State v. Rick

385 Wis.2d 212

923 N.W.2d 176 (Table)

2019 WI App 1

STATE of Wisconsin, Plaintiff-Respondent,

v.Donald F. RICK, Defendant-Appellant.^†

Appeal No. 2018AP41-CR

Court of Appeals of Wisconsin.

DATED AND FILED November 13, 2018

PER CURIAM.

¶ 1 Donald Rick appeals a judgment convicting him of first-degree intentional homicide. He argues the circuit court erroneously exercised its discretion by denying his presentence motion for plea withdrawal. He also argues the court erred by denying that motion without first holding an evidentiary hearing. We conclude the court properly denied Rick’s motion and did not err by failing to hold an evidentiary hearing. We therefore affirm.

BACKGROUND

¶ 2 At approximately 3:20 a.m. on March 12, 2016, the Iron County Sheriff’s Department received a 911 call reporting a fire at the Bear Trap Inn in Saxon, Wisconsin. When sheriff’s deputies arrived at the scene, the building was engulfed in flames, and Lisa Waldros, who had been bartending at the Bear Trap Inn that evening, was missing. Two days later, investigators found Waldros’s body inside the remains of the building. A subsequent autopsy revealed that she had been stabbed five times in the neck, and traces of gasoline were found on her clothing.

¶ 3 Rick, who lived a short distance from the Bear Trap Inn, provided an initial statement to law enforcement during a neighborhood canvas. He stated he and his girlfriend, Jessica Carli, went to a casino in Lac du Flambeau on the evening of March 11, 2016, arrived home between 11:00 and 11:30 p.m., went to bed shortly thereafter, and remained in bed until the next morning. Rick stated he first learned about the fire at the Bear Trap Inn when he went outside to walk his dog at about 8:00 a.m. on March 12. However, a citizen witness later told a sheriff’s deputy that he saw Rick arrive at Rick’s residence in a white SUV at about 4:30 a.m. on March 12, and he then talked to Rick for a short time about the fire.

¶ 4 During a subsequent interview with law enforcement on April 14, 2016, Rick admitted his involvement in the fire and in Waldros’s death. He told officers that he and Carli went to a casino on the evening of March 11 and "lost all their money." While driving home, "there was discussion about needing more money," and "it was decided [Rick] would commit a robbery to obtain the money they needed." Rick explained that he decided to rob the Bear Trap Inn because it was the only nearby bar that was still open, and closed bars "would not have much money [on the premises] except start-up money for the next day."

¶ 5 Rick further explained that, after watching the Bear Trap Inn and waiting until all but one of its patrons had left, he returned to his residence and retrieved a mask and a folding hunting knife with a four-inch blade. He then went back to the Bear Trap Inn, and after the last patron left, he "rushed" and "tackled" Waldros as she attempted to leave the building. Rick threatened Waldros with his knife and demanded money, at which point she opened her purse and took out a bag containing $194 in cash. While Rick was retrieving the bag from Waldros, she pulled down his mask and recognized him. A struggle ensued, and Rick stabbed Waldros at least once in the neck, "killing [her]."

¶ 6 After killing Waldros, Rick took the money from the bag and went home. He retrieved a gasoline container and returned to the Bear Trap Inn, where he poured gasoline on and around Waldros’s body. He then ignited the gasoline with a lighter because he hoped to start a fire that would "cover up" Waldros’s murder.

¶ 7 The State ultimately charged Rick with six counts: first-degree intentional homicide; armed burglary; armed robbery; possession of a firearm by a felon; arson of a building; and mutilation of a corpse. The last five counts were charged as a repeater. Rick moved to suppress his incriminating statements to law enforcement, arguing they were not voluntary. The State, in turn, filed a motion in limine seeking to introduce other acts evidence regarding a prior robbery Rick had committed.

¶ 8 Before the circuit court could rule on these pretrial motions, the parties reached a plea agreement. In exchange for Rick’s guilty plea to the first-degree intentional homicide charge, the other charges were dismissed and read in, and the parties remained free to argue at sentencing regarding Rick’s eligibility for extended supervision. The circuit court accepted Rick’s plea on December 8, 2016, and ordered a presentence investigation report (PSI). In his interview with the PSI author, Rick again admitted killing Waldros and setting fire to the Bear Trap Inn. He provided a detailed account of his actions that night, which was consistent with his previous statements to law enforcement. The PSI, which was filed on March 8, 2017, recommended that the court sentence Rick to life imprisonment without the possibility of extended supervision.

