State v. Kharb
| Citation | 386 Wis.2d 630,927 N.W.2d 928 (Table),2019 WI App 21 |
| Decision Date | 12 March 2019 |
| Docket Number | Appeal No. 2018AP584-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Praveen KHARB, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
¶1 Praveen Kharb appeals a judgment convicting him of one count of first-degree sexual assault of a child under age thirteen and seven counts of possession of child pornography. He also appeals an order denying his motion for postconviction relief. Kharb argues he is entitled to withdraw his no contest pleas because a provision of his plea agreement concerning the waiver of his right to appeal was ambiguous; because the circuit court did not conduct an adequate colloquy regarding the appellate waiver provision; and because his trial attorneys were ineffective by failing to adequately explain the appellate waiver provision. In the alternative, Kharb argues either sentence modification or resentencing is warranted based on errors in the presentence investigation report (PSI). We reject Kharb’s arguments and affirm.
¶2 In January 2014, thirty-seven-year-old Kharb began communicating online with Mary,1 a twelve-year-old girl residing in Marathon County, Wisconsin. They communicated online for approximately two months, during which time Kharb sent Mary various gifts, including a sex toy. Kharb persuaded Mary to exchange nude pictures with him, including one in which she was using the sex toy. In March 2014, Kharb traveled to Mary’s home from Washington State and had sexual intercourse with her.
¶3 Kharb was initially charged with one count of first-degree sexual assault of a child under age thirteen and one count of using a computer to facilitate a child sex crime. The State later filed an amended Information that included fourteen additional charges—seven counts of possession of child pornography, and seven counts of sexual exploitation of a child.
¶4 The parties ultimately reached a plea agreement, by which Kharb agreed to plead no contest to the first-degree sexual assault of a child charge and to the seven child pornography counts. Kharb also agreed to withdraw any pending motions, to recommend sentences providing for at least three years of initial confinement, and not to contest future deportation proceedings. In addition, the plea agreement included a provision regarding the waiver of Kharb’s appellate rights. According to a document attached to the Plea Questionnaire/Waiver of Rights form that Kharb completed, Kharb agreed "to waive his right to appeal the conviction." When reciting the terms of the parties' agreement during the plea hearing, the prosecutor stated Kharb "will waive his right to appeal."
¶5 In exchange for Kharb’s no contest pleas and the other concessions discussed above, the State agreed to recommend that the remaining eight charges against him be dismissed and read in for purposes of sentencing. The State also agreed to cap its sentencing recommendation for all eight convictions at seven years of initial confinement and twenty years of extended supervision. Furthermore, the State agreed not to file any additional charges related to Kharb’s conduct with Mary, and it obtained an agreement from authorities in Washington State that Kharb would not face any charges there.
¶6 At the plea hearing, the circuit court conducted a colloquy, during which it confirmed that Kharb understood the terms of the plea agreement and understood that the court was not bound by that agreement. The court also confirmed that Kharb had reviewed the information on the Plea Questionnaire/Waiver of Rights form "carefully" with his attorneys, had discussed his questions regarding the form with them, and had signed the form because he understood the information it contained. Kharb further confirmed that he had enough time to discuss the plea agreement with his attorneys and was satisfied with their representation. Attorney Joshua Martin—one of the lawyers representing Kharb2 —similarly told the court that he had sufficient time to discuss the plea agreement with Kharb and believed Kharb’s pleas were free, voluntary, and intelligent.
¶7 The circuit court accepted Kharb’s pleas and found him guilty. The court did not specifically discuss the appellate waiver provision during its plea colloquy with Kharb. However, after accepting Kharb’s pleas, the court addressed the attorneys for both sides, stating, Kharb did not raise any questions or concerns regarding the appellate waiver provision during the plea hearing.
¶8 After considering PSIs submitted by both parties, the circuit court ultimately imposed sentences totaling fifteen years' initial confinement and fifteen years' extended supervision—far less than Kharb’s maximum prison exposure of 235 years. Kharb then moved for postconviction relief, seeking plea withdrawal, resentencing, or sentence modification.
