State v. Hungerford
| Decision Date | 10 September 2019 |
| Docket Number | 2017AP1792-CR,2017AP1793-CR,Appeal Nos. 2017AP1791-CR |
| Citation | 389 Wis.2d 103,2019 WI App 58,936 N.W.2d 398 (Table) |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Randall A. HUNGERFORD, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 In these consolidated appeals, Randall Hungerford claims his attorney’s deficient performance prevented him from moving to withdraw his pleas prior to sentencing. He seeks to return this case to a presentence status so that he may file a motion for plea withdrawal under the "fair and just reason" standard. In the alternative, he argues plea withdrawal is necessary to correct a manifest injustice. We conclude Hungerford’s postplea expressions of confusion regarding the charges to which he had pled do not, under the circumstances here, support either a claim for ineffective assistance of counsel or a claim for postsentence plea withdrawal under a manifest injustice standard. Accordingly, we affirm.
¶2 These appeals involve three consolidated cases. In Outagamie County Circuit Court case No. 2011CF673, Hungerford was charged with five counts, all as a repeater: (1) forgery; (2) identity theft; (3) uttering a forgery; (4) felony bail jumping; and (5) credit fraud. In Outagamie County Circuit Court case No. 2012CF518, Hungerford was charged with two counts of felony bail jumping and one count of misdemeanor theft. In Outagamie County Circuit Court case No. 2012CF587, the State charged Hungerford with concealing stolen property as party to a crime and three counts of felony bail jumping.
¶3 Hungerford reached a global plea deal resolving those cases and a fourth criminal case, Outagamie County Circuit Court case No. 2009CF995. Pursuant to the agreement, Hungerford would plead to one of the charges in case No. 2011CF673 other than the bail jumping charge, without the repeater enhancer. He also would plead to two counts of felony bail jumping, one each from case Nos. 2012CF518 and 2012CF587, as well as to a receiving stolen property charge in case No. 2012CF587.1 The State agreed to dismiss the forgery charge in case No. 2011CF673 and one of the bail jumping charges in case No. 2012CF587 with prejudice. The remaining charges, including all those in case No. 2009CF995, were to be dismissed and read in.
¶4 The four cases were consolidated and transferred to Branch VII of the Outagamie County Circuit Court. Shortly thereafter, the circuit court conducted a plea hearing. At the hearing, Hungerford’s defense counsel, attorney Michael Petersen, represented to the court that he had completed a plea questionnaire and waiver of rights form with Hungerford and that the questionnaire had attached the offer letter from the State that set forth the parties’ agreement.2 Hungerford, through Petersen, waived reading of each of the charges and pled no contest to one count of credit fraud, two counts of bail jumping, and one count of receiving stolen property. Before Hungerford did so, the court discussed the maximum penalties for each of the offenses.
¶5 The circuit court then conducted a sworn plea colloquy with Hungerford. Hungerford stated he had answered and signed the plea colloquy form and understood everything on the form. The court discussed with Hungerford the constitutional rights he was giving up by entering pleas, including his rights to a unanimous jury, to confront witnesses against him, and to present his own evidence. The court then recited the elements of each of the offenses to which Hungerford was pleading. Hungerford stated he understood each of those elements, as well as the charges themselves. The court then found Hungerford had entered his pleas freely, voluntarily and intelligently with a full understanding of his constitutional rights and the elements of the offenses.
¶6 Pursuant to the plea agreement, both parties requested a presentence investigation report (PSI) and were free to argue at sentencing. The sentencing hearing was scheduled for February 15, 2013. On February 4, 2013, the agent assigned to complete the PSI notified the circuit court that during his conversation with Hungerford on January 25, 2013, Hungerford appeared to be confused regarding his convictions. According to the letter, Hungerford was to speak with attorney Petersen, who would then file a memorandum advising the court of the situation and request additional time to complete the PSI. The agent noted no memorandum had been filed as of the date of his letter, and the court set a new date for the sentencing hearing.