¶ 9 On May 17, 2017, Rick filed a presentence motion to withdraw his guilty plea. He did not submit an affidavit in support of his motion. Instead, he asserted within the motion that: (1) he "did not cause" Waldros’s death; (2) Waldros’s death "was caused by Jessica Carli"; (3) he "made the statements against interest and subsequent guilty plea to protect" Carli; (4) he had "since had time to reflect on his protection of" Carli; and (5) his own incriminating statements were the "only evidence" linking him to Waldros’s death.

¶ 10 The State opposed Rick’s plea withdrawal motion, arguing he had failed to establish any of the factors supporting presentence plea withdrawal that are set forth in State v. Shanks , 152 Wis. 2d 284, 448 N.W.2d 264 (Ct. App. 1989). The State also submitted several letters to the circuit court that Rick wrote after entering his guilty plea. In a letter to Carli, dated January 12, 2017, Rick again confessed to killing Waldros, stating, "We spent 5 days together after I killed Lisa and you know I was and still am ruined." In a later section of the same letter, Rick wrote, "[Y]ou mentioned on the way home from the casino that I could go knock one of the guys at the Bear Trap in the head and rob them. When we got home I decided to try it and I decided to rob the bar instead." In a letter to a woman named Janet, dated April 6, 2017, Rick again seemed to admit his involvement in Waldros’s death, stating, "I feel so bad about putting my mom through this and for the pain I’ve caused the victim and her family."

¶ 11 The State also submitted letters Rick wrote in April and May 2017 to a woman named Mary, with whom he had apparently developed a romantic relationship after entering his guilty plea. The State emphasized that Rick sought to withdraw his plea "only after the PSI recommend[ed] life without the possibility of release on extended supervision, and after he develop[ed] a romantic relationship with a woman."

¶ 12 The circuit court held a nonevidentiary hearing on Rick’s plea withdrawal motion on May 25, 2017. After considering the parties’ arguments and the factors set forth in Shanks , the court concluded Rick had failed to demonstrate the existence of a fair and just reason to withdraw his plea. The court therefore denied Rick’s motion. Thereafter, the court sentenced Rick to life in prison without the possibility of extended supervision. Rick now appeals, arguing the court erred by denying his plea withdrawal motion, and by doing so without first holding an evidentiary hearing.

DISCUSSION

I. Denial of Rick’s plea withdrawal motion

¶ 13 We review a circuit court’s decision to grant or deny a presentence motion for plea withdrawal under the erroneous exercise of discretion standard of review. State v. Jenkins , 2007 WI 96, ¶ 30, 303 Wis. 2d 157, 736 N.W.2d 24. Under that standard, we will affirm as long as the court examined the relevant facts, applied a proper standard of law, and used a demonstrated rational process to reach a reasonable conclusion. Id.

¶ 14 Withdrawal of a guilty plea before sentencing is not an absolute right. Id. , ¶ 32. Although a circuit court should "freely" allow a defendant to withdraw his or her plea before sentencing, "freely" does not mean "automatically." State v. Garcia , 192 Wis. 2d 845, 861, 532 N.W.2d 111 (1995). Instead, the defendant must prove, by a preponderance of the evidence, that there is a fair and just reason to withdraw his or her plea. Jenkins , 303 Wis. 2d 157, ¶ 32. The reason must be something other than the mere desire to have a trial, or belated misgivings about the plea. Id.

¶ 15 The term "fair and just reason" does not "lend itself to scientific exactness." State v. Harvey , 2006 WI App 26, ¶ 25, 289 Wis. 2d 222, 710 N.W.2d 482. However, in Shanks , we listed several factors courts should consider when analyzing whether a fair and just reason exists, namely: (1) an assertion of innocence by the defendant; (2) a genuine misunderstanding regarding the consequences of the plea; (3) hasty entry of the plea; (4) confusion on the defendant’s part; (5) coercion by defense counsel; and (6) whether the defendant promptly filed his or her plea withdrawal motion. Shanks , 152 Wis. 2d at 290. We also observed that a defendant’s proffered "fair and just reason" must be "plausible"—that is, it must be "supported by the evidence of record." Id. In other words, a defendant must do more than merely allege a fair and just reason; he or she must also show that the reason actually exists. State v. Kivioja , 225 Wis. 2d 271, 291, 592 N.W.2d 220 (1999).

¶ 16 Here, Rick argues he established a fair and just reason to withdraw his guilty plea by asserting that he did not kill Waldros, that his confession to that crime was false, and that he falsely confessed in order to protect his then-girlfriend, Carli, who was the true perpetrator. After analyzing the factors set forth in Shanks , the circuit court determined Rick had failed to establish a fair and just reason to withdraw his plea. We conclude the court properly exercised its discretion in that...