State v. Shannon

• Decision Date: 30 October 2019
• Docket Number: Appeal No. 2018AP2206-CR
• Citation: 936 N.W.2d 421 (Table),389 Wis.2d 378,2019 WI App 65
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Christopher B. SHANNON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

389 Wis.2d 378

936 N.W.2d 421 (Table)

2019 WI App 65

STATE of Wisconsin, Plaintiff-Respondent,

v.Christopher B. SHANNON,^† Defendant-Appellant.

Appeal No. 2018AP2206-CR

Court of Appeals of Wisconsin.

DATED AND FILED October 30, 2019

PER CURIAM.

¶1 Christopher Shannon appeals from a judgment and an order of the circuit court denying his postconviction motion for plea withdrawal or, in the alternative, resentencing.¹ For the following reasons, we affirm.

Background

¶2 Following a report that Shannon ate at a restaurant and left without paying, officers made contact with him in an attempt to investigate. Shannon physically resisted and became violent while also making threats against the officers and some peculiar comments. Shannon was charged with multiple counts related to this incident and entered pleas of not guilty and not guilty by reason of mental disease or defect (NGI plea). The circuit court ordered a mental evaluation, which resulted in a doctor’s opinion that did not support the NGI plea. Shannon sought an alternative medical opinion, which resulted in a different doctor’s report that supported an NGI plea on some, but not all, of the charges.

¶3 At the final pretrial conference, Shannon’s counsel stated, with Shannon present, that counsel "was informed by Mr. Shannon" that he "desire[d] to accept the ... plea agreement and not go to trial" and confirmed that he would be "withdrawing his NGI plea." The offer, which was detailed on the record by counsel and again by the court, was that Shannon would plead to three of the five counts and the other two would be dismissed and read in, a presentence report would be prepared, and the parties would be free to argue at sentencing. Shannon confirmed he "wish[ed] to accept that offer" and had had enough time to discuss it with counsel. The court told Shannon, "You understand this means that you will be withdrawing your NGI plea, which is your plea of not guilty by reason of mental disease or defect. Is that what you want to do?" Shannon responded, "Yes, your Honor." The court stated that it was "satisfied that this offer has been conveyed to [Shannon] and that he has had an opportunity to discuss this with his attorney and is making a choice now to accept it." With that, the jury trial, set to begin five days later, was cancelled and the court scheduled a change-of-plea hearing for that date.

¶4 At that hearing, Shannon’s counsel again recited the plea agreement, and Shannon again expressed that this was his agreement and he had had enough time to discuss it with counsel. Shannon pled guilty to the three charges, confirming he had read through the complaint and agreeing the circuit court could use the facts therein in support of his pleas. Shannon indicated he had read, understood, and signed the plea questionnaire form that had been presented to the court, was not receiving any mental health treatment, and had not consumed alcohol, medicine or drugs in the previous twenty-four hours. He indicated he had discussed with counsel the constitutional rights he was giving up by pleading, which were identified on the plea form, and that he understood he was giving up those rights, including the right to a trial. He confirmed he was withdrawing his NGI plea without promises or threats from anybody and had gone through the elements of the offenses with counsel. Counsel confirmed she believed Shannon "understands these proceedings" and was "freely, knowingly, intelligently and voluntarily waiving his rights and pleading guilty." The court found the same, accepted Shannon’s pleas, and set the date for sentencing.

¶5 At sentencing, the circuit court adopted the State’s recommendation, sentencing Shannon to three years of initial confinement followed by three years of extended supervision on the first count, and one year of initial confinement followed by one year of extended supervision on the second and third counts both concurrent to the first count. The court expressed that it would have imposed a more lengthy sentence but for "the mitigating status of" Shannon’s mental health challenges.

¶6 Shannon moved the circuit court for plea withdrawal on the bases that his counsel performed ineffectively and his pleas were not knowingly, intelligently, and voluntarily made. He alternatively sought resentencing on the ground that the sentencing court "relied on an improper factor" as it expressed that the NGI plea "was not supported by psychological professionals" despite the fact the second psychological professional supported this plea for some of the charges against Shannon. Following an evidentiary hearing on Shannon’s motion, the court denied his requests. He now appeals.

Discussion

¶7 On appeal, Shannon raises the same issues he raised in his postconviction motion. He fails to persuade on any.

