Opinion · Wisconsin Supreme Court
State v. Richard J. Sulla
369 Wis. 2d 225
- Type
- Opinion
- Court
- Wisconsin Supreme Court
- Jurisdiction
- Wisconsin
- Date
- 2016-06-14
- Topic
- litigation
MICHAEL J. GABLEMAN, J. ¶ 1. This is a review of an unpublished decision of the court of appeals,1 which reversed the Jefferson County Circuit Court's2 order denying Richard Sulla's ("Sulla") post-conviction motion to withdraw his no contest pleas. ¶ 2. This case requires us to examine the circumstances under which a circuit court may deny a defendant's postconviction motion for plea withdrawal without holding an evidentiary hearing. Specifically, we consider whether a circuit court may, without holding an evidentiary hearing, deny a defendant's motion to withdraw his plea when the defendant alleges that his plea was not knowing, intelligent, and voluntary because he did not understand the effect a read-in charge could have at sentencing. ¶ 3.
Citator
- Cited by
- 25 opinions
2016 WI 46
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2316-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Richard J. Sulla,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 364 Wis. 2d 405
,866 N.W.2d 404
)
(Ct. App. 2015 – Unpublished)
OPINION FILED: June 14, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 20, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Jefferson
JUDGE: David J. Wambach
JUSTICES:
CONCURRED: BRADLEY, A. W., J. and ABRAHAMSON, J. concur
(Opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Anne C. Murphy, assistant attorney general, with whom
on the briefs was Brad D. Schimel, attorney general.
For the defendant-appellant there was a brief by Scott A.
Szabrowicz, Greenfield. Oral argument by Scott A. Szabrowicz.
2016 WI 46
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP2316-CR
(L.C. No. 2011CF221)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. JUN 14, 2016
Richard J. Sulla, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of an
unpublished decision of the court of appeals,1 which reversed the
Jefferson County Circuit Court's2 order denying Richard Sulla's
("Sulla") postconviction motion to withdraw his no contest
pleas.
¶2 This case requires us to examine the circumstances
under which a circuit court may deny a defendant's
1
State v. Sulla, No.2013AP2316-CR, unpublished slip op.
(Wis. Ct. App. May 21, 2015) (per curiam).
2
The Honorable David J. Wambach presided over the
postconviction motion hearing.
No. 2013AP2316-CR
postconviction motion for plea withdrawal without holding an
evidentiary hearing. Specifically, we consider whether a circuit
court may, without holding an evidentiary hearing, deny a
defendant's motion to withdraw his plea when the defendant
alleges that his plea was not knowing, intelligent, and
voluntary because he did not understand the effect a read-in
charge could have at sentencing.
¶3 The State brought four charges against Sulla in
Jefferson County relating to two burglaries and an arson. Sulla
and the State entered into a plea agreement, under which Sulla
would plead no contest to Counts 1 and 3, while Counts 2 and 4
would be dismissed and read into the record for purposes of
sentencing and restitution.3 Prior to entering his plea, Sulla
read and signed a Plea Questionnaire/Waiver of Rights form, and
the circuit court held a plea hearing.4 At the plea hearing, the
3
The State charged Sulla with the following:
1. Count 1: Burglary, arming oneself with a dangerous
weapon, contrary to Wis. Stat. §§ 943.10
(2)(b)
and 939.62(1)(c)
2. Count 2: Conspiracy to commit arson, contrary to Wis. Stat. §§ 943.02
(1)(a), 939.31, and 939.62(1)(c)
3. Count 3: Burglary, contrary to Wis. Stat. §§ 943.10
(1m)(a) and 939.62(1)(c); and
4. Count 4: Operating a motor vehicle without the
owner's consent, as a party to a crime, contrary to
Wis. Stat. §§ 943.23
(2), 939.05, and 939.62(1)(b).
4
The Honorable Jacqueline R. Erwin presided over the plea
hearing and the sentencing hearing.
2
No. 2013AP2316-CR
court concluded that Sulla's pleas were made in a knowing,
intelligent, and voluntary fashion, and it ordered judgments of
guilt be entered accordingly. The court then held a sentencing
hearing and, after extensive discussion, sentenced Sulla to 15
years imprisonment, consisting of 7.5 years of initial
confinement and 7.5 years of extended supervision for Count 1,
and 5 years imprisonment, consisting of 2.5 years of initial
confinement and 1.5 years of extended supervision for Count 3.
The court ordered the sentences to run consecutively to one
another and to all other sentences.
