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Conspiracy, § 939.31: “Overt Act”; Guilty Plea Factual Basis: de novo Review

State v. Eliseo Peralta, 2011 WI App 81(recommended for publication); for Peralta: Martin J. Pruhs; case activity

Conspiracy, § 939.31 – “Overt Act”

The “overt act” element of conspiracy, though it must go “beyond mere planning and agreement,” may be “virtually any act,” even if “insignificant,” ¶¶19-21. Thus, Peralta’s “communication to an undercover police detective that a large quantity of cocaine was ready for immediate delivery” amounted to an “overt act” in furtherance of the conspiracy to deliver a controlled substance:

¶23      Turning to the instant case, we hold that Peralta’s act of communicating to the detective that the cocaine was available for immediate delivery on January 10 was an act “beyond mere planning and agreement,” which “was a step toward accomplishing the criminal objective” of delivering a large quantity of cocaine.  See Wis JI—Criminal 570.  Contrary to what Peralta argues, his telling the detective that the cocaine was “ready” is, in our view, not part of the formation of the agreement itself; it is a step beyond the planning stage which shows an illegal project at work.  See id.

¶24      Moreover, contrary to what Peralta argues, Peralta’s communication that the cocaine was ready for immediate delivery gives rise to an inference that Peralta had already contacted a supplier regarding the drug deal, which would have been an overt act in and of itself. … While Peralta argues that such an inference is not possible from the facts, we disagree.  Peralta’s statement that the cocaine was ready for delivery very strongly suggests that he performed some kind of act in order to procure the cocaine’s availability, especially in the instant case, where several days passed between the initial agreement and the conversation at issue.  Furthermore, even if Peralta was lying when he told the detective that the cocaine was available, his act of communicating that the cocaine was ready was undoubtedly calculated to maintain the officer’s interest in the deal. …

Elements of conspiracy summarized, ¶18, citing State v. Routon, 2007 WI App 178, ¶18, 304 Wis. 2d 480, 736 N.W.2d 530 and State v. West, 214 Wis. 2d 468, 476, 571 N.W.2d 196 (Ct. App. 1997). The court distinguishes the “overt act” element of conspiracy from the “substantial step” element of attempt, § 939.32, which requires an act demonstrating the actor’s unequivocal intent to commit an offense: liability for conspiracy “attaches at an earlier stage,” when there is merely agreement and an overt act in furtherance of same, ¶20.

This appeal raises a challenge to Peralta’s guilty plea, specifically, whether the complaint established a factual basis for conspiracy. Thus, it is enough that the complaint supports an inculpatory inference of guilt, ¶24. Whether the facts support a competing, exculpatory inference sufficient to support acquittal at trial was neither before, nor discussed by, the court.

Tangent: an information charging conspiracy need not allege the overt act, on the rationale that, “The factual allegations relied on by the state which satisfy the elements of the crime are more likely found in the complaint. The facts recited in the complaint need not be repeated in the information,” State v. Copening, 103 Wis.2d 564, 576-77, 309 N.W.2d 850 (Ct. App. 1981). Conspiracy isn’t often charged as a substantive offense (vs. ptac embellishment), so the issue may not come up often, but these various strands of authority combine to create potentially unique notice problems. An overt act is certainly an element, yet may be satisfied by “virtually” anything, no matter if “insignificant.” Fine, but the jury must still find its existence beyond a reasonable doubt, and the defendant ought to be able to know, in order to prepare a defense to the charge, precisely what act – insignificant or not to the illicit agreement’s accomplishment – the State relies on. Though notice isn’t at issue here, it is a potential problem that ought to be kept in mind.

Guilty Plea – Review – Factual Basis

¶16      We begin with the standard of review.  Although the State argues that this court can overturn the trial court’s ruling regarding the factual basis for Peralta’s plea only if it is clearly erroneous, see State v. Johnson, 207 Wis. 2d 239, 244, 558 N.W.2d 375 (1997), the underlying question as to whether a factual basis for the plea exists is subject to different standards of review depending on how the factual basis is presented to the trial court.  When the State presents testimony to support the factual basis, this court applies the clearly erroneous test.  See Broadie v. State, 68 Wis. 2d 420, 423, 228 N.W.2d 687 (1975).  However, when the factual basis for the plea derives solely from a document in the record, we do not give deference to the findings made by the trial court, and instead review the issue de novo.  See Cohn v. Town of Randall, 2001 WI App 176, ¶5, 247 Wis. 2d 118, 633 N.W.2d 674 (interpretation of a written instrument is a question of law that we decide without deference to the trial court); see also State ex rel. Sieloff v. Golz, 80 Wis. 2d 225, 241, 258 N.W.2d 700 (1977) (when reviewing documentary evidence, the court “need not afford a trial court’s findings any special deference”).  Therefore, we hold that because the factual basis for the complaint in Peralta’s case derives solely from a document in the record—the criminal complaint—we review the trial court’s ruling de novo.

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