State v. Taylor

• Decision Date: 30 December 2022
• Docket Number: 2022AP272-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Damon D. Taylor, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent,
v.
Damon D. Taylor, Defendant-Appellant.

No. 2022AP272-CR

Court of Appeals of Wisconsin, District IV

December 30, 2022

Not recommended for publication in the official reports.

APPEAL from a judgment and an order of the circuit court for La Crosse County: No. 2017CF354 RAMONA A. GONZALEZ, Judge.

Before Kloppenburg, Fitzpatrick, and Graham, JJ.

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KLOPPENBURG, J.

¶1 Damon Taylor entered Alford^[1] pleas to charges of second degree recklessly endangering safety with use of a dangerous weapon ("reckless endangerment"), possession of a firearm by a felon, and failure to comply with an officer's attempt to take person into custody, all as a repeater. Taylor moved to withdraw his pleas after sentencing. The circuit court held an evidentiary hearing and denied the motion. On appeal, Taylor renews the three arguments in support of his motion that he made in the circuit court: (1) his pleas were not knowingly entered because the record of the plea hearing fails to demonstrate that the court explained the elements of the offenses, the plea questionnaire does not state the elements of the offenses, and the record of the plea hearing and the motion hearing demonstrates that Taylor did not understand the elements; (2) his pleas were not voluntarily entered because they were compelled by his belief that his trial counsel was unprepared to defend him at trial; and (3) he

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is entitled to withdraw his Alford pleas because the record fails to demonstrate strong proof of his guilt.

¶2 As to Taylor's first argument, we conclude that the circuit court did not explain the elements of one of the three charges to which Taylor pled, reckless endangerment, and neither the plea questionnaire nor the record as a whole demonstrate that Taylor had an understanding of the nature of that offense.^[2] We further conclude that the plea colloquy and the record demonstrate that Taylor was informed of and understood the elements of the other two charges, possession of a firearm by a felon and failure to comply with an officer's attempt to take person into custody.

¶3 As to Taylor's second and third arguments, we conclude that his subjective belief that his trial counsel was unprepared for trial is insufficient to meet his burden of proving a manifest injustice by clear and convincing evidence; and he fails to show that the circuit court erroneously exercised its discretion in finding that the record demonstrates strong proof of guilt as to each of the three charges.

¶4 Accordingly, and consistent with case law, we reverse the order denying Taylor's motion for plea withdrawal as to the reckless endangerment

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charge, and we remand for the circuit court to exercise its discretion in determining the proper remedy in these circumstances.

BACKGROUND

¶5 Taylor was initially charged with nine counts relating to a shooting and a six-hour standoff with police. An information subsequently charged Taylor with the following five counts, all as a repeater: (1) attempted first-degree intentional homicide with use of a dangerous weapon; (2) possession of a firearm by a felon; (3) possession of methamphetamine; (4) possession of drug paraphernalia; and (5) failure to comply with an officer's attempt to take person into custody.

¶6 Following jury selection on the morning of trial, and several discussions off the record between Taylor and his trial counsel, trial counsel informed the circuit court that Taylor had accepted the State's offer of a plea deal. Specifically, Taylor agreed to enter Alford pleas to the first count as amended to reckless endangerment, and to the second and fifth counts of possession of a firearm by a felon and failure to comply with an officer's attempt to take person into custody, all as a repeater. The State agreed that the charges of possession of methamphetamine and possession of drug paraphernalia, both as a repeater, along with charges in a separate pending criminal case, would be dismissed and read in. The court proceeded with a plea hearing, conducted a plea colloquy, and accepted Taylor's pleas as voluntarily, intelligently, and knowingly entered.

¶7 The circuit court subsequently sentenced Taylor to seven years of initial confinement and five years of extended supervision for reckless endangerment safety, consecutive to the sentences for the other two charges; nine years of initial confinement and five years of extended supervision for possession

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of a firearm, concurrent with the sentence for the third charge; and two years of initial confinement and one year of extended supervision for failure to comply, concurrent with the sentence for the second charge.

