State v. Woods, 91-3060-CR

• Decision Date: 08 December 1992
• Docket Number: No. 91-3060-CR,91-3060-CR
• Citation: 496 N.W.2d 144,173 Wis.2d 129
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Anthony WOODS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 144

496 N.W.2d 144

173 Wis.2d 129

STATE of Wisconsin, Plaintiff-Respondent, v. Anthony WOODS, Defendant-Appellant.

No. 91-3060-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 2, 1992.

Opinion Released Dec. 8, 1992.

Opinion Filed Dec. 8, 1992.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael Yovovich of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Gregory M. Posner-Weber, Asst. Atty. Gen.

Before WEDEMEYER, P.J., and SULLIVAN and SCHUDSON, JJ.

SCHUDSON, Judge.

This appeal presents three issues: 1) whether an adult sentence can be consecutive to a juvenile court disposition; 2) whether, if such a consecutive sentence is not lawful, a plea agreement that includes a recommendation for that sentence invalidates a guilty plea; and 3) whether renegotiation of a sentencing recommendation without a defendant's knowledge invalidates a guilty plea. We conclude that an adult court sentence cannot be consecutive to a juvenile court disposition. We also conclude that because the defendant pled guilty as part of a plea agreement that included a recommendation for such a consecutive sentence, and because the defendant's attorney renegotiated the State's sentencing recommendation without Woods' knowledge or consent, Woods' guilty plea must be withdrawn.

I. BACKGROUND

On July 17, 1990, sixteen year-old Anthony Woods allegedly walked up to a car, grabbed the driver by her hair, placed a gun to her head, pulled her out of the car, took the car and drove off. The juvenile court waived its jurisdiction over Woods on this offense, for which he was charged with armed robbery in the adult court.

At approximately the same time, however, the juvenile court also committed Woods to the Ethan Allen juvenile corrections facility for eighteen months as a result of two earlier offenses. Consequently, when Woods pled guilty to the armed robbery in adult court on November 12, 1990, and when he was sentenced on January 18, 1991, he was already incarcerated at Ethan Allen under a valid juvenile court dispositional order that was not to expire until February 24, 1992.

According to a plea agreement, Woods would plead guilty to armed robbery in exchange for the State's recommendation that Woods receive a two-year sentence that would run consecutive to his juvenile disposition. At the plea hearing, the trial court asked Woods if he understood that the court could send him "to jail for twenty years on this offense and run that consecutive to what you are now doing at ... [Ethan Allen]." Woods responded that he understood. The court accepted Woods' guilty plea and ordered a pre-sentence investigation report.

At the sentencing, the prosecutor recommended "a period of two to three years consecutive to the term [Woods was] serving in Wales." (Emphasis added.) The defense argued for a consecutive period of probation. Neither Woods nor his attorney objected to either the recommendation for a consecutive sentence or to the alteration from "two years" to "two to three years." The court imposed a ten-year prison sentence, consecutive to the juvenile disposition.

Woods filed a motion for post-conviction relief, alleging ineffective assistance of counsel based on his attorney's failure to object to the State's modification of the original plea agreement. Woods later amended his motion, asserting that the plea agreement "should be voided as illegal and illusory" because "[d]efense counsel and [the State] agreed to an illegal sentence recommendation." Woods argued that sec. 973.15(2), Stats., did not permit a court to impose a criminal sentence consecutive to a commitment to a juvenile correctional facility. Woods also argued that his attorney "renegotiated the plea bargain with [the State] from a two-year recommendation to a two to three year recommendation" without informing or consulting with him. Woods requested resentencing before a different judge or, in the alternative, that the judgment be vacated due to "an invalid plea." At the postconviction motion hearing, the parties entered into a stipulation, summarizing why the State's sentencing recommendation departed from the original agreement. The prosecutor explained:

It would be stipulated between counsel that on the date of January 18th of 1991, there was a sentencing in this court, that I had come into this court and I had a conversation with Mr. Woods' [defense counsel].

[Defense counsel] indicated to me, asking me if I thought that your honor would go along with the recommendation in the presentence and my recommendation which was two years[.] I indicated to [defense counsel] that I did not know if the court would because the presentence, in my opinion, and apparently [defense counsel]'s opinion, was rather negative as to Mr. Woods.

[Defense counsel] then suggested that I recommend a period of two to three years hoping that that would be more appeal[ing to] the court and the court would accept a recommendation in that area.

