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Plea withdrawal – information about collateral consequences; postconviction motion – failure to allege sufficient material facts

State v. Ryan L. Kohlhoff, 2012AP1144-CR, 2/14/13; court of appeals decision (1-judge, ineligible for publication); case activity

Plea withdrawal – information about collateral consequences of plea

Plea colloquy telling Kohlhoff that, if he pled no contest to a misdemeanor crime involving domestic violence, he would “lose [his] right to carry a firearm under federal law” accurately informed Kohlhoff of the collateral consequences of his plea, so Kohlhoff is not entitled to plea withdrawal. The court rejects Kohlhoff’s argument that the court should have conveyed he would lose his right not only to “carry” a firearm but to “possess” a firearm, because “possess” signifies “a complete prohibition on firearm ownership and use” while “carry” does not; thus, Kohlhoff claims, the colloquy did not inform him that he was relinquishing his right to “use firearms for hunting purposes.” (¶¶5-9).

¶8        We acknowledge that the court was imprecise in its language and should have informed Kohlhoff that the federal firearm prohibition is not limited to the carrying of firearms but includes the possession of firearms. However, we do not see any significant difference between the terms “carry” and “possess” in the context of this case. To “carry” a firearm is generally understood to mean “to go armed with” a firearm. See, e.g., Wis. Stat. § 175.60(1)(ag). To “possess” a firearm is generally understood to mean having actual control of a firearm. See, e.g., State v. Black, 2001 WI 31, ¶19, 242 Wis. 2d 126, 624 N.W.2d 363. Kohlhoff’s complaint on appeal is that the court did not inform him that by entering a plea he would lose the right to “own and use firearms for hunting purposes.” What Kohlhoff complains about is that he cannot “go armed with” a firearm for hunting purposes, and the court clearly explained to him that by entering a plea he would lose the right to “go armed with” a firearm. Because it is impossible to hunt without “going armed with” a firearm, we reject Kohlhoff’s contention that the colloquy was defective because the court failed to inform him that he would be prohibited from “us[ing] firearms for hunting purposes.”

The court also rejects the claim the trial court failed to inform Kohlhoff that the firearm prohibition encompasses a lifetime ban on possession of all firearms and ammunition in the entire country because there is no authority requiring a court to provide that information if it decides to advise a defendant of the federal firearm prohibition. (¶10).

The trial court was not required to inform Kohlhoff about the federal firearm prohibition at all because it is a collateral consequence of entering a plea to a misdemeanor crime involving domestic violence. State v. Kosina, 226 Wis. 2d 482, 486-89, 595 N.W.2d 464 (Ct. App. 1999). But once the court decided to give that information, it was required to provide accurate information. State v. Brown, 2004 WI App 179, ¶8, 276 Wis. 2d 559, 687 N.W.2d 543. So as the court notes, “[t]he dispute boils down to whether the court misinformed Kohlhoff about the nature and scope of the federal firearm prohibition in the context of this case.” (¶7). If Kohlhoff misunderstood “carry” to exclude “using for hunting,” that misunderstanding was apparently his own inaccurate interpretation the court’s statement, not a result of a misleading statement made by the court, and so has no claim for relief. State v. Rodriguez, 221 Wis. 2d 487, 495-99, 585 N.W.2d 701 (Ct. App. 1998).

Postconviction motion – failure to allege sufficient material facts

Kohlhoff alleged that counsel was ineffective because he was not aware that cases like Kohlhoff’s were routinely handled with deferred prosecution agreements and, had counsel “known to ask for such a disposition, it most likely would have been granted.” The court finds this allegation conclusory as it fails to allege sufficient facts as to why he believes that a deferred prosecution agreement would have been offered or entered into by the prosecutor; “[n]otably, Kohlhoff alleges no facts to suggest that the prosecutor ever entertained the idea of entering into a deferred prosecution agreement.” (¶19). Thus, he was not entitled to a Machner hearing on this claim.

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