State v. West

412 Wis. 2d 758

8 N.W.3d 460

State of Wisconsin, Plaintiff-Respondent,

v.Cordiaral F. West, Defendant-Appellant.

Court of Appeals

No. 2022AP2196. Submitted on briefs August 28, 2023. — Decided May 1, 2024.

2024 WI App 35

(Also reported in 8 N.W.3d 460.)

APPEAL from an order of the circuit court for Fond du Lac County: DALE L. ENGLISH, Judge. Affirmed.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Rex R. Anderegg of Anderegg & Associates, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sara Lynn Shaeffer, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Neubauer, Grogan and Lazar, JJ.

¶ 1. GROGAN, J. Cordiaral F. West appeals from an order denying his motion seeking to withdraw his guilty plea to one charge of possession with intent to deliver cocaine, greater than five grams but not more than fifteen grams, contrary to Wis. Stat. § 961.41(1m)(cm)2 (2021-22),¹ as a second and subsequent offense. On appeal, West asserts that the post-conviction court erred in denying his motion without an evidentiary hearing and that he should be allowed to withdraw his plea because: (1) he pled guilty based on his erroneous understanding of possession; and (2) there was an inadequate factual basis to support his plea. We affirm.

I. BACKGROUND

¶ 2. The State initially charged West with four counts of conspiracy to manufacture/deliver cocaine (two counts of not more than one gram and two counts of greater than one gram but not more than five grams), one count of conspiracy to commit possession with intent to deliver cocaine greater than five but not more than fifteen grams, and one count of conspiracy to commit possession with intent to deliver tetrahydro- cannabinols (THC) two hundred grains or less.² See Wis. Stat. § 961.41(1)(cm)1g, 961.41(1)(cm)1r, 961.41(1m)(cm)2, 961.41(1)(h)1, and 961.41(1x). The following details related to those counts are taken from the Complaint.

¶ 3. On September 24, 2014, a confidential informant (CI) notified the Lake Winnebago Area Metropolitan Enforcement Group-Drug Unit (Drug Unit) that he had obtained contact information for two individuals from whom he could purchase illegal drugs —West and Dazwan D. Jones. According to the CI, West informed him that he "was in the crack cocaine business[,]" had given the CI "a couple rocks of crack cocaine," and provided contact information should the CI become interested in purchasing more crack cocaine. The CI further indicated that Jones often answered the phone when he called the numbers West provided and that Jones always conducted the transactions. That same day, the CI, under the direction of Drug Unit members, made two separate purchases of crack cocaine from Jones, the first of which weighed approximately 0.6 grams and the second of which weighed approximately 0.7 grams (counts one and two, respectively). Two days later, the CI and an undercover agent made two additional purchases of crack cocaine from Jones, one of which weighed 1.1 grams and the other 1.6 grams (counts three and four, respectively).

¶ 4. On September 26, 2014, following the four cocaine purchases over the prior two days, officers executed a search warrant at a residence ultimately determined to have been inhabited by Miguel West.³ During their search of the residence, officers located 14.53 total grams of crack cocaine in the basement, 64.7 total grams of marijuana, packaging materials, cash, and mail addressed to multiple individuals— including one piece of mail addressed to Cordiaral West at that residence. The cocaine and marijuana discovered during the search formed the basis of counts five and six, respectively. While executing the search warrant, officers made contact with Miguel West, who was present at the residence, and officers later took Jones into custody after locating him nearby.

¶ 5. In June 2015, the State filed an Information adding two additional charges, both of which related to conduct occurring on May 24, 2015. The first additional charge (count seven) alleged West possessed cocaine in an amount of more than one gram but not more than five grams with intent to deliver contrary to Wis. Stat. § 961.41(1m)(cm)1r, and the second additional charge (count eight) alleged obstructing an officer contrary to Wis. Stat. § 946.41(1).

