State v. Sulla, No. 2013AP2316–CR.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtMICHAEL J. GABLEMAN, J.
Citation369 Wis.2d 225,880 N.W.2d 659
Decision Date14 June 2016
Docket NumberNo. 2013AP2316–CR.
PartiesSTATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Richard J. SULLA, Defendant–Appellant.

369 Wis.2d 225
880 N.W.2d 659

STATE of Wisconsin, Plaintiff–Respondent–Petitioner,
v.
Richard J. SULLA, Defendant–Appellant.

No. 2013AP2316–CR.

Supreme Court of Wisconsin.

Argued Jan. 20, 2016.
Decided June 14, 2016.


880 N.W.2d 661

For the plaintiff-respondent-petitioner, the cause was argued by Anne C. Murphy, assistant attorney general, with whom on the briefs was Brad D. Schimel, attorney general.

For the defendant-appellant there was a brief by Scott A. Szabrowicz, Greenfield. Oral argument by Scott A. Szabrowicz.

MICHAEL J. GABLEMAN, J.

369 Wis.2d 230

¶ 1 This is a review of an unpublished decision of the court of appeals,1 which reversed the Jefferson County Circuit Court's2 order denying Richard Sulla's (“Sulla”) postconviction motion to withdraw his no contest pleas.

¶ 2 This case requires us to examine the circumstances under which a circuit court may deny a defendant's postconviction motion for plea withdrawal without holding an evidentiary hearing. Specifically, we consider whether a circuit court may, without holding an evidentiary hearing, deny a defendant's motion to withdraw his plea when the defendant alleges that his plea was not knowing, intelligent, and voluntary because he did not understand the effect a read-in charge could have at sentencing.

¶ 3 The State brought four charges against Sulla in Jefferson County relating to two burglaries and an arson. Sulla and the State entered into a plea agreement, under which Sulla would plead no contest to Counts 1 and 3, while Counts 2 and 4 would be dismissed and read into the record for purposes of

369 Wis.2d 231

sentencing and restitution.3 Prior to entering his plea, Sulla read and signed a Plea Questionnaire

880 N.W.2d 662

/Waiver of Rights form, and the circuit court held a plea hearing.4 At the plea hearing, the court concluded that Sulla's pleas were made in a knowing, intelligent, and voluntary fashion, and it ordered judgments of guilt be entered accordingly. The court then held a sentencing hearing and, after extensive discussion, sentenced Sulla to 15 years imprisonment, consisting of 7.5 years of initial confinement and 7.5 years of extended supervision for Count 1, and 5 years imprisonment, consisting of 2.5 years of initial confinement and 1.5 years of extended supervision for Count 3. The court ordered the sentences to run consecutively to one another and to all other sentences.

¶ 4 Sulla filed a motion for postconviction relief, seeking to withdraw his no contest pleas on the basis that his pleas were not made in a knowing, intelligent, and voluntary fashion. Sulla claimed that his pleas were unknowing because he “did not understand that for purposes of the read-in charge, he would effectively be considered to have committed the offense.” To

369 Wis.2d 232

support his motion, Sulla filed an affidavit, which stated, in pertinent part, “[M]y attorney [ ] told me that agreeing to the read-in offense of arson was not admitting guilt and that it was just something the Court would ‘look at’ at sentencing. I did not understand and my Attorney did not explain the effect that a read-in offense has....” In short, Sulla claimed that he was misinformed by his attorney and that because he was misinformed, he did not understand the effect the read-in charges would have at sentencing.

¶ 5 The postconviction court denied Sulla's motion to withdraw his plea without first holding an evidentiary hearing. The court concluded that Sulla was not entitled to an evidentiary hearing on his motion because his affidavit failed to allege sufficient facts which, if true, would entitle Sulla to relief. In addition, the postconviction court found that Sulla was not entitled to an evidentiary hearing because the record conclusively demonstrated that Sulla was not entitled to relief. The court of appeals reversed, concluding that Sulla's motion did allege sufficient facts and further concluding that Sulla was entitled to an evidentiary hearing because the record did not conclusively demonstrate that Sulla understood the effect of the read-in charges at sentencing. The State appealed.

