State v. Howell

• Decision Date: 21 June 2007
• Docket Number: No. 2005AP731-CR.,2005AP731-CR.
• Citation: 2007 WI 75,734 N.W.2d 48
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Andrae D. HOWELL, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

734 N.W.2d 48

2007 WI 75

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

No. 2005AP731-CR.

Supreme Court of Wisconsin.

Argued March 7, 2007.

Decided June 21, 2007.

For the defendant-appellant-petitioner there were briefs and oral argument by Ellen Henak, assistant state public defender.

For the plaintiff-respondent the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

¶ 1 SHIRLEY S. ABRAHAMSON, Chief Justice

This is a review of a published decision of the court of appeals affirming a judgment and order of the Circuit Court for Milwaukee County, Jean W. DiMotto, Judge.¹ The circuit court denied, without an evidentiary hearing, Andrae D. Howell's postconviction motion to withdraw his guilty plea, holding that the plea colloquy, complaint, and sentencing sufficiently demonstrated that Howell understood that he was aiding and abetting his cousin Joseph Sharp in first degree reckless injury, Wis. Stat. § 940.23(1)(a) (2003-04),² and that there was a sufficient factual basis to support the plea.

¶ 2 The issue on review is limited to whether the circuit court erred in failing to hold an evidentiary hearing on Howell's motion to withdraw his plea. More specifically, the issue is whether Howell's motion to withdraw his guilty plea satisfies, for purposes of granting an evidentiary hearing, the requirements of (1) the Bangert line of cases, State v. Bangert, 131 Wis.2d 246, 274, 389 N.W.2d 12 (1986); (2) the Nelson/Bentley line of cases, Nelson v. State, 54 Wis.2d 489, 195 N.W.2d 629 (1972), and State v. Bentley, 201 Wis.2d 303, 548 N.W.2d 50 (1996); or (3) both lines of cases. We are not asked to decide, and do not decide, whether the circuit court should ultimately grant or deny Howell's motion to withdraw his guilty plea.

¶ 3 This case involves the application of our well-developed case law on a circuit court's granting an evidentiary hearing on a defendant's motion to withdraw a guilty plea.

¶ 4 Confusion and disagreement abound about whether Howell's motion papers present a Bangert or a Nelson/Bentley motion. In the State's original brief to the court of appeals, counsel analyzed Howell's plea-withdrawal claim in a Bangert framework. In the State's supplemental brief to the court of appeals and the State's response to Howell's petition for review, counsel adopted the view of the court of appeals' majority that Howell had alleged a Nelson/Bentley claim.

¶ 5 Counsel for the State suggests in this court that upon further analysis and reflection, Howell's plea-withdrawal motion exhibits features of both a Bangert motion and a Nelson/Bentley motion, and is in effect a "dual-purpose motion." The motion alleges that Howell's misunderstanding was a result of problems occurring both within and outside the plea colloquy.

¶ 6 The court of appeals did not review Howell's motion as a Bangert motion because it concluded that Howell had not alleged that the plea colloquy was defective. The dissenting judge in the court of appeals considered Howell's motion to be a Bangert motion describing a defective plea colloquy.

¶ 7 For the reasons set forth, we hold that Howell is entitled under Bangert to an evidentiary hearing regarding his motion to withdraw his guilty plea. As required by Bangert, the motion makes a prima facie showing that the circuit court's plea colloquy did not conform with Wis. Stat. § 971.08 and judicially mandated procedures and includes the allegation that Howell did not know or understand information that should have been provided at the plea colloquy.³ In keeping with Bangert, we examine the record at the plea hearing; we do not confabulate about facts and conversations not on the record. We stay focused. A defendant's right to an evidentiary hearing under Bangert cannot be circumvented by either the court or the State asserting that based on the record as a whole the defendant, despite the defective plea colloquy, entered a constitutionally sound plea.

¶ 8 In analyzing Howell's motion under Nelson/Bentley, we conclude that the part of the motion that could be considered a Nelson/Bentley motion raises the same legal issue as the claim under Bangert, namely that the plea was not knowing, intelligent, and voluntary because Howell misunderstood the concept of party-to-a-crime liability. The evidentiary matter presented in the Nelson/Bentley portion of the motion, namely that Howell misunderstood party-to-a-crime liability based on conversations with his attorney, will likely be addressed at the Bangert hearing. Consequently, we need not assess the validity of Howell's Nelson/Bentley claim. Howell's motion entitles him to an evidentiary hearing under Bangert on the issue of whether his plea was knowing, intelligent, and voluntary.

