State v. Henderson

369 Wis.2d 74

879 N.W.2d 809 (Table)

STATE of Wisconsin, Plaintiff–Respondent,

v.Jason D. HENDERSON, Defendant–Appellant.

No. 2015AP1740–CR.

Court of Appeals of Wisconsin.

March 1, 2016.

¶ 1 BRENNAN, J.¹

Jason D. Henderson appeals from the circuit court's order denying his postconviction motion to withdraw his plea on the grounds of ineffective assistance of counsel. Henderson claims that both of his trial counsel were ineffective for failing to properly advise him as to the correct bifurcation initial confinement (“IC”) maximum on each of his two charges. He claims he would not have pled guilty to battery if he had known the correct bifurcation IC maximum and that he is therefore entitled to withdraw his plea on manifest injustice grounds.

¶ 2 The State responds that neither of Henderson's trial counsel were ineffective because it is undisputed that they correctly advised him as to the maximum possible term of imprisonment. See State v. Sutton, 2006 WI App 118, ¶ 1, 294 Wis.2d 330, 718 N.W.2d 146. As to incorrectly stating the bifurcation IC maximum, the State argues counsel were not deficient because the law at the time of his plea was unsettled. See State v. Lasanske, 2014 WI App 26, ¶ 10, 353 Wis.2d 280, 844 N.W.2d 417. Additionally, the State argues that any mistaken information did not prejudice Henderson because Henderson failed to credibly show that he would not have pled guilty to the State's offer of reduced charges if he had known the correct bifurcated IC maximum.

¶ 3 We agree with the State and affirm.

BACKGROUND

¶ 4 In November 2013, Jason D. Henderson was charged with battery and disorderly conduct contrary to Wis. Stat. §§ 940.19(1), 939.51(3)(a), 968.075(1)(a), 947.01(1), and 939.51(3)(b). Each count was charged with two separate enhancers: the domestic abuse repeater, see Wis. Stat. § 939.621(1)(b) and (2), and the habitual criminality repeater, see Wis. Stat. § 939.62(1)(b). The domestic abuse repeater enhancer changed the status of each of these charges from a misdemeanor to a felony. The maximum penalty for the battery charge with both enhancers would be four years and nine months, and the maximum penalty for the disorderly conduct charge with both enhancers would be four years and three months.

¶ 5 On the day trial was to begin, with the victim present in the courtroom ready to testify, the parties entered into plea negotiations. The State offered to dismiss the domestic abuse repeater enhancer from each count, reducing each to a misdemeanor, in exchange for pleas to both charges and the habitual criminality enhancer. Henderson agreed.

¶ 6 During the plea colloquy, it is undisputed that Henderson was correctly told that his maximum sentence on each count was two years incarceration. It is undisputed that he acknowledged that he understood the maximum possible incarceration.

¶ 7 But it is also undisputed that the plea questionnaire incorrectly stated that the two-year maximum incarceration consisted of a maximum of twelve months initial confinement (“IC”) and twelve months extended supervision (“ES”) on each count. The actual bifurcated sentence on each count is eighteen months IC and six months ES.

¶ 8 Shortly after the plea was entered, Henderson requested to withdraw his guilty pleas. The trial counsel who had represented him up to this point was allowed to withdraw as counsel, and new trial counsel was then appointed to represent Henderson. New counsel filed a motion to withdraw Henderson's plea prior to sentencing.

¶ 9 Henderson alleged in his motion that he was rushed into the plea; that he did not personally affirm the facts in the complaint and in fact was innocent; and that his plea was not knowingly, voluntarily, and intelligently made. At the motion hearing, Henderson testified that he spent approximately three to four hours with his attorney on the morning of trial before entering his guilty pleas. He also testified he had prior experience in the criminal justice system with six prior convictions, none of which were felonies. He testified that he did not want to lose his job, and he had discussed with his attorney the pros and cons of “get[ting] it over with” rather than going to trial. He specifically mentioned that they discussed that if he went to trial and was convicted, his conviction would be a felony. He was concerned that becoming a felon would result in losing his job and that a felony was much worse than a misdemeanor. He wanted to make sure the felony was “wiped off.”

¶ 10 The trial court denied Henderson's motion to withdraw his plea. The court found that Henderson's plea was knowingly, voluntarily, and intelligently made and that there were no defects in the plea colloquy. The court further found that Henderson had not presented any support for manifest injustice or a fair and just reason that would allow for plea withdrawal.

