin, not Howell, was the shooter. The court permitted the amendment and that same day Howell entered a guilty plea to the amended charge. Judge Richard Sankovitz presided over Howell's plea hearing.

¶ 7 Howell was subsequently sentenced by Judge Jean DiMotto. Judge DiMotto imposed seven years of initial confinement followed by seven years of extended supervision.

¶ 8 After sentencing, Howell filed a motion seeking plea withdrawal. In that motion, Howell asserted that his plea was not knowingly entered because he did not understand party-to-a-crime liability. Howell's motion contained several allegations, discussed below, purporting to support his general claim. Judge DiMotto denied the motion without a hearing.

Discussion

¶ 9 Howell asserts that the circuit court erred by denying his post-sentencing plea withdrawal motion without holding an evidentiary hearing. Howell's motion asserted that his plea was not knowing because he did not understand that a person's mere presence at a shooting, combined with that person's failure to prevent the shooting, is not sufficient to prove party-to-a-crime liability. Howell's motion did not assert that his plea colloquy was defective within the meaning of State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). Thus, the motion did not seek to shift the burden of proof to the State per the Bangert procedure. In his initial appellate briefing, Howell relied on Nelson v. State, 54 Wis.2d 489, 195 N.W.2d 629 (1972), and argued that he was wrongly denied an evidentiary hearing because, under the Nelson standard, his motion contained non-conclusory allegations that, if true, entitled him to plea withdrawal.

¶ 10 We previously issued a decision in this appeal concluding that Howell's plea withdrawal motion was properly denied without a hearing because the allegations in his motion were conclusory under the Nelson/Bentley test. Thereafter, Howell's counsel filed a motion for reconsideration, arguing that our decision was in conflict with the supreme court's decision in State v. Hampton, 2004 WI 107, 274 Wis.2d 379, 683 N.W.2d 14, a Bangert plea withdrawal case. We withdrew our opinion with an order acknowledging that we should have, at a minimum, addressed language in Hampton that is arguably inconsistent with applying the Nelson/Bentley test to the allegations of misunderstanding in Howell's motion. The parties filed supplemental briefs, and we now issue this revised opinion addressing and rejecting Howell's new argument based on the Bangert line of cases and especially Hampton.⁴

¶ 11 Howell's new argument is not easily summarized, but it goes something like this:

1) The essence of a Bangert plea withdrawal motion is that it asserts the existing record shows the circuit court said or failed to say something that arguably contributed to a defendant's alleged misunderstanding.

2) Therefore, if a defendant is able to point to something in a plea hearing transcript that may have contributed to his or her alleged misunderstanding, then, as with Bangert motions, even a conclusory allegation of a misunderstanding should be deemed sufficient to compel an evidentiary hearing, albeit a non-Bangert plea withdrawal hearing at which the defense has the burden of proof.

Applied here, Howell contends that he is entitled to an evidentiary hearing because his motion (1) identified plea hearing statements by the court and the prosecutor that could have contributed to Howell's alleged misunderstanding about party-to-a-crime liability and (2) alleged Howell did not understand party-to-a-crime liability when he entered his plea. A key component in this argument is that an evidentiary hearing was required here even if Howell's motion contained only a conclusory allegation that he misunderstood party-to-a-crime liability.

¶ 12 Howell's argument is based on two assumptions. First, that in Hampton the supreme court held that conclusory allegations of misunderstanding are sufficient in the context of a non-Bangert motion assessed under the Nelson/Bentley test. Second, that it is possible to define a category of flawed plea hearings that do not involve an actual Bangert violation, but do contain statements by the court (or perhaps others) that could have contributed to a defendant's alleged misunderstanding.

¶ 13 Before explaining why we disagree with both of Howell's assumptions, we think it helpful to summarize the difference between a Bangert plea withdrawal argument and a Nelson/Bentley plea withdrawal argument.

A. Bangert and Nelson/Bentley

¶ 14 In the 1986 Bangert decision, the supreme court adopted a new procedure designed to encourage circuit court compliance with statutorily and judicially mandated plea requirements. See Bangert, 131 Wis.2d at 275, 389 N.W.2d 12; see also Hampton, 274 Wis.2d 379, ¶65, 683 N.W.2d 14. Under the newly created Bangert procedure, if a defendant files a plea withdrawal motion that (1) identifies a failure by the circuit court to comply with WIS. STAT. § 971.08 (2003-04)⁵ or a court-mandated plea hearing procedure, and (2) alleges that the defendant did not understand the information at issue, then the burden shifts to the State to show by clear and convincing evidence that the plea was knowingly and voluntarily entered.⁶ Bangert, 131 Wis.2d at 274-75, 389 N.W.2d 12. Notably, the second Bangert prong is satisfied by a conclusory allegation that the defendant did not know or understand. Hampton, 274 Wis.2d 379, ¶ 57, 683 N.W.2d 14.

¶ 15 The two Bangert prongs constitute a prima facie showing that the plea was unknowingly entered. See State v. Plank, 2005 WI App 109, ¶ 6, 282 Wis.2d 522, 699 N.W.2d 235, review denied, 2005 WI 136, 285 Wis.2d 630, 703 N.W.2d 379 (No. 2004AP2280-CR); State v. Jipson, 2003 WI App 222, ¶ 9, 267 Wis.2d 467, 671 N.W.2d 18. If a defendant's motion makes this prima facie Bangert showing, the circuit court must hold an evidentiary hearing at which the burden shifts to the State to prove by clear and convincing evidence that the plea was knowingly entered. State v. Brown, 2006 WI 100, ¶¶ 36, 40, ___ Wis.2d ___, 716 N.W.2d 906; Bangert, 131 Wis.2d at 274-75, 389 N.W.2d 12. To meet its burden, the State may use the existing record and may "examine the defendant or defendant's counsel to shed light on the defendant's understanding or knowledge." Bangert, 131 Wis.2d at 275, 389 N.W.2d 12. If the State fails to meet this burden, plea withdrawal is required.

¶ 16 But before Bangert, and to this day, there is a different route to plea withdrawal. Regardless whether plea colloquies contain Bangert violations, defendants are entitled to post-sentencing plea withdrawal if they can show by clear and...