State v. Hailes

1

State of Wisconsin, Plaintiff-Respondent, v. Tracy Laver Hailes, Defendant-Appellant.

No. 2021AP1339-CR

Court of Appeals of Wisconsin, District I

May 9, 2023

APPEAL from a judgment and orders of the circuit court for Milwaukee County: No. 2015CF4326 JANET C. PROTASIEWICZ and MICHAEL J HANRAHAN, Judges. Affirmed.

Before Brash, C.J., Dugan and White, JJ.

DUGAN J.

¶1 Tracy Laver Hailes appeals his judgment of conviction and two orders of the circuit court denying his motions for postconviction relief.^[1]On appeal, Hailes argues that the circuit court erroneously denied his motion to suppress evidence of drug activity at two apartments located at 618 North 30th Street. (30th Street). He also argues that two penalty enhancers-one for repeat offenders and the other for second or subsequent offenders, found in Wis.Stat. § 939.62 (2021-22),^[2] and Wis.Stat. § 961.48-were erroneously applied to the drug offense charges in his case-he was charged with and pled guilty to the drug charges with both of the enhancers. Hailes further argues that he is entitled to plea withdrawal, sentence modification, or resentencing based on the fact that he was erroneously charged with and pleaded guilty to the drug charges with both of the penalty enhancers.

¶2 We conclude that the circuit court properly denied Hailes' motion to suppress because the affidavits attached to the search warrants established probable cause to search the two apartments located at 30th Street. We further conclude that the two penalty enhancers were erroneously applied to Hailes because the plain meaning of Wis.Stat § 973.01(2)(c) states that either Wis.Stat. § 939.62 "or" Wis.Stat. § 961.48 can apply to his drug charges-but not both. However, we nevertheless reject Hailes' argument that he is entitled to plea withdrawal, sentence modification, and resentencing on the basis that these two penalty enhancers were applied to him. Hailes fails to demonstrate that the penalty enhancers in any way induced him to plead guilty, such that he is entitled to plea withdrawal and he fails to demonstrate that the penalty enhancers played any role at the sentencing hearing, such that he is entitled to sentence modification or resentencing. Accordingly, we affirm.

BACKGROUND

¶3 In a criminal complaint filed on September 25, 2015, the State charged Hailes with nine counts related to drug operations that Hailes ran out of two apartments located at 30th Street. The charges arose from the execution of three search warrants issued for three apartments connected to Hailes. One of the apartments was located at 520 North 29th Street, (29th Street) and the other two apartments were located at 30th Street. The nine charges issued by the State resulted from evidence recovered from the two apartments-apartment 102 and apartment 208-located at 30th Street. As to apartment 102, Hailes was charged with (1) possession of a firearm by a felon, (2) possession with intent to deliver heroin, (3) possession with intent to deliver cocaine, (4) possession with intent to deliver THC, and (5) keeping a drug house. As to apartment 208, Hailes was charged with (1) possession of a firearm by a felon, (2) possession with intent to deliver THC, (3) possession with intent to deliver cocaine, and (4) keeping a drug house. All the charges carried the penalty enhancer for a repeat offender, see Wis. Stat. § 939.62(1), and all charges, with the exception of the two charges of possession of a firearm by a felon, carried the penalty enhancer for a second or subsequent offense, see Wis. Stat. § 961.48(1).

¶4 Hailes filed a motion to suppress the evidence recovered at the two apartments located at 30th Street on the basis that the search warrants failed to establish probable cause of illegal activity at either of the apartments. Rather, Hailes contended that the affidavits attached to the search warrants only established probable cause of illegal activity at the apartment located at 29th Street, and there was no nexus with the activity at 29th Street such that the activity there constituted probable cause to search the apartments at 30th Street.

¶5 The circuit court denied Hailes' motion.^[3] At the hearing on the motion, the circuit court stated that the affidavits provided statements by a confidential informant describing that he saw Hailes at the apartment on 29th Street with "substantial amounts of cocaine and heroin and some marijuana and a couple guns" on two separate occasions. The circuit court further noted that the confidential informant observed Hailes moving furniture into the apartment building located on 30th Street. The circuit court also stated that the affidavits described an independent investigation done by the police in which the police observed Hailes' vehicles parked at the 30th Street address and a statement by an officer that, based on his training and experience, he knows that drug dealers have the tools of their trade located at their homes. Thus, the circuit court found, "in tying all that together," the warrants were sufficient.

