State v. Thomas, 98-2382-CR
| Decision Date | 12 October 1999 |
| Docket Number | 98-2382-CR |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats. State of Wisconsin, Plaintiff-Respondent, v. James E. Thomas, Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I DATED AND FILED: |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Milwaukee County: STANLEY A. MILLER and MICHAEL J. BARRON, Judges. Reversed and cause remanded.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
¶1.James E. Thomas pled no contest to a charge of first-degree reckless homicide by use of a dangerous weapon, as a party to a crime. See§§ 940.02(1), 939.63, 939.05, Stats. He appeals from the trial court's order denying his postconviction motion to withdraw his plea. Thomas argues that he is entitled to withdraw his plea because he received ineffective assistance of counsel. We reverse and remand.1
¶2. On March 30, 1996, Thomas and four other men went to a Milwaukee tavern. At the tavern, they got into a fight, which led to a shoot-out. A patron of the bar, Ramiro Luna, was killed during the shoot-out.
¶3. The police subsequently obtained a warrant for Thomas's arrest. On April 3, 1996, the police stopped Thomas's car and arrested him. The police told Thomas that he was being arrested for murder, and that they were going to search his car. Thomas responded that the police could go ahead and search his car because there wasn't anything in it. The police found a gun and a large quantity of cocaine in the engine compartment, under the hood of the car.
¶4. Thomas admitted to the police that the gun and the cocaine belonged to him. He also admitted that he had fired three or four shots inside the tavern during the shoot-out that had killed Luna. A ballistics expert determined that the bullet that killed Luna had been fired from Thomas's gun.
¶5. On July 24, 1996, pursuant to a plea bargain, Thomas pled no contest to a charge of first-degree reckless homicide by use of a dangerous weapon, as a party to a crime. In exchange, the State dismissed a charge of possession of cocaine with intent to deliver, while armed, and recommended that Thomas receive a sentence of twenty-five to thirty years. The trial court accepted Thomas's plea, and entered judgment accordingly. The trial court imposed a thirty-five-year sentence.
¶6. Thereafter, Thomas filed a postconviction motion seeking to withdraw his no contest plea. Thomas argued, among other things, that his trial counsel was ineffective because he had failed to seek suppression of the gun and the cocaine found under the hood of Thomas's car. The trial court denied Thomas's motion without a hearing.
¶7. If a defendant files a postconviction motion alleging facts that, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing. See State v. Bentley, 201 Wis.2d 303, 310, 548 N.W.2d 50, 53 (1996). Whether the motion alleges sufficient facts that, if true, would entitle the defendant to relief is a question of law, which we review de novo. See id.
"[I]f the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or 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., 201 Wis.2d at 309-310, 548 N.W.2d at 53 (quoted source omitted). We will reverse the trial court's discretionary decision to deny an evidentiary hearing only for an erroneous exercise of discretion. See id., 201 Wis.2d at 311, 548 N.W.2d at 53.
¶8. After sentencing, a plea may be withdrawn only if doing so is necessary to correct a manifest injustice. See State v. Booth, 142 Wis.2d 232, 235, 418 N.W.2d 20, 21 (Ct. App. 1987). A defendant has the burden of proving by clear and convincing evidence that a manifest injustice has occurred. See Bentley, 201 Wis.2d at 311, 548 N.W.2d at 54. The manifest injustice test is satisfied by a showing that the defendant received ineffective assistance of counsel. See id.
¶9. To prevail on a claim of ineffective assistance of counsel, a defendant bears the burden to establish both that counsel's performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Sanchez, 201 Wis.2d 219, 232-236, 548 N.W.2d 69, 74-76 (1996). To prove deficient performance, a defendant must identify specific acts or omissions of counsel that were "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Counsel's performance is to be evaluated from counsel's perspective at the time of the challenged conduct. See id. Counsel is strongly presumed to have rendered effective assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See id. To show prejudice, Thomas must demonstrate that there is a reasonable probability that, but for counsel's errors, he would not have pled no contest and would have insisted on going to trial. See Bentley, 201 Wis.2d at 312, 548 N.W.2d at 54.
¶10. Ineffective assistance of counsel claims present mixed questions of law and fact. See State v. Pitsch, 124 Wis.2d 628, 633-634, 369 N.W.2d 711, 714 (1985). A trial court's factual findings must be upheld unless they are clearly erroneous. See State v. Harvey, 139 Wis.2d 353, 376, 407 N.W.2d 235, 245 (1987). Whether counsel's performance was deficient and, if so, whether the deficient performance prejudiced the defendant are questions of law, which we review de novo. See Pitsch, 124 Wis.2d at 634, 369 N.W.2d at 715.
¶11. In his postconviction motion to withdraw his plea, Thomas asserted that his counsel was deficient in failing to file a motion to suppress the gun and the cocaine that the police found under the hood of his car. He argued that he did not consent to the warrantless search of his car, that the search went beyond the scope of a search incident to a lawful arrest, and that the police did not have probable cause to search under the hood of his car. Thomas further asserted that he was prejudiced by counsel's alleged deficiency because "without the items recovered from the vehicle the state would have been unable to prove the case against him." He asserted that, without his gun, the police would not have been able to identify him as the person who shot Luna because several others had also been involved in the shoot-out.2
¶12. The trial court denied Thomas's motion without a hearing, concluding that the search under the hood of Thomas's car was justified as a search incident to a lawful arrest. On appeal, the State requests that we affirm the trial court's decision on other grounds, arguing that the police had consent to search Thomas's car.3 Alternatively, the State asks that we remand the case for a Machner hearing if we conclude that the record does not support a finding that Thomas consented to the search.4
¶13. State v. Phillips, 218 Wis.2d 180, 195, 577 N.W.2d 794, 801 (1998).5
But for a few inconsequential differences in punctuation, capitalization, and the use of the singular or plural form of a word, the texts of the Fourth Amendment and art. I, § 11 are identical. "This court has consistently and routinely conformed the law of search and seizure under the state constitution to that developed by the United States Supreme Court under the fourth amendment." We have therefore concluded that the standards and principles surrounding the Fourth Amendment are generally applicable to the construction of art. I, § 11.
Id. (citations omitted).
¶14. Warrantless searches "are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes omitted). One such exception is consent. See id., 389 U.S. at 358 n.22; Phillips, 218 Wis.2d at 196, 577 N.W.2d at 801. When the State seeks to justify a warrantless search on the basis of consent, the State bears the burden to prove by clear and convincing evidence that the defendant's consent was voluntary. See Phillips, 218 Wis.2d at 197, 577 N.W.2d at 802. "The test for voluntariness is whether consent to search was given in the absence of duress or coercion, either express or implied." Id. "We make this determination after looking at the totality of the circumstances, considering both the circumstances surrounding the consent and the characteristics of the defendant." Id., 218 Wis.2d at 198, 577 N.W.2d at 802 (citations omitted).
¶15. Whether a defendant voluntarily consented to a search is a question of constitutional fact, subject to a two-step standard of review. See id., 218 Wis.2d at 195, 577 N.W.2d at 801. We will not reverse the trial court's findings of historical fact unless they are against the great weight and clear preponderance of the evidence. See id. "We will, however, independently apply the constitutional principles to the facts as found to determine whether the standard of voluntariness has been met." Id.
¶16. Thomas attached to his postconviction motion the police report regarding his arrest and the subsequent search of his car. The police report reads, in relevant part:
I handcuffed James with several other officers standing beside us. At this point James asked me[,] "What's this all about[?"] I told him, "I have been told you are wanted for murder[."] James made no response at first, then stated, "Man-I don't know nothin' about that[."] I then...
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