¶ 6. Prior to trial, West moved to sever the seventh and eighth charges and then to dismiss five of the six conspiracy charges based on a multiplicity challenge; however, the circuit court denied both motions. On the first day of the scheduled trial, West negotiated a plea with the State wherein the State would dismiss counts one through six and count eight, and it would amend count seven to one charge of possession of cocaine with intent to deliver greater than five but not more than fifteen grams, as a second and subsequent offense, contrary to Wis. Stat. §§ 961.41(1m)(cm)2 and 961.48(1)(b), in exchange for West's guilty plea. West signed a Plea Questionnaire/Waiver of Rights to that effect.⁴

¶ 7. In advising the circuit court of the negotiated plea, the State explained it had filed an Amended Information that identified a specific date range— September 24, 2014, through May 24, 2015, inclusive —rather than a specific date as the period of the alleged violation (possession with intent to deliver). The State advised that this single amended charge would reduce "West's overall exposure [while] still accurately reflect[ing] the facts, at least, what the State believes it could prove if put to its proof at trial" and that it believed it had "sufficient evidence to prove that in total between [the alleged dates] that Mr. West… possessed more than five but less than [fifteen] grams total during that entire time." In regard to West's decision to enter the negotiated plea rather than proceed with the trial, defense counsel explained that doing so was beneficial to avoid the possibility of appellate issues related to the joinder of claims seven and eight and West having to present inconsistent defenses as to the conspiracy charges versus the non-conspiracy charges at trial.

¶ 8. The circuit court accepted the Amended Information and then explained the details of the single charge to West and what the State would be required to prove at trial—including the amended date range, amended amount of cocaine, and potential maximum penalties and terms of imprisonment. When asked, West confirmed he had engaged in the charged conduct as amended and entered a guilty plea. During the plea colloquy, the court confirmed with West, among other things, that he had sufficient opportunities to speak with his attorney, that he did not have any questions regarding the plea waiver form, that he was satisfied with his attorney, and that he was entering the plea freely, knowingly, and voluntarily. West's attorney then confirmed his belief that there was a factual basis for the amended charge. The court found that West "freely, knowingly and voluntarily entered his guilty plea to the sole count of the Amended Information" and therefore found West guilty of the charge. In November 2015, the court sentenced West "to ten years of confinement and three years of extended supervision consecutive to any other sentence."⁵

¶ 9. Six years later, in June 2022, West filed a Wis. Stat. § 974.06 motion seeking withdrawal of his guilty plea.⁶ In his motion, West asserted that he did not possess, at one single time during the relevant September 24, 2014, through May 24, 2015 time period, "five or more grams of cocaine" and that he "only pled guilty because he was under the impression that the State could prove the offense by adding up smaller amounts of cocaine that he was alleged to have possessed on separate occasions." According to West, he had "since learned that it was improper to add up smaller amounts of cocaine that he might have possessed at separate times to create a possession case of a larger amount that he never possessed at one time" and that had he "been aware of the impropriety of doing so, he would not have pled guilty to that charge[.]" West argued he should be allowed to withdraw his plea because it "was based on an erroneous information regarding possession" and because "there was an inadequate factual basis for the crime to which he pled."

¶ 10. In support of his motion, West argued he should be allowed to withdraw his plea pursuant to State v. Bangert, 131 Wis. 2d 246, 267, 389 N.W.2d 12 (1986), because the plea "colloquy failed to establish whether the underlying conduct constituted the crime to which he entered a plea[,]" the circuit court had not "asked when, between September 24, 2014 and May 24, 2015, West possessed more than 5, but less than 15, grams of cocaine[,]" and "there was an implicit belief that the possession of smaller amounts was cumulative[ ] and that several less serious offenses could be combined into a single more serious offense." Based on all of this, West said, he did not understand at the time of his plea that "his conduct does not actually fall within the charge" since he never possessed at least five grams of cocaine at one single time, and therefore there was no factual basis to support his plea.

¶ 11. Alternatively, West argued he was entitled to plea withdrawal pursuant to 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) (hereinafter Nelson/Bentley). As to his Nelson/Bentley claim, West asserted there was a factor external to the plea colloquy that led to his misunderstanding of the law and whether he had engaged in the conduct alleged: "defense counsel's failure to accurately review the full and actual elements of the offense with [him] and explain how his conduct would have satisfied possession of 5-15 grams of cocaine." This, he said, rendered defense counsel ineffective pursuant to Strickland v. Washington, 466 U.S. 668 (1984), because: (1) defense counsel performed...