State v. Richardson
| Decision Date | 13 May 2015 |
| Docket Number | No. 2014AP1039.,2014AP1039. |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Khadell D. RICHARDSON, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
Khadell D. Richardson appeals from an order denying him postconviction relief. We conclude that Richardson waived his right to challenge his conviction on double jeopardy grounds and that Richardson's counsel did not provide ineffective assistance of counsel in failing to raise Fourth Amendment claims that were without merit. We affirm the circuit court's decision denying Richardson's motion seeking to withdraw his plea.
¶ 2 A reliable confidential informant (CI) told police that he had observed a man with a street name of “Ray” selling crack cocaine near a particular intersection “a couple hours earlier, between 5 pm and 6 pm” on June 28, 2011, in the area of 10th Street and Washington Avenue. The CI told police that “Ray” “sells crack daily and keeps it on him.” The CI described “Ray” as a “black male, average height and weight with dark skin and a short beard.” The CI stated that “Ray” was wearing a white T-shirt and dark blue shorts. The police later received information from the CI that “Ray” had moved to the 1300 to 1400 block of 9th Street.
¶ 3 Police found a man, later identified as Richardson, fitting the description the CI gave, sitting on a concrete retaining wall near the location the CI had described. Richardson was the only person on the street or sidewalk within a block east or west of where he was sitting. Two police officers approached Richardson, identified themselves, and asked Richardson if he had any identification on him.1 Richardson said no and verbally identified himself. Officer Freidel told Richardson that he matched the description of someone the police were looking for and that he wanted to pat him down to see if he had any identification in his pocket. Richardson said okay and put his cell phone down on the ledge next to the grass/weeds. Freidel conducted a pat-down search and found $342 in Richardson's back right pocket. Freidel looked through the money for hidden narcotics and also looked in both of Richardson's shoes for narcotics but did not find any. While his partner was getting Richardson's name and address, Freidel went over to the ledge where Richardson was sitting when they stopped him and picked up Richardson's cell phone. Underneath the cell phone were two individually packaged chunks of crack cocaine.
¶ 4 Richardson was charged with one count of possession with intent to deliver cocaine, as a repeater, second and subsequent offense. The parties negotiated an agreement to amend the single count of possession with intent to deliver to two separate counts of possession of cocaine, second and subsequent offense. The factual basis for the new charge was that there were two bags of cocaine. This amended information reduced Richardson's exposure from twenty and one-half years' imprisonment to seven years' imprisonment. On the day of trial, the court heard the State's motion to amend the information to reflect the agreement. The court questioned Richardson as to his understanding of the change. Richardson indicated that he understood that the amendment would be to two separate counts of possession of cocaine. The court engaged Richardson in the guilty-plea colloquy. As part of that colloquy, the court went through the elements of possession of cocaine as a second and subsequent offense. Richardson said he understood that he was admitting to facts that would establish all these elements and that he “did in fact possess two separate quantities of the substance.” The court went on:
All right, Mr. Richardson, you acknowledged before that you understood and read the complaint. Do you understand that for purposes of determining whether to accept your pleas the court is going to assume that the facts here stating that you were in possession of two quantities of this substance are in fact accurate and correct, do you understand that?
Richardson responded, “Yes, I do.” The court concluded that there was a factual basis for the two counts charged, based on the “two separate baggies, two separate quantities of substance.” The court imposed three years' probation with an imposed and stayed sentence of three years' confinement and four years' extended supervision.
¶ 5 Richardson filed a postconviction motion, alleging various grounds for relief, including those asserted here on appeal. Trial counsel testified at the hearing on the motion, as some of Richardson's grounds for relief were based on ineffective assistance of counsel. See State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905 (Ct.App.1979). When asked by Richardson, proceeding pro se, why they had not discussed multiplicity, counsel testified:
It was a negotiated resolution, and my recollection is it was one that we resolved late on in the case.... I'll concede it was unusual to sort of split things up like that. I didn't think that there was a problem because we had two separate packages or two separate bindles of cocaine, and so I thought that there was a legal basis for that. And ... it was a non-prison recommendation, and so it was basically a compromise. And I think we discussed the offer and kind of the pros and cons of that. I don't recall specifically talking about whether it was multiplicitous. Certainly if it had been something that had been initially charged that way, it might have been something that we'd gone into, but this was basically a negotiated resolution.