¶ 11 The court based its ruling on a number of factors including the time Henderson spent discussing his case with his attorney (three to four hours), that he weighed his options and was motivated by his desire to avoid a felony to protect his job, and that he told the court during the colloquy that he was not subject to undue pressure. Additionally, the court found there would be substantial prejudice to the State in allowing a plea withdrawal for the following two reasons: first, because the dynamics of domestic violence cases are such that maintaining cooperative victims is difficult, and second, because the plea was taken on a day when the victim was present and the State was ready to proceed, but the intervening passage of time put the State in a position such that it would be substantially prejudiced.

¶ 12 The trial court then imposed a sentence of nine months incarceration for the battery charge and three months for the disorderly conduct, but stayed that sentence and placed Henderson on two years of probation. Henderson filed a postconviction motion to withdraw his pleas. In this motion, he alleged ineffective assistance of counsel based upon the incorrect bifurcation information he received regarding the maximum IC time in his guilty pleas. The court denied his motion without an evidentiary hearing in a written decision, which Henderson appeals.

DISCUSSION

¶ 13 Henderson argues that he should be permitted to withdraw his plea because of his two trial counsels' deficient performance in giving him incorrect information about the maximum initial confinement he faced in a bifurcated sentence. It is undisputed that trial counsel misadvised him of the maximum he faced on the initial confinement portion of his potential bifurcated sentence. Neither the State nor the trial court caught the error. He argues that because of the ineffective assistance of counsel, his plea was not knowing, voluntary, and intelligent. Additionally, he contends that he was prejudiced by the deficiency of counsel because he would not have accepted the State's plea offer and pled guilty if he had known the correct bifurcated maximum IC.

¶ 14 The State counters that while the IC maximum information was incorrect, our decision in Sutton held that misinformation about the IC maximum was not critical to a knowing and voluntary plea. Sutton, 294 Wis.2d 330, ¶ 15, 718 N.W.2d 146. The State points out that Henderson was correctly told the maximum possible incarceration he faced overall, which is required for a knowing and voluntary plea under Sutton, 294 Wis.2d 330, ¶ 1, 718 N.W.2d 146 and State v. Dillard, 2014 WI 123, ¶ 9, 358 Wis.2d 543, 859 N.W.2d 44. Additionally, the State contends that the law of how to calculate the IC maximum when applying a prison enhancer to a misdemeanor was in a very unsettled state at the time of counsels' advice here so that neither of Henderson's two trial counsels were deficient for failing to know how the courts would ultimately resolve the issue.

¶ 15 Finally, the State argues that Henderson was not prejudiced because the record shows that the IC maximum discrepancy between twelve months (as he was incorrectly advised) and eighteen months (the correct IC maximum) would not have caused Henderson to turn down the State's plea offer of a misdemeanor in the face of Henderson's statements that he sought to avoid a felony to keep his job.

¶ 16 We agree with the State and address each issue in turn.

1. Legal standards of review on motions to withdraw a plea

¶ 17 Henderson filed both presentencing and postconviction motions to withdraw his plea. Each were denied, with the post-sentencing motion being denied without a hearing. We review each motion under a different standard.

¶ 18 We review a decision to grant or deny a presentencing motion to withdraw a plea for an erroneous exercise of discretion. State v. Lopez, 2014 WI 11, ¶ 60, 353 Wis.2d 1, 843 N.W.2d 390. To sustain a discretionary act, this court needs only to find that the trial court “ ‘examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.’ “ Id. (quoting Loy v. Bunderson, 107 Wis.2d 400, 414–15, 320 N.W.2d 175 (1982) ). “In general, a circuit court should freely allow a defendant to withdraw his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.” Lopez, 353 Wis.2d 1, ¶ 2, 843 N.W.2d 390 (citations and quotation marks omitted).

¶ 19 We review a postconviction motion to withdraw a plea independently of the trial court, but benefitting from the lower court's analysis. State v. Howell, 2007 WI 75, ¶ 30, 301 Wis.2d 350, 734 N.W.2d 48. To warrant a hearing on a postconviction motion to withdraw a plea, the defendant must first satisfy the requirements of State v. Bangert, 131 Wis.2d 246, 274–75, 389 N.W.2d 12 (1986), showing that the plea colloquy is defective, or of Nelson v. State, 54 Wis.2d 489, 195 N.W.2d 629 (1972) and State v. Bentley, 201 Wis.2d 303, 548 N.W.2d 50 (1996), where the defendant's claim is that a factor extrinsic to...