State v. Jenkins

• Citation: 2007 WI 96,736 N.W.2d 24
• Decision Date: 12 July 2007
• Docket Number: No. 2005AP302-CR.,2005AP302-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Barry M. JENKINS, Defendant-Appellant.
• Court: United States State Supreme Court of Wisconsin

736 N.W.2d 24

2007 WI 96

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Barry M. JENKINS, Defendant-Appellant.

No. 2005AP302-CR.

Supreme Court of Wisconsin.

Argued November 1, 2006.

Decided July 12, 2007.

For the plaintiff-respondent-petitioner the cause was argued by Maura F.J. Whelan, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

For the defendant-appellant there was a brief and oral argument by Melinda A. Swartz, assistant state public defender.

¶ 1 DAVID T. PROSSER, J

This is a review of a published decision of the court of appeals¹ reversing the circuit court's denial of Barry Jenkins' (Jenkins) presentence motion for plea withdrawal.

¶ 2 The case presents the recurrent question of how to review a circuit court's denial of a defendant's motion to withdraw his plea before sentencing, given the longstanding legal principle that a circuit court should "freely allow a defendant to withdraw his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced."² State v. Bollig, 2000 WI 6, ¶ 28, 232 Wis.2d 561, 578, 605 N.W.2d 199. In this case, the State does not argue that it would be substantially prejudiced by Jenkins' plea withdrawal. Therefore, the issues are whether Jenkins had a fair and just reason to withdraw his plea and how a reviewing court should review the circuit court's denial of Jenkins' motion.

¶ 3 Jenkins contends that he offered a fair and just reason, namely a misunderstanding of the consequences of his plea, to support his presentence motion for plea withdrawal. He contends that he misunderstood the consequences of his plea because he thought that he would be guaranteed the opportunity to work with law enforcement to potentially affect his sentence. Jenkins asserts that the circuit court erred when it denied his motion because it considered only whether a breach of the plea agreement had occurred, rather than whether he misunderstood the consequences of his plea.

¶ 4 The State contends that the circuit court did not err when it denied Jenkins' motion because the circuit court did not believe that Jenkins misunderstood the consequences of his plea. It posits that Jenkins may have hoped to work with law enforcement but that the evidence does not show that Jenkins actually believed or was led to believe that he would be guaranteed the opportunity to work with law enforcement. The State contends that the court of appeals erred when it reversed the circuit court's decision because it did not apply the appropriate standard of review and did not defer to the circuit court's credibility and factual determinations. Instead, it argues, the court of appeals substituted its own determinations for those of the circuit court.

¶ 5 We conclude that the circuit court did not erroneously exercise its discretion when it denied Jenkins' motion to withdraw his plea. From the beginning, Jenkins was represented by counsel. He had a lengthy criminal history, including two prior felony convictions, parole revocations, and incidents of violence. He was charged with selling heroin. He had several months to consider a plea agreement offered by the State. This agreement did not include a promise that Jenkins would be guaranteed the opportunity to work with law enforcement. At the plea hearing, Jenkins participated in a thorough plea colloquy with the court, with the active participation of his attorney, and the record supports the circuit court's determination that Jenkins understood the consequences of his plea. Jenkins did not attempt to withdraw his plea until the sentencing hearing, more than two months after he had entered the plea. By that time, he had read the recommendations for sentence in his presentence investigation.

¶ 6 Because the circuit court's decision to grant or deny a motion for plea withdrawal is within its discretion, we must affirm the circuit court's decision as long as it was demonstrably "`made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law.'" State v. Canedy, 161 Wis.2d 565, 579, 469 N.W.2d 163 (1991) (quoting Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16 (1981)). After applying the appropriate standard of review and finding support for the circuit court's decision in the record, we conclude that the circuit court did not err. Accordingly, we reverse the court of appeals.

I. BACKGROUND AND PROCEDURAL HISTORY

¶ 7 On September 12, 2002, Jenkins was charged with delivery of a controlled substance-heroin (3 grams or less), contrary to Wis. Stat. §§ 961.14(3)(k) and 961.41(d)(1).³ The charge arose out of a September 6, 2002, incident in which two undercover police officers purchased heroin from a person they later identified as Jenkins. On October 2, 2002, a preliminary hearing was conducted and Jenkins was bound over for trial. The State filed an information, and Jenkins pled not guilty.