¶4 Sulla filed a motion for postconviction relief,
seeking to withdraw his no contest pleas on the basis that his
pleas were not made in a knowing, intelligent, and voluntary
fashion. Sulla claimed that his pleas were unknowing because he
"did not understand that for purposes of the read-in charge, he
would effectively be considered to have committed the offense."
To support his motion, Sulla filed an affidavit, which stated,
in pertinent part, "[M]y attorney [] told me that agreeing to
the read-in offense of arson was not admitting guilt and that it
was just something the Court would 'look at' at sentencing. I
did not understand and my Attorney did not explain the effect
that a read-in offense has . . . ." In short, Sulla claimed that
he was misinformed by his attorney and that because he was
misinformed, he did not understand the effect the read-in
charges would have at sentencing.
¶5 The postconviction court denied Sulla's motion to
withdraw his plea without first holding an evidentiary hearing.
3
No. 2013AP2316-CR
The court concluded that Sulla was not entitled to an
evidentiary hearing on his motion because his affidavit failed
to allege sufficient facts which, if true, would entitle Sulla
to relief. In addition, the postconviction court found that
Sulla was not entitled to an evidentiary hearing because the
record conclusively demonstrated that Sulla was not entitled to
relief. The court of appeals reversed, concluding that Sulla's
motion did allege sufficient facts and further concluding that
Sulla was entitled to an evidentiary hearing because the record
did not conclusively demonstrate that Sulla understood the
effect of the read-in charges at sentencing. The State appealed.
¶6 The issue before us is whether the postconviction
court was required to hold an evidentiary hearing before it
determined whether Sulla had entered his pleas in a knowing,
intelligent, and voluntary fashion. To address this issue, we
apply the test set forth in Nelson v. State, 54 Wis. 2d 489
,195 N.W.2d 629
(1972), and refined in State v. Bentley,201 Wis. 2d 303
,548 N.W.2d 50
(1996) (hereinafter "Nelson/Bentley"). Nelson/Bentley instructs that "if a motion to withdraw a guilty plea after judgment and sentence alleges facts which, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing." State v. Bentley,201 Wis. 2d 303, 310
,548 N.W.2d 50
(1996) (quoting Nelson v. State,54 Wis. 2d 489, 497-98
,195 N.W.2d 629
(1972). However, "if the
record conclusively demonstrates that the defendant is not
entitled to relief, the trial court may in the exercise of its
4
No. 2013AP2316-CR
legal discretion deny the motion without a hearing." Id.
at 310 (quoting Nelson,54 Wis. 2d at 497-98
).
¶7 We conclude that the postconviction court was not
required to hold an evidentiary hearing before it determined
whether Sulla had entered his pleas in a knowing, intelligent,
and voluntary fashion. Here, the postconviction court properly
exercised its discretion when it denied Sulla's postconviction
motion to withdraw his plea without first holding an evidentiary
hearing because it applied the proper legal standard, examined
the relevant facts, and engaged in a rational decision making
process. Moreover, when we apply the Nelson/Bentley test to this
case, we conclude that Sulla is not entitled to an evidentiary
hearing on his postconviction motion to withdraw his plea. The
record in this case, specifically the Plea Questionnaire/Waiver
of Rights form and the transcripts from the plea hearing and the
sentencing hearing, conclusively demonstrates that Sulla is not
entitled to relief because he was correctly informed of and
understood the effect of the read-in charges at sentencing.5
5
Sulla also raises issues related to judicial bias and
ineffective assistance of counsel in his briefing; however,
these arguments were not raised in the petition for review. We
did not order that any issues presented outside of the petition
for review be granted and briefed. Therefore, we do not address
Sulla's additional arguments. See Jankee v. Clark Cty., 2000 WI 64, ¶7
,235 Wis. 2d 700
,612 N.W.2d 297
("Generally, a
petitioner cannot raise or argue issues not set forth in the
petition for review unless the court orders otherwise. If an
issue is not raised in the petition for review or in a cross
petition, 'the issue is not before us.'" (citation and footnote
omitted) (quoting State v. Weber, 164 Wis. 2d 788
, 791 n.2,476 N.W.2d 867
(1991) (Abrahamson, J., dissenting))).
