State v. Washington

500 N.W.2d 331, 176 Wis. 2d 205
Court of Appeals of Wisconsin·Decided March 30, 1993·No. 92-1071-CR, 92-1072-CR·Published·Cited by 3 cases

Opinion

176 Wis.2d 205 (1993)
500 N.W.2d 331

STATE of Wisconsin, Plaintiff-Respondent,
v.
Shawnta WASHINGTON, Defendant-Appellant.[†]

Nos. 92-1071-CR, 92-1072-CR.

Court of Appeals of Wisconsin.

Submitted on briefs February 3, 1993.
Decided March 30, 1993.

*207 For the defendant-appellant the cause was submitted on the briefs of Brennan & Collins by Russell D. Bohach, of counsel, of Milwaukee.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, attorney general by William L. Gansner, assistant attorney general, of Madison.

Before Wedemeyer, P.J., Sullivan and Fine, JJ.

WEDEMEYER, P.J.

Shawnta Washington appeals from judgments of conviction for two counts of armed robbery, party to a crime, contrary to secs. 943.32(1)(b), 943.32(2) and 939.05, Stats., and for one count of operating a motor vehicle without owner's consent, contrary to sec. 943.23(3), Stats. Washington also appeals from orders denying his request for postconviction relief.

Washington raises two issues of error: (1) the trial court improperly denied his motion for postconviction relief requesting a guilty plea withdrawal based on ineffective assistance of counsel without an evidentiary hearing; and (2) the trial court erred in deciding his postconviction motion for modification of sentence based upon new factors without a hearing. Because Washington's postconviction motion failed to allege sufficient facts to warrant a Machner hearing, and because his postconviction motion failed to present sufficient facts for a hearing regarding sentence modification, we affirm.

I. BACKGROUND

On July 24, 1990, Washington pled guilty to a charge of operating a motor vehicle without the owner's consent (OMVWOC), a Class E felony with a two-year *208 maximum sentence. See secs. 943.23(3) and 939.50(3)(e), Stats. Approximately two months later, while free on bail waiting to be sentenced for the OMVWOC charge, Washington was arrested and charged with two counts of armed robbery, party to a crime. Armed robbery is a Class B felony, punishable by up to twenty years incarceration. See secs. 943.32(2) and 939.50(3)(b), Stats.

At a joint appearance in the two cases, Washington indicated that he wanted to resolve both cases at the same time. Consequently, the cases were consolidated. The case was then set over for the expected entry of guilty pleas to the armed robberies and a joint sentencing.

On January 4, 1991, Kathy Kappas, appointed counsel for Washington, informed the court that the defendant did not wish to proceed with a guilty plea and, in fact, wished to exercise his right to a speedy trial. Ms. Kappas stated that she would be unable to try the case within the speedy trial parameters and that another attorney would be appointed promptly to represent Washington. It was agreed that the armed robbery case would be tried on March 13, 1991.

On the morning of March 13, Washington appeared with Sandra Ruffalo, his newly appointed counsel, and indicated that he was prepared to proceed to trial on the armed robbery charges. The trial court informed Washington that his trial would commence shortly after lunchtime. Before the trial began, however, Washington reappeared before the trial court and stated that a plea agreement had been reached *209 whereby he would plead guilty to the armed robbery charges.[1]

The trial court proceeded to conduct a plea colloquy with Washington:

THE COURT: Okay. Sir, has your lawyer told you what the State would have to prove in order to establish your guilt?
SHAWNTA WASHINGTON: Yes.
THE COURT: Do you understand — did your lawyer explain to you that there were certain elements of the offense that the State would have to prove?
SHAWNTA WASHINGTON: Well, it was brought to me that I had no chance at all, so I just took it like — you know, I'll just plead guilty.
THE COURT: Okay. Both of these counts involve offenses that occurred on October 3, 1990, at 3015 West Vliet Street in the City of Milwaukee, and in one count the victim was a Karen H. and the other count a Cynthia H. Do you understand that, sir?
SHAWNTA WASHINGTON: Yes.

. . . .

THE COURT: Okay. Let's go one step further, then. That — first of all, the State would have to prove that that crime was committed, in other words that either you or somebody else did those things. In addition to that, they would have to prove that you either directly did it or you aided and abetted somebody else in committing that crime. Now, do you understand that, sir?
SHAWNTA WASHINGTON: Yes.
*210 THE COURT: The Court then finds that the defendant understands the nature of the offenses that he is charged with.
Now, sir, has anybody promised you anything other than what I've been told or threatened you in any way in order to get you to plead guilty to these charges?
SHAWNTA WASHINGTON: No.
THE COURT: Now, prior to signing [the guilty plea questionnaire], did your lawyer explain to you what the maximum penalties were for these offenses?
SHAWNTA WASHINGTON: Yes.
THE COURT: Did she explain to you that as judge I have not been involved in these negotiations, I'm not bound by them, I could impose up to the maximum penalties if I thought it was the right thing to do?
SHAWNTA WASHINGTON: Yes.
THE COURT: Counsel, have you had ample opportunity to go over this matter with the defendant?
MS. RUFFALO: I have, Your Honor.
THE COURT: Would you indicate for the record the nature of your conversations with the defendant concerning his plea?
MS. RUFFALO: Your Honor, the defendant and I met in the county facility for an hour or so on Monday evening at which time he initially had decided that he would proceed with the plea. We've also had discussions off and on this morning for the last hour and a half, and he's had the opportunity additionally this morning to discuss it with two people who were in the back with him. He's indicated to me that he does wish to proceed.
*211 THE COURT: The Court finds the plea is intelligently, freely and voluntarily made.

The attorneys then stipulated that the facts alleged in the complaint provided a factual basis for the plea. The trial court questioned Washington as to whether he and Ms. Ruffalo had gone over the complaint. Washington answered that he had read the complaint, understood the statements contained therein, and found those statements to be substantially true. Based upon the stipulation of counsel, Washington's statements and the plea of guilty, the trial court found the defendant guilty as to each count.

The trial court proceeded to sentencing, based in part, on a presentence report that had been prepared after Washington's earlier guilty plea to the OMVWOC charge. Ms. Ruffalo and Washington stated that they had reviewed the presentence report and had no corrections to offer. Both Washington and Ruffalo addressed the trial court before sentencing was pronounced.

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State v. Washington, 500 N.W.2d 331, 176 Wis. 2d 205 (Wis. Ct. App. 1993).

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