State v. John M. Anthony
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COURT OF APPEALS
DECISION
DATED AND FILED
October 13, 2010
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.
A. John Voelker
Acting Clerk of Court of Appeals
Appeal No.
NOTICE
2009AP2171-CR
STATE OF WISCONSIN
Cir. Ct. No. 2007CF1384
IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JOHN M. ANTHONY,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1
BRENNAN, J.
John M. Anthony, pro se, appeals from a judgment,
entered after he pled no contest to second-degree reckless homicide while armed
and second-degree recklessly endangering safety, and from an order denying his
No. 2009AP2171-CR
postconviction motion to withdraw his pleas. For the reasons which follow, we
affirm the circuit court.
BACKGROUND
¶2
On March 13, 2007, the State filed a criminal complaint against
Anthony, charging Anthony with first-degree reckless homicide while armed. The
complaint alleged that on March 7, 2007, while driving a vehicle with three other
passengers, Anthony shot at Myron McNutt with whom he had been feuding.
McNutt was riding in another vehicle, travelling in the opposite direction and
passing Anthony’s vehicle when Anthony stuck his hand out the driver’s side
window to take the shot. Instead of hitting McNutt, however, the bullet pierced
the windshield of a van driven by Prentice Barnes, an innocent bystander, striking
him in the right eye. Barnes died as a result of his injuries.
¶3
On November 12, 2007, the case was scheduled for trial, but after
Anthony accepted an offer from the State, a plea hearing was held instead. Before
the hearing, Anthony signed a plea questionnaire and waiver of rights form,
stating, among other things, that he “decided to enter th[e] plea of [his] own free
will.” At the hearing, the court conducted a plea colloquy during which Anthony
stated that his pleas were made voluntarily, knowingly, and intelligently and that
no one made any threats or promises in exchange for his pleas. Following the plea
colloquy, Anthony pled no contest to second-degree reckless homicide while
armed and second-degree recklessly endangering safety.
¶4
Days later, on November 21, 2007, Anthony filed a pro se motion,
requesting that he be allowed to withdraw his pleas because he claimed Attorney
Reyna Morales, the public defender who represented him during the plea hearing,
“coerce[ed] [him] into taking [the] plea” and “told [him] to plea[d] no contest and
2
No. 2009AP2171-CR
[he] would [receive] probation.” Thereafter, Attorney Morales moved to withdraw
as counsel. The circuit court granted Attorney Morales’ motion to withdraw as
counsel, and scheduled a hearing on Anthony’s motion to withdraw his pleas.
Prior to the hearing, Anthony hired new counsel who filed a more formal motion
to withdraw on Anthony’s behalf.
¶5
On December 14, 2007, the circuit court held a hearing on
Anthony’s motion to withdraw his pleas. Anthony, his girlfriend, and Attorneys
Steven Kohn and Morales—both of whom had represented Anthony at different
times while the case was pending before the circuit court—testified. The circuit
court denied the motion, holding that the pleas were taken in compliance with
State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and that Anthony had
not presented a fair and just reason for his pleas to be withdrawn.
¶6
In March 2008, the circuit court sentenced Anthony to eighteen
years of initial confinement followed by seven years of extended supervision on
the second-degree reckless homicide while armed count, and to four years of
initial confinement followed by five years of extended supervision on the
second-degree recklessly endangering safety count, to be served consecutively.
¶7
Thereafter, Anthony filed a pro se postconviction motion, again
asking the circuit court to allow him to withdraw his pleas. This time he claimed
that he had received ineffective assistance of counsel. The circuit court denied the
motion without a hearing. Anthony appeals.
¶8
Additional factual details are included in the discussion as necessary.
3
No. 2009AP2171-CR
DISCUSSION
¶9
The bulk of Anthony’s claims stem from his assertions that his pleas
were coerced and that the plea colloquy was deficient. He also alleges that the
double jeopardy clause is implicated. We address Anthony’s claims regarding the
alleged coercion of his pleas below.
However, Anthony raises his claims
regarding the deficiency of the plea colloquy1 and double jeopardy for the first
time on appeal. By failing to raise these issues in his postconviction motion,
Anthony has waived his right to pursue them on appeal because the circuit court
never had the opportunity to rule on these claims in the first instance. See Wirth v.
Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980), superseded on other
grounds by WIS. STAT. § 895.52 (2007-08).2 Consequently, we will not address
them on appeal.3 See Wirth, 93 Wis. 2d at 443-44.
¶10
In his attempt to demonstrate that his pleas were coerced, and
therefore not entered knowingly, intelligently, and voluntarily, Anthony attacks
1
The State notes and the record confirms that in its order denying Anthony’s motion to
withdraw his plea before sentencing, the circuit court noted that the plea colloquy was sufficient
and taken in compliance with State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
However, our review of Anthony’s motion to withdraw the plea, filed by counsel, reveals that
Anthony did not pursue a deficient-plea-colloquy claim before the circuit court and that the
circuit court’s reference to the sufficiency of the plea colloquy was meant only as a factor in
support of its ultimate conclusion that Anthony’s plea was not coerced by Attorney Morales. See
State v. Jenkins, 2007 WI 96, ¶63, 303 Wis. 2d 157, 736 N.W.2d 24 (“A fair and just reason to
withdraw a plea before sentence does not depend upon either a deficient plea colloquy or the
existence of a constitutionally invalid plea.”).
2
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.
3
We decline Anthony’s invitation to otherwise address his double jeopardy claim
pursuant to WIS. STAT. § 901.03(4). See State v. Mayo, 2007 WI 78, ¶¶28-29, 301 Wis. 2d 642,
734 N.W.2d 115.
4
No. 2009AP2171-CR
the circuit court’s denial of both his motion to withdraw his pleas before
sentencing and his postconviction motion.
We address each order—and
Anthony’s corresponding claims—in turn.
I.
Motion to Withdraw Pleas Before Sentencing
¶11
First, Anthony argues that the circuit court erroneously exercised its
discretion when it denied his motion to withdraw his pleas prior to sentencing.
Because the record demonstrates “‘that the circuit court examined the relevant
facts, applied a proper standard of law, and, using a demonstrated rational process,
reached a conclusion that a reasonable judge could reach,’” we affirm on this
ground. See State v. Jenkins, 2007 WI 96, ¶30, 303 Wis. 2d 157, 736 N.W.2d 24
(citation omitted).
¶12
In order to withdraw a guilty plea prior to sentencing, the defendant
must show a fair and just reason. Libke v. State, 60 Wis. 2d 121, 124-28, 208
N.W.2d 331 (1973). Fair and just reasons for plea withdrawal include a genuine
misunderstanding of the plea’s consequences, haste and confusion in entering the
plea, and coercion by counsel. State v. Shimek, 230 Wis. 2d 730, 739, 601
N.W.2d 865 (Ct. App. 1999). “Fair and just” means some adequate reason other
than that the defendant simply had a change of mind and desires to have a trial.
See State v. Canedy, 161 Wis. 2d 565, 583, 469 N.W.2d 163 (1991). The burden
is on the defendant to establish a proper reason by a preponderance of the
evidence. Id. at 583-84.
¶13
Upon a motion to withdraw a plea before sentencing, the defendant
faces three obstacles:
5
No. 2009AP2171-CR
First, the defendant must proffer a fair and just reason for
withdrawing his plea. Not every reason will qualify as a
fair and just reason. Second, the defendant must proffer a
fair and just reason that the circuit court finds credible. In
other words, the circuit court must believe that the
defendant’s proffered reason actually exists. Third, the
defendant must rebut evidence of substantial prejudice to
the State.
Jenkins, 303 Wis. 2d 157, ¶43 (citations omitted).
¶14
“[T]he decision to grant or deny the motion to withdraw the plea
rests within the sound discretion of the circuit court.” Id., ¶29 (citation and
internal quotation marks omitted). We review the circuit court’s decision for an
erroneous exercise of discretion. Id., ¶30. “If the defendant does not overcome
[the three] obstacles in the view of the circuit court, and is therefore not permitted
to withdraw his plea[s], the defendant’s burden to reverse the circuit court on
appeal becomes relatively high.” Id., ¶44.
¶15
Before the circuit court, Anthony alleged that his pleas were coerced
and that in the interest of fairness and justice he should be permitted to withdraw
them. More specifically, Anthony contended that he felt pressured into accepting
the State’s offer on the eve of trial because he had little confidence in Attorney
Morales and did not believe she was prepared to proceed with trial. Anthony
argued that he was further pressured to accept the State’s offer when, at the
request of Attorney Morales, Attorney Kohn, Anthony’s previous counsel, visited
him and told him he should accept the offer, despite being unfamiliar with the
particulars of Anthony’s case since he withdrew as counsel.
