State v. Richer, Appeal No. 2019AP2024-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtHRUZ, J.
Citation2021 WI App 41,962 N.W.2d 264 (Table)
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Douglas J. RICHER, Defendant-Appellant.
Docket NumberAppeal No. 2019AP2024-CR
Decision Date18 May 2021

962 N.W.2d 264 (Table)
2021 WI App 41

STATE of Wisconsin, Plaintiff-Respondent,
Douglas J. RICHER, Defendant-Appellant.

Appeal No. 2019AP2024-CR

Court of Appeals of Wisconsin.

May 18, 2021


¶1 Douglas Richer appeals a judgment of conviction for possession with intent to deliver greater than fifty grams of methamphetamine as a party to a crime, with various penalty enhancers. Richer had reached a plea agreement with the State and entered a no-contest plea, which the circuit court accepted following a proper colloquy. We agree with Richer that the court placed him twice in jeopardy for the same offense, contrary to Richer's state and federal double jeopardy rights, when it sua sponte vacated that plea based on comments Richer made during his sentencing allocution.

¶2 Richer subsequently reached a second plea agreement with the State, which resulted in the judgment of conviction from which Richer now appeals. However, Richer received a materially less favorable plea bargain in the second prosecution, particularly regarding the State's sentencing recommendation. We reverse the judgment of conviction and the order denying Richer's postconviction motion. We remand with directions that the circuit court reinstate Richer's original plea and enforce the initial plea agreement pursuant to which that plea was entered. As part of those proceedings, Richer is entitled to resentencing with the benefit of the sentencing recommendation the State agreed to make under the initial plea agreement. The court may conduct such other proceedings as are necessary on remand, consistent with this opinion.


¶3 Richer was charged in the present case with the possession offense and maintaining a drug trafficking place, both as a party to a crime and with various penalty enhancers. His wife was charged as a co-defendant with the same offenses, minus the penalty enhancers.1 In another case, Dunn County case No. 2016CF230, Richer was charged with possessing between three and ten grams of methamphetamine, with penalty enhancers.2

¶4 In the Dunn County case, Richer filed a motion to suppress evidence, which was denied. He also filed a motion to compel discovery, contending that the prosecutor had intentionally delayed turning over items to defense counsel. According to Richer, both motions bore on the legality of the traffic stop that led to Richer's arrest and the discovery of methamphetamine in his possession. The traffic stop then formed the basis for the search warrant of his residence that led to the charges in Eau Claire County.

¶5 Richer ultimately reached a plea agreement with the State resolving his Eau Claire and Dunn County charges. Richer agreed to plead no contest to the possession with intent to deliver offense as charged in this case. The remaining charges in Eau Claire and Dunn Counties were to be dismissed and read in. The parties would jointly recommend a sixteen-year prison sentence, consisting of six years’ initial confinement and ten years’ extended supervision, consecutive to Richer's then-existing sentences. Additionally, the State promised to dismiss with prejudice the charges against Richer's wife.

¶6 The circuit court then engaged Richer in a plea colloquy.3 The court advised Richer of the potential punishment for the crime of conviction and that it was not bound by the plea agreement's joint sentencing recommendation. Richer briefly consulted privately with his attorney during that exchange. The court then confirmed Richer's age and education, that he could read and speak English, that he had not consumed alcohol or drugs recently, and that he was not suffering from any mental illness or disorder.

¶7 The circuit court asked Richer whether he had an opportunity to discuss with his attorney the elements of the crime of possession of methamphetamine with intent to deliver. Richer paused to speak with his counsel, then he advised the court he needed clarification about the "intent to deliver" aspect of the charge. Specifically, Richer noted that he had not been charged with a sale but, rather, that he had been told the intent to deliver could be inferred from the large quantity of drugs discovered on his property. Upon being questioned by his attorney on the record, Richer stated that he understood the elements of the offense, but he then added, "I'm told that if I'm in possession of it, that ... automatically ... the law assumes it is intent to sell because of ... the amount, that I don't have an argument to dispute that."