5
No. 2013AP2316-CR
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Charging and Plea Bargaining
¶8 On July 26, 2011, the State charged Sulla with two
counts of burglary, one count of conspiracy to commit arson, and
one count of party to the crime of operating a motor vehicle
without the owner's consent, all as a repeat offender. Sulla, if
convicted of each count, would have faced a maximum period of
imprisonment of 95 years and 6 months.6 Despite initially
pleading not guilty on all four counts, Sulla later entered into
a plea deal with the State. In exchange for pleading no contest
to Count 1 (armed burglary) and Count 3 (burglary), the State
agreed to dismiss but have read into the record Count 2 (arson)
and Count 4 (operating motor vehicle without consent). Sulla's
plea deal decreased his maximum period of imprisonment to 39
years and 6 months.
¶9 Prior to entering his plea, Sulla read and signed a
Plea Questionnaire/Waiver of Rights form. A list of
"Understandings" on the form included a statement addressing
read-in charges:
6
For Count 1 (armed burglary), Sulla could have been
imprisoned not more than 15 years plus a 6 year repeat offender
enhancer. For Count 2 (arson), Sulla could have been imprisoned
not more than 40 years plus a 6 year repeat offender enhancer.
For Count 3 (burglary), Sulla could have been imprisoned not
more than 12 years and 6 months plus a 6 year repeat offender
enhancer. For Count 4 (operating a vehicle without consent),
Sulla could have been imprisoned not more than 6 years plus a 4
year repeat offender enhancer. Adding all four counts together
totals 95 years and 6 months.
6
No. 2013AP2316-CR
I understand that if any charges are read-in as part
of a plea agreement they have the following effects:
Sentencing——although the judge may consider
read-in charges when imposing sentence, the
maximum penalty will not be increased.
Restitution——I may be required to pay
restitution on any read-in charges.
Future prosecution——the State may not prosecute
me for any read-in charges.
Sulla signed the Plea Questionnaire/Waiver of Rights form,
acknowledging, "I have reviewed and understand this entire
document and any attachments. I have reviewed it with my
attorney . . . . I have answered all questions truthfully and
either I or my attorney have checked the boxes. I am asking the
court to accept my plea and find me guilty." Sulla's attorney
also signed the Plea Questionnaire/Waiver of Rights form,
acknowledging, "I am the attorney for the defendant. I have
discussed this document and any attachments with the defendant.
I believe the defendant understands it and the plea agreement.
The defendant is making this plea freely, voluntarily, and
intelligently. I saw the defendant sign and date this document."
B. Plea Hearing
¶10 On April 10, 2012, the circuit court held a plea
hearing. At the plea hearing, the court specifically discussed
read-in charges——and their effect at sentencing——with Sulla:
THE COURT: Mr. Sulla, I understand that of the four
counts made against you, you intend to withdraw your
not guilty pleas and instead plead no contest to
crimes in Counts 1 and 3 called armed burglary and
burglary both as habitual criminals. Is that right?
7
No. 2013AP2316-CR
SULLA: Yes, ma'am.
THE COURT: And then you expect that both sides will
ask me to dismiss Counts 2 and 4, conspiracy to commit
arson and operating motor vehicle without owner's
consent, again both as habitual criminal, but have me
consider those offenses when I sentence you, also
true?
SULLA: Yes, ma'am.
(Emphasis added.) As part of the plea hearing, the circuit court
also confirmed that Sulla had an opportunity to discuss his plea
with his attorney:
THE COURT: So Mr. Sulla, have I correctly stated the
representation that the State's attorney has made to
you regarding the State's recommendations?
SULLA: Yes, ma'am.
THE COURT: Have you had enough time with Mr. De La
Rosa?[7]
SULLA: Yes, ma'am.
THE COURT: He's told you and you've--you understand
from him that I don't have to follow that
recommendation or your recommendation or anyone's
recommendations in these cases, don't you?
SULLA: Yes, ma'am.
In addition, the court warned Sulla that regardless of the
recommendation made by the State, the court could award the
maximum statutory sentence:
THE COURT: In fact, on Count 1, I could order
imprisonment up to 21 years and up to $50,000 in fines
and on Count 3, I could order imprisonment up to 18
1/2 years and up to $25,000 in fines, so regardless of
7
Attorney Jeffery De La Rosa represented Sulla at his plea
hearing.
8
No. 2013AP2316-CR
the recommendations, my authority is to--for a total
of 39 1/2 years imprisonment and $75,000 in fines; do
you understand my sentencing authority?
SULLA: Yes, ma'am.
Finally, the court confirmed that Sulla read, understood, and
signed the Plea Questionnaire/Waiver of Rights form:
THE COURT: I was reading in part from a yellow
document called plea questionnaire and waiver of
rights and I see Mr. De La Rosa's signature on it from
this morning. I recognize it. Did you also sign it
this morning?
