State v. Smiley

1

State of Wisconsin, Plaintiff-Respondent, v. Eric J. Smiley, Jr., Defendant-Appellant.

No. 2023AP618-CR

Court of Appeals of Wisconsin, District I

October 22, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL from a judgment and an order of the circuit court for Milwaukee County No. 2017CF1419: DAVID L. BOROWSKI and GLENN H. YAMAHIRO, Judges.

Before Geenen, Colon and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

PER CURIAM.

¶1 Eric J. Smiley, Jr. appeals from the judgment convicting him of one count of felony murder and one count of armed robbery as a party to a crime. Smiley also appeals from the order denying his motion for plea withdrawal.^[1] We affirm.

BACKGROUND

¶2 On March 22, 2017, Smiley, along with Qhualun D. Shaw and Deshaun K. Scott, used a sawed-off shotgun to carjack a woman's Kia at a gas station. Smiley was driving the stolen Kia when he stopped to allow Scott and Shaw to attempt another carjacking. During this attempt, Scott shot Greg Zyszkiewicz in the head, killing him. Scott and Shaw ran back to the Kia, and Smiley drove away. A few hours later, police saw Smiley driving the Kia, and when they tried to stop him Smiley fled. Smiley eventually stopped the Kia and continued fleeing on foot, until he was caught and arrested. The State charged Smiley with, among other crimes, felony murder in relation to Zyszkiewicz's death during the attempted armed robbery.

¶3 Smiley moved to suppress incriminating statements he made during a lengthy custodial interrogation on the grounds that they were involuntary and coerced. According to Smiley, both detectives interrogating him repeatedly assured him that he would not be charged with a homicide. Based on those representations Smiley was induced to make incriminating statements related to his involvement in Zyszkiewicz's death.

¶4 The circuit court held a Miranda-Goodchild hearing.^[2] After hearing testimony from one of the interrogating detectives and watching a recording of the interrogation, the court granted Smiley's motion in part and made the following findings. Smiley, who was twenty-one years old at the time, was interrogated for approximately six and one-half hours. The interrogation began at around 4:03 a.m. the day after his arrest and ended at approximately 10:12 a.m.

¶5 The circuit court also made findings about Smiley's and the detectives' behavior during the interview. Approximately fifty-six minutes into the interrogation, the detectives read Smiley his Miranda rights, and Smiley indicated that he understood his rights and agreed to talk to police. The interrogation took place in a small police interrogation room, Smiley was not handcuffed or otherwise restrained, and he was advised that the interrogation was being recorded. The detectives provided water, soda, and cigarettes to Smiley, they never threatened Smiley, and the three of them spoke calmly and politely with each other. Smiley was awake, alert, attentive, and engaged throughout the interrogation, and he showed no signs of impairment, intoxication, mental health issues, or anything else that might interfere with his ability to understand what was happening around him or to understand what he was doing. Smiley made statements and asked questions that matched the subject matter being discussed by the detectives.

¶6 The circuit court found that Smiley had prior experience with law enforcement and was familiar with some criminal law concepts such as initial confinement, extended supervision concurrent and consecutive sentences, and being charged as party to the crime. During the interrogation, Smiley "was concerned about not being charged for anything related to the death of Mr. Zyszkiewicz." The detectives knew about Smiley's concern "and that this was a barrier potentially to [Smiley] providing statements about the events surrounding [Zyszkiewicz's] death, including [Smiley's] involvement in those events."

¶7 After affirming the extent to which Smiley acted voluntarily the circuit court also concluded that the detectives "crossed the line" at the 6:01:40 mark when they told Smiley that they were "giving [him] a pretty certain guarantee that [he was] not going to pick up a reckless homicide charge." The circuit court also observed that the detectives told Smiley that he would face a robbery-while-armed charge, fleeing, and "that's it." It found that the detectives knew that Smiley was not concerned about a charge having the word "homicide" in the title, but instead, was concerned about being charged with "anything related to the death of [Zyszkiewicz]."