¶8 To withdraw his plea postsentencing, Shannon must establish by clear and convincing evidence that a "manifest injustice" will occur if he is not permitted to withdraw his plea. See State v. Finley , 2016 WI 63, ¶58, 370 Wis. 2d 402, 882 N.W.2d 761 (citation omitted). One way in which a defendant can demonstrate a manifest injustice is to establish that trial counsel performed ineffectively with regard to the plea, State v. Dillard , 2014 WI 123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44 ; another way is to show that the plea was not entered knowingly, intelligently, or voluntarily, Finley , 370 Wis. 2d 402, ¶58.

¶9 Shannon claims his trial counsel was ineffective because "she advised Shannon to withdraw the NGI plea when Shannon has a history of untreated psychotic delusions that were present two days prior to the incident and there was a psychological report in support of the NGI plea." Shannon asserts "[a] reasonable attorney would not advise his or her client to withdraw his NGI plea and plead guilty in light of the severe untreated mental health issues."

¶10 To prove counsel ineffective, Shannon must demonstrate that she performed deficiently and the deficiency prejudiced him. See Strickland v. Washington , 466 U.S. 668, 687 (1984) ; State v. Pitsch , 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). If Shannon fails to make either of these showings, his claim fails. See Strickland , 466 U.S. at 687. We will affirm the circuit court’s factual findings as long as the court did not clearly err, but we review de novo whether the facts meet the deficiency or prejudice standards. State v. Kimbrough , 2001 WI App 138, ¶27, 246 Wis. 2d 648, 630 N.W.2d 752.

¶11 Here, Shannon’s ineffective assistance claim fails because the factual predicate for his deficiency showing does not exist. The insurmountable problem for Shannon is that following the evidentiary hearing on his postconviction motion, the circuit court found just the opposite of what Shannon claims on appeal; it found that counsel "never advised [Shannon] to withdraw his NGI plea." (Emphasis added.) As stated, on appeal we uphold factual findings that are not clearly erroneous, Kimbrough , 246 Wis. 2d 648, ¶27, and this finding is not clearly erroneous as it is supported by counsel’s testimony at the postconviction evidentiary hearing.

¶12 At that hearing, Shannon’s counsel testified that when the first court-appointed expert presented a report that did not support Shannon’s NGI plea, she secured the second expert, who, after his evaluation of Shannon and discussion with counsel, prepared a report that supported the NGI plea for some of the charges. Counsel testified this second expert had indicated to her that "when [Shannon] attempted to talk about very specific topics, that’s when [his] mental illness would surface." When counsel subsequently tried to delve into those topics with Shannon, she observed

the same effect that [the expert] had outlined .... So that was why I really wanted Mr. Shannon to pursue the NGI. But Mr. Shannon’s decision was that he did not want to do that because he didn't believe he was mentally ill and he didn't ... want[ ] to have a treatment order put in place on him to force him to engage in treatment he didn't believe he needed.

(Emphasis added.)

¶13 While counsel believed the second expert’s opinion that Shannon suffers from "schizoaffective disorder and bipolar

," Shannon indicated to her that "he believed that that was not a correct diagnosis and he wasn't mentally ill." Shannon had also expressed to counsel that he hoped he

would be able to transfer out of this area and ... reside in Missouri because he believed ... all of his criminal issues arose out of this area. So he thought that if he were to leave this area [through an interstate compact if he were on probation or extended supervision], some of those issues would no longer be at play.

Counsel testified that she informed Shannon that if he succeeded with an NGI plea, transferring to Missouri likely would not be an option.

¶14 Counsel testified that prior to Shannon pleading, she discussed with him the various options available—proceeding on his NGI plea, withdrawing that plea and going to trial on the charges, or withdrawing the plea and pleading to the three charges in accordance with the State’s plea offer. Shannon chose the third option, indicating he "did not want to be under a treatment order [as] he did not believe that he was actually mentally ill."

¶15 Shannon also testified at the postconviction hearing, stating he knew prior to pleading that his expert’s report supported his NGI plea² and that knowing this, he "wanted to go forward with [his] NGI." On this latter point, Shannon’s postconviction testimony was in direct conflict with counsel’s in that she testified, as indicated above, that Shannon was adamant that he did not want to maintain his NGI plea, most particularly because he did not want to be subject to a mental health treatment order. On this key conflict, the circuit court—the fact finder at the postconviction hearing—believed counsel’s testimony over Shannon’s, and we see no basis for questioning the court’s decision finding counsel more credible...