¶7 At the inception of the sentencing hearing, Petersen requested an adjournment for several reasons. First, he stated Hungerford "seems to have some confusion regarding what the nature of the plea agreement was as well as what the charges were that he was pleading to." Petersen stated the confusion issue had been brought to his attention that morning. Petersen additionally noted that Hungerford had a reconfinement hearing scheduled soon at the Dodge Correctional Institution, and he would need additional time to discuss that proceeding with Hungerford. Petersen also had not had an opportunity to review the PSI with Hungerford before the morning of the hearing due to Petersen’s schedule as well as Hungerford’s custody in Dodge County, which Petersen stated made visitation extremely difficult. The court adjourned the sentencing hearing for approximately three weeks.
¶8 The adjourned sentencing hearing was held on March 21, 2013. No mention was made of Hungerford’s previously documented confusion regarding the charges or his pleas. The State recommended consecutive sentences totaling eleven and one-half years’ initial confinement and ten and one-half years’ extended supervision. Petersen stated Hungerford had wanted to take some of the charges to trial, but "because of the procedures and the fact of the additional bail jumpings that kept piling up on my client," Hungerford felt the best course was to "ultimately enter pleas to many cases and resolve all the files." The defense recommended a probationary sentence. Emphasizing the deceptive nature of Hungerford’s crimes and the need to protect the public, the circuit court sentenced Hungerford to consecutive sentences totaling eight years’ initial confinement and six years’ extended supervision.
¶9 Hungerford, represented by new counsel, filed a motion to vacate his sentence. Hungerford’s new attorney subsequently withdrew, and Hungerford filed a pro se motion seeking an order requiring Dodge Correctional Institution to release recordings of Hungerford’s phone conversations with Petersen while he was in custody. The circuit court signed the order and, with the help of another attorney, Hungerford filed an amended postconviction motion seeking plea withdrawal in addition to resentencing. As relevant here, he argued that his pleas were not knowing, intelligent and voluntary; that they were the result of Petersen’s misstatements regarding the charges to which Hungerford would plead guilty; and that they resulted in a manifest injustice.
¶10 The circuit court held a Machner hearing at which attorney Petersen testified.3 Petersen explained that Hungerford’s case was a "complex matter that had several working parts to it," and as new charges were filed against Hungerford, Petersen discussed with him the possibility of a plea deal. According to Petersen, the negotiations with the State in this case were "more extensive" than in other cases because of the large number of charges and because one of the cases almost proceeded to trial. During the negotiations, Petersen was continually in contact with Hungerford regarding the State’s various offers and his counterproposals. After engaging with the State in negotiations, he and Hungerford discussed the State’s final offer "a handful of times," and they completed the plea questionnaire and waiver of rights form on the morning of the plea hearing. Petersen testified he had no doubts as to Hungerford’s understanding of the plea agreement on the morning of the plea hearing.
¶11 According to Petersen, he and Hungerford had two phone conversations prior to sentencing in March 2013. Transcripts of the phone calls are included in the appellate record. In the first phone call, which occurred on March 12th, Petersen told Hungerford his call was unexpected and that he did not have Hungerford’s file in front of him. They referred to a letter that Hungerford had sent the week prior, apparently concerning the plea agreement.4 During that call, Petersen told Hungerford he had requested a transcript of the plea hearing in an effort to "clear up any issue regarding what the nature of the plea agreement was regarding those other charges ... and the fact that those are all to be dismissed with the exception of a bail jumping." After some additional conversation, Hungerford said, Petersen responded, They then discussed the possible sentence on that charge, as well as their sentencing strategy, before Hungerford again asked, "And then all we're going to do is worry about the bail jumping, right?" Petersen again responded, "Correct." Hungerford asked the same question, and Petersen gave the same response, during the second phone conversation, which happened on March 18, 2013.
¶12 At the Machner hearing, Petersen was asked to explain his statements during the two phone calls. Petersen testified that he had made a mistake during the first phone call because he did not have Hungerford’s file with him at the time, and that the second call was primarily about other issues. Petersen stated he "got the notion" about the single bail jumping charge from Hungerford’s letter, and he then requested a transcript of the plea hearing to clarify the issue.
¶13 Regardless, Petersen...
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