¶ 8 In mid-November Jenkins' first defense counsel moved to withdraw. He was succeeded by Attorney Paul Barrett. At a December 18 scheduling conference, Attorney Barrett learned that Jenkins had written a December 1 letter to Milwaukee County Circuit Judge Elsa Lamelas without consulting an attorney.

¶ 9 In that letter, Jenkins complained about alleged flaws in police procedure,⁴ the purported inadequacy of his first attorney, and excessive bail. He added:

I've now become even more convinced that I'll not be able [to] fully prove my innocence — which only leaves me with one other option. That is to except [sic] this plea offering, which seems to be the best thing to do, before deciding to go into a full trial, and find myself over-powered by the judicial system and found guilty for a crime I truly was never a part of.

(Emphasis added). Nonetheless, Jenkins insisted that his identification was faulty and should be suppressed.

¶ 10 On December 19, Attorney Barrett wrote to Jenkins, advising him that ex parte letters to the court were "totally inappropriate." He then addressed a separate letter that Jenkins had written to the District Attorney's office about the possibility of receiving some benefit at sentencing in exchange for divulging relevant information about other drug perpetrators. Attorney Barrett wrote:

I was also informed by Assistant District Attorney Steven Glamm that you wrote to him concerning the possibility of getting some benefit for some information that you know. It is often possible to work out an arrangement where a defendant gets credit for what aid he gives to the police departments. He might even get enough credit that the police would testify at a sentencing hearing so the defendant would not be sent to prison. Assistant District Attorney Glamm is willing to work out some arrangement, but he insists that you take responsibility for your acts beforehand. That is, acknowledge that it was you making the hand to hand buy from the police officers. If you then wish to work with officers from narcotics or vice, that can be arranged. You would be debriefed and given use immunity for anything that you told to them. They would then make arrests or get warrants leading to arrests. If there were productive arrests from your information, you would be given credit. You might be given a lot of credit if you further testified against perpetrators. Bear in mind that all of this is predicated on acceptance of responsibility for the crime for which you were charged.

¶ 11 Two months later, on February 24, 2003, Jenkins entered a guilty plea to the charge. The plea agreement, which was the same as one offered to Jenkins through his first attorney, was that, in exchange for Jenkins' plea, the State would recommend 24 months initial confinement, 24 months extended supervision, and a $1000 fine, plus costs. In the plea colloquy, the court specifically asked Jenkins if the State's recitation of this agreement was correct, and Jenkins answered that it was.⁵ The court then asked Jenkins if he understood the charges and penalties against him, and Jenkins replied that he did. He also said he understood that the court was not required to follow the State's recommendation on sentencing. Jenkins then pled guilty to the charge of Delivery of a Controlled Substance-Heroin.

¶ 12 Before accepting the plea, the court went through the rights that Jenkins was waiving and the elements of the crime. The court asked Jenkins if anybody had promised anything to get him to plead guilty, other than the State's promised recommendation on sentencing. Jenkins replied, "No, they haven't." Jenkins said that no one had threatened him. Asked whether he was pleading guilty because he was guilty, Jenkins replied, "Totally."

¶ 13 In discussing the basis for the charge, Jenkins told the court that he did not completely agree with the allegations in the criminal complaint. He asserted that, unlike allegations in the complaint, he did not speak to the undercover officers during the drug buy. When asked how delivery took place without any speaking, Jenkins replied that "there wasn't no need for talking. It was already [understood] what they are there for."

¶ 14 Near the end of the plea hearing, the court asked counsel whether Jenkins was "possible FDOATP material," meaning whether he was a candidate for the Felony Drug Offender Alternatives to Prison Program. Attorney Barrett replied that he was asking for a 45-day adjournment because "[the defendant] has some people that he needs to talk to that may influence your judgment on sentencing." He added, "I think that a presentence investigation may be of help to you as well." The court then granted a two-month adjournment. After a bailiff pointed out that Jenkins was already in the Dodge Correctional Institution on another offense, however, the court said: "He's already in Dodge. . . . So he won't be going to FDOATP, or, at least, I don't think they would ever take him."

¶ 15 On April 19, 2003, shortly before the scheduled...