¶8 Taylor filed a postconviction motion to withdraw his pleas. Taylor argued that his pleas were not knowing because he was not informed of and did not understand the elements of the charges to which he pled, his pleas were not voluntary because he believed that trial counsel was unprepared for trial, and the record did not support a strong proof of guilt of each charge. The circuit court held an evidentiary hearing at which Taylor testified. At the conclusion of the hearing, the court found Taylor's "recollection of the events" not credible and that the court had sufficiently explained the elements of the charges. The court also found that Taylor's trial counsel was prepared for trial and the record conclusively showed strong proof of guilt of each charge. Accordingly, the court denied the motion. Taylor appeals.

DISCUSSION

¶9 We address each of Taylor's arguments in turn and then address the appropriate relief.

I. KNOWING PLEA: NATURE OF CHARGES

A. Applicable Standard of Review and Legal Principles

¶10 "On appellate review, the issue of whether a plea was knowingly and intelligently entered presents a question of constitutional fact. [The appellate court] will not upset the circuit court's findings of historical or evidentiary facts unless they are clearly erroneous. [The appellate court] review[s] constitutional issues independently of the determinations rendered by the circuit court." State v. Bollig,

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2000 WI 6, ¶13, 232 Wis.2d 561, 605 N.W.2d 199 (internal citations omitted).

¶11 A defendant seeking to withdraw a plea after sentencing must "establish by clear and convincing evidence, that failure to allow a withdrawal would result in a manifest injustice." State v. Trochinski, 2002 WI 56, ¶15, 253 Wis.2d 38, 644 N.W.2d 891. "A plea which is not knowingly, voluntarily, or intelligently entered is a manifest injustice." Id. (quoted source omitted). "One of the situations where plea withdrawal is necessary to correct a manifest injustice is when the plea was involuntary, or was entered without knowledge of the charge." Id.; see also State v. Garcia, 192 Wis.2d 845, 864, 532 N.W.2d 111 (1995) (A defendant is entitled to withdraw a plea after sentencing "as a matter of constitutional right if [the defendant] demonstrates that [the defendant] did not understand the elements of the crimes to which [the defendant] pled."); Bollig, 232 Wis.2d 561, ¶13 ("A plea violates due process unless the defendant has a full understanding of the nature of the charges against [the defendant].").

¶12 "The standard and procedure for determining whether a plea is knowing, intelligent, and voluntary are laid out in Wis.Stat. § 971.08 and State v. Bangert, 131 Wis.2d 246, 274, 389 N.W.2d 12 (1986)." Trochinski, 253 Wis.2d 38, ¶17. Section 971.08(1) (2029-20)^[3] states that a circuit court in accepting a plea must "[a]ddress the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted." In Bangert, our supreme court outlined three

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methods that fulfill this obligation. Garcia, 192 Wis.2d at 865 (citing Bangert, 131 Wis.2d at 268). The court described the three methods as follows:

First, the trial court may summarize the elements of the crime charged by reading from the appropriate jury instructions, or from the applicable statute. Second, the trial judge may ask defendant's counsel whether [counsel] explained the nature of the charge to the defendant and request [counsel] to summarize the extent of the explanation, including a reiteration of the elements, at the plea hearing. Third, the trial judge may expressly refer to the record or other evidence of defendant's knowledge of the nature of the charge established prior to the plea hearing.

Bangert, 141 Wis.2d at 268 (citations omitted). "A defendant's mere affirmative response that [the defendant] understands the nature of the charge, without establishing [the defendant's] knowledge of the nature of the charge," is insufficient to show actual understanding. Id. at 269. An "ascertainment of understanding must be made on the record" by the circuit court. Id. at 266.

¶13 "If a defendant … shows that the circuit court did not determine on the record at the plea hearing that the defendant understood the nature of the crimes charged, the burden shifts to the State to show by clear and convincing evidence that the defendant's plea was knowingly, voluntarily and intelligently entered." Garcia, 192 Wis.2d at 865 (citing Bangert, 141 Wis.2d at 275). The State may use the entire record in meeting this burden. Id. "The [S]tate may examine the defendant or defendant's counsel to shed light on the defendant's understanding or knowledge of information necessary for [the defendant] to enter a voluntary and intelligent plea. The court may also look to the guilty plea questionnaire form signed by the defendant to determine if [the] plea was voluntarily, knowingly and intelligently made." Id. at 866 (citations omitted). "In essence, the [S]tate will be required to show that the defendant in fact possessed

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the constitutionally required understanding and knowledge ...." Bangert, 131 Wis.2d at 275. When the State fails to...