¶ 6 The issue before us is whether the postconviction court was required to hold an evidentiary hearing before it determined whether Sulla had entered his pleas in a knowing, intelligent, and voluntary fashion. To address this issue, we apply the test set forth in Nelson v. State, 54 Wis.2d 489, 195 N.W.2d 629 (1972), and refined in State v. Bentley, 201 Wis.2d 303, 548 N.W.2d 50 (1996) (hereinafter “Nelson/Bentley ”). Nelson/Bentley instructs that “if a motion to withdraw a guilty plea after judgment and

369 Wis.2d 233

sentence alleges facts which, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing.”

880 N.W.2d 663

State v. Bentley, 201 Wis.2d 303, 310, 548 N.W.2d 50 (1996) (quoting Nelson v. State, 54 Wis.2d 489, 497–98, 195 N.W.2d 629 (1972).) However, “if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing.” Id. at 310, 548 N.W.2d 50 (quoting Nelson, 54 Wis.2d at 497–98, 195 N.W.2d 629 ).

¶ 7 We conclude that the postconviction court was not required to hold an evidentiary hearing before it determined whether Sulla had entered his pleas in a knowing, intelligent, and voluntary fashion. Here, the postconviction court properly exercised its discretion when it denied Sulla's postconviction motion to withdraw his plea without first holding an evidentiary hearing because it applied the proper legal standard, examined the relevant facts, and engaged in a rational decision making process. Moreover, when we apply the Nelson/ Bentley test to this case, we conclude that Sulla is not entitled to an evidentiary hearing on his postconviction motion to withdraw his plea. The record in this case, specifically the Plea Questionnaire/Waiver of Rights form and the transcripts from the plea hearing and the sentencing hearing, conclusively demonstrates that Sulla is not entitled to relief because he was correctly informed of and understood the effect of the read-in charges at sentencing.5

369 Wis.2d 234

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Charging and Plea Bargaining

¶ 8 On July 26, 2011, the State charged Sulla with two counts of burglary, one count of conspiracy to commit arson, and one count of party to the crime of operating a motor vehicle without the owner's consent, all as a repeat offender. Sulla, if convicted of each count, would have faced a maximum period of imprisonment of 95 years and 6 months.6 Despite initially pleading not guilty on all four counts, Sulla later entered into a plea deal with the State. In exchange for pleading no contest to Count 1 (armed burglary) and Count 3 (burglary), the State agreed to dismiss but have read into the record Count 2 (arson) and Count 4 (operating motor vehicle without consent). Sulla's plea deal decreased his maximum period of imprisonment to 39 years and 6 months.

369 Wis.2d 235

¶ 9 Prior to entering his plea, Sulla read and signed a Plea Questionnaire/Waiver of Rights form. A list of “Understandings” on the form included a statement addressing read-in charges:

880 N.W.2d 664
I understand that if any charges are read-in as part of a plea agreement they have the following effects:

• Sentencing—although the judge may consider read-in charges when imposing sentence, the maximum penalty will not be increased.

• Restitution—I may be required to pay restitution on any read-in charges.

• Future prosecution—the State may not prosecute me for any read-in charges.

Sulla signed the Plea Questionnaire/Waiver of Rights form, acknowledging, “I have reviewed and understand this entire document and any attachments. I have reviewed it with my attorney.... I have answered all questions truthfully and either I or my attorney have checked the boxes. I am asking the court to accept my plea and find me guilty.” Sulla's attorney also signed the Plea Questionnaire/Waiver of Rights form, acknowledging, “I am the attorney for the defendant. I have discussed this document and any attachments with the defendant. I believe the defendant understands it and the plea agreement. The defendant is making this plea freely, voluntarily, and intelligently. I saw the defendant sign and date this document.”