6
No. 2009AP2171-CR
¶16
The circuit court held a hearing on Anthony’s motion to withdraw
his pleas prior to sentencing, at which Anthony, his girlfriend,4 and Attorneys
Kohn and Morales testified.
¶17
Anthony testified that Attorney Morales told him on the day of trial
that he was “in a lose-lose situation” and that he was “toast” if the case went
before a jury, leading Anthony to believe she would “present [his] case as if [he]
was going to lose.” Anthony also testified that Attorney Morales told him that if
he accepted the State’s offer he could “go home on probation” and that other
defendants charged with homicide had received probation.5 He stated that she told
him there was no time to confer with family regarding the pleas because the circuit
court was “real strict.”
Anthony further testified that he distrusted Attorney
Morales’ ability to represent him at trial because “[s]he never prepared for [his]
case ever … [because she] thought [Anthony] was going to hire [Attorney] Kohn
back.”
¶18
With respect to Attorney Kohn, Anthony testified that on the day of
the plea hearing he and Attorney Kohn spoke about the pleas. Anthony testified
that Attorney Kohn told him that the State’s attorney was “charming” and that
Anthony should “be afraid of him because he is good with juries.” Ultimately,
4
Anthony’s girlfriend’s testimony was brief. She only testified that after Anthony pled
no contest to the charges, Attorney Morales told her it was possible that Anthony would be
sentenced to probation.
5
During the hearing on Anthony’s motion to withdraw his plea, his counsel argued that
Attorney Morales’ purported assertion that Anthony would receive probation for the homicide
charge was coercive. The circuit court was unpersuaded by the argument, and Anthony has
abandoned that claim on appeal.
7
No. 2009AP2171-CR
Anthony stated that Attorney Kohn told him to “plead out” but that Anthony still
wanted to go to trial.
¶19
Attorney Morales testified that she was an experienced public
defender and that she had represented defendants in at least ten to fifteen homicide
trials. Attorney Morales stated that she had met with Anthony on approximately
four different occasions to prepare him for trial, and that an investigator and
another attorney from the public defenders office may also have visited Anthony
on her behalf. She testified that contrary to Anthony’s testimony, when she visited
him the night before the trial was scheduled to begin, Anthony appeared nervous
and told her to approach the State for an offer. When she approached Anthony
with the State’s offer, he initially rejected it.
¶20
Attorney Morales testified that at the time she was ready and
prepared to take the case to trial but that she advised Anthony to take the offer
because, although he asserted that he was not the shooter, he admitted to driving
the vehicle from which the fatal shot was fired and to making a U-turn so that the
actual shooter could take the shot.6 Because, as a party to the crime, Anthony’s
exposure would be the same, Attorney Morales attempted to explain to Anthony
that the State’s offer was in his best interest.
When Attorney Morales saw
Attorney Kohn in the hallway of the courthouse he offered to speak with Anthony
about the State’s offer. It was after speaking with Attorney Kohn that Anthony
agreed to accept the plea agreement.
6
At Anthony’s sentencing hearing, Attorney Scott Anderson, who was representing
Anthony at the time, stated on the record that Anthony told him that “there was a passenger that
reached across, fired the shot.” Also during the sentencing hearing, Anthony stated, “I made [a]
foolish decision, and I am going to have to pay for it dearly.” On appeal, Anthony denies being at
the scene of the crime.
8
No. 2009AP2171-CR
¶21
Attorney Kohn testified that on the day of the plea hearing he
believed he had a positive relationship with Anthony, even though he had
withdrawn as Anthony’s counsel for financial reasons. Attorney Kohn testified
that since his representation of Anthony had terminated he had remained in contact
with Anthony through third parties, and he recalled that someone had contacted
him a day or two prior to the plea hearing “interested in [Attorney Kohn’s] input
and possible continued representation of [Anthony].” Attorney Kohn testified that
the day of the plea hearing he spoke with Anthony, with Attorney Morales present,
and that the “discussion had to do with whether the offer that had been made to
[Anthony] was in his best interest or whether he should go to trial.”
¶22
Attorney Kohn testified that his opinion was based on his previous
knowledge of the case and without the benefit of any investigation that had been
done since his representation of Anthony had terminated.
