State v. Kratochwill, 96-0458-CR
| Decision Date | 19 September 1996 |
| Docket Number | No. 96-0458-CR,96-0458-CR |
| Citation | 555 N.W.2d 411,205 Wis.2d 114 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Daniel F. KRATOCHWILL, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Dane County: JACK F. AULIK, Judge. Affirmed.
Before EICH, C.J., VERGERONT and DEININGER, JJ.
Daniel Kratochwill entered a no contest plea to a charge of knowingly possessing with intent to deliver between fifteen and forty grams of cocaine, as a drug offense repeater, in violation of §§ 161.41(1m)(cm)3 and 161.48, STATS. He appeals from the judgment of conviction and the denial of his motion for postconviction relief, claiming that he is entitled to withdraw his plea because the trial court failed to inform him of the minimum period of incarceration for the offense and because he did not know about certain potential constitutional challenges to the State's case against him. He also claims that his trial counsel was ineffective for not pursuing those constitutional challenges. We reject each contention and affirm.
We first consider Kratochwill's argument that his plea was not knowingly, voluntarily and intelligently entered because the trial court did not inform him of the minimum period of incarceration. A plea of guilty that is not knowingly, voluntarily and intelligently entered creates a manifest injustice which entitles the defendant to withdraw the plea. State v. Harrell, 182 Wis.2d 408, 414, 513 N.W.2d 676, 678 (Ct.App.1994). When a defendant claims that the procedures of § 971.08(1)(a) and (b), STATS., or other mandated procedures are not followed at the plea hearing, the defendant has the burden to make a prima facie showing of that. State v. Bangert, 131 Wis.2d 246, 274, 389 N.W.2d 12, 26 (1986). Once the defendant has done so and has alleged that he or she did know the information that should have been provided, the burden shifts to the State to show by clear and convincing evidence that the defendant's plea was knowingly, voluntarily and intelligently entered despite the inadequacy of the record at the plea hearing. Id.
Kratochwill contends that the procedures of § 971.08, STATS., were not followed because the requirement in para. (1)(a) that the trial court "address the defendant personally and determine that the plea is made with understanding of ... the potential punishment if convicted" includes informing the defendant of the minimum as well as the maximum punishment, or ascertaining that he knows the minimum as well as the maximum sentence. We do not decide whether Kratochwill's interpretation of § 971.08 is correct because, even if it is and the burden therefore shifts to the State, we conclude the State has shown by clear and convincing evidence that Kratochwill knew of the minimum period of incarceration.
The amended information, 1 filed the day of the plea hearing, stated that the penalty for the crime of possession with intent to deliver between fifteen and forty grams of cocaine was a fine of not more than $500,000 and imprisonment for not less than three years nor more than twenty years. The amended information also stated that because Kratochwill had been previously convicted of a drug offense, the maximum and minimum fines and periods of incarceration were doubled. 2 At the plea hearing, Kratochwill stated, in response to the court's question, that he had received the amended information. When the court asked him whether he wanted to have the amended information read to him, his counsel stated that they waived the reading. The court informed Kratochwill that the maximum penalty he was facing was a fine up to $500,000 and forty years in prison or both and asked Kratochwill if he understood that. Kratochwill said he did. The court did not inform Kratochwill of the minimum penalty. The plea questionnaire contained the maximum penalty but not the minimum.
At the sentencing hearing, Kratochwill's counsel argued for a term of six years' imprisonment and, on at least two occasions, stated that this was the minimum sentence. The record shows that Kratochwill did not make any objection or comment or ask any question of his counsel or the court during the sentencing proceeding. The court sentenced Kratochwill to nine years.
At the hearing on Kratochwill's motion to withdraw his plea, Kratochwill and his attorney were both present. Kratochwill's trial counsel testified that he had a specific recollection of discussing with Kratochwill the maximum and minimum penalties of the offense originally charged and that he believed he did so on other occasions as well. Counsel did not have a specific recollection of discussing the penalties of the amended charge with Kratochwill, but he assumed he did because that is his practice. His notes showed that he discussed with Kratochwill the possibility of trying to get the district attorney to lower the alleged amount of cocaine so that the minimum and maximum penalties would be lower than those for the crime he was initially charged with. He went over the plea questionnaire and waiver of rights form with Kratochwill prior to the entry of the plea and the maximum and minimum penalties were again discussed with Kratochwill. Kratochwill did not testify and his trial counsel's testimony was not disputed.
The trial court found that Kratochwill was "completely advised as to the appropriate penalties that might be imposed in conjunction with these offenses" and concluded that the plea was, in fact, entered freely, knowingly and intelligently. Because Kratochwill specifically raised the issue of his knowledge of the minimum penalty in his motion, we construe the court's finding to include both the minimum and the maximum penalty in its reference to "the appropriate penalties." We do not reverse a trial court's finding of fact unless it is clearly erroneous. Section 805.17(2), STATS. The trial court's finding is not clearly erroneous because it is supported by the uncontradicted testimony of trial counsel that he advised Kratochwill of the minimum and maximum penalties of the amended charge to which he entered a plea. The fact that trial counsel argued for a term of six years, referring to that as the minimum penalty in Kratochwill's presence and without objections or questions from him, also supports this finding.
Whether the facts as found by the trial court meet the applicable constitutional standard is a question that we review de novo. See State v. Turner, 136 Wis.2d 333, 344, 401 N.W.2d 827, 832 (1987). We conclude, as did the trial court, that the State has met its burden of showing that Kratochwill entered his plea knowingly, voluntarily and intelligently with respect to knowledge of the minimum penalty of the offense.
Kratochwill also claims that his plea was not knowing, voluntary and intelligent because he did not have knowledge of three possible constitutional challenges to the State's case against him. Kratochwill recognizes that his plea waives challenges to any non-jurisdictional violation of constitutional rights occurring before the entry of the plea. See State v. Riekkoff, 112 Wis.2d 119, 123, 332 N.W.2d 744, 746 (1983). However, Kratochwill contends that his trial counsel was ineffective for not pursuing these...
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