I indicated to [defense counsel] that I would make that recommendation, and he indicated that that would be okay with him.

The recommendation was then made in open court. [Defense counsel] didn't object to it and the Court sentenced Mr. Woods to ten years.

It would be [defense counsel]'s testimony, based on my conversation with him[,] ... that he would testify that on January 18th, 1991, that he and I had a conversation in the hallway pertaining to Mr. Woods' presentence and the State's recommendation. That [defense counsel] indicated to me that he had some worry about whether the Court would go along with my recommendation as to what would happen to Mr. Woods in sentencing; that is, my two year recommendation. That [defense counsel] then suggested that we make the recommendation two or three years hoping that the Court would follow that recommendation and hoping it would be more acceptable to the Court based on the negative presentence as [defense counsel] also perceived it.

It would be [defense counsel]'s testimony that the case was called and he did not have the conversation with Mr. Woods about the modification of the recommendation and that the Court then sentenced Mr. Woods to ten years.

[Defense counsel] also would indicate obviously that he would not object to the State's recommendation and it's also my understanding that Mr. Woods would testify that [defense counsel] never came to him telling him that the State would recommend two to three years.

The court accepted the stipulation and ordered the issues briefed. In its brief to the trial court, the State argued that any breach of the plea agreement was "slight" and that, under State v. Smith, 153 Wis.2d 739, 451 N.W.2d 794 (Ct.App.1989), Woods had waived any breach by failing to object at sentencing. The State also argued that the performance of Woods' attorney was not constitutionally ineffective. The trial court, in its December 6, 1991, order, "adopt[ed] the reasoning outlined in the State's brief on all issues" and denied Woods' motion. Woods now appeals.

II. THE STANDARD OF REVIEW

This case involves determination of a court's statutory authority to impose a consecutive sentence, a determination presenting a question of law that we decide without deference to the trial court. State v. Moore, 167 Wis.2d 491, 495-496, 481 N.W.2d 633, 635 (1992). Further, we must interpret statutes according to their plain meaning and, absent any ambiguity, we must follow their plain meaning. State v. Livingston, 159 Wis.2d 561, 573, 464 N.W.2d 839, 844 (1991).

This case also involves a defendant's request to withdraw a guilty plea after sentencing, a request that must be granted if a defendant successfully "carries the heavy burden of establishing, by clear and convincing evidence, that the trial court should permit the defendant to withdraw the plea to correct a 'manifest injustice.' " State v. Krieger, 163 Wis.2d 241, 249, 471 N.W.2d 599, 602 (Ct.App.1991). A motion to withdraw a plea addresses the trial court's discretion and, therefore, we will reverse a trial court's decision only if the trial court has abused its discretion. Id., 163 Wis.2d at 250, 471 N.W.2d at 602. An abuse of discretion will, however, be found when a trial court bases the exercise of its discretion upon an error of law. State v. Hutnik, 39 Wis.2d 754, 763, 159 N.W.2d 733, 737 (1968).

III. THE CONSECUTIVE SENTENCE

Woods argues, and the State agrees, that an adult-court sentence cannot be consecutive to a juvenile court disposition. The parties are correct, as we find from the plain meaning of Sections 973.15(2), Stats., and 48.35(1)(a), Stats.

Section 973.15(2), Stats., provides that a trial court "may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously." (Emphasis added.) While the term "sentence" is not statutorily-defined, sec. 973.15 clarifies that a "sentence" may be imposed only for a "conviction," and, statutorily, the term "conviction" does not include adjudications of juvenile delinquency. See Sec. 48.35(1)(a) ("A judgment in proceedings on a petition under this chapter is not a conviction of a crime," (emphasis added)); see also Winburn v. State, 32 Wis.2d 152, 157-158, 145 N.W.2d 178, 180 (1966). Therefore, as a matter of law, an adult sentence cannot run consecutive to a juvenile disposition because a juvenile disposition is not a "sentence." ¹

Although the State agrees that the trial court's sentence was in error, the State argues, nevertheless, that Woods abandoned his right to object to the sentence " 'by persisting in a plea strategy after the basis for the claim of error' was known." The State's assertion is contrary to the record because "the basis for the claim of error" was not known to Woods, his attorney, the prosecutor, or even the judge who all incorrectly assumed that a...