State v. Peterson, Appeal No. 2017AP1871

CourtCourt of Appeals of Wisconsin
Writing for the CourtPER CURIAM.
Citation2019 WI App 58,936 N.W.2d 398 (Table),389 Wis.2d 103
Decision Date10 September 2019
Docket NumberAppeal No. 2017AP1871
Parties STATE of Wisconsin, Plaintiff-Respondent, v. William T. PETERSON, Defendant-Appellant.

389 Wis.2d 103
936 N.W.2d 398 (Table)
2019 WI App 58

STATE of Wisconsin, Plaintiff-Respondent,
v.
William T. PETERSON, Defendant-Appellant.

Appeal No. 2017AP1871

Court of Appeals of Wisconsin.

DATED AND FILED September 10, 2019


PER CURIAM.

¶1 William Peterson, pro se, appeals an order denying his WIS. STAT. § 974.06 (2017-18)1 postconviction motion for plea withdrawal and sentence modification. Peterson argues that his plea was unknowing, thus entitling him to plea withdrawal, because the circuit court did not inform him at the plea hearing that read-in offenses could be used to increase his sentence up to the maximum or that it could order him to have no contact with his biological daughter. Peterson also contends he is entitled to sentence modification because the court erroneously weighed sentencing factors. We reject these arguments and affirm the order.

BACKGROUND

¶2 The State charged Peterson with first-degree sexual assault of a child under the age of thirteen; first-degree sexual assault of a child under the age of sixteen, by use of force or violence; first-degree sexual assault of a child under the age of twelve; incest with a child by a stepparent; felony intimidation of a victim; false imprisonment (domestic abuse); two counts of repeated sexual assault of a child; and three counts of exposing genitals or pubic area. In exchange for his guilty pleas to one count of repeated sexual assault of a child and one count of felony intimidation of a victim, the State agreed to cap its sentence recommendation at ten years’ initial confinement, but it remained free to argue the term of extended supervision. The remaining counts were dismissed and read in for sentencing purposes.

¶3 At the sentencing hearing, Jonathan Dickey, a licensed psychologist from the Division of Community Corrections at the Wisconsin Department of Corrections, testified about a "Sex Offender Evaluation Report" he had prepared for the circuit court. Dickey opined that Peterson fell within the "moderate" risk range for sex offense recidivism, but that risk could be reduced through proper treatment and external controls. Dickey further explained that his assessment did not take into account the fact that Peterson had other alleged victims, because the tools used did not account for charges occurring during the same time period that did not result in convictions, such as the dismissed and read-in charges. When asked to discuss the dynamic factors affecting Peterson’s risk level, Dickey noted, among other things, that there was "partial evidence of sexual interest in children," noting the victim was eleven years old. Apart from evaluating Peterson’s overall level of risk to sexually reoffend, Dickey did not offer a sentence recommendation.

¶4 Defense counsel expanded on Dickey’s written report, emphasizing a statement therein that Peterson’s crimes were likely motivated by a "confluence" of psychological problems rather than a pedophilic interest in children. Defense counsel recommended five years’ initial confinement and twenty to twenty-five years’ extended supervision for the repeated sexual assault of a child count, with a concurrent sentence of two years’ initial confinement and two to three years’ extended supervision for the intimidation of a victim count. Consistent with the plea agreement, the State recommended ten years’ initial confinement followed by twenty years’ extended supervision for the repeated sexual assault of a child count. For the intimidation count, the State recommended a withheld sentence and five years’ probation.

¶5 The circuit court ultimately followed the State’s sentencing recommendation. The court also ordered that Peterson "have no contact with anyone under 18 other than incidental contact," adding that "the contact should never be alone." However, the court ordered that Peterson could have contact with his minor biological daughter if she requested contact and once it was screened by the Department of Corrections "for appropriateness."

¶6 After the time for filing a direct appeal had expired, Peterson filed the underlying motion requesting plea withdrawal and sentence modification pursuant to WIS. STAT. § 974.06. Peterson also requested a Machner2 hearing, though he did not allege a claim of ineffective assistance of counsel. After a postconviction hearing limited to argument, the court denied Peterson’s motion. This appeal follows.

DISCUSSION

¶7 As a threshold matter, the State asserts that this court lacks jurisdiction to review this matter because there is no written order in the record on appeal. A judgment or order must be reduced to writing and filed with the clerk of the circuit court before an appeal can be taken. Ramsthal Advert. Agency v. Energy Miser, Inc. , 90 Wis. 2d 74, 75, 279 N.W.2d 491 (Ct. App. 1979). The transcript of the hearing does not satisfy the requirement that a written judgment or order be entered. See State v. Powell , 70 Wis. 2d 220, 222, 234 N.W.2d 345 (1975).

¶8 The circuit court orally denied Peterson’s WIS. STAT. § 974.06 motion at a June 23, 2017 hearing. Peterson subsequently wrote the court requesting a "written judgment" so that he could file a notice of appeal. In an October 26, 2017 letter signed by the judge, the court responded to Peterson’s request stating it was "unclear as to which motions that [it] denied, that [Peterson] believe[d] do not include an order." The court further stated that "[a]n appeal should go to the appellate court," suggesting its belief that all requests for relief had been denied at that point. Ambiguities should be liberally construed to preserve the right to appeal. See Wambolt v. West Bend Mut. Ins. Co. , 2007 WI 35, ¶50, 299 Wis. 2d 723, 728 N.W.2d 670. We therefore construe the October 26, 2017 letter as the order denying Peterson’s § 974.06 motion.

¶9 Although the order was filed after the notice of appeal, the notice of appeal is deemed filed on the date of entry of the order on appeal. See WIS. STAT. § 808.04(8). To the extent the notice of appeal does not identify the October 26, 2017 order, the failure of the notice of appeal to correctly identify the final appealable document is not fatal to appellate jurisdiction. See Carrington v. St. Paul Fire & Marine Ins. Co. , 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267 (1992).

¶10 Turning to the merits of this appeal, Peterson contends he should be allowed to withdraw his plea because it was not knowingly entered. In a postsentence motion for plea withdrawal, the defendant carries the heavy burden of establishing, by clear and convincing evidence, that plea withdrawal is necessary to correct a manifest injustice. See State v. Thomas , 2000 WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d 836.

¶11 The manifest injustice standard requires the defendant to show "a serious flaw in the fundamental integrity of the plea." Id. (citation omitted). One way for a defendant to meet this burden is to show that he or she did not knowingly, intelligently, or voluntarily enter the plea. State v. Brown , 2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906. Whether a plea is knowing, intelligent, and voluntary is a question of constitutional fact. Id. , ¶19. We accept the circuit court’s findings of historical and evidentiary fact unless they are clearly erroneous, but we determine independently whether those facts demonstrate that the defendant’s plea was knowing, intelligent, and voluntary. Id.

¶12 Where, as here, a defendant moves to withdraw his or her plea based on an alleged error in the plea colloquy, the defendant must: (1) make a prima facie showing of a violation of WIS. STAT. § 971.08 or another court-mandated duty; and (2) allege that he or she did not, in fact, know or understand the information that should have been provided during the plea colloquy. State v. Bangert , 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986). If the defendant satisfies these obligations, the burden shifts to the State to prove by clear and convincing evidence that the defendant’s plea was knowing, intelligent, and voluntary despite the inadequacy of the plea colloquy. Id. The State may utilize any evidence in the record "to show that the defendant in fact possessed the constitutionally required understanding and knowledge which the defendant alleges the inadequate plea colloquy failed to afford him [or her]." Id. at 274-75.

¶13 Citing State v. Sulla...

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