However, he told
Anthony that he thought the State’s offer “was a good one” and that “based on
[his] recollection of the facts there certainly was the possibility [Anthony] could
be convicted of the more serious offense [first-degree reckless homicide while
armed] and from that perspective [Attorney Kohn] thought it was a good offer.”
¶23
In a written decision following the hearing, the circuit court held as
follows:
When the court takes this in its totality, the court
has to obviously take a look at the record, assess the
credibility of the witness who testified. There is no doubt
that defense counsel [Attorney Morales] acted as an
advocate in her role. Mr. Kohn apparently came down and
acted in a role that he previously acted upon before because
of the trust that he had built up with his former client and
discussed the pro[]s and con[]s of entering a plea or going
to trial.
9
No. 2009AP2171-CR
… The bottom line is that it was [the defendant’s]
decision to plead after discussing all the considerations,
going through the guilty plea questionnaire.
When you take into consideration the guilty plea
questionnaire and the transcripts that have been generated
and those contents and the credibility of the witnesses who
testified, that have testified, I give much greater weight to
Mr. Kohn’s testimony and Ms. Morales’ testimony than I
do the defendant’s.
….
In the representation of Ms. Morales as to the
defendant, the defense counsel would be remiss to advise to
go to trial knowing that a conviction was highly likely. I
think that’s the responsibility of any good advocate. There
was no rush or evidence that the court could find that the
plea colloquy was flawed….
Thus, the court would make a finding that the
defendant has failed to present sufficient evidence that he
was improperly coerced into pleading [no contest].
Therefore, there is no fair and just reason … to grant the
plea withdrawal.
¶24
In finding that Attorneys Morales and Kohn were more credible than
Anthony, the circuit court rejected Anthony’s argument that he was coerced, either
directly or indirectly by Attorney Morales’ purported lack of preparation for trial.
Anthony failed to overcome the first two obstacles for withdrawal of a plea prior
to sentencing, namely, he failed to set forth credible evidence of “a fair and just
reason” for withdrawing his pleas. See id. Moreover, the circuit court is “the
‘ultimate arbiter of the credibility of a witness,’” and Anthony has not
demonstrated that the circuit court’s credibility determination was “based upon
caprice, an abuse of discretion, or an error of law.” See Johnson v. Merta, 95
Wis. 2d 141, 152, 289 N.W.2d 813 (1980) (citation omitted). Consequently, there
is no basis for Anthony’s claim that the circuit court erroneously exercised its
discretion.
10
No. 2009AP2171-CR
II.
Postconviction Motion Requesting Plea Withdrawal
¶25
Anthony appeals the circuit court’s denial of his postconviction
motion on three grounds: (1) the circuit court improperly applied the higher
manifest-error standard; (2) Anthony received ineffective assistance of counsel;
and (3) the circuit court erroneously exercised its discretion. In the alternative, he
asks that we remand the case to the circuit court for an evidentiary hearing because
the court erred in not holding one in the first instance. None of his arguments are
persuasive.
A.
Improper Legal Standard
¶26
Anthony again sought to withdraw his pleas following sentencing
and filed a postconviction motion requesting to do so. In his postconviction
motion, he argued that the lower plea withdrawal burden—fair and just
reason—applied because he had originally brought his motion prior to sentencing.
Anthony is incorrect. After sentencing, a guilty plea may not be withdrawn unless
the defendant proves by clear and convincing evidence that withdrawal is
necessary to correct a manifest injustice. State v. Thomas, 2000 WI 13, ¶16, 232
Wis. 2d 714, 605 N.W.2d 836. The high post-sentencing burden reflects the
State’s interest in the finality of convictions and reflects the fact that the
presumption of innocence no longer exists. Id. A manifest injustice occurs when
there has been “‘a serious flaw in the fundamental integrity of the plea.’” Id.
(quoting State v. Nawrocke, 193 Wis. 2d 373, 379, 534 N.W.2d 624 (Ct. App.
1995)).
¶27
Here, the sentencing court applied the manifest injustice standard to
Anthony’s post-sentencing request.
