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Guilty Plea – Withdrawal – Presentence, Undisclosed Exculpatory Evidence, Waiver Rule; Ineffective Assistance of Counsel; Sentencing

State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Guilty Plea – Withdrawal – Presentence

The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.

The particular grounds asserted – no factual basis for plea; misapprehension of State’s allouction under plea bargain; counsel’s inadequate representation – needn’t be dwelled on. Opinion contains succinct discussion of different tests for pre- vs. post-sentencing motion to withdraw plea.

Guilty Plea Waiver Rule

Challenge to bindover runs afoul of rule that guilty plea waives all nonjurisdictional defects, ¶¶10-11.

Guilty Plea – Withdrawal – Undisclosed Exculpatory Evidence

None of various items of undisclosed, alleged exculpatory evidence support plea-withdrawal, either because the evidence was in fact unhelpful to the defense, the defense knew of the information in the undisclosed document, or the exculpatory value of the (destroyed) evidence wasn’t apparent, ¶¶12-19. Test plea-withdrawal premised on undisclosed exculpatory evidence discussed by court. Discussion of destroyed evidence potentially recurrent, therefore may be worth reciting:

¶18      The 9-1-1 audio recording in Harris’s case was destroyed before Harris had a chance to listen to it.  In order to rise to the level of a due process violation, evidence not preserved, lost or destroyed by the State “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”  State v. Greenwold, 189 Wis. 2d 59, 67, 525 N.W.2d 294 (Ct. App. 1994) (citation omitted).  Given that the exculpatory nature of the transcribed 9-1-1 call detail was not readily apparent, and given that the call detail and the audio recording likely contained the same or similar information, we cannot say that the exculpatory value of the recording would have been apparent to the State before it was destroyed.  See id.  We also cannot say that Harris would have been unable to obtain comparable evidence, as the 9-1-1 call detail was not destroyed.  Therefore, Harris’s rights were not violated by the destruction of the call recording.

Counsel didn’t perform deficiently in various respects. (These include failure to file a “Crawford” motion to exclude from trial the victim’s preliminary hearing testimony; investigation of alibi; handling of discovery, ¶¶21-26, none of which need be discussed.)

Sentencing – Discretion

The trial court properly exercised sentencing discretion, the court of appeals rejecting a challenge to consideration of Harris’s failure to support his children.

¶30      In Harris’s case, the record confirms that the trial court engaged in an extremely thorough and thoughtful process of reasoning based on legally relevant factors.  The trial court based Harris’s sentence, first, on the nature and gravity of the offense—in this case severe burns on his girlfriend’s face.  The court also considered Harris’s habitual criminality—including the fact that Harris had domestic violence issues with each of the mothers of his children—and failure to maintain consistent employment as evidence that he does not respect our society’s rules or take responsibility for himself or his family.  As for the court’s comments about Harris’s parenting capabilities, the trial court stated that Harris’s fathering several children of a very young age and subsequent failure to support them reflected poorly on his character.  These comments formed a very small portion of the sentencing explanation and were not inappropriate.  Given the court’s well-reasoned and comprehensive explanation of Harris’s sentence, we cannot say that it erroneously exercised its discretion when it sentenced Harris to one year and six months of initial confinement followed by two years of extended supervision.  Accordingly, we affirm.

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