State v. West
| Decision Date | 28 October 1997 |
| Docket Number | No. 96-2431-CR,96-2431-CR |
| Citation | 571 N.W.2d 196,214 Wis.2d 468 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Michael WEST, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Brian Findley, Deputy First Assistant State Public Defender.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Sally L. Wellman, Assistant Attorney General.
Before WEDEMEYER, P.J., and SCHUDSON and CURLEY, JJ.
Michael West appeals from a judgment of conviction entered after he pled guilty to two counts of conspiracy to commit insurance fraud, contrary to §§ 939.31 and 943.395(1)(a), (2)(a) and (2)(b), STATS., 1 and one count of obstructing or resisting an officer, contrary to § 946.41(1), STATS. On appeal, West challenges only his conviction on the two counts of conspiracy to commit insurance fraud. West argues that he should be allowed to withdraw his plea to the first conspiracy count because there was no factual basis for his plea. West also argues that he should be allowed to withdraw his plea to the second conspiracy count because the trial court lacked subject matter jurisdiction, and because there was no factual basis for his plea.
The first conspiracy count, listed as count one in the complaint, charges West with conspiracy to commit insurance fraud, and relates to West's filing a false insurance claim on November 9, 1994, while he was located in the state of Wisconsin. While there is evidence that West filed a false insurance claim on that date, there is no evidence that West committed the crime of conspiracy; namely, that West entered into an agreement with at least one other individual who also intended to file the false claim. Therefore, there was no factual basis to support West's plea and, as to count one, we reverse the judgment of conviction and remand the matter to the trial court with directions to allow West to withdraw his plea.
The second conspiracy count, listed as count three in the complaint, also charges West with conspiracy to commit insurance fraud, but relates to actions which West took later in November 1994, while he was located in the state of Illinois. West argues that the trial court lacked subject matter jurisdiction with regard to this count, because the requirements ofs 939.03, STATS., were not met. Section 939.03 actually relates to personal jurisdiction over a criminal defendant, and therefore, West is actually arguing that the trial court lacked personal jurisdiction. However, because West pled guilty, he has waived all objections to the trial court's personal jurisdiction. With respect to the factual basis for count three, there is evidence that West conspired with at least one other individual to commit insurance fraud in Illinois. Therefore, there was a factual basis for West's guilty plea to count three, and the remainder of the judgment is affirmed.
On June 30, 1995, a complaint was filed charging West with three separate counts. Counts one and three charged West with conspiracy to commit insurance fraud, and count two charged West with obstructing or resisting an officer. With respect to count one, the complaint states that on November 2, 1994, Milwaukee Police Officer Jack Wotnoske responded to a personal injury accident at 3110 North Sherman Boulevard, in the city of Milwaukee. Upon arrival, Officer Wotnoske spoke with a person who identified himself as Michael Dyson. Dyson told Wotnoske that a woman named Esther Davis backed into him with her car as she was leaving the gas station. Dyson was later identified as West.
The complaint states that Investigator Diane Stutika spoke with Esther Davis, who said that on November 2, 1994, she was at a gas station on Sherman Boulevard and Burleigh Street in Milwaukee. Davis stated that, after paying for gas, she began backing up her car to leave the station. While she was backing up, a man stepped out from the island near the back of her car and began to wave his arms and yell, "You hit me." Davis stated that she was positive she had not hit the man. She stated that the man said that his thigh hurt, and that he was going to get insurance money. Davis then gave the man her insurance information. The investigator showed Davis a photo array containing a photograph of West, and she positively identified West as the man who said that she hit him.
On November 9, 1994, a person calling himself Michael Dyson filed a claim with Allstate Insurance for injuries received as a result of an accident with Davis. On November 11, 1994, Allstate received a letter from Attorney Stephen Strnad, who indicated that he was representing Dyson and would be demanding settlement.
On March 23, 1995, an insurance investigator for Allstate Insurance received a collect call from a person identifying himself as Dyson. Dyson claimed that he was in a halfway house in Chicago and said that he wanted to settle his claim. The investigator later discovered that Dyson's call came from the DuPage County Jail, located in DuPage County, Illinois. On March 23, 1995, West was in custody in the DuPage County Jail.
With respect to count three, the complaint states that on November 14, Allstate received a call from a person claiming to be Terry Davis. Terry Davis said that he hit a parked car while he was driving Esther Davis's car with her permission. Allstate called Esther Davis, and she said that at the time of Terry Davis's alleged accident, she was in Milwaukee and had not given anyone permission to use her car. Next, a person using the name of Patrick Gentry went into an Allstate office in Chicago, claiming that he had been in an accident with a car owned by Esther Davis. On November 15, 1994, Gentry returned to Allstate with the vehicle and a person later determined to be West. Due to Gentry's failure to carry any identification, he was not given a check. Later, a man named Lavell Smythe called Allstate and confessed that he had used the false name of Patrick Gentry in order to obtain a fraudulent settlement. Smythe stated that he had fixed West's car, and that West offered to pay him thirty dollars if he brought the car to Allstate and claimed he was Patrick Gentry.
Before trial, West made a motion challenging the court's personal jurisdiction under § 939.03, STATS. The motion was denied, and West pled guilty to count one and count three of the complaint. The trial court found that a factual basis existed for West's plea to both counts one and three. West was sentenced and now appeals.
Before a trial court can accept a guilty plea, it must personally determine that the conduct which the defendant admits constitutes the offense to which the defendant has pleaded guilty. See State v. Johnson, 200 Wis.2d 704, 708, 548 N.W.2d 91, 93 (Ct.App.1996), aff'd, 207 Wis.2d 240, 558 N.W.2d 375 (1997). A trial court's failure to establish a factual basis for the defendant's plea is evidence that a manifest injustice has occurred, warranting withdrawal of the plea. See id. at 709, 548 N.W.2d at 93. We will only reverse a trial court's determination that there was a sufficient factual basis for accepting a plea if that finding was clearly erroneous. See id. In this case, the trial court determined that a factual basis existed for West's plea to count one of the complaint. Because no evidence of a conspiracy with respect to count one was presented to the trial court, we conclude that the trial court's finding was clearly erroneous, and reverse that portion of the judgment.
Both count one and count three of the complaint charged West with conspiracy to commit insurance fraud. The two counts were separate and distinct, however, in that they exposed West to different penalties, and related to different acts of insurance fraud. Count one charged West with a Class A misdemeanor 2 and related to his filing of a false insurance claim, presumably worth less than $1,000, 3 on November 9, 1994, while located in the state of Wisconsin. Count two charged West with a Class E Felony 4 and related to different actions which West, and others, took later in November 1994, while located in the state of Illinois.
Both count one and count three charged West with conspiracy to commit insurance fraud, contrary to § 939.31, STATS. Section 939.31 reads, in relevant part:
Conspiracy. ... [W]hoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both not to exceed the maximum provided for the completed crime.
Thus, according to § 939.31, the elements of the crime of conspiracy are: (1) an agreement between the defendant and at least one other person to commit a crime; (2) intent on the part of the conspirators to commit the crime; and (3) an act performed by one of the conspirators in furtherance of the conspiracy. Wisconsin case law also sets out the elements of the crime of conspiracy. See Hawpetoss v. State, 52 Wis.2d 71, 80, 187 N.W.2d 823, 827 (1971) (). 5 Importantly, both § 939.31 and Hawpetoss require an agreement between at least two people to prove a conspiracy. Wisconsin cases have repeatedly affirmed this principle. See State v. Smith, 189 Wis.2d 496, 501, 525 N.W.2d 264, 266 (1995) (), and ...
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