The circuit court noted that Anthony’s
postconviction motion “set[] forth essentially the same claims that were before the
11
No. 2009AP2171-CR
court when [Anthony] sought to withdraw his plea[s] prior to sentencing,” and that
following a hearing on that motion the circuit court “found that [Anthony] did not
meet his burden (fair and just reason) of showing he was entitled to withdraw his
plea[s].” The court continued:
Given that many of the same claims are presented
and given that the court previously heard testimony on
these issues from the defendant and his attorneys and found
the defendant had not met the fair and just reason standard
for withdrawing his plea prior to sentencing, the court
cannot find that he has met the higher postconviction
standard of showing the existence of a manifest injustice.
¶28
Anthony attempted to add weight to his argument by presenting
what he described as “new evidence”: (1) an affidavit from Precious Ward, dated
July 3, 2009, stating that she was with Anthony in the holding cell when both
Attorneys Morales and Kohn advised Anthony to enter the pleas; and
(2) Anthony’s affidavit in which he claims that James McNutt told him that
James’ brother, Myron McNutt, told him (James) that Youantis Wright was the
shooter.
Anthony’s affidavit, signed by both Anthony and James McNutt,
contains three layers of hearsay.
¶29
First of all, Anthony fails to meet the requisite legal showing for
“new evidence.” See State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707
(1997) (“Newly discovered evidence may be sufficient to establish that a manifest
injustice has occurred.”).
For newly discovered evidence to constitute a manifest
injustice and warrant the withdrawal of a plea[,] the
following criteria must be met. First, the defendant must
prove, by clear and convincing evidence, that: (1) the
evidence was discovered after conviction; (2) the defendant
was not negligent in seeking evidence; (3) the evidence is
material to an issue in the case; and (4) the evidence is not
merely cumulative. If the defendant proves these four
criteria by clear and convincing evidence, the circuit court
12
No. 2009AP2171-CR
must determine whether a reasonable probability exists that
a different result would be reached in a trial.
Id.
Anthony provides no information as to whether he knew of Ward and
McNutt’s statements at the time of his pleas and first motion to withdraw or why
he did not earlier bring them to his attorneys’ or the court’s attention. Second,
McNutt’s testimony would be inadmissible hearsay, and Ward’s testimony
contributes nothing to the material portions of Anthony’s defense. As the circuit
court recognized, that evidence “d[id] not establish the existence of a manifest
injustice.”
¶30
Finally, even if we were to review Anthony’s plea withdrawal
motion by the lower fair-and-just-reason standard, as Anthony requests, we would
conclude he failed to meet his burden. As we have already established, the circuit
court rationally exercised its discretion in denying Anthony’s request to withdraw
his pleas under that more lenient standard. Anthony has set forth no reason why
the circuit court would now rule differently. In fact, Anthony concedes that his
postconviction motion to withdraw “is, for the most part, based on the reasons
provided prior to sentencing” in his first motion to withdraw his pleas.
Consequently, we affirm.
B.
Ineffective Assistance of Trial Counsel
¶31
Anthony next asserts that the circuit court erred in not finding that
the ineffective assistance of his numerous attorneys meets the manifest-injustice
standard. See State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996) (The
Wisconsin Supreme Court has “recognized that the ‘manifest injustice’ test is met
if the defendant was denied the effective assistance of counsel.”). Because we
conclude that Anthony fails to meet his burden of showing deficient representation
13
No. 2009AP2171-CR
by his attorneys, we hold that he has not shown a manifest injustice in the denial
of his post-sentencing plea withdrawal motion.
¶32
A defendant asserting an ineffective assistance of counsel claim
must demonstrate that: (1) trial counsel’s performance was deficient; and (2) trial
counsel’s deficient performance prejudiced the defendant.
Washington, 466 U.S. 668, 687 (1984).
Strickland v.
Because a successful ineffective
assistance of counsel claim requires that the defendant show both deficiency and
prejudice, the court need not address both components of the inquiry if the
defendant fails to make a sufficient showing on one. Id. at 697.
¶33
To satisfy a showing of deficient performance, a defendant must
allege specific acts or omissions of trial counsel that are “outside the wide range of
professionally competent assistance.” Id. at 690. In other words, counsel must
have “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687. The right to
effective counsel is not a right to the perfect or even best possible defense, but
rather it is a right to reasonably effective professional representation given all of
the circumstances. State v. Harper, 57 Wis. 2d 543, 557, 205 N.W.2d 1 (1973).
