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Plea-Withdrawal; Sentencing Discretion

State v. Alvin C. Harris, 2012AP518-CR, District 2, 9/12/12

court of appeals decision (1-judge, ineligible for publication); case activity


Harris failed to make a prima facie showing that his plea colloquy was defective, therefore his motion to withdraw plea was properly denied without an evidentiary hearing:

¶7        Here, Harris’s motion alleged that his plea was not entered knowingly, intelligently, and voluntarily because of a defect in the plea colloquy.  Specifically, Harris argued that the circuit court failed to inform him, and ascertain whether he understood, that he was waiving his constitutional right to have the State convince every member of the jury of his guilt beyond a reasonable doubt.  See Wis JI—Criminal SM-32.  Although the transcript confirms Harris’s contention, we nevertheless conclude that the plea colloquy conducted by the circuit court was adequate under Bangert.  The law does not require the circuit court to specifically enumerate each constitutional right that the defendant is giving up.  SeeState v. Moederndorfer, 141 Wis. 2d 823, 826, 416 N.W.2d 627 (Ct. App. 1987); State v. Hoppe, 2009 WI 41, ¶40, 317 Wis. 2d 161, 765 N.W.2d 794.  Rather, the circuit court may “specifically refer to some portion of the record or communication between defense counsel and [the] defendant which affirmatively exhibits [the] defendant’s knowledge of the constitutional rights he [or she] will be waiving.” Moederndorfer, 141 Wis. 2d at 827 (quoting Bangert, 131 Wis. 2d at 271); Hoppe, 317 Wis. 2d 161, ¶40-41 (noting that in Moederndorfer, the circuit court generally referenced the constitutional rights listed in the form, ascertained that the defendant understood the form’s contents and that he would be giving up those rights by pleading guilty).

¶8        Here, the transcript of the plea hearing reflects that the circuit court went over each element of the offenses and the potential penalties.  The circuit court established that Harris understood that, by pleading guilty, he was admitting that he committed the crimes and that he was relieving the State from having to prove beyond a reasonable doubt the elements of the charges at trial.  As for the plea questionnaire form, the circuit court ascertained that Harris went over the form with his attorney; he understood everything in the form, and he did not need additional time to go over the form.  Specifically addressing Harris’s waiver of constitutional rights, the circuit court confirmed that Harris understood the constitutional rights on the form and that by pleading guilty he was giving up those constitutional rights.[2]  The standard plea questionnaire/waiver of rights form completed by Harris includes an “X” by the statement, “I understand that by entering this plea … I give up the right to a jury trial, where all 12 jurors would have to agree that I am either guilty or not guilty.”

Sentencing Discretion 

¶11      The three primary factors a sentencing court must consider are the gravity of the offense, the character of the defendant, and the need to protect the public.  State v. Harris, 119 Wis. 2d 612, 623, 350 N.W.2d 633 (1984).  The court may also consider the following factors:

(1) Past record of criminal offenses; (2) history of undesirable behavior pattern; (3) the defendant’s personality, character and social traits; (4) result of presentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant’s culpability; (7) defendant’s demeanor at trial; (8) defendant’s age, educational background and employment record; (9) defendant’s remorse, repentance and cooperativeness; (10) defendant’s need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention.

Id. at 623-24 (quoting State v. Harris, 75 Wis. 2d 513, 519-20, 250 N.W.2d 7 (1977))  The circuit court need discuss only the relevant factors in each case.  State v. Echols, 175 Wis. 2d 653, 683, 499 N.W.2d 631 (1993).  The weight given to each of the relevant factors is within the court’s discretion.  State v. J.E.B., 161 Wis. 2d 655, 662, 469 N.W.2d 192 (Ct. App. 1991).  After consideration of all relevant factors, the sentence may be based on any one of the three primary factors.  State v. Krueger, 119 Wis. 2d 327, 338, 351 N.W.2d 738 (Ct. App. 1984).

¶12      Here, the transcript of the sentencing hearing reflects that the circuit court considered the three primary sentencing objectives, namely, Harris’s character and lengthy criminal record, the seriousness of the offense, and the need to protect the public.[3]  The court noted that Harris had a “lengthy record” dating back to the 1990s and was out on bail at the time of the offenses at issue.  The court observed that “these are serious matters” given that Harris confronted the victim and “got involved” in an altercation while out on bail.  It stated that confinement, not probation, would be the only appropriate sentence.  While Harris complains that the circuit court did not give weight to his need for rehabilitation, it was not required to do so.  We see no error in the circuit court’s exercise of discretion.

Sentencing review implicates “the entire record, including any postconviction proceedings,” ¶12 n. 3, citing State v. Santana, 220 Wis. 2d 674, 683, 584 N.W.2d 151 (Ct. App. 1998). The transcript of Harris’s postconviction proceeding wasn’t made part of the appellate record – as the appellant, Harris bore the “responsibility to ensure completion of the appellate record,” State v. McAttee, 2001 WI App 262, ¶5 n.1, 248 Wis. 2d 865, 637 N.W.2d 774 – therefore the court “will assume that it would support the circuit court’s sentencing determination,” n. 3, citing Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct. App. 1993).

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