COURT OF APPEALS
DATED AND FILED
June 5, 2013
Diane M. Fremgen
Clerk of Court of Appeals
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 WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. No. 2007CF105
STATE OF WISCONSIN
IN COURT OF APPEALS
STATE OF WISCONSIN,
BRANDON J. MURRAY,
APPEAL from a judgment and orders of the circuit court for
Ozaukee County: THOMAS R. WOLFGRAM, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
PER CURIAM. In these consolidated appeals, Brandon Murray
appeals from a judgment convicting him of possessing cocaine with intent to
deliver and orders denying his various postconviction motions seeking sentence
credit and to withdraw his no contest plea due to ineffective assistance of counsel.
Postconviction, Murray argued that his trial counsel was ineffective,
and therefore he had a basis to withdraw his no contest plea. As grounds, Murray
alleged that his trial counsel failed to disclose a plea offer from the State in which
the State agreed to recommend a five-year term. The plea offer that Murray
ultimately accepted allowed the State to argue for an unspecified amount of prison
time. At sentencing, the court imposed a fifteen-year sentence (five years of initial
confinement and ten years of extended supervision). The circuit court rejected
Murray’s ineffective assistance claim. Murray renews his claim on appeal.
In order to withdraw a plea after sentencing, a defendant must show
a manifest injustice justifying such relief. State v. Taylor, 2013 WI 34, ¶24, ___
Wis. 2d ___, 829 N.W.2d 482. Ineffective assistance of counsel can satisfy the
manifest injustice test. State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50
“There are two components to a claim of ineffective assistance of
a demonstration that counsel’s performance was deficient, and a
demonstration that such deficient performance prejudiced the defendant. The
defendant has the burden of proof on both components.” State v. Smith, 207 Wis.
2d 258, 273, 558 N.W.2d 379 (1997) (citation omitted).
actions constitute ineffective assistance is a mixed question of law and fact. See
State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 (1996). The circuit
court’s findings about what counsel did and the basis for the challenged conduct
will be upheld unless clearly erroneous. See id. However, whether counsel’s
conduct amounted to ineffective assistance is a question of law that we review de
novo. See id.
Murray’s ineffective assistance of counsel claim centers around a plea
offer prepared by assistant district attorney Adam Gerol that recommended a fiveyear term in exchange for a plea to one offense. The plea offer was not conveyed to
Murray’s trial counsel during the time Gerol was the assigned prosecutor. Rather,
trial counsel learned of the plea offer after Gerol turned the file over to a successor
assistant district attorney. Gerol’s successor rejected a plea agreement based on
Gerol’s offer. Postconviction, Murray claimed that his trial counsel failed to convey
Gerol’s plea offer to him and he was prejudiced by counsel’s deficient performance.
The circuit court disagreed and denied Murray’s postconviction motion or notice of
Gerol was the prosecutor when the complaint was filed in May 2007.
Trial counsel testified at the postconviction motion hearing that she was appointed to
represent Murray on July 9, 2008, and during the time she represented Murray, she
had no contact with Gerol. Gerol never conveyed the plea offer to her. At all times
during trial counsel’s representation of Murray, assistant district attorney Patti
Wabitsch was assigned to the case.
Trial counsel testified that she did not learn of the plea offer prepared
by Gerol until after a June 8, 2009 status hearing. Counsel speculated that Gerol’s
undated plea offer had been placed in the district attorney’s file and someone must
have noticed that the offer had not been dated or delivered. Because the parties were
in court for a status hearing on June 8, 2009, someone must have affixed that date on
the offer. Counsel speculated that she received the offer in a packet of materials
delivered to her at that status hearing. Upon learning of the offer, trial counsel
contacted Wabitsch who advised that the offer was no longer available and she
would not extend such an offer to Murray. Trial counsel did not convey the offer to
Murray because the offer was no longer available. Had Wabitsch not disavowed the
offer, counsel would have transmitted the offer to Murray, as is counsel’s usual
practice. In addition, Murray had directed counsel that he wanted a trial because he
was innocent. On the morning of trial, September 22, 2009, Murray decided that he
wanted to negotiate a plea.
Murray testified that he did not see the June 2009 plea offer until 2011.
Trial counsel told him about the offer as part of trial preparation on September 22,
2009, but counsel informed Murray that the offer was no longer available. Murray
testified that he would have accepted the June 2009 plea offer.
The circuit court’s findings of fact about the circumstances
surrounding Gerol’s plea offer are not clearly erroneous. See Sanchez, 201 Wis. 2d
at 236. The circuit court found trial counsel’s testimony credible. Trial counsel
learned of Gerol’s offer after Wabitsch took over the case, and Wabitsch declined to
extend the offer prepared by Gerol. Therefore, there was no factual basis for
Murray’s claim that he would have accepted Gerol’s offer had trial counsel conveyed
it to him. We agree with the circuit court that counsel’s performance in relation to
the plea offer was not deficient and Murray was not prejudiced. There was no basis
for Murray to withdraw his no contest plea.
We turn to Murray’s sentence credit claim. Murray argues that the
circuit court erroneously denied him sentence credit for the period from September
16, 2007, to June 13, 2008, time he spent in custody in Illinois while an Ozaukee
county arrest warrant was also in effect. From September 16, 2007, to June 10,
2008, Murray was in custody subject to Illinois charges and an Illinois sentence. On
June 10, 2008, the Wisconsin detainer process began on the Ozaukee county warrant.
The circuit court denied sentence credit prior to June 10, 2008, but it granted credit
from June 10-16, 2008, when Murray had an Ozaukee county bail hearing. The
court found that at the time it sentenced Murray on November 30, 2009, Murray was
no longer serving his Illinois sentence and that only the June 10-16 period was
related to Murray’s Wisconsin conduct and warrant.
A convicted defendant shall receive credit toward the service of his or
her sentence “for all days spent in custody in connection with the course of conduct
for which sentence was imposed.” State v. Carter, 2010 WI 77, ¶1, 327 Wis. 2d 1,
785 N.W.2d 516 (citation omitted).
Sentence credit can be premised on the
existence of concurrent sentences. See id., ¶36. We will affirm the circuit court’s
findings of fact on the sentence credit question unless they are clearly erroneous. See
The circuit court’s findings are not clearly erroneous.
completed the confinement portion of his Illinois sentence, and on June 10, 2008, he
became subject to the Ozaukee county warrant. Prior to June 10, Murray was not in
custody in connection with his Ozaukee county conduct; he was in custody on
Illinois charges and sentence. Murray had an Ozaukee county bail hearing on June
16. Murray was discharged from his Illinois parole on June 10, 2009, and he was
sentenced in Ozaukee county on November 30, 2009. Because Murray did not have
an outstanding, concurrent Illinois sentence at the time he was sentenced in Ozaukee
county, the circuit court did not err in denying him sentence credit because there was
no concurrent sentence. Murray is trying to fit the round peg of his case into a
By the Court.—Judgment and orders affirmed.
This opinion will not be published.
See WIS. STAT. RULE