¶9 Kharb argued he was entitled to withdraw his pleas on three grounds: (1) that the plea agreement’s appellate waiver provision was ambiguous; (2) that the circuit court’s plea colloquy was deficient because the court was required—and failed—to conduct a colloquy ensuring that Kharb’s waiver of his appellate rights was free, voluntary, and intelligent (hereinafter, the "Bangert claim")3 ; and (3) that Kharb’s trial attorneys were ineffective by failing to adequately explain the appellate waiver provision to him (hereinafter, the "Nelson/Bentley claim").4 In support of his claim for resentencing, Kharb argued his sentences were based on inaccurate information in the State’s PSI. Kharb further asserted that the existence of that inaccurate information was a new factor warranting sentence modification, and that his sentences were unduly harsh.
¶10 With respect to Kharb’s Bangert claim, the circuit court concluded he had made a prima facie showing that the plea colloquy was defective because "there may have not been an adequate record made as to [Kharb’s] knowing waiver of the separate and distinct right to appeal." The court therefore held that the burden had shifted to the State to establish that Kharb’s plea was "knowingly, voluntarily, and intelligently entered despite the inadequacy of the record at the time of the plea’s acceptance." The court then held an evidentiary hearing on Kharb’s Bangert and Nelson/Bentley claims, at which Martin, Zich, Bhatt, and Kharb each testified.
¶11 The circuit court subsequently denied Kharb’s postconviction motion in its entirety. Addressing Kharb’s plea withdrawal claims, the court found that: (1) the State’s initial plea offer to Kharb did not include an appellate waiver provision; (2) it was Martin who initially proposed adding an appellate waiver provision; (3) Martin discussed the meaning and purpose of the appellate waiver provision with Kharb before Kharb entered his no contest pleas; (4) Kharb gave Martin "specific authorization" to propose an appellate waiver provision in his plea negotiations with the State; (5) Martin reviewed "every line" of the Plea Questionnaire/Waiver of Rights form with Kharb before Kharb signed it; (6) Martin explained to Kharb that the appellate waiver provision barred him from appealing his no contest pleas, as opposed to his sentences; (7) Kharb never expressed any confusion about the appellate waiver provision; (8) Kharb told the court during the plea hearing that he had reviewed the Plea Questionnaire/Waiver of Rights form with his attorneys and that he understood the plea agreement’s terms; (9) Kharb’s statements during the plea hearing regarding his understanding of the plea agreement were more credible than his subsequent, contrary testimony at the postconviction hearing; and (10) Martin’s postconviction hearing testimony that he "discussed in detail all aspects of the plea agreement with [Kharb], including the waiver of his right to appeal," was credible.
¶12 Based on these findings, the circuit court concluded the plea agreement was not ambiguous and Kharb understood when he entered his pleas that the appellate waiver provision only limited his right to appeal his conviction and did not prevent him from challenging the sentences imposed. The court further concluded Kharb’s Bangert claim failed because—despite any deficiencies in the plea colloquy—the State had met its burden to prove that Kharb’s pleas were knowing, intelligent, and voluntary. The court also rejected Kharb’s Nelson/Bentley claim, concluding Kharb had failed to establish ineffective assistance because he had not proved that his attorneys performed deficiently in explaining the appellate waiver provision.
¶13 Turning to Kharb’s sentencing challenges, the circuit court rejected Kharb’s resentencing claim, concluding he had failed to show that any inaccurate information was before the court at sentencing or that the court relied on any of the allegedly inaccurate information. The court also concluded Kharb was not entitled to sentence modification based on the alleged errors in the PSI or because his sentences were unduly harsh.
¶14 Kharb subsequently moved for reconsideration of the circuit court’s decision denying plea withdrawal. The court denied that motion, and Kharb now appeals.
¶15 To withdraw his or her plea after sentencing, a defendant must establish, by clear and convincing evidence, that plea withdrawal is necessary to correct a manifest injustice. State v. Villegas , 2018 WI App 9, ¶18, 380 Wis. 2d 246, 908 N.W.2d 198, review denied , 2018 WI 100, 384 Wis. 2d 768, 920 N.W.2d 920. On appeal, Kharb first argues this standard has been met because the plea agreement’s appellate waiver provision is ambiguous. Although his ambiguity argument is somewhat unclear, he appears to contend the appellate waiver provision is ambiguous as to whether it completely prevents him from...
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