State v. James, Nos. 92-1144-C

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before EICH, C.J., and GARTZKE, P.J., and DYKMAN; EICH
• Citation: 176 Wis.2d 230,500 N.W.2d 345
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John W. JAMES, Defendant-Appellant. d
• Docket Number: 92-1145-CR,Nos. 92-1144-C
• Decision Date: 08 April 1993

Page 345

500 N.W.2d 345 176 Wis.2d 230 STATE of Wisconsin, Plaintiff-Respondent,
v.
John W. JAMES, Defendant-Appellant. ^d Nos. 92-1144-CR, 92-1145-CR. Court of Appeals of Wisconsin. Submitted on Briefs Feb. 3, 1993.
Opinion Released April 8, 1993.
Opinion Filed April 8, 1993.

Before EICH, C.J., and GARTZKE, P.J., and DYKMAN, J.

EICH, Chief Judge.

We decide in this case that in accepting a negotiated plea for probation, the trial court should but is not required to advise the defendant [176 Wis.2d 233] of the potential maximum term to which he or she would be subjected in the event probation is revoked.

John W. James pled no contest to two counts of bail jumping and one count of battery. The trial court, accepting the state's plea-bargained recommendation, withheld sentence and placed him on probation for five years. After his probation was revoked, James was returned to court and sentenced, as a repeater, to a total of nineteen years on the three convictions. He then moved to withdraw his plea, claiming it was involuntarily and unknowingly entered. He maintained that, although the court and his attorney advised him at the plea hearing that he faced a maximum sentence of twenty-five years on the three counts, the court never specifically informed him that if his probation were to be revoked he could be sentenced to a term of imprisonment greater than the five-year probationary term.

Because we conclude that the trial court was not required to so advise James prior to accepting his plea, we affirm the order.

The appeal involves two separate but related cases. In 1988, James was convicted of felony child abuse. After conviction but prior to sentencing, he violated the terms of his bond by having contact with the child and its mother, Jill D., and he was charged with bail jumping. He received an imposed-and-stayed two-year prison sentence on the child abuse charge and was placed on probation, with the condition that he serve three months in the county jail and, again, that he have no contact with Jill D. or the child. While serving the county jail sentence he was released for medical treatment but instead went to Jill D.'s home and assaulted her. For that, he was charged with battery and a second count of bail jumping.

[176 Wis.2d 234] James and the state reached a plea agreement in which he agreed to plead no contest to the three charges--two counts of bail jumping and one count of battery--in exchange for the state's agreement to recommend that the court withhold sentence and place him on probation for a total of five years.

Prior to the plea hearing, James and his attorney filled out a "plea questionnaire and waiver of rights" form which included James's acknowledgement that he understood he was facing maximum prison sentences totalling twenty-five years on the three charges. He acknowledged that he had gone over "each and every question on the form" with his attorney before he signed it.

At the plea hearing, the prosecutor explained to the court that, as a means of attempting to get James to "conform his conduct," the state was recommending probation, "which means ... he could be revoked on probation ... thereby facing 25

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years that he's currently facing." The court, in its discussion of the plea with James, asked him whether he understood "that the maximum penalties which could be imposed for the crimes ... set forth in the information total $30,000 in fines or ... imprisonment for up to 25 years or both," to which James replied that he did.

After his probation was revoked for repeated contact with the child and the child's mother, James was returned to court for sentencing. The prosecutor began her remarks at the sentencing hearing by noting that James was facing "25 years in prison" on the three counts and, after discussing the circumstances of the offenses and James's prior convictions in some detail, she recommended that he be sentenced to maximum consecutive terms totalling twenty-five years. Neither [176 Wis.2d 235] James nor his counsel questioned the state's ability to make such a recommendation.

After his counsel's argument, James addressed the court. He made no mention of the state's twenty-five year recommendation until the conclusion of his lengthy statement, when he said simply: "a total of 25 years, no, I don't think that's justice, and I would ask [that] you tru[ ]ly use your heart before you sentence me."

The trial court, after discussing the nature of the offenses, James's "very substantial" criminal record, his failures on probation and parole in the past, and his continuing refusal to take responsibility for his actions, imposed prison sentences on the three charges totalling nineteen years.

As indicated, James promptly moved to withdraw his plea, claiming it was not knowingly and voluntarily entered. He also contended that his plea was entered as a result of ineffective assistance of counsel, but he has not pursued that claim on appeal.

At the hearing on the plea-withdrawal motion, the attorney who had represented James at the plea hearing was asked whether he told James prior to entry of the plea that he could be sentenced up to the twenty-five year maximum on the charges should his probation be revoked. Counsel responded that he could not remember specifically, but stated that he ordinarily would offer such an explanation to his clients. Counsel then stated that he and James did discuss the "total maximum sentences that were facing him," and that that potential sentence was one of the reasons for entering into the plea agreement. Counsel recalled that it was his usual practice to go over the plea questionnaire with his clients point by point "carefully advis[ing] [them] about each item"--and that he specifically[176 Wis.2d 236] remembered discussing the maximum penalties for the offenses with James.

James testified at the hearing that his attorney never told him that there were any "consequences upon revocation of probation." According to James, his counsel simply said that "the Judge would go along with the plea agreement," and that he (James) believed that if his probation were ever revoked, he would only be sentenced to prison for whatever time remained in the five-year probationary term. He stated that if he had known that he was facing more time than that, if his probation were revoked, he would not have entered the plea in the first place.

When asked about the prosecutor's remark at the plea hearing that he would be facing a maximum sentence of twenty-five years should his probation be revoked, James responded that he did not hear the statement because he was talking to his attorney and filling out the plea questionnaire while the hearing was going on. He also stated that, while he responded in the affirmative to the court's question whether he understood he was facing a total of twenty-five years, he wasn't listening "[w]holeheartedly" to the judge's remarks.

The trial court indicated its disbelief of James's testimony that he did not hear the prosecutor's explanation of the sentencing effects of probation revocation and declined to permit him to withdraw his plea. In so ruling, the court also emphasized the fact that in his lengthy statement at the sentencing hearing, he never challenged--or even referred to--the state's right to seek a twenty-five year prison sentence.

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Generally, a defendant wishing to withdraw a plea of guilty or no contest has the burden of showing by [176 Wis.2d 237] clear and convincing evidence that withdrawal is necessary to correct a manifest injustice. State v. Spears, 147 Wis.2d 429, 434, 433 N.W.2d 595, 598 (Ct.App.1988). A "manifest injustice" occurs where a defendant makes a plea involuntarily or without knowledge of the consequences of the plea--or where the plea is "entered without knowledge of the charge or that the sentence actually imposed could be imposed." Birts v. State, 68 Wis.2d 389, 393, 228 N.W.2d 351, 354 (1975)...