State v. Roou

• Decision Date: 18 July 2007
• Docket Number: No. 2006AP1574-CR.,2006AP1574-CR.
• Citation: 738 N.W.2d 173,2007 WI App 193
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Mark J. ROOU, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

738 N.W.2d 173

2007 WI App 193

STATE of Wisconsin, Plaintiff-Respondent, v. Mark J. ROOU, Defendant-Appellant.

No. 2006AP1574-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 6, 2007.

Opinion Filed July 18, 2007.

On behalf of the defendant-appellant, the cause was submitted on the brief of John P. Tedesco, Assistant State Public Defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and Aaron R. O'Neil, Assistant Attorney General.

Before SNYDER, P.J., BROWN and NETTESHEIM, JJ.

¶ 1 NETTESHEIM, J

Pursuant to a plea agreement, Mark J. Roou pled no contest to armed robbery with use of force and second-degree recklessly endangering safety. He was sentenced to concurrent sentences of twenty-five years and ten years, respectively. Postconviction, Roou moved to withdraw from the entire plea agreement on grounds that the trial court had misinformed him as to the elements of the reckless endangerment count. The court agreed that Roou had been misinformed, but limited the remedy to withdrawal of Roou's plea to the reckless endangerment charge, leaving intact Roou's plea and sentence on the armed robbery charge. The State did not oppose this remedy and further promised to not reissue the reckless endangerment charge. Roou appeals, contending that the court erred by refusing to vacate the entire plea agreement. We hold that determining the appropriate remedy in such cases depends upon the totality of the circumstances and a consideration of the parties' interests, a matter committed to the sentencing court's discretion. We affirm the trial court's ruling and the judgment.

BACKGROUND

¶ 2 Roou stipulated to the facts as stated in the March 2003 criminal complaint. Roou broke into a business owned by a man Roou claimed cheated him out of a large sum of money. While allegedly brandishing a gun, Roou forced an employee to open the safe, duct taped her to a chair, took her car and drove it toward the business owner who ran to avoid being hit. The complaint, and the later information, charged Roou with six counts:

COUNT 1: armed robbery with use of force, contrary to WIS. STAT. §§ 943.32(1)(a) and 939.50(3)(c) (2005-06)¹;

COUNT 2: armed burglary, contrary to WIS. STAT. §§ 943.10(2)(a) and 939.50(3)(e);

COUNT 3: false imprisonment, contrary to WIS. STAT. §§ 940.30 and 939.50(3)(h); and

COUNTS 4-6: second-degree recklessly endangering safety, contrary to WIS. STAT. §§ 941.30(2) and 939.50(3)(g).

Counts 3-6 all included use of a dangerous weapon penalty enhancers pursuant to WIS. STAT. § 939.63(1)(b). Roou pled not guilty by reason of mental disease or defect (NGI), a competency hearing was held and he was found competent to stand trial.

¶ 3 At the February 2004 plea hearing, Roou withdrew his NGI plea. Pursuant to a negotiated agreement, he then pled no contest to Counts 3-6 with the penalty enhancer, and the State moved to dismiss Counts 1 and 2 but read them in for sentencing purposes.² Before entering his pleas, Roou's attorney explained to him the pleas, their ramifications, the elements of the offenses, and the potential penalties.

¶ 4 At this point, the problem leading to this appeal set in. Attached to the Plea Questionnaire/Waiver of Rights form that both Roou and his attorney signed was a form entitled "Elements of Common Criminal Offenses." On the form, the box for "endangering safety by use of a dangerous weapon," a misdemeanor, was erroneously checked instead of the box for "recklessly endangering safety," the felony count to which Roou was to plead. At the plea hearing, the trial court relied on the erroneous form when it recited to Roou the elements of each crime, inadvertently reciting to Roou the elements of endangering safety instead of recklessly endangering safety. The parties evidently did not detect this error. The court otherwise conducted a proper plea colloquy and accepted Roou's pleas.

¶ 5 The State later learned that one of the alleged victims could not identify with certainty that a gun seized from Roou's property was the weapon she maintained he had used in the crimes. As a result, the parties negotiated a new plea agreement under which Roou again would plead no contest to recklessly endangering safety (Count 4), but without the weapons enhancer allegation, and no contest to armed robbery with use of force (Count 1) instead of having it dismissed and read in. In addition, the State agreed to dismiss and read in for sentencing purposes Counts 2, 3, 5 and 6.

