State v. Moffett

970 N.W.2d 574 (Table)

2022 WI App 7

STATE of Wisconsin, Plaintiff-Respondent,

v.Darius Darnell MOFFETT, Defendant-Appellant.

Appeal No. 2020AP395-CR

Court of Appeals of Wisconsin.

July 20, 2021

PER CURIAM.

¶1 Darius Darnell Moffett appeals his judgment of conviction entered upon his guilty pleas for driving a vehicle without the consent of the owner, burglary, and felony bail jumping, all with a habitual criminality penalty enhancer. Moffett also appeals the circuit court order denying his motion for postconviction relief without a hearing. Moffett argues that his motion alleged sufficient material facts to show his pleas were not entered knowingly after he learned of potentially exculpatory evidence at the sentencing hearing. We agree and, therefore, we reverse the circuit court order in part and remand for an evidentiary hearing on his motion for plea withdrawal. Additionally, Moffett argues trial counsel stipulated to a restitution amount that was more than Moffett was responsible for; therefore, he claims counsel was ineffective. Regarding this claim, we disagree and affirm that part of the circuit court order.

BACKGROUND

¶2 The case against Moffett arises out of a series of crimes in August 2016, when Moffett was charged with six counts, all with the habitual criminality penalty enhancers: three counts of operating a motor vehicle without the owner's consent (OMVWOC) involving two different vehicles, one count of burglary, one count of bail jumping, and one count of resisting arrest.

¶3 The first and third counts for OMVWOC were based on Moffett driving a 2013 blue Honda Accord, which had been taken along with car keys and other items on August 19, 2016, from a house in Wauwatosa. On August 22, 2016, Wauwatosa police observed the Accord on a parking slab behind Moffett's girlfriend's residence. On August 23, 2016, Wauwatosa police observed Moffett walk to the parked Accord, enter it, and drive away. The police lost sight of Moffett after he drove away. On August 24, 2016, a Milwaukee County District Attorney's Office Investigator observed the Accord parked on the 1300 block of North 44th Street, observed Moffett walk toward the vehicle, enter it, and then saw Moffett drive away.

¶4 Count two for OMVWOC was based on allegations that Moffett took and drove away a 2014 white Chevrolet Malibu on August 24, 2016, from a driveway in Wauwatosa. The residents notified police that the house had been broken into sometime in the night, with the Malibu's keys stolen, even though the Malibu was present when they discovered the burglary. Late in the morning, a landscaper at the house noticed a man walk around the block and then get into the Malibu and drive it away.

¶5 Count four of the complaint for burglary of a building or dwelling was based on the allegation that Moffett entered a dwelling in the 4300 block of West Martin Drive in Milwaukee on August 24, 2016, with an intent to steal. A window screen had been cut and a number of items were removed from the residence without consent. After Moffett was apprehended, the police searched the Accord and identified property stolen from the West Martin Drive residence and property stolen from the Wauwatosa residence where the Malibu had been taken from.

¶6 In December 2017, Moffett entered into a plea agreement with the State, in which Moffett pled guilty to counts one, four, and five; and counts two, three, and six would be dismissed and read in. Moffett's plea agreement also resolved two additional uncharged read-in offenses for (1) an attempted misdemeanor theft on June 9, 2015, on North 54th Boulevard, and (2) OMVWOC as a felon on August 15, 2015, involving a vehicle taken from E.A.’s residence. The State's recommendation included $2,500 in restitution for E.A. to cover multiple insurance deductibles.¹ Although the State only read in one OMVWOC offense, the vehicle Moffett operated without consent was previously stolen in a burglary of E.A.’s home, during which car keys and two other vehicles also went missing. Thus, E.A. requested $500 for each of the three vehicles taken from his house and $1,000 for his home insurance deductible. After a plea colloquy, the circuit court accepted Moffett's guilty pleas.

¶7 In January 2018, the circuit court conducted the sentencing hearing. Relevant to this analysis, at sentencing the prosecutor told the court that before the charge in count three—OMVWOC—occurred, the Wauwatosa police placed a GPS device on the Accord that Moffett had been seen driving on August 23, 2016. The prosecutor stated that on August 24, 2016, police tracked Moffett to the location of the burglary charged in count four. This was the first time that the prosecutor disclosed the fact that the GPS device was used to track Moffett at the time of the burglary.

