State v. Thomas

• Citation: 605 N.W.2d 836,2000 WI 13,232 Wis.2d 714
• Decision Date: 18 February 2000
• Docket Number: No. 97-2665-CR.,97-2665-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Terry THOMAS, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

232 Wis.2d 714

2000 WI 13

605 N.W.2d 836

STATE of Wisconsin, Plaintiff-Respondent, v. Terry THOMAS, Defendant-Appellant-Petitioner.

No. 97-2665-CR.

Supreme Court of Wisconsin.

Oral argument December 3, 1999.

Decided February 18, 2000.

For the defendant-appellant-petitioner there were briefs by Jeffrey W. Jensen and Law Offices of Jeffrey W. Jensen, Milwaukee, and oral argument by Jeffrey W. Jensen.

For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. N. PATRICK CROOKS, J

Terry Thomas¹ seeks review of an unpublished court of appeals decision,² which affirmed a circuit court's denial of his motion to withdraw a guilty plea. The circuit court found that a factual basis supporting Thomas's plea had been established, and therefore denied the plea withdrawal request. The court of appeals affirmed, holding that Thomas had not demonstrated the "manifest injustice" required to withdraw his guilty plea. Slip op. at 10. We agree. A factual basis supporting the plea was established, because when the record is viewed under the totality of the circumstances, it is evident that Thomas assented to the facts as stated by the assistant district attorney. Since a proper factual basis was established, the guilty plea does not result in manifest injustice.

I.

¶ 2. In the evening of October 10, 1995, Terry Thomas (Thomas) was involved in an altercation concerning drugs. A shoot-out ensued, and Tyrone Doss, a childhood friend, died. Ultimately, Thomas pled guilty to second-degree reckless homicide while using a dangerous weapon, as a party to a crime. Wis. Stat. §§ 940.06, 939.05, 939.63(1)(a)2 (1993-94).³ The circuit court, the Honorable David A. Hansher presiding, convicted Thomas on his guilty plea, and he was sentenced to a fifteen-year prison term. After his conviction and sentencing, Thomas moved to withdraw his plea, claiming that a factual basis was not established to support it.

¶ 3. The facts leading to the guilty plea are as follows. According to Thomas's statement as set forth in the criminal complaint, he, Doss, and several other individuals met at Doss's house in Milwaukee to discuss a drug operation they were involved in. A scuffle broke out during the discussion, and Doss mumbled something about "going to war." (R. at 2:8.) Thomas and his friends then left and headed to Thomas's nearby residence.

¶ 4. A short time later, Thomas and his roommate "Shawn" walked back to Doss's house through an alley by the house. At that same time, Larry Harris, Zorris (Doss's brother), and their friend Rob, drove into the alley. Thomas was carrying an AK-47 semiautomatic rifle. Shawn carried a sawed-off, pistol-grip shotgun. When Harris got out of the car, he and Thomas were facing each other across the alley. Harris pulled a nine-millimeter handgun from the front of his waistband and pointed it at Thomas. Thomas then lifted his AK-47 and shot at Harris. Harris started running through yards, while Thomas continued to shoot in his direction. Thomas stated in the complaint that he shot at Harris to prevent Harris from shooting him.

¶ 5. The rifle, upon being fired, knocked Thomas to the ground. When he stood up, he began to walk to his own residence, but saw Shawn standing in the alley firing his sawed-off shotgun toward Doss's house. Thomas turned back and started "shooting wildly" in the same direction from behind a bush. (R. at 2:8.) He claimed he could not see what he was shooting at, but kept firing to keep anyone from shooting back at Shawn or him. Doss, who was standing outside his house, was shot in the chest. He died a few hours later.

¶ 6. Thomas was charged with second degree reckless homicide while armed and habitual criminality, in violation of Wis. Stat. §§ 940.06, 939.63(1)(a)2, and 939.62. However, at the plea hearing the state amended the information orally to add "party to the crime" to the charge under Wis. Stat. § 939.05, and it dismissed the habitual criminality allegation.⁴ Thomas pled guilty to the charge. The court then questioned Thomas directly. The following exchange occurred:

THE COURT: The Court will accept the stipulation. Sir, you signed both guilty plea questionnaire, waiver of rights forms before for F-966162 [the homicide charge] and F-966044? These two pieces of paper I'm holding in front of you?

THE DEFENDANT: Yes.⁵

(R. at 20:8.) The court then inquired:

THE COURT: Did you read both these criminal complaints and the informations in this case?

THE DEFENDANT: Yes.

THE COURT: Or was it read to you? Which one was it or both?

THE DEFENDANT: Both.