¶ 6 At the new plea hearing, the trial court did not recite directly to Roou the elements of recklessly endangering safety, although the court did correctly state the elements in Roou's presence as the court and counsel discussed the new plea agreement. The court verified that Roou understood: (1) that he was withdrawing his plea to recklessly endangering safety only to the extent of the allegation that he was armed with a dangerous weapon; (2) that the State's dismissal of the weapon enhancer allegation on the recklessly endangering safety charge was contingent upon Roou changing his plea to no contest on the armed robbery charge; (3) the elements of armed robbery with use of force; and (4) the potential penalties he faced. The court then permitted Roou to withdraw his initial pleas, accepted his new pleas under the new plea agreement, and found him guilty.

¶ 7 At the sentencing, the trial court imposed a twenty-five-year bifurcated sentence on the armed robbery count consisting of seven years' initial confinement and eighteen years' extended supervision. On the recklessly endangering safety count, the court imposed a concurrent bifurcated sentence of fifteen years consisting of ten years' initial confinement and five years' extended supervision.

¶ 8 Roou moved for postconviction relief pursuant to WIS. STAT. § 809.30, seeking to withdraw from the entire plea agreement.³ In support, he contended his plea to the reckless endangerment charge was not knowingly, voluntarily and intelligently entered because the trial court had misinformed him as to the elements of that count.⁴ In a written decision, the trial court granted the motion as to the reckless endangerment charge. However, the court refused to vacate the entire plea agreement, leaving intact Roou's plea and sentence on the armed robbery charge. Roou appeals.

DISCUSSION

¶ 9 The issue on appeal is whether the trial court correctly limited Roou's relief to withdrawal of his plea to the reckless endangerment charge. Roou contends that the misinformation as to that charge rendered all his pleas under the plea agreement unknowing, involuntary and not intelligently entered. He asserts that the proper remedy under Wisconsin law in this situation is to vacate the entire plea agreement and to return the parties to their pre-agreement posture. As it did in the trial court, the State agrees that Roou was misinformed as to the elements of the reckless endangerment charge, and therefore it does not challenge the trial court's ruling permitting Roou to withdraw his plea to that charge. However, the State disputes Roou's contention that the court was required to vacate the entire plea agreement.

Standard of Review

¶ 10 We begin by addressing our standard of review. Absent a constitutional violation, a plea withdrawal request is addressed to the trial court's discretion. See State v. Rock, 92 Wis.2d 554, 559, 285 N.W.2d 739 (1979). As noted, the parties agree that the trial court properly exercised its discretion by allowing Roou to withdraw his plea to the reckless endangerment charge. But they part ways on the next level of the inquiry: the proper scope of the remedy and what level of deference, if any, we must accord the trial court's determination of that question. On this point, the parties are in sharp disagreement.

¶ 11 Roou contends that under State v. Robinson, 2002 WI 9, ¶ 2, 249 Wis.2d 553, 638 N.W.2d 564, abrogated on other grounds, State v. Kelty, 2006 WI 101, ¶ 39, 294 Wis.2d 62, 716 N.W.2d 886, our review is de novo. The State concedes that Robinson labels the query a question of law, but notes that Robinson then emphasizes that the appropriate remedy "depends on the totality of the circumstances" and must be determined by "examin[ing] all of the circumstances [and] considering both the defendant's and State's interests." See id., ¶¶ 48, 51, 638 N.W.2d 564. The State also cites a more recent case where the supreme court said it would not reverse the trial court's chosen remedy absent an erroneous exercise of discretion. See State v. Deilke, 2004 WI 104, ¶ 10, 274 Wis.2d 595, 682 N.W.2d 945.⁵

¶ 12 The State's position is the more persuasive. The Robinson court does not attribute or explain the "question of law" statement. Robinson, 249 Wis.2d 553, ¶ 2, 638 N.W.2d 564. Overshadowing it, in our view, is the repeated instruction that courts examine all the circumstances, available remedies and both parties' interests, which colors the determination with a distinctly discretionary hue. See id., ¶¶ 3, 48, 49, 57, 638 N.W.2d 564.

¶ 13 Deilke is important both for what it did and did not say about Robinson. It cited Robinson for the proposition that the appropriate remedy depends upon all of the circumstances and a consideration of the parties' interests. Deilke, 274 Wis.2d 595, ¶ 25, 682 N.W.2d 945. But it did not cite Robinson in its discussion of the standard of review, see id., ¶ 10, 638 N.W.2d 564, looking instead to State v. Howard, 2001 WI App 137, ¶ 36, 246 Wis.2d 475, 630 N.W.2d 244, which, after examining supreme court and federal cases, concluded that a sentencing court has the discretion to determine the appropriate remedy. We agree, and conclude that a trial court's choice of remedy when faced with a motion to withdraw all or part of a plea agreement should be reviewed under an erroneous exercise of discretion standard.⁶

Choice and Scope of Remedy

¶ 14 We next examine, then,...