State v. Nawrocke

• Decision Date: 04 April 1995
• Docket Number: No. 94-2900-CR,94-2900-CR
• Citation: 534 N.W.2d 624,193 Wis.2d 373
• Court: Wisconsin Court of Appeals
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Charles F. NAWROCKE, Defendant-Appellant. d

Page 624

534 N.W.2d 624

193 Wis.2d 373

STATE of Wisconsin, Plaintiff-Respondent, v. Charles F. NAWROCKE, Defendant-Appellant. ^d

No. 94-2900-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 15, 1995.

Opinion Released April 4, 1995.

Opinion Filed April 4, 1995.

On behalf of the defendant-appellant, the cause was submitted on the brief of Alexander E. Brown of Drager, O'Brien, Anderson, Burgy & Garbowicz, Eagle River.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Charles Nawrocke appeals a judgment of conviction of second-degree sexual assault of a child, contrary to § 948.02(2), STATS. Nawrocke contends the trial court erred when it considered his motion to withdraw his Alford ¹ plea from a postsentence perspective. Because we conclude that the motion to withdraw the plea was after a sentencing that was never vacated and that the trial court properly exercised its discretion, we affirm.

In October 1993, J.P.P. (D.O.B. 6-13-80) was baby-sitting Nawrocke's children. When it was the children's bedtime, Nawrocke asked J.P.P. to lie in the bed next to his child to help the child go to sleep. Afterwards, Nawrocke asked J.P.P. to come into the living room. He then allegedly pulled down her shorts and panties and pushed her to the floor. J.P.P. then alleged that Nawrocke pulled down his pants, got on top of her and inserted his penis inside of her. Further allegations state that Nawrocke then grabbed the juvenile, opened her blouse and brassiere and tried to kiss her. He told her to take off the second half of school the next day so they could have sex again. J.P.P. refused and Nawrocke consequently threatened her if she told anyone about what happened.

Consequently, J.P.P. and her mother met with the police and a complaint was filed charging Nawrocke with one count of sexual intercourse with a child who had not attained the age of sixteen years, in violation of § 948.02(2), STATS., and one count of knowingly and maliciously attempting to intimidate a victim from reporting a crime to law enforcement officials, in violation of § 940.45(3), STATS. Following the preliminary hearing, an information was filed which included two additional charges; two counts of sexual contact with a child who has not attained the age of sixteen years, in violation of § 948.02(2).

In March 1994, Nawrocke entered an Alford plea to one charge of sexual assault. The State dismissed the other three counts, as well as an unrelated bail jumping charge. Thereafter, the trial court explained to Nawrocke the Alford decision and its application; that although Nawrocke was maintaining his innocence, the court would find Nawrocke guilty upon his plea. The trial court also reviewed Nawrocke's plea, specifically the elements of the sexual assault offense and the constitutional rights waived by the plea. To support the Alford plea, the district attorney offered preliminary hearing testimony, which included the juvenile's "excited utterance" statement, incriminating admissions made by Nawrocke and J.P.P.'s medical records from the night of the alleged assault. The trial court concluded that there was strong evidence of guilt to support Nawrocke's plea.

In April 1994, the trial court sentenced Nawrocke to a prison term of six years and the judgment of conviction was entered. During sentencing, J.P.P.'s guardian ad litem handed the district attorney a note written by J.P.P., which the district attorney did not read until after sentencing. The note's content implied that J.P.P. consented to the sexual contact.

Shortly thereafter, defense counsel was notified of the note and filed a motion to resentence, alleging that new information provided to the defense would be relevant to the trial court's sentence determination. At this time, Nawrocke did not move to withdraw the plea. The trial court ruled that J.P.P.'s note constituted a new factor to reconsider sentencing under Rosado v. State, 70 Wis.2d 280, 234 N.W.2d 69 (1975). Although Nawrocke's first sentence was never expressly vacated, the trial court set a resentencing hearing after the presentence investigator re-examined the case.

In June 1994, defense counsel filed a motion to withdraw the plea. This motion alleged that J.P.P.'s note was exculpatory in nature. ² The motion also purported that the lesser standard of review for a plea withdrawal should apply because it was filed before the second sentencing.

Although the hearing was initially set to reconsider sentencing due to J.P.P.'s note, the subsequent motion required the court to consider Nawrocke's request for a plea withdrawal. The trial court ruled that the higher burden of proof would be applied to the plea withdrawal because Nawrocke had already been sentenced. After reviewing the evidence and applying the "manifest injustice" standard, the court denied Nawrocke's motion to withdraw his Alford plea. At resentencing, the trial court adopted and expanded its reasoning of the first sentencing hearing and affirmed the original sentence of six years in the state prison system. Nawrocke appeals.

A defendant may withdraw a presentence plea for any "fair and just" reason. State v. Canedy, 161 Wis.2d 565, 582, 469 N.W.2d 163, 170 (1991). This is not an absolute right; the defendant has the burden of showing the "fair and just reason" by a preponderance of the evidence. Id. at 582-83, 469 N.W.2d at 170-71.

However, after sentencing the criterion of "manifest injustice" is required to withdraw a plea. State v. Truman, 187 Wis.2d 622, 624, 523 N.W.2d 177, 178 (Ct.App.1994). The "manifest injustice" test is rooted in concepts of constitutional dimension, requiring the showing of a serious flaw in the fundamental integrity of the plea. Libke v. State, 60 Wis.2d 121, 128, 208 N.W.2d 331, 335 (1973). Defendants seeking a postsentence withdrawal must show the manifest injustice by clear and convincing evidence. Truman, 187 Wis.2d at 624, 523 N.W.2d at 179.

In the context of § 974.06, STATS., postconviction procedures, our supreme court articulated the reasoning behind the higher burden of clear and convincing evidence:

The rationale behind the use of this higher standard of proof is that once the guilty plea is entered the presumption of innocence is no longer applicable, and when the record on its face shows that the defendant was afforded constitutional safeguards, the defendant should bear the heavier burden of showing that his plea...