State v. Ferguson

2014 WI App 48, 847 N.W.2d 900, 354 Wis. 2d 253, 2014 WL 1584473, 2014 Wisc. App. LEXIS 332
CourtCourt of Appeals of Wisconsin
DecidedApril 22, 2014
DocketNo. 2013AP99
StatusPublished
Cited by15 cases

This text of 2014 WI App 48 (State v. Ferguson) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ferguson, 2014 WI App 48, 847 N.W.2d 900, 354 Wis. 2d 253, 2014 WL 1584473, 2014 Wisc. App. LEXIS 332 (Wis. Ct. App. 2014).

Opinion

FINE, J.

¶ 1. John Francis Ferguson appeals the circuit court's order denying his post-sentence motion to withdraw his 1995 guilty plea.1 He claims that the circuit court erroneously evaluated his proffered "new evidence," (the recantation of persons who said that he killed a man). He also seeks to withdraw his plea "in the interest of justice." We affirm.

I.

¶ 2. In 1995, the State charged Ferguson with first-degree intentional homicide for shooting Rickey Hardin following a dispute outside a Milwaukee record store on January 2, 1995. According to the criminal complaint, Ferguson, Corry Spencer, Jason Taylor, William Greene, Corey Hopgood, and Hardin were at the store.2 As material, the criminal complaint alleged that Taylor, who was then seventeen, told the police that Ferguson angrily confronted Hardin and shot him in the chest with what the complaint described as a "black big framed 9mm pistol." Taylor also told the police that Spencer pulled what the complaint described as a "short 9mm pistol" when Ferguson "pulled his pistol up." According to the complaint, Spencer "was just raising and pointing his gun as Rickey [Hardin] fell to the pavement." The complaint added that "Taylor heard a number of other shots as he ran back into the store," and that he "believes they were from two different [258]*258guns." After the shots stopped, Taylor came out of the store and both Spencer and Ferguson were gone. Taylor and Greene testified at Ferguson's preliminary examination in front of a circuit court commissioner.

¶ 3. Taylor told the commissioner that he, Ferguson, and Spencer were in the record store when they saw Hardin's car outside. Taylor testified that Spencer confronted Hardin and Ferguson "just pulled out a gun and shot" Hardin with a ".9 millimeter" "automatic." According to Taylor, Hardin fell down and he, Taylor, went back into the record store, when he heard more gunshots. He testified that Ferguson was the only person he saw with a gun that day, which was contrary to the complaint's assertion that he said that he also saw Spencer with a gun.

¶ 4. Greene testified that he, Hardin, and Hopgood arrived at the record store that day with Hardin, in Hardin's car, to go to a recording studio that was "[r]ight upstairs." He said that the Ferguson group confronted them as they approached the doorway leading to the studio. He testified that he and Hopgood were already through the doorway when he, Greene, "heard a gunshot." Greene said that he ran upstairs and hid in a closet, and that someone "stuck the gun" in the closet. He did not know who was holding the gun. He testified that he tried to get out of the closet when "the gun went off," and a bullet hit him in his arm. Greene also testified that when he ran into the record store he saw "[h]ysterical" Hopgood, who "was walking around holding his back saying he got shot in the back."

¶ 5. The commissioner bound Ferguson over for trial, and several months later the case was plea-bargained. Ferguson pled guilty to, as recited by the circuit court at the plea hearing, "first degree reckless homicide, while using a dangerous weapon, as party to [259]*259a crime." After assuring itself that Ferguson's guilty plea was knowing and voluntary, the circuit court asked Ferguson's lawyer whether there were "any facts you want to explore with the court today on Mr. Ferguson's behalf." Ferguson's lawyer said that "we concede that my client was involved in the shooting of Mr. Hardin," and added that Ferguson knew "Hardin to be a person who had used firearms before," and that "Hardin and Cory Spencer, one of the other persons that my client was with, had been involved in gun battles." The lawyer added: Ferguson "knew that there was extremely bad blood between those individuals. And that he acted recklessly when he shot the weapon." (Paragraphing altered.)

¶ 6. The circuit court then spoke to Ferguson: "[Y]our counsel made a statement about the facts, and you talked [earlier in the plea-hearing] about having reviewed the criminal complaint. Are you in agreement with the summary version of the facts that your lawyer just made to the court?" (Paragraphing altered.) Ferguson replied: 'Yes, your Honor." The circuit court also asked Ferguson: "Are there any particular facts that you recall reading in the criminal complaint that you disagree with?" Ferguson replied: "No, your Honor." Ferguson also told the circuit court that it could rely on the facts alleged in the criminal complaint and on the testimony at the preliminary examination in accepting his plea. As noted, Ferguson pled guilty.

¶ 7. At sentencing, Ferguson's lawyer explained that Ferguson was truly remorseful, and that in preparing the case the lawyer initially had "reason to believe that an alibi was possible in this case," but that he later "determined that there really was nothing that could be used for alibi purposes." Indeed, Ferguson's trial lawyer [260]*260had filed a notice of alibi. Thus, the lawyer told the circuit court, "it was my client's decision that he wanted to resolve the case and accept his responsibility for his conduct[,] which he has done." In his allocution, Ferguson told the circuit court that he was afraid of the victim and that he, Ferguson, "couldn't believe what, you know, what I had done." He also apologized to Hardin's mother, who was in court. Ferguson appealed, and we affirmed on a no-merit brief submitted by his lawyer. State v. Ferguson, 1996AP1164-CRNM, unpublished op. and order (WI App Oct. 1, 1996).

¶ 8. Ferguson filed a pro se motion dated December 12, 2005, with our court seeking reinstatement of his "direct appeal," claiming various violations of the no-merit procedure. He also filed with the circuit court on December 19, 2005, a pro se motion to withdraw his guilty plea, as stated by the circuit court's order of December 21, 2005, denying the motion, "on grounds that the court did not inform him [that] it was not bound by the plea agreement in violation of State v. Hampton, 274 Wis. 2d 379, 683 N.W.2d 21 (2004)." We affirmed the circuit court's order on July 31, 2007, and the supreme court denied review. State v. Ferguson, No. 2006AP225, unpublished slip op. (WI App July 31, 2007), rev. denied 2008 WI 19, 307 Wis. 2d 293, 746 N.W.2d 810. We did, however, grant his subsequent motion for reconsideration. These proceedings followed, and the circuit court held two evidentiary hearings on Ferguson's motion to withdraw his guilty plea. Ferguson was represented by counsel at those hearings and on this appeal.

¶ 9. Ferguson's motion to withdraw his guilty plea contended, as he does on appeal, that the recantation of two witnesses to the confrontation at the record store in 1995 is newly-discovered evidence that requires that he [261]*261be allowed to withdraw his guilty plea. One of the witnesses was Taylor, who, as we have seen, was quoted in the criminal complaint as saying that Ferguson shot Hardin, and also testified to that at Ferguson's preliminary examination. The other witness, Spencer, was not quoted in the criminal complaint, but the Record has an affidavit executed by a Milwaukee police detective that avers that Spencer told the police that he saw Ferguson pull a gun and shoot Hardin.

¶ 10.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 WI App 48, 847 N.W.2d 900, 354 Wis. 2d 253, 2014 WL 1584473, 2014 Wisc. App. LEXIS 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ferguson-wisctapp-2014.