¶8 The State reiterated the restitution requests against Moffett. Trial counsel argued that Moffett disputed the basis of the request for E.A.’s restitution. The issue with restitution is examined more thoroughly below but, ultimately, the court ordered restitution of $2,500 for E.A. for all of the insurance deductibles. The court imposed a sentence of nineteen years, divided as ten years of initial confinement and nine years of extended supervision.

¶9 In February 2020, Moffett filed a motion for postconviction relief, moving to withdraw his pleas because his plea was not knowingly entered because the State failed to preserve potentially exculpatory GPS evidence,² and for ineffective assistance of counsel because trial counsel stipulated to restitution on charges that were not read in at the time of the guilty pleas, resulting in an order for $2,500 in restitution, rather than $500. The circuit court denied his motion without a hearing. This appeal follows. Additional relevant facts are included below.

DISCUSSION

¶10 Moffett argues that the trial court erred when it denied his motion for postconviction relief without a hearing because he alleged sufficient material facts to require an evidentiary hearing on his claims for plea withdrawal and ineffective assistance of counsel. As to his claim for plea withdrawal, Moffett argues that the circuit court did not accept his allegations as true, but instead accepted the allegations in the complaint to determine that the GPS data would not be exculpatory. We conclude that Moffett has alleged sufficient facts to be entitled to an evidentiary hearing on his motion to withdraw his pleas. Additionally, Moffett argues that the circuit court erred when it denied his claim of ineffective assistance of counsel based on his assertion that trial counsel stipulated to the court's authority to order $2,500 restitution to E.A. On this issue we conclude that Moffett's claim fails. The record shows that trial counsel did not stipulate to the restitution; therefore, Moffett's counsel was not deficient.

I. Plea withdrawal and GPS evidence

¶11 We turn first to the issue of plea withdrawal. "A defendant is entitled to withdraw a guilty plea after sentencing only upon a showing of ‘manifest injustice’ by clear and convincing evidence." State v. Bentley , 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996) (citation omitted). "One way the defendant can show manifest injustice is to prove that his plea was not entered knowingly, intelligently, and voluntarily." State v. Taylor , 2013 WI 34, ¶24, 347 Wis. 2d 30, 829 N.W.2d 482. As noted, Moffett alleges that the State possessed potentially exculpatory GPS evidence and did not provide it to Moffett prior to the plea hearing; therefore, his guilty pleas were not made knowingly because he was not aware of the existence of exculpatory evidence.

¶12 The circuit court's decision to grant or deny an evidentiary hearing on a postconviction motion for plea withdrawal is addressed under a mixed standard of review. "If the motion on its face alleges facts which would entitle the defendant to relief, the circuit court has no discretion and must hold an evidentiary hearing." Bentley , 201 Wis. 2d at 310. "Whether a motion alleges facts which, if true, would entitle a defendant to relief is a question of law that we review de novo." Id. If the defendant fails to allege sufficient material facts, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has discretion to deny the motion without a hearing. Nelson v. State , 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). A defendant must "allege facts which allow the court to meaningfully assess his claim[.]" Bentley , 201 Wis. 2d at 318. The defendant's motion must "allege ... who, what, where, when, why, and how ... within the four corners of the document itself" with "material factual objectivity[.]" State v. Allen , 2004 WI 106, ¶23, 274 Wis. 2d 568, 585, 682 N.W.2d 433.

¶13 First, we review Moffett's allegations drawn from his postconviction motion to determine whether Moffett has alleged sufficient material facts that would entitle him to a hearing on withdrawal of his guilty pleas. Moffett contended that no GPS data was turned over to him or to his counsel during discovery. Moffett asserted that he was unaware that the police had placed a GPS tracking device on the Accord. Moffett affirmatively alleged that had he known there was GPS evidence, he would not have entered guilty pleas. Moffett contended that the GPS evidence would have been exculpatory to count four, the burglary charge, because the evidence would have shown that he did not enter the neighborhood where the burglary occurred until shortly before he was arrested, such that there was insufficient time to commit the burglary before the officers observed him.

¶14 Moffett's motion also asserted that postconviction counsel attempted to obtain the GPS evidence from the State, but the data was no longer accessible and the police could not find an archive of the data. Moffett asserts he had a due process right to discovery of potentially exculpatory evidence, noting that it is...