State v. Spears

433 N.W.2d 595, 147 Wis. 2d 429, 1988 Wisc. App. LEXIS 997
CourtCourt of Appeals of Wisconsin
DecidedNovember 3, 1988
Docket88-0401-CR
StatusPublished
Cited by43 cases

This text of 433 N.W.2d 595 (State v. Spears) 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. Spears, 433 N.W.2d 595, 147 Wis. 2d 429, 1988 Wisc. App. LEXIS 997 (Wis. Ct. App. 1988).

Opinions

EICH, J.

Kenneth Spears appeals from a judgment convicting him of two counts of second-degree murder (causing death by "conduct imminently dangerous to another and evincing a depraved mind, regardless of human life”) in violation of sec. 940.02(1), Stats. Spears was convicted on his plea of no contest to the charges. He argues on appeal that there was an inadequate factual basis to support the plea, and also that the trial court abused its discretion in sentencing him to two consecutive sixteen-year prison terms. We reject both arguments and affirm the judgment and order.

Spears was charged after he struck and killed two pedestrians while driving through a parking lot in downtown La Crosse at a high rate of speed. According to his trial counsel, because the facts surrounding the deaths would support both the state’s "theory” of second-degree murder, and his own "theory” that he should have been charged with the lesser offense of homicide by reckless conduct, Spears decided to enter an "Alford” plea to the murder charges. Such a plea, first recognized in North Carolina v. Alford, 400 U.S. 25 (1970), and later in Wisconsin in State v. Johnson, 105 Wis. 2d 657, 314 N.W.2d 897 (Ct. App. 1981), allows a guilty (or no contest) plea to be entered by a defendant "even when accompanied by protestations of innocence.” Id. at 661, 314 N.W.2d at 899. In that event, the plea is said to constitute only a waiver of trial and not an admission of guilt. Id.

[434]*434Under the plea agreement, Spears would plead no contest to the two second-degree murder charges and the state would be free to argue for whatever sentence it deemed appropriate, up to the maximum prison term of forty years — twenty (consecutive) for each count. After a lengthy colloquy with Spears, and after hearing the prosecutor’s factual representations and the testimony of several witnesses, the trial court accepted the plea. The court proceeded to sentence Spears to two consecutive sixteen-year prison terms, and this appeal followed. Other facts will be referred to below.

I. THE PLEA

Whether to permit a defendant to withdraw an accepted plea of guilty or no contest is discretionary with the trial court, and we will not upset the court’s ruling unless an abuse of discretion is shown. Hatcher v. State, 83 Wis. 2d 559, 564-65, 266 N.W.2d 320, 323 (1978). The question on appeal is not whether the plea should have been accepted in the first place, but rather "whether there was an abuse of discretion in the trial court’s denial of the motion to withdraw.” White v. State, 85 Wis. 2d 485, 491, 271 N.W.2d 97, 100 (1978). And the defendant has the burden of showing, by clear and convincing evidence, that "the withdrawal of the plea is necessary to correct a manifest injustice.” Johnson, 105 Wis. 2d at 666, 314 N.W.2d at 902, quoting State v. Schill, 93 Wis. 2d 361, 383, 286 N.W.2d 836, 847 (1980).

When a defendant enters an Alford plea, maintaining his or her innocence of the charge while at the [435]*435same time pleading guilty or no contest to it, the procedure clashes with the long-held rule that a plea may not be accepted absent a determination that '"the conduct which the defendant admits constitutes the offense charged..." Ernst v. State, 43 Wis. 2d 661, 673, 674, 170 N.W.2d 713, 718 719 (1969) (citation omitted). As a result, before such a plea may be accepted, the trial court must determine that "the evidence the state would offer at trial is strong proof of guilt.” Johnson, 105 Wis. 2d at 663, 314 N.W.2d at 900.

The Johnson court’s discussion sheds light on the meaning of the phrase "strong proof of guilt.” First, it is not the equivalent of proof beyond a reasonable doubt. Id., 105 Wis. 2d at 664, 314 N.W.2d at 901. Indeed, the court suggested that the trial court’s conclusion in that case that there was a factual basis for the plea "was equivalent to a finding that the proof of guilt was strong.” Id. Second, the Johnson court framed the inquiry as whether the record "indicates that a sufficient factual basis was established at the plea proceeding to substantially negate [the] defendant’s claim of innocence.” Id. at 664, 314 N.W.2d at 901.

"A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts ... even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference.” In re Guilty Plea Cases, 235 N.W.2d 132, 145 (Mich. 1975), cert. denied, 429 U.S. 1108 (1977). Applying these principles, we are satisfied that the trial court did not abuse its discretion when it denied Spears’s motion to withdraw his plea.

[436]*436The elements of second-degree murder are: (a) causing death (b) by conduct imminently dangerous to another (c) that evinces a depraved mind regardless of human life. Sec. 940.02(1), Stats. Spears does not challenge the causal connection between his actions on the night in question and the victims’ death. And while his brief suggests that his conduct that evening was not imminently dangerous to others,

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Bluebook (online)
433 N.W.2d 595, 147 Wis. 2d 429, 1988 Wisc. App. LEXIS 997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spears-wisctapp-1988.