¶8 Richer's attorney then asked Richer whether he understood the elements of the offense and wanted to move forward with the plea agreement. Richer responded, "I'm willing to enter a plea, but I'm just saying—I'm told that this is a matter of—we've discussed this." Richer then stated, again, that he had been told that "just because something is found in a large amount ... the State can charge whatever they want, and they ... make an assumption that you're intending to sell something and enhance the penalties." Richer's attorney requested to have an off-the-record discussion with his client.4

¶9 When the hearing resumed, Richer stated he understood the elements of the offense. At the State's request, the circuit court conducted a detailed inquiry regarding each of the offense's elements. Richer confirmed that he understood each of the elements, and he admitted to his prior convictions for purposes of the penalty enhancers. The court also asked Richer whether he believed the facts set forth in the criminal complaint and the Information supported a guilty or no-contest plea. After conferring with his attorney, Richer agreed that the factual basis for his plea was that "they found drugs at my residence."

¶10 When asked by the circuit court if anyone had made any threats or promises to convince him to enter his plea, Richer again paused to confer with counsel. He then answered, "Nothing other than the elements and the plea agreement." The court then confirmed that Richer understood the effect a conviction would have on his civil rights and immigration status. It also obtained Richer's acknowledgment as to each of the constitutional rights he was giving up by entering a plea. Richer entered a plea of no contest, which the court expressly accepted, stating:

The court will accept your no contest plea and find you guilty, and I'll find that that your plea is freely, voluntarily, and intelligently made with a full understanding of the nature of the charges, the maximum penalties, and the rights you're giving up here today by entering into this plea, and the court will again accept your plea and find that there's a factual basis for the plea.

¶11 The parties immediately proceeded to sentencing, but Richer's motivations for pleading to the charge remained a focus of their sentencing arguments. The prosecutor endorsed the joint recommendation and stated that the recommended sixteen-year sentence was warranted given the large quantity of methamphetamine found in Richer's residence and Richer's past criminal history. He added, however, that he did not want Richer "to enter his plea if he's not comfortable with this agreement."

¶12 After discussing the sentencing factors applicable to Richer, defense counsel responded to the prosecutor's concerns regarding Richer's acceptance of the plea agreement:

[P]robably the clinching part of the deal was that as part of taking this deal that the State would move to dismiss with prejudice any claims against Ms. Peterson, his wife. That is something that was absolutely—he wanted to make sure that the court knew that that was a big reason why he's choosing to take this today. We don't want the court to not accept this today. We are here, Mr. Richer has entered his no contest plea, we're asking the court to move forward with all of the information it has before it and pronounce sentence as ... both parties have stated on the record recommending this joint recommendation to the court.

Defense counsel again endorsed the joint sentencing recommendation.

¶13 Richer began his allocution by emphasizing that he did not "want to say anything ... that's going to jeopardize the court trying to withdraw—not accept my plea. I want to make that real clear." He continued:

And if I come off that I'm saying some of the things I have to say [it might] seem like that, but I actually ... speak for one reason and one reason only is because my wife is—... I'm going to be very frank, Your Honor—my wife's lawyer has basically done nothing for her to—she hasn't attempted to preserve any of the evidence that she knew about over a year ago. It wasn't till almost a month ago that she finally filed a discovery motion after I chastised her about not doing anything for her. She didn't have any representation or any ability to defend herself. And knowing that and knowing what I know about the circumstances surrounding this and her having no involvement or knowledge ... about this, I ... felt it was my responsibility to protect her.

Richer continued by saying that he did not want the State "taking this out on her ... just because of her circumstances of not having money for a lawyer and having no proper representation."

¶14 Richer also spoke about the charges against him during his allocution. He stated that he had been incarcerated for eight months previously, and during that period two individuals (who apparently had also been charged with possession offenses related to this case) brought the drugs...

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