State v. Pryor, No. 2005AP1712-CR (Wis. App. 10/19/2006), No. 2005AP1712-CR.

Decision Date19 October 2006
Docket NumberNo. 2005AP1712-CR.
PartiesState of Wisconsin, Plaintiff-Respondent, v. Bobby Pryor, Defendant-Appellant.
CourtWisconsin Court of Appeals

APPEAL from an order of the circuit court for Dane County: C. WILLIAM FOUST, Judge. Affirmed.

Before Lundsten, P.J., Dykman and Higginbotham, JJ.

¶1 PER CURIAM.

Bobby Pryor appeals an order denying his motion for postconviction relief from a conviction for incest with a child. We affirm for the reasons discussed below.

BACKGROUND

¶2 Pryor was initially charged with one count of intentionally causing harm to a child, one count of repeated sexual contact with the same child, and one count of incest with a child, each with allegations of habitual criminality. After Pryor waived his preliminary hearing, the State filed an amended information charging Pryor with two counts of intentionally causing harm to a child and two counts of incest with a child, all as a habitual criminal, and also added an allegation that he was a persistent repeater subject to life imprisonment under WIS. STAT. § 939.62(2m)(b)2. and (c) (2001-02).1 Pryor eventually entered a no contest plea to one count of incest with a child in exchange for a joint recommendation of five years of initial incarceration, with freedom to argue the length of extended supervision, and the dismissal of all of the other charges and repeater allegations, including the persistent repeater allegation. The trial court sentenced Pryor to ten years of initial incarceration followed by ten years of extended supervision.

¶3 Appointed counsel filed a no-merit appeal seeking to withdraw his representation. Pryor objected to having a no-merit report filed, and sought permission to pursue postconviction relief on his own. We granted Pryor's request after ascertaining that it was knowingly and voluntarily made, dismissed the no-merit appeal, and extended the time for him to file a postconviction motion. Pryor then filed a postconviction motion seeking to withdraw his plea and/or modify his sentence for a host of reasons. Following an evidentiary hearing, the trial court denied Pryor's motion. Pryor appeals.

STANDARDS OF REVIEW

¶4 In order to withdraw a plea after sentencing, a defendant must ordinarily demonstrate by clear and convincing evidence that plea withdrawal is necessary to correct a manifest injustice, such as ineffective assistance of counsel, evidence that the plea was involuntary, or failure of the prosecutor to fulfill the plea agreement. State v. Krieger, 163 Wis. 2d 241, 249-51 & n.6, 471 N.W.2d 599 (Ct. App. 1991).

¶5 The existence of manifest injustice is a determination usually left to the trial court's discretion. State v. Sturgeon, 231 Wis. 2d 487, 495, 605 N.W.2d 589 (Ct. App. 1999). However,

[w]hen a defendant's assertion of a violation of a constitutional right forms the basis for a plea withdrawal request, he or she may withdraw the plea as a matter of right by demonstrating: (1) that a violation of a constitutional right has occurred; (2) that this violation caused the defendant to plead guilty; and (3) that at the time of the plea, the defendant was unaware of the potential constitutional challenge to the case against him or her because of the violation.

Id. at 496. We review such constitutional questions independently.

¶6 There is an additional mechanism which comes into play for a subset of plea withdrawal motions. A defendant who asserts that the procedures outlined in WIS. STAT. § 971.08 or other court-mandated duties were not followed at the plea colloquy (i.e., a Bangert violation), and further alleges that he did not understand the omitted information, is entitled to a hearing on his plea withdrawal motion at which the State bears the burden of proof to show that the plea was nonetheless knowing and voluntary. State v. Hampton, 2004 WI 107, ¶¶56-65 274 Wis. 2d 379, 683 N.W.2d 14; State v. Bangert, 131 Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986).

¶7 Sentence determinations are accorded a presumption of reasonableness and will not be set aside unless the trial court has erroneously exercised its discretion. State v. Schreiber, 2002 WI App 75, ¶7, 251 Wis. 2d 690, 642 N.W.2d 621.