The State argued, reasoning under United States v. Broce, 488 U.S. 563, 566, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), that a defendant who pleads guilty to two counts with factual allegations of distinct offenses concedes that he has committed two separate crimes. Regarding Richardson's claim of ineffective assistance of counsel, the State argued that trial counsel's negotiated plea had reduced Richardson's exposure from “something like twenty-and-a-half years of imprisonment to three-and-a-half years,” further noting that the total exposure would have been seven.
¶ 6 Discussing Richardson's multiplicity challenge, the circuit court said, “But where the subdivision or the amendment was made pursuant to a negotiated plea agreement and where there is a sufficient factual basis to show that there were two separate quantities, that is not an improper subdivision by the State as part of a charging decision.” The circuit court also rejected Richardson's claims of ineffective assistance of counsel based on alleged Fourth Amendment violations. The court denied Richardson's motion.
¶ 7 Richardson argues that the two counts of possession of cocaine were identical in law and fact, that they were therefore multiplicitous, and that he was charged in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution. Richardson points out, and the State agrees, that under State v. Kelty, 2006 WI 101, ¶ 38, 294 Wis.2d 62, 716 N.W.2d 886, this court “will consider the merits of a defendant's double jeopardy challenge if it can be resolved on the record as it existed at the time the defendant pled.” In other words, by pleading guilty, the defendant has relinquished his or her right to a fact-finding hearing on his or her double jeopardy challenge, but has not waived a claim that a charge, on its face, is unconstitutional. Id., ¶¶ 38–39.
¶ 8 Under the guilty-plea-waiver rule, a guilty plea waives all nonjurisdictional claims, including constitutional claims. Id., ¶ 18. Whether a defendant's guilty plea relinquishes the right to appeal an alleged double jeopardy violation “implicates questions of waiver and what effect a guilty plea has upon the right to be free from double jeopardy,” which are questions of law we review de novo. Id., ¶ 13.
¶ 9 Richardson waived his ability to obtain a review of the merits of his double jeopardy claim when he negotiated the change from one count to two and knowingly pled guilty to the amended information. In Kelty, the allegedly multiplicitous counts for intentionally causing great bodily harm were charged in the original complaint. Id., ¶ 5. In Richardson's case, the allegedly multiplicitous counts were only charged as part of, and the result of, Richardson's plea agreement. Richardson agreed to plead guilty to the two counts of possession in exchange for the State amending the charges from one count of possession with intent to deliver. By agreeing to the amendment from the one count to the two counts, Richardson reduced his exposure from twenty and one-half years' imprisonment to seven years' imprisonment. Richardson cannot now come before this court and seek to undo his plea on multiplicity grounds when he himself negotiated the two counts instead of one to reduce his exposure. Kelty recognizes that defendants who negotiate a favorable plea agreement should not be allowed to “attempt gamesmanship or seek two kicks at the cat.” Id., ¶ 40.
¶ 10 Richardson also alleges that his trial counsel was ineffective in not objecting to the allegedly multiplicitous charges. To show ineffective assistance of counsel, Richardson must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whether Richardson has made this showing is a mixed question of fact and law, with the court's findings of fact reviewed under a clearly erroneous standard of review and the legal conclusions regarding deficiency and prejudice reviewed de novo. State v. Mayo, 2007 WI 78, ¶ 32, 301 Wis.2d 642, 734 N.W.2d 115.
¶ 11 As stated above, Richardson's counsel testified that he did not consider arguing multiplicity because Richardson's exposure was considerably reduced under the amended information with the two counts of...
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