State v. Tourville
| Decision Date | 15 March 2016 |
| Docket Number | 2014AP1251–CR,Nos. 2014AP1248–CR,2014AP1249–CR,2014AP1250–CR.,s. 2014AP1248–CR |
| Citation | 2016 WI 17,876 N.W.2d 735,367 Wis.2d 285 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Patrick K. TOURVILLE, Defendant–Appellant–Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner, there were briefs by John A. Pray and the Frank J. Remington Center, University of Wisconsin Law School, and oral argument by John A. Pray.
For the plaintiff-respondent, the cause was argued by Jeffrey Kassel, assistant attorney general, with whom on the brief was Brad Schimel, attorney general.
, J.
¶ 1 Petitioner, Patrick Tourville ("Tourville"), seeks review of an unpublished court of appeals decision denying his motion for post-conviction relief.1 He asserts that his trial counsel was ineffective for failing to object after the State allegedly breached the plea agreement by recommending consecutive sentences. Additionally, Tourville contends that there was an insufficient factual basis for the court to accept his guilty plea to the charge of party to the crime of felony theft.
¶ 2 Like the circuit court and court of appeals, we conclude that Tourville's trial counsel was not ineffective. Given that the State did not breach the plea agreement by arguing for consecutive sentences, Tourville fails to establish the deficient performance necessary for an ineffective assistance of counsel claim.
¶ 3 We also conclude that the circuit court's determination was not clearly erroneous. There was a sufficient factual basis to accept Tourville's guilty plea to the charge of party to the crime of felony theft. He willingly aided others who engaged in felony theft by taking them to his campsite, helping them open the safe, and disposing of the ill-gotten property. Accordingly, we affirm the court of appeals.
¶ 4 The underlying facts in this case are taken from the amended criminal complaint in case no. 2012CF27. The State charged Tourville with seventeen criminal counts in four separate, unrelated cases:
¶ 5 All charges from these four cases were incorporated into a single plea agreement. Tourville agreed to plead guilty or no-contest to felony theft as a party to a crime, felony bail jumping, burglary while armed with a dangerous weapon and misdemeanor theft, all as a repeater. The State agreed to dismiss and read in the remaining counts.
¶ 6 The circuit court received a plea questionnaire/waiver of rights form for each of the four cases. In three cases, a signed addendum was attached to the form that set forth the terms of the plea agreement.2 Only Tourville signed the addendum. Terms of the plea agreement stated in the signed addendum included: "The joint sentencing recommendation is to order a presentence investigation; the state will cap its recommendation at the high end of what the PSI orders."3
¶ 7 A Presentence Investigation Report ("PSI") was filed with the court. It suggested a range of initial confinement ("IC") and extended supervision ("ES") for each charge, but made no recommendation regarding concurrent or consecutive sentences. The PSI recommended:
The circuit court asked Tourville's trial counsel if there were any errors or omissions in the PSI's recommendations that needed to be clarified. He responded that there were no errors or omissions in the PSI.
¶ 8 During sentencing, the prosecutor argued for the maximum in the PSI's ranges of sentencing recommendations. He sought the following:
The prosecutor also recommended that the circuit court impose consecutive sentences in all four cases, despite the fact that the PSI was silent on this issue.
¶ 9 Tourville's trial counsel did not object when the State recommended consecutive sentences. At the post-conviction motion hearing, he testified that there was no strategic reason for failing to object to the State's recommendation of consecutive sentences. Rather, he candidly stated that it "slipped my mind to object."
¶ 10 One of the charges to which Tourville pled guilty was felony theft as a party to the crime pursuant to Wis. Stat. §§ 943.20(1)(a)
, (3)(d), and 939.05.4 Several men, not including Tourville, stole a gun safe containing firearms and other tools. The men called Tourville, advised him that they had a safe and needed both a place to take it and help to break it open. They picked Tourville up at his residence and then went to Tourville's campsite at a resort. After they all participated in opening the safe, Tourville advised the other men where to dispose of it. Ultimately, they disposed of the safe in a swamp, along the side of the road. The men drove Tourville home, dropped him off and later paid Tourville in cash for his assistance.
¶ 11 Although Tourville did not participate in the planning or initial execution of the theft, the criminal complaint alleged Tourville "took and carried away" property as a party to the crime. The probable cause portion of the complaint sets forth the factual basis for the charge.
¶ 12 At the plea hearing, the circuit court questioned Tourville regarding the factual basis for the charge of party to the crime of felony theft. Tourville stated that he did not take part in the burglary, but gave the other men who did commit the burglary a place to go to open the safe:
¶ 13 In an effort to clarify the record, the circuit court again questioned Tourville regarding whether he understood the factual basis for the charge of party to the crime of felony theft. He again responded that he gave the other men a place to open the safe:
¶ 14 The circuit court accepted Tourville's plea and sentenced him to consecutive prison sentences totaling 26 years.5 Tourville filed a post-conviction motion raising the same issues that are now before this court. The court denied Tourville's motion and the court of appeals affirmed the circuit court's judgment and order.
¶ 15 In this case we are asked to address issues involving ineffective assistance of counsel, breach of a plea agreement, and if there is a factual basis to support a guilty plea.
¶ 16 Whether counsel's actions constitute ineffective assistance presents a mixed question of law and fact. State v. Jenkins, 2014 WI 59, ¶ 38, 355 Wis.2d 180, 848 N.W.2d 786
. Findings of fact will not be reversed unless they are clearly erroneous. Id. The ultimate conclusion of whether counsel's conduct breached the defendant's right to effective assistance of counsel presents a question of law. Id. ¶ 17 The issue of whether the State breached the plea agreement by arguing for consecutive sentences also presents a question of law. State v. Williams, 2002 WI 1, ¶ 4, 249 Wis.2d 492, 637 N.W.2d 733
. This court reviews questions of law independently from the determinations rendered by the circuit court and court of appeals. Id.
¶ 18 We review, under the clearly erroneous standard, the issue of whether a factual basis exists for a charge to which the defendant has entered a plea. "Unless it was clearly erroneous, we will uphold the circuit court's determination that there existed a sufficient factual basis to accept the plea." State v. Sutton, 2006 WI App 118, ¶ 8, 294 Wis.2d...
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