There is “a strong presumption that counsel acted reasonably within professional
norms,” State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990), and we
grant great deference to counsel when reviewing claims of ineffective assistance,
Strickland, 466 U.S. at 689.
¶34
To prove prejudice, the defendant must demonstrate “‘that there is a
reasonable probability that, but for the counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’” Bentley, 201 Wis. 2d at 312
(citation omitted). “A defendant must do more than merely allege that he would
14
No. 2009AP2171-CR
have pled differently; such an allegation must be supported by objective factual
assertions.” Id. at 313.
¶35
Whether counsel’s performance constitutes ineffective assistance is a
mixed question of fact and law. Johnson, 153 Wis. 2d at 127. We will uphold
any factual findings by the circuit court unless the findings are clearly erroneous.
Id. However, the ultimate conclusion of whether counsel’s performance was
deficient and prejudicial, such that it constitutes ineffective assistance, is a
question of law that we review independently of the circuit court. Id. at 128.
¶36
Anthony was represented by numerous attorneys throughout the time
his case was pending before the circuit court.
Attorney Thomas Flanagan
represented Anthony at his initial appearance.7 Anthony then hired Attorney Kohn
to represent him, and Attorney Kohn did so, waiving Anthony’s preliminary
hearing and attending a scheduling conference. Later, the circuit court granted
Attorney Kohn’s motion to withdraw as counsel, and the public defender’s office
appointed Attorney Morales. Attorney Morales represented and advised Anthony
at the plea hearing. Days after his pleas were entered, Anthony filed a pro se
motion with the circuit court, requesting, among other things, new counsel.
Anthony hired Attorney William Marquis to represent him at the hearing on his
motion to withdraw his pleas, and Attorney Marquis did so.
But eventually
Attorney Marquis also moved to withdraw as attorney of record and the court
granted the motion. The public defender’s office then appointed Attorney Scott
7
Anthony mentions in passing that Attorney Flanagan “did no investigation.” Anthony
does not elaborate upon his claim and we will not construct his argument for him. See State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
15
No. 2009AP2171-CR
Anderson who represented Anthony at the sentencing hearing. Anthony alleges
numerous claims against these attorneys.
¶37
First, Anthony claims that Attorney Kohn was ineffective because he
advised Anthony to accept the State’s offer without fully apprising himself of the
investigations done by both the defense and the State since he had withdrawn as
counsel. Initially, we note that we do not decide the threshold question of whether
Attorney Kohn was representing Anthony when he spoke to him at the time he
entered his pleas.
The parties agree that Attorney Morales was representing
Anthony at that time.
¶38
But even assuming that Attorney Kohn was representing Anthony at
that time, Anthony fails to state what difference it would have made to his plea
decision if Attorney Kohn had learned of the investigation developments since he
stopped representing Anthony. Further, because Anthony does not allege that had
Attorney Kohn been fully apprised of the details of the case he would have
advised Anthony differently, or that he would have turned down the State’s offer if
Attorney Kohn had so advised, there is no prejudice.
His argument is
undeveloped and merely conclusory and fails to meet his burden. See State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
¶39
Next, Anthony claims that Attorney Morales was ineffective because
she failed to request that the State turn over certain discovery materials, failed to
interview or subpoena key witnesses, and failed to ensure that the State preserved
certain pieces of evidence. Anthony raised these same concerns before the circuit
court in his postconviction motion and the circuit court held that “the fact that
[Anthony] would have pursued an investigation somewhat differently than the one
pursued by the public defender’s office does not invalidate the investigative
16
No. 2009AP2171-CR
attempts that had been made. [Anthony’s] complaints about the way witnesses
were investigated does not support a finding that counsel was ineffective.” We
agree.
¶40
Further, given that the plea colloquy set forth the serious sentencing
exposure that Anthony faced, we fail to see how Attorney Morales’ purported
failure to be prepared for trial would cause Anthony to plead no contest to crimes
he now alleges that he did not commit. Even though the State’s offer included a
reduction in charge, the exposure was still substantial:
[THE STATE]:
… I filed … an Amended
Information in this case charging the defendant with second
degree reckless homicide while armed; Count Two, second
degree recklessly endangering safety. The defendant will
enter pleas other than not guilty to both of those counts.
The recommendation by the State would be that he serve
between 20 to 25 years of confinement followed by [10]
years of extended supervision and pay any restitution that
may be deemed appropriate in this case.
