State v. Karlin, 93-0341
| Decision Date | 06 October 1994 |
| Docket Number | No. 93-0341,93-0341 |
| Citation | 188 Wis.2d 602,526 N.W.2d 279 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Charles A. KARLIN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.
Charles A. Karlin appeals from a postconviction order summarily denying a motion to withdraw his 1987 Alford plea. His motion is too late. Sections 809.30; 974.02, STATS. We treat it as a motion under § 974.06, STATS., and therefore review only Karlin's constitutional and jurisdictional claims. Therefore, we affirm.
Karlin was charged with seven counts of burglary (including armed burglary) and seven counts of theft. He entered an Alford plea to a single count of theft of a firearm as a party to the crime, contrary to §§ 943.20(1)(a) and 939.05, STATS. 1 The seven burglary counts were dismissed and the remaining six theft charges were read-in at sentencing. The trial court imposed a five-year sentence concurrent to the other sentences he was serving, according to the plea agreement. Within days of completing his five-year sentence, Karlin filed the motion resulting in the order on appeal. 2
[I]f a motion to withdraw a guilty plea after judgment and sentence alleges facts which, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing. However, if the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusionary allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing.
Nelson v. State, 54 Wis.2d 489, 497-98, 195 N.W.2d 629, 633 (1972). The trial court will grant a motion to withdraw a plea after sentencing only if the defendant has shown, by clear and convincing evidence, that withdrawal is necessary to correct a manifest injustice. State v. Johnson, 105 Wis.2d 657, 666, 314 N.W.2d 897, 902 (Ct.App.1981).
Karlin's postconviction motion raises numerous issues. Many of Karlin's allegations are conclusory, and those which rely on facts are belied by the record or are immaterial.
Karlin claims he was unaware that his counsel sought substitution of Judge Michael T. Kirchman. However, he does not allege why this entitles him to postconviction relief.
Karlin challenges the bindover order, contending that the examining court's recusal thereafter demonstrates bias. 3 We disagree. Moreover, Karlin should have preserved his objection to Judge Reinecke's refusal to recuse himself from presiding over the preliminary hearing. His failure to do so by entering an Alford plea, waived any challenge to the recusal ruling. State v. Riekkoff, 112 Wis.2d 119, 128, 332 N.W.2d 744, 749 (1983). Moreover, he fails to allege why the bindover order entitles him to withdraw his plea.
Karlin contends there is no supporting factual basis for his plea. The trial court relied on the factual basis for the plea from the transcript of the preliminary hearing and the probable cause section of the complaint. Defense counsel stipulated to the factual basis for the plea, relying on evidence from the preliminary hearing. Counsel's stipulation waives review of this issue.
Karlin contends he did not understand the ramifications of an Alford plea. The transcript of the plea hearing belies Karlin's contention. He personally explained the Alford plea and its ramifications. 4 He also explained what read-in charges are, since many of his charges were dismissed, but read in. The trial court clarified and confirmed Karlin's understanding of these concepts, and was satisfied, as are we, that he entered his plea knowingly.
Karlin also contends that his plea was not entered voluntarily because he was under mental and physical strain. Karlin alleged that he "had several medical problems that were worsening, as the result of numerous criminal actions that [he] was involved in." Karlin has not alleged facts demonstrating that his plea was entered involuntarily. Nothing in the transcript of the plea hearing indicates that Karlin did not enter his plea voluntarily. These conclusory allegations are insufficient to entitle Karlin to a postconviction evidentiary hearing. Nelson, 54 Wis.2d at 497-98, 195 N.W.2d at 633.
Karlin contends that the incriminating evidence should have been suppressed because it was the result of an illegal search and seizure. Karlin specifies omissions from investigative reports and alleges that the officers fabricated evidence. However, these omissions and alleged fabrications could have been challenged at trial. These allegations do not qualify as newly-discovered evidence, nor do they persuade us that Karlin is entitled to an evidentiary hearing to obtain ammunition for a suppression motion.
Karlin also contends that police obtained incriminating evidence from his wife, which should have been precluded by the marital privilege. This contention does not raise a constitutional or a jurisdictional issue. Therefore, we need not review it. 5
Karlin claims he received ineffective assistance of trial counsel. Subsumed in this claim is that state investigators falsified evidence. However, Karlin must allege sufficient facts to demonstrate trial counsel's performance was deficient and prejudicial. State v. Marty, 137 Wis.2d 352, 356, 404 N.W.2d 120, 122 (Ct.App.1987). Considering the plea agreement, which appears very favorable to Karlin, he is not entitled to a Machner hearing to explore trial counsel's competency. State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct.App.1979). It is inappropriate for this court to determine the competency of trial counsel on unsupported allegations. State v. Simmons, 57 Wis.2d 285, 297, 203 N.W.2d 887, 894-95 (1973).
Karlin claims that his conviction is barred by collateral estoppel and double jeopardy. This alleged bar is based on his 1986 acquittal in federal court to the charge of knowingly possessing a firearm in or affecting commerce. However, he does not explain why the instant...
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