State v. Mendez
| Decision Date | 13 June 1990 |
| Docket Number | No. 89-1027-CR,89-1027-CR |
| Citation | 157 Wis.2d 289,459 N.W.2d 578 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Albert MENDEZ, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Richard D. Martin, Asst. State Public Defender, for defendant-appellant.
Donald J. Hanaway, Atty. Gen., Sally L. Wellman, Asst. Atty. Gen. and Barry M. Levenson, Asst. Atty. Gen., on the brief, for plaintiff-respondent.
Before NETTESHEIM, P.J., and SCOTT, J., and Circuit Judge DANIEL P. ANDERSON, acting.
Following his guilty pleas, Albert Mendez was convicted of one misdemeanor and four felonies, including intimidation of a witness, pursuant to secs. 940.42 and 940.43(3), Stats. The issue on appeal is whether a factual basis existed for Mendez' guilty plea to the intimidation of a witness charge.
Mendez' convictions resulted from a criminal episode in which Mendez and another, while armed, entered a dwelling and robbed two occupants, including J.L.T. At the plea hearing, the state offered the allegations of the criminal complaint and the preliminary hearing evidence as the factual basis for Mendez' pleas.
In relevant part, the criminal complaint alleged:
Complainant further states that he also has had occasion to interview the said [J.L.T.] who indicated that when the shorter of the two men had demanded initially that she given [sic] them her money that he took a knife and placed it against her throat and using his other hand had her by her nightgown by neck [sic] and accompanied her off the chair toward the vicinity of her purse; that the taller of the two men took her wallet, opened it and took out her money as described above; that after they took the above described money and the Al-Anon coin they then took her back into her living room and threatened to kill her several times if she called the police; that they then asked where the telephone was and she showed them and the one with the knife then cut the telephone cord and warned her again not to call the police; that the smaller one later threatened to kill her one more time if she called the police, then they both left the residence and she then ran and locked the doors to the residence and used a second telephone to call for police assistance. [Emphasis added.]
At the preliminary hearing, J.L.T. testified:
[A]nd then they asked where the phone was and I showed them where the phone was and they cut the phone cord and then they said, if you call the police, they would kill us--kill me, and I said, well, I can't call the police, you just cut the phone cord, so then they said, well, don't call the police or we're going to kill you, and I stood there and then they both went out the same way they came in, and I waited a few seconds and then I ran into the kitchen and I put the chain on the door....
[Emphasis added.]
Based upon the allegations of the criminal complaint and the preliminary hearing evidence, the trial court determined that a factual basis existed for Mendez' guilty plea to the intimidation of a witness charge. Mendez ultimately received aggregate sentences on all counts totaling thirty years, including a five-year sentence for intimidation of a witness.
By post-conviction motion, Mendez, for the first time, contended that a factual basis for the intimidation of a witness charge did not exist. The trial court denied the motion. Mendez appeals asking that we vacate the conviction for intimidation of a witness.
Section 940.42, Stats., provides:
Intimidation of witnesses; misdemeanor. Except as provided in s. 940.43, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade any witness from attending or giving testimony at any trial, proceeding or inquiry authorized by law, is guilty of a Class A misdemeanor.
Section 940.43, Stats., provides in relevant part:
Intimidation of witnesses; felony. Whoever violates s. 940.42 under any of the following circumstances is guilty of a Class D felony:
(1) Where the act is accompanied by force or violence or attempted force or violence, upon the witness....
....
(3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in sub. (1) or (2).
Mendez contends that his conduct and words did not seek to "prevent or dissuade" J.L.T. "from attending or giving testimony at any trial, proceeding or inquiry authorized by law" within the meaning of sec. 940.42, Stats. Instead, Mendez argues that his conduct, if anything, sought only to dissuade the victim, J.L.T., from reporting the crime. Mendez points out that this conduct is specifically prohibited by secs. 940.44 and 940.45, Stats., pertaining to intimidation of victims--not witnesses.
The state initially responds that Mendez is judicially estopped from raising this issue. A party will not be allowed to maintain inconsistent positions in judicial actions and proceedings. See In re H.N.T., 125 Wis.2d 242, 253 n. 7, 371 N.W.2d 395, 400-01 n. 7 (Ct.App.1985). We agree with the state that the ingredients for judicial estoppel might well exist in this case. At the plea hearing, Mendez conceded that a factual basis for his plea existed. Yet, later, at the post-conviction proceeding, Mendez argued just the opposite. Nonetheless, we reject the state's judicial estoppel argument.
The doctrine of estoppel is grounded in basic principles of justice and, where applicable, can bar a party from asserting legal or equitable rights. Kellogg v. Village of Viola, 67 Wis.2d 345, 350, 227 N.W.2d 55, 58 (1975). The state's argument creates a scenario in which a defendant can plead guilty to an offense which was not committed. We conclude that basic principles of justice should not permit a conviction in such a circumstance, despite the defendant's guilty plea. "The purpose of the statutory requirement for a court inquiry as to basic facts is to protect the defendant who pleads guilty voluntarily and understanding the charge brought but not realizing that his conduct does not actually fall within the statutory definition of the charge." Morones v. State, 61 Wis.2d 544, 552, 213 N.W.2d 31, 36 (1973). We therefore reject the state's judicial estoppel argument. 1
We thus move to the merits of Mendez' claim. Section 971.08(1)(b), Stats., requires that the trial court, before accepting a plea of guilty or no contest, "[m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged." As noted earlier, the...
To continue reading
Request your trial
-
Mrozek v. Intra Financial Corp.
...it on the grounds that it was not knowing or voluntary, or that a factual basis was lacking. See, e.g., State v. Mendez, 157 Wis. 2d 289, 294, 459 N.W.2d 578 (Ct. App. 1990) (concluding that a defendant's concession at a plea hearing that a factual basis for his plea exists does not preclud......
-
State v. Wilhelm, s. 92-2045
...not upset that finding unless it is contrary to the great weight and clear preponderance of the evidence. State v. Mendez, 157 Wis.2d 289, 295, 459 N.W.2d 578, 580 (Ct.App.1990). There is no question but that the trial court made sufficient inquiry as to whether there was a factual basis fo......
-
State v. Freer
...Wis. STAT. § 940.42.3 Freer notes that the witness statute extends to "putative witnesses" pursuant to State v. Mendez, 157 Wis.2d 289, 295-96, 459 N.W.2d 578 (Ct.App.1990), which would include most, if not all, crime ¶ 12 Freer further argues that we must presume that the legislature did n......
-
State v. Merritt
...that a sufficient factual basis existed for acceptance of a plea will not be upset unless clearly erroneous. State v. Mendez, 157 Wis.2d 289, 295, 459 N.W.2d 578, 580 (Ct.App.1990). The trial court is not required to find "strong proof of guilt" as argued by Merritt. 4 The trial court must ......