¶8 Based on the totality of the circumstances, including Smiley's personal characteristics, the length and conditions of interrogation, and the strategies used by detectives to induce Smiley to continue talking, the circuit court concluded that the detectives' charging promise was misleading to Smiley and was used to "overcome [Smiley's] free will and deliberate choice." The circuit court granted Smiley's motion to suppress any statements made after the 6:01:40 mark, but it denied the motion with respect to Smiley's statements made before that point.

¶9 On the first day of trial, Smiley pleaded guilty to felony murder and armed robbery as a party to the crime. In exchange for the guilty pleas, the State agreed to dismiss outright the remaining charges, and though the State was free to argue at sentencing as to felony murder, it would make no sentencing recommendation as to armed robbery. During the plea colloquy, the circuit court asked Smiley if anyone promised him anything to get him to plead guilty, and Smiley replied, "No." The circuit court noted that counsel spent "a very, very significant amount of time" with Smiley discussing the plea, and at Smiley's request, counsel also consulted with Smiley's father and other family members.

¶10 At the sentencing hearing, the State argued that although Smiley was not the shooter, Smiley was older than both Scott and Shaw, and it appeared that Smiley was leading the group. Smiley argued that he was not the "mastermind" or otherwise in control of Scott and Shaw.

¶11 After noting the need for proportionality and that Scott, the shooter, was sentenced to thirty years of initial confinement, the circuit court sentenced Smiley to twenty-four years of initial confinement followed by eight years of extended supervision for felony murder, and eight years of initial confinement followed by seven years of extended supervision for armed robbery, to be served consecutively. In imposing its sentence, the circuit court recognized that Smiley was "not the one who pulled the trigger," but emphasized the gravity of the offense Smiley's criminal history, his age in comparison to Scott and Shaw, and his role as the driver and "ringleader" during a crime spree. Although the circuit court twice acknowledged that the other charges against Smiley were dismissed outright and not read-in, it commented during sentencing that Smiley made "many bad decisions" that day, including "running around with a sawed-off shotgun," and engaging in the armed robbery of the first victim.

¶12 Smiley filed a Nelson/Bentley^[3] motion to withdraw his plea based on ineffective assistance of counsel. Among other arguments, Smiley asserted that his guilty plea was not knowingly, intelligently, and voluntarily entered because: (1) counsel promised that he would not be treated as the ringleader of Scott and Shaw, and (2) counsel allowed him to believe that the dismissed charges would not be considered during sentencing. The circuit court held a Machner hearing where trial counsel and Smiley both testified.

¶13 Trial counsel testified that Smiley never said that he would have difficulty pleading guilty if he was going to be treated or sentenced as the ringleader. When asked about the State's initial plea offer, in which Smiley would plead guilty to felony murder and armed robbery and the State would dismiss and read-in- rather than dismiss outright-the remaining charges, trial counsel advised Smiley to take the offer. Trial counsel testified that Smiley was reluctant to take the offer not because Smiley was under the impression that he would be viewed as the ringleader, but because "it was hard to make a decision in the bullpen on the day of trial." Trial counsel stated that there was never a discussion with the district attorney about Smiley having a problem with being viewed as the ringleader. Trial counsel also testified that although he would not present Smiley as the ringleader at sentencing and would dispute that assertion if made by the State, he would not have told Smiley that the court was not going to view Smiley as the ringleader.

¶14 When asked if he ever said anything to Smiley "to make him think that the [c]ourt wasn't going to consider his activities that whole day from the armed robbery to the fleeing," trial counsel responded, "No." Trial counsel said that even after the plea offer changed from read-in charges to the outright dismissal of charges, he explained to Smiley that the circuit court would still "consider all of the factors [and] the circumstances surrounding it."

¶15 Smiley testified that trial counsel only visited him once between December 2017-when he was transferred to Green Bay Correctional Institution- and April 2019, when he entered his plea. Smiley also testified that although the meeting was set to view the videotaped interrogation, Smiley only had about forty-five minutes to view it. Smiley said that, after he transferred to another correctional facility, trial counsel only called Smiley "[m]aybe two" times, and during...