B. Plea Hearing

¶ 10 On April 10, 2012, the circuit court held a plea hearing. At the plea hearing, the court specifically discussed read-in charges—and their effect at sentencing—with Sulla:

369 Wis.2d 236
THE COURT: Mr. Sulla, I understand that of the four counts made against you, you intend to withdraw your not guilty pleas and instead plead no contest to
...

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38 practice notes
  • State v. Lemberger, No. 2015AP1452-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 20 Abril 2017
    ...that the defendant is not entitled to relief is a question of law for our independent review. State v. Sulla , 2016 WI 46, ¶23, 369 Wis.2d 225, 880 N.W.2d 659. But "[w]e review a circuit court's discretionary decisions under the deferential erroneous exercise of discretion standard.&qu......
  • State v. Hager (In re Commitment of Hager), No. 2015AP330 & 2015AP1311
    • United States
    • United States State Supreme Court of Wisconsin
    • 19 Abril 2018
    ...754. However, he does not raise this issue for our review, and we do not consider it further. See State v. Sulla, 2016 WI 46, ¶ 7 n.5, 369 Wis. 2d 225, 880 N.W.2d 659 (quoting Jankee v. Clark Cty., 2000 WI 64, ¶ 7, 235 Wis. 2d 700, 612 N.W.2d 297 ) ("If an issue is not raised in the pe......
  • State v. Spencer, 2018AP942-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 6 Julio 2022
    ...defendant is entitled to no relief is also a question of law we review independently." Id. (citing State v. Sulla, 2016 WI 46, ¶23, 369 Wis. 2d 225, 880 N.W.2d 659 ). If the record conclusively demonstrates the defendant is not entitled to relief, the circuit court has the discretion t......
  • State v. Schmidt, No. 2020AP616-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 18 Junio 2021
    ...of child pornography can be considered for restitution or as a factor at sentencing for the crime. See State v. Sulla, 2016 WI 46, ¶44, 369 Wis. 2d 225, 880 N.W.2d 659 (explaining effect of read-in charges). As such, images of child pornography that form the basis of read-in charges of sexu......
  • Request a trial to view additional results
38 cases
  • State v. Lemberger, No. 2015AP1452-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 20 Abril 2017
    ...that the defendant is not entitled to relief is a question of law for our independent review. State v. Sulla , 2016 WI 46, ¶23, 369 Wis.2d 225, 880 N.W.2d 659. But "[w]e review a circuit court's discretionary decisions under the deferential erroneous exercise of discretion standard.&qu......
  • State v. Hager (In re Commitment of Hager), No. 2015AP330 & 2015AP1311
    • United States
    • United States State Supreme Court of Wisconsin
    • 19 Abril 2018
    ...754. However, he does not raise this issue for our review, and we do not consider it further. See State v. Sulla, 2016 WI 46, ¶ 7 n.5, 369 Wis. 2d 225, 880 N.W.2d 659 (quoting Jankee v. Clark Cty., 2000 WI 64, ¶ 7, 235 Wis. 2d 700, 612 N.W.2d 297 ) ("If an issue is not raised in the pe......
  • State v. Spencer, 2018AP942-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 6 Julio 2022
    ...defendant is entitled to no relief is also a question of law we review independently." Id. (citing State v. Sulla, 2016 WI 46, ¶23, 369 Wis. 2d 225, 880 N.W.2d 659 ). If the record conclusively demonstrates the defendant is not entitled to relief, the circuit court has the discretion t......
  • State v. Schmidt, No. 2020AP616-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • 18 Junio 2021
    ...of child pornography can be considered for restitution or as a factor at sentencing for the crime. See State v. Sulla, 2016 WI 46, ¶44, 369 Wis. 2d 225, 880 N.W.2d 659 (explaining effect of read-in charges). As such, images of child pornography that form the basis of read-in charges of sexu......
  • Request a trial to view additional results

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