….
THE COURT: And you understand that, sir?
THE DEFENDANT: Yes.
THE COURT: And you still understand the Court’s
not bound by any negotiations or plea bargains? The Court
could impose up to 30 years on the first count including the
penalty enhancer?
THE DEFENANT: Yes.
THE COURT: You understand that?
THE DEFENDANT: Yes.
THE COURT:
Up to ten years on the second
count?
THE DEFENDANT: Yes.
17
No. 2009AP2171-CR
….
THE COURT: And, as I said, you understand the
Court is not bound by any negotiations or plea bargains?
THE DEFENDANT: Yes, [Y]our Honor.
THE COURT:
Okay.
Complaint or had it read to you?
You have read the
THE DEFENDANT: Yes.
THE COURT:
charged with?
So you understand what you’re
THE DEFENDANT: Yes.
¶41
Having been aware of the serious consequences of his pleas—facing
up to thirty years on count one alone—it makes no sense that Anthony would
plead no contest simply out of fear that his counsel was unprepared for trial.
Anthony could have expressed his concerns about his lawyer to the circuit court
during the plea colloquy, in lieu of stating that his pleas were knowingly,
intelligently, and voluntarily given.
Simply put, Anthony has not set forth
“objective factual assertions” that persuade us that he would have pled differently
or gone to trial, had he believed that Attorney Morales was more prepared.
¶42
Anthony also
asserts,
with
respect
to
Attorney
Morales’
representation, that she failed to inform him that another attorney in the public
defender’s office was representing one of the State’s witnesses. Anthony states
that had he known of the conflict of interest he would not have consented to it.
However, Anthony provides no evidence of the alleged conflict of interest and
states only that “Attorney Rick” with the state public defender’s office was
representing one of the State’s “key witnesses.” Even if true, Anthony does not
explain how the conflict affected his decision to plead no contest. His claims
against Attorney Morales have no merit.
18
No. 2009AP2171-CR
¶43
Finally, Anthony argues in an undeveloped argument that Attorneys
Marquis and Anderson ineffectively represented him by failing to challenge the
effectiveness of Attorneys Kohn and Morales. Because we have concluded that
Attorneys Kohn and Morales did not ineffectively represent Anthony, these claims
fail as well.
C.
Erroneous Exercise of Discretion
¶44
Anthony also contends that the circuit court’s denial of his
postconviction motion was an erroneous exercise of discretion. He repeats his
argument that the circuit court’s finding, that Attorney Morales was more credible
than Anthony, was erroneous. However, in support of that argument he only
offers that the circuit court disregarded Anthony’s allegations that Attorney
Morales was unprepared for trial and found Attorney Morales’ assertion that she
was prepared for trial credible.
As we have stated before, such credibility
determinations are well within the purview of the circuit court’s discretion.
Accordingly, after reviewing the circuit court’s decision, we see no basis for this
claim, and we conclude “‘that the circuit court examined the relevant facts, applied
a proper standard of law, and, using a demonstrated rational process, reached a
conclusion that a reasonable judge could reach.’” See Jenkins, 303 Wis. 2d 157,
¶30 (citation omitted).
D.
Evidentiary Hearing
¶45
Anthony also argues that the circuit court erred in denying his
postconviction motion without a hearing. Indeed, when a postconviction motion
raises an ineffective assistance of counsel claim, an evidentiary hearing is
frequently required. See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905
(Ct. App. 1979). However, the circuit court may deny the hearing if the motion
19
No. 2009AP2171-CR
fails to allege sufficient facts, or if it presents only conclusory allegations, or if the
record conclusively demonstrates that the defendant is not entitled to relief. See
Bentley, 201 Wis. 2d 303, 309-10. This court reviews a circuit court’s denial of a
motion for an evidentiary hearing de novo. See State v. Toliver, 187 Wis. 2d 346,
359, 523 N.W.2d 113 (Ct. App. 1994).
¶46
Here, the record conclusively demonstrates that Anthony was not
entitled to relief. His postconviction motion raised essentially the same issues he
raised previously in his motion to withdraw his pleas prior to sentencing. His
postconviction motion merely added new conclusory statements. The circuit court
held a hearing on Anthony’s claims when he filed the first motion, and as we have
established, Anthony has set forth no reason for us to overrule that decision on
appeal.
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
20
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