¶ 9 We thus hold that Howell's motion warrants him an evidentiary hearing under Bangert to determine whether he can withdraw his guilty plea because it was not knowing, intelligent, or voluntary. The burden is on the State at the evidentiary hearing in the instant case on the Bangert motion to prove by clear and convincing evidence that Howell's plea was knowing, intelligent, and voluntary.

¶ 10 Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for an evidentiary hearing under Bangert to determine whether Howell is entitled to withdraw his guilty plea.

I

¶ 11 We briefly summarize the facts here. We discuss the plea colloquy and Howell's motion when we examine the legal issues relating to Bangert and Nelson/Bentley.

¶ 12 On February 8, 2004, Marcus Pearson was shot twice while seated in his vehicle. The defendant, Andrae D. Howell, along with his sister Kimberly and his cousin Joseph Sharp, had allegedly driven to the scene to find another sister, April, who was dating Pearson. Pearson alleged that Howell exited his vehicle, brandished a rifle, and shot him.

¶ 13 The State charged Howell with first degree reckless injury under Wis. Stat. § 940.23(1)(a).⁴ On the date originally set for trial, Sharp allegedly admitted to Howell's trial counsel that Sharp, not Howell, shot the victim. Howell's trial counsel requested an adjournment allegedly in light of this information.

¶ 14 At the next hearing, the State moved to amend the information to add party-to-a-crime liability, on the theory that evidence at the trial might show that Sharp, not Howell, was the shooter and that Howell "assisted people in putting the victim" in a place where he could be shot by someone else. A party to a crime is statutorily defined as "a person who directly commits the crime"; a person who "intentionally aids and abets the commission" of a crime; or a person who "is a party to a conspiracy with another to commit it."⁵ Milwaukee County Circuit Court Judge Richard J. Sankovitz allowed the amendment.⁶

¶ 15 On the same day the information was amended, Howell entered a guilty plea to being party to the crime of first degree reckless injury. Judge Sankovitz conducted the plea colloquy, accepted the plea, and convicted Howell of the offense charged.

¶ 16 At a later proceeding, Milwaukee County Circuit Court Judge Jean DiMotto sentenced Howell to fourteen years' imprisonment with seven years of initial incarceration and seven years of extended supervision.

¶ 17 Thereafter, Howell filed a postconviction motion to withdraw his guilty plea pursuant to Wis. Stat. § 809.30, arguing that his plea was not entered knowingly, intelligently, and voluntarily because he failed to understand the concept of party-to-a-crime liability for first degree reckless injury.

¶ 18 The circuit court, Judge Jean DiMotto, without indicating whether she was ruling under the Bangert or Nelson/Bentley line of cases, denied Howell's motion without an evidentiary hearing. The circuit court ruled that "[t]he plea in conjunction with the complaint is more than sufficient to establish that the defendant acted as a party to a crime in the offense perpetrated against Marcus Pearson and that the defendant understood that he was aiding his cousin or intentionally assisting his cousin in facilitating the commission of the offense, whether or not he realized his cousin would utilize the weapon" (emphasis in original).

¶ 19 On appeal, the court of appeals affirmed the circuit court's judgment and order, holding that Howell's motion raised a Nelson/Bentley challenge and that Howell's motion contained only conclusory allegations that were not "subject to meaningful assessment in light of the record."

¶ 20 Howell petitioned the court of appeals for a rehearing in light of State v. Hampton, 2004 WI 107, 274 Wis.2d 379, 683 N.W.2d 14. The court of appeals withdrew its original unanimous opinion to address the alleged inconsistency between its decision and this court's decision in Hampton.⁷

¶ 21 Upon rehearing, the court of appeals once again held that Howell was not entitled to an evidentiary hearing on his motion to withdraw his guilty plea. The court of appeals determined that "Howell's motion did not assert that his plea colloquy was defective within the meaning of State v. Bangert."⁸ The court of appeals applied Nelson/Bentley to Howell's motion and again held that Howell's motion included only conclusory statements that did not entitle him to an evidentiary hearing. The court of appeals rejected Howell's argument that Hampton does not require more than a conclusory statement in a postconviction motion to withdraw a guilty plea when the defendant alleges he misunderstood the nature of the crime charged.

¶ 22 Court of Appeals Judge Charles Dykman dissented, concluding that Howell had in fact raised a Bangert claim and alleged sufficient facts to entitle him to an evidentiary hearing. Judge Dykman also concluded that Hampton applied to both Bangert and non-Bangert (that is, to Nelson/Bentley) claims and that under Hampton, Howell had sufficiently alleged a...