THE COURT: Both of them? So it was both read to you and you read it yourself so you understand what you're charged with now with the amendment, what the penalties are, why you've been charged and the elements of the offense of first degree or second degree reckless homicide while armed with a dangerous weapon, party to a crime, and felon in possession of a firearm, habitual criminality. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Do you also understand by pleading guilty you're giving up all possible defenses, including but not limited to self-defense, intoxication, insanity and alibi and your right to file motions by your attorney such as a motion challenging your— any statements you made, a motion to suppress the physical evidence, a motion to suppress your identification among various other motions. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Do you understand by pleading guilty to both charges you're giving up the following constitutional rights, your right to remain silent, your right to have your attorney cross-examine or ask questions of the State's witnesses, your right to have your own witnesses come to court to testify for you, your right to make the jury — your right to a court trial, meaning to me, or a jury trial, and a jury trial is where 12 people listen to the evidence and all 12 have to agree you're guilty in order to find you guilty and your right to make the State prove the case against you beyond a reasonable doubt as to each element of these two charges. Do you understand that?

THE DEFENDANT: Yes.

(R. at 20:9-11.) Later, the court questioned the defendant again:

THE COURT: Do you have any questions you want to ask me about the pleas to either one of these charges, any questions?

THE DEFENDANT: About the pleas?

THE COURT: Yes. Just the pleas. . . .

THE DEFENDANT: I understand what you're saying, that they can be ran concurrent, I mean, consecutive or concurrent.

THE COURT: But. . .do you have any questions regarding anything else we've discussed?

THE DEFENDANT: No.

(R. at 20:13.)

¶ 7. The state then listed the elements that it would have to prove against Thomas, and Thomas agreed he understood them. The assistant district attorney attempted to establish a factual basis for the plea by reading the factual allegations from the criminal complaint. The complaint consists of ten pages of statements from various witnesses. The court asked if there was some way to speed up the process. The state and the defense counsel proceeded to come to an understanding as to which parts of the criminal complaint they could stipulate to as a factual basis for the plea.⁶ Finally, the court asked:

THE COURT: So, you'll stipulate to [the above-stated facts] as a basis for the plea?

MR. SCHNAKE (Defense Counsel): Yes.

MR. MOLITOR (Assistant District Attorney): Just like something stated by the defendant he also agrees with those facts.

THE COURT: Do you dispute anything that has just been said, sir?

THE DEFENDANT: Yes.

THE COURT: Yes. He stipulates. They both stipulate.

MR. MOLITOR: Okay, and you read that complaint and you understood—

THE COURT: I went through that with him.

MR. MOLITOR: Okay. He said he read them. He didn't say he understood them.

THE COURT: Of course he understood them. I asked if you read the complaints and that if he understood them. Are you willing to stipulate?

MR. MOLITOR: Yes.

THE COURT: Hallelujah. The Court will find there's a basis for the plea. Was there a preliminary hearing?

MR. SCHNAKE: There was a waiver hearing.

MR. MOLITOR: No.

THE COURT: Okay. The Court will find there's a basis for the plea. The Court will find the plea to be freely, voluntarily and intelligently made. I think I said that. I lost track here already.

MR. SCHNAKE: Yes. I believe it to be freely and intelligently waived. Mr. Thomas and I have met and discussed this, I believe, for an excess of six hours, specifically as to the plea.

(R. at 20:29-30.)

¶ 8. At the sentencing, the assistant district attorney wanted to clarify that Thomas agreed with the defense counsel's stipulation to the facts at the plea hearing.

MR. MOLITOR: . . .Mr. Thomas—Mr. Schnake correctly summarized the stipulation of facts that you agreed to last time in the guilty plea last time, is that correct?

THE DEFENDANT: Huh?

THE COURT: Are you talking to Mr. Schnake or the defendant?

MR. MOLITOR: I'm talking to the defendant.

THE COURT: Okay.

THE DEFENDANT: Yes.

(R. at 21:2-3.)

¶ 9. Thomas was sentenced to 15 years in prison for the reckless homicide charge. After the conviction, Thomas moved to withdraw his guilty plea as to that charge. He argued that the plea must be withdrawn because a factual basis had not been established to support the plea, and that he had a meritorious defense. The circuit court denied the motion because it found Thomas did not demonstrate by clear and convincing evidence that manifest injustice would occur if he could not withdraw his plea. The plea would not result in manifest injustice, the court determined, because Thomas did not state what he specifically disputed during the plea hearing. As to the meritorious defense, the court found that Thomas's actions did not meet the criteria required to sustain a privilege of self-defense and defense of others, according to Wis. Stat. § 939.48. Finally, the court found...