¶6 Hailes subsequently entered a plea to five of the original charges, with the remaining four charges dismissed and read in for sentencing purposes. In all, Hailes pled guilty to two counts of possession of a firearm by a felon, as a repeater;^[4] one count of possession with intent to deliver heroin, as a repeater and as a second or subsequent offense;^[5] and two counts of possession with intent to deliver cocaine, as a repeater and as a second or subsequent offense.^[6] He was then sentenced on all charges to twenty-three years of imprisonment, composed of fourteen years of initial confinement and nine years of extended supervision.

¶7 Hailes filed his first motion for postconviction relief, in which he argued that he was entitled to plea withdrawal on the grounds that the repeat offender and the second or subsequent offense penalty enhancers were erroneously applied to him. See Wis. Stat. §§ 939.62(1) (repeat offender), 961.48(1) (second or subsequent offense). He argued that pursuant to Wis.Stat. § 973.01(2)(c), either penalty enhancer could apply to his drug chargers, but not both. He alternatively requested sentence modification or resentencing based on the erroneous application of both penalty enhancers to his case. Relying on State v. Maxey, 2003 WI.App. 94, 264 Wis.2d 878, 663 N.W.2d 811, the circuit court denied his motion and found that both penalty enhancers were properly applied to his case. As a result, the circuit court did not reach Hailes' remaining arguments for plea withdrawal, sentence modification, or resentencing.

¶8 Hailes subsequently filed a supplemental postconviction motion. He again argued for plea withdrawal based on an erroneous application of both penalty enhancers to his case. However, in his supplemental postconviction motion, he raised the additional arguments that he was entitled to plea withdrawal based on the legal impossibility of both penalty enhancers applying to his drug charges and the illusory benefit provided by his plea deal. The circuit court again denied Hailes' motion and found that both penalty enhancers were properly applied to his drug charges.

¶9 Hailes now appeals. Additional relevant facts will be set forth below as necessary.

DISCUSSION

¶10 On appeal, Hailes raises two main arguments. First, Hailes argues that the circuit court erroneously denied his motion to suppress the evidence recovered from the two apartments located at 30th Street. Second, Hailes argues that the two penalty enhancers found in Wis.Stat. § 939.62(1) and Wis.Stat. § 961.48(1) were erroneously applied to him and as result, he is entitled to plea withdrawal. In the alternative, he argues that he is entitled to sentence modification or resentencing. We address each argument in turn.

I. Motion to Suppress

¶11 Hailes first argues that the circuit court erroneously denied his motion to suppress because there was no probable cause to search the apartments located at 30th Street. In particular, Hailes argues that the affidavits attached to the search warrants did not establish probable cause of illegal activity at the two apartments at the 30th Street address. He contends that there was no nexus between his drug-related activity observed by the confidential informant at the apartment at 29th Street and his conduct at the two apartments at 30th Street, and therefore, there was no probable cause to believe that evidence of criminal activity would have been found at 30th Street.^[7]

¶12 We review a circuit court's denial of a motion to suppress evidence using a two-step standard. State v. Lonkoski, 2013 WI 30, ¶21, 346 Wis.2d 523, 828 N.W.2d 552. We will uphold the circuit court's findings of fact unless they are clearly erroneous, and we review independently the application of the facts to the constitutional principles. Id.

¶13 Hailes contends that the circuit court erroneously denied his motion to suppress because the affidavits attached to the search warrants failed to establish probable cause. "Search warrants may issue only upon 'a finding of probable cause by a neutral and detached magistrate.'" State v. Ward, 2000 WI 3, ¶21, 231 Wis.2d 723, 604 N.W.2d 517 (citation omitted). "[W]e accord great deference to the determination made by the warrant-issuing magistrate," and the defendant bears the burden to show "that the facts are clearly insufficient to support a probable cause finding." Id.

¶14 Probable cause is "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit" that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Higginbotham, 162 Wis.2d 978, 990, 471 N.W.2d 24 (1991) (citation omitted). "[A] probable...