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Insufficient allegation of prejudice dooms plea withdrawal claim

State v. Eugene B. Santiago, 2016AP1267, District 2, 5/3/17 (not recommended for publication); case activity (including state’s brief)

Santiago’s trial lawyer missed a charging error that led to an overstatement of the penalties Santiago faced; this failure doesn’t allow Santiago to withdraw his plea, however, because¬†he fails to sufficiently allege that he would not have entered a plea if his lawyer had caught the mistake.

Santiago was charged in 1996 with having sexually assaulted a child and then threatening to injure the child. The acts were alleged to have occurred in 1992. But the state charged him under the statutes in effect in 1996¬†instead of those in effect in 1992. That’s a problem because the penalty for the child sexual assault, a Class B felony, was changed in 1994 by 1993 Wis. Act 194, ¬ß 9, going from 20 years to 40 years. The result was that the charging documents told Santiago he faced up to 55 years in prison for the sexual assault‚ÄĒ40 years for the offense, plus 10¬†years for a repeater enhancer and 5 years for a weapons enhancer. In fact, he faced only 35 years‚ÄĒ20¬†years plus the enhancer time. (¬∂¬∂2-3, 23-25).

His trial lawyer missed the mistake, so when Santiago agreed to plead to the charge in exchange for a probation recommendation, he believed he faced 55 years in prison. The court followed the probation recommendation on the sexual assault and imposed 15 years of prison on the threat to injure. Santiago was paroled, but in 2009 his probation and parole were revoked. He was sentenced to 16 years in prison for the sexual assault, concurrent with the revocation time on the threat to injure sentence. (¶¶4-8).

In 2016 he filed a pro se¬†¬ß 974.06 motion to withdraw his pleas, alleging his lawyer was deficient for failing to catch the charging error and that he would have opted for a trial had he known the correct penalties. (¬∂10). His motion can’t reach the threat to injure offense because he’s completed his sentence for¬†that. (¬∂19). As to the sexual assault, the court of appeals holds that even if trial counsel was deficient, Santiago’s claim fails because he hasn’t sufficient alleged he was prejudiced under the standards for pleading applicable to postconviction motions,¬†e.g.,¬†State v. Sulla, 2016 WI 46, 26-27, 369 Wis. 2d 225, 880 N.W.2d 659; State v. Allen, 2004 WI 106, 9, 274 Wis. 2d 568, 682 N.W.2d 433.

¬∂29 ¬† ¬† The only reasons Santiago provided for deciding to plead no contest were that the additional exposure coupled with family strife ‚Äútrumped the risks and/or benefits of a trial.‚ÄĚ Santiago does not discuss the relative strengths and weaknesses of the case. He vaguely said that he ‚Äúhas several issues with the case, including … the accuracy of the time-line and the recitation of the alleged events.‚ÄĚ He does not allege that he had a viable defense, including to a letter he wrote to the victim that contained implicit admissions of wrongdoing. Santiago does not discuss whether it would have been reasonable to reject a plea deal of fifteen years of imprisonment on the threat to injure and a withheld sentence on the first-degree sexual assault of a child and risk a potential sentence, after trial, of fifty years. See State v. Burton, 2013 WI 61, ¬∂69, 349 Wis. 2d 1, 832 N.W.2d 611. At twenty-nine years of age when he pleaded no contest, Santiago had the potential to be released from prison at the age of forty-four, and even earlier, while the risk of a trial may have resulted in what amounted to a life sentence. Santiago‚Äôs motion falls short of meeting the pleading requirement for prejudice.

Postconviction practitioners take note: The state argued Santiago is barred from challenging his plea once his probation has been revoked. It cited¬†State v. Scaccio, 2000 WI App 265, ¬∂10, 240 Wis. 2d 95, 622 N.W.2d 449, which in turn relied on the holdings in¬†State v. Tobey, 200 Wis. 2d 781, 783-85, 548 N.W.2d 95 (Ct. App. 1996), and State v. Drake, 184 Wis. 2d 396, 399, 515 N.W.2d 923 (Ct. App. 1994), that a Rule 809.30 appeal from a judgment entered after revocation of probation doesn’t reach back to the original plea at which probation was ordered. The court soundly and sensibly rejects the state’s argument, as Santiago is making a collateral attack under ¬ß 974.06 based on an alleged constitutional violation, and is not trying to pursue an out-of-time direct appeal under Rule 809.30. (¬∂¬∂20-22).

Santiago also asked the circuit court to order a correction to the judgment of conviction for the sexual assault, as the one issued after revocation of probation specified he’d been convicted of the 1996 version of the statute and that the offense occurred in 1996. The circuit court corrected the statute number, but not the offense date. But the judgment “is undisputedly incorrect as to the date Santiago committed the offenses¬†[and] the State offers no persuasive reason why this error should be left uncorrected[,]” so the court of appeals orders the offense date to be corrected. (¬∂30). This correction matters:¬†Under ¬ß 302.11(1g)¬†(created by the same Act that increased the B felony penalty) the parole commission can defer or deny mandatory release for¬†a child sexual assault committed after April 21, 1994. If the error on the judgment goes uncorrected DOC will apply this rule to Santiago, and¬†it shouldn’t.

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