DISCUSSION
Plea Issues

¶8 Pryor's primary complaint with respect to his plea is that the trial court did not rule in advance on whether Pryor's prior conviction for first-degree sexual assault was "comparable" to any enumerated "serious child sex offense" within the meaning of the persistent repeater statute. See WIS. STAT. § 939.62(2m)(a)1m.b. and 939.62(2m)(b)2. Pryor attempts to frame this issue in several different ways. He asserts that the lack of a ruling constituted a Bangert violation because the information about the sentence he was facing was a direct consequence of the plea. Alternately, he contends that counsel was ineffective for not obtaining an advance ruling. Finally, he also appears to argue that his plea was unknowing because he could not make an informed decision about whether to enter a plea in order to avoid a life sentence under the persistent repeater statute without first knowing if the persistent repeater statute would in fact apply to him.

¶9 We conclude that there was no showing of a Bangert violation because the trial court had no obligation to discuss the merits of a dismissed claim. Whether or not Pryor's prior conviction actually constituted a comparable serious child sex offense would only have mattered if Pryor went to trial on the original charges with the persistent repeater allegation and was therefore actually subject to life imprisonment. In other words, potential exposure to the persistent repeater enhancer would have been a consequence of not entering a plea, not a consequence of the plea Pryor entered. We further conclude that counsel's failure to request a definitive ruling on the issue before advising Pryor to enter a plea was not ineffective assistance because defense counsel would reasonably have known that the trial court had no obligation to make such an advance ruling. Moreover, counsel informed the court at the plea hearing that he had discussed with both the prosecutor and his client the high likelihood that Pryor's past first-degree sexual assault conviction for sexually assaulting a thirteen-year-old girl at knifepoint would qualify as a comparable serious child sex offense. That was an entirely reasonable assessment and did not constitute deficient performance.2 Because the record shows that Pryor's plea was entered with full knowledge of the risk that he would face life in prison if he were convicted of the original charges and the State then proved the persistent repeater allegation, Pryor did not demonstrate any manifest injustice in this regard.

¶10 Pryor next complains that neither counsel nor the court explained to him that he could not earn good time and be paroled, as he had been in the past. He again appears to be asserting that his plea was therefore unknowing, as well as asserting a Bangert violation. However, counsel testified that he explicitly informed Pryor that five years in prison would mean a full five years, minus only a few days, because, by statute, prisoners are released the last Wednesday before their sentence expires. The trial court chose to believe counsel's testimony regarding his conversation with Pryor about penalties. We defer to credibility determinations by a trial court acting as the fact finder. See State v. Oswald, 2000 WI App 3, ¶47, 232 Wis. 2d 103, 606 N.W.2d 238 (Ct. App. 1999). Therefore, Pryor has no factual basis for his claims that counsel did not inform him that he would serve the entire amount of initial incarceration time, or that his plea was unknowing in that regard. Pryor also could not establish a prima facie case for a Bangert violation on this issue because the trial court has no affirmative duty to advise a defendant at the time of the plea that there is no good time or parole eligibility under truth-in-sentencing. See State v. Plank, 2005 WI App 109, ¶¶14-17, 282 Wis. 2d 522, 699 N.W.2d 235, review denied, 2005 WI 136, 285 Wis. 2d 630, 703 N.W.2d 379 (No. 2004AP2280-CR).

¶11 Pryor next asserts that he should be allowed to withdraw his plea because the State breached the plea agreement and counsel failed to object. However, the trial court determined that the State did not breach the plea agreement, and that factual finding is fully supported by the record. As the court observed, the agreement was for the parties to make a joint recommendation of five years of initial confinement with freedom to argue the appropriate length of the extended supervision, and the State did in fact recommend five years of initial confinement, to be followed by twenty-five years of extended supervision. Pryor's entire argument on this issue appears to be premised on the mistaken notion that there was a difference between being free to argue the length of supervision and being free to argue the "length of the entire sentence," as the prosecutor recited the plea agreement at the sentencing hearing. Since extended supervision is part of a total sentence, the freedom to argue one necessarily includes the freedom to argue the other.

¶12 Pryor further asserts that he should be allowed to withdraw his plea because the trial court never personally questioned him to ascertain his guilt. Under WIS. STAT. § 971.08(1)(b), the court is to "[m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged." There is no requirement, however, that the inquiry take the form of having the defendant personally answer questions. Here, the court noted that it had sat through a day and a half of trial before the parties reached a plea agreement, and defense counsel agreed there was a factual basis for the plea. The record was more than sufficient to allow the trial court to ascertain that there was a factual basis for Pryor's plea.

Preliminary Hearing

¶13 Pryor next raises a series...

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