SULLA: Yes, ma'am.
THE COURT: Before you did, did you read and
understand it?
SULLA: Yes, ma'am.
THE COURT: There is another document that you and Mr.
De La Rosa filed with it and it is called a felony
element of criminal offenses. Did you read it before
you signed this yellow document?
SULLA: Yes, ma'am.
THE COURT: Did you understand everything in both
papers?
SULLA: Yes, ma'am.
After finishing the plea colloquy, the court found that Sulla's
pleas were made in a knowing, intelligent, and voluntary
fashion. Specifically, the court stated,
These pleas are knowing, voluntary, and intelligent.
They and the dismissed charges are sufficiently
supported by fact. I accept the pleas, find the
defendant to be a habitual criminal. Find him guilty
as he's charged in Counts 1 and 3 and on the request
of both parties and for the reasons provided by the
district attorney, dismiss Counts 2 and 4. I'll
consider them at sentencing. I order that judgment
enter.
9
No. 2013AP2316-CR
(Emphasis added.) The case then proceeded to sentencing.
C. Sentencing Hearing
¶11 The circuit court held a sentencing hearing on May 15,
2012. At the sentencing hearing, the court explained the effect
that the read-in arson charge would have on its sentencing
determination for Count 1:
I want to say two things. One is, you asked me to
dismiss it and consider it as a read-in. So I'm going
to. I'm not going to consider that you are uninvolved
with it. You gave me a victim--you gave me a plea
questionnaire that says that you understand that if
charges are read in as part of the plea agreement they
have the following effect; at sentencing, the judge
may consider read-in charges when imposing sentence,
but the maximum penalty will not be increased and that
you might be required to pay restitution for read-in
charges and that the State can't prosecute you
separately for it in the future.
The second consideration I have of the arson is
that, let's say for argument purposes that you were in
Michigan at the time of the arson, that you were non-
participatory in the torching altogether. As far as I
can tell from your statement, the arson followed the
burglary that you were involved with. And so it
followed that felony.
(Emphasis added.)
¶12 After discussing several other sentencing factors,8
such as Sulla's age, his 18 previous convictions, and the nature
8
The circuit court methodically applied the sentencing
factors set forth in State v. Gallion, 2004 WI 42
,270 Wis. 2d 535
,678 N.W.2d 197
, stating, "As always, the Court
considers three categories, three factors in any sentence. One
is the character of the defendant. Another is the nature and
gravity of the crimes and a third is the need for public
protection. And I'll do that here and I'll do it in about that
series."
10
No. 2013AP2316-CR
of his crime, the court sentenced Sulla to a total of 20 years,
which is nearly half the maximum period of imprisonment (39
years and 6 months).9 On Count 1, Sulla received 15 years
imprisonment, consisting of 7.5 years of initial confinement and
7.5 years of extended supervision. On Count 3, Sulla received 5
years imprisonment, consisting of 2.5 years of initial
confinement and 1.5 years of extended supervision. The court
ordered the sentences to run consecutively to one another and to
all other sentences.
D. Postconviction Motion and Hearing
¶13 On August 5, 2013, Sulla filed a motion to withdraw
his plea10 on the basis that his plea was not knowing,
intelligent, and voluntary because he did not understand the
effect a read-in charge could have at sentencing.11 To support
his motion, Sulla submitted an affidavit, which stated, in
pertinent part,
[M]y Attorney De La Rosa told me that agreeing to the
read-in offense of arson was not admitting guilt and
that it was just something the Court would "look at"
9
Before imposing its sentence, the circuit court asked
Sulla if "there was anything [he] would like to say." Sulla took
the opportunity to comment on his criminal history and to
apologize to the victims. At no point did Sulla ask for
clarification regarding his plea agreement or the effect a read-
in charge could have on his sentence.
10
Sulla brought his motion for postconviction relief
pursuant to Wis. Stat. § 809.30
.
11
Attorney Scott A. Szabrowicz has continued to represent
Sulla throughout Sulla's postconviction proceedings.
11
No. 2013AP2316-CR
at sentencing. I did not understand and my Attorney
did not explain the effect that a read-in offense has
because Attorney De La Rosa did not explain it to me.
In fact, I did not commit the arson and if I had known
that it was going to be considered as a negative at my
sentencing I would not have entered the no contest
plea.
¶14 On September 6, 2013, the court held a postconviction
motion hearing. Ultimately the court, without holding an
evidentiary hearing, denied Sulla's motion to withdraw his plea.
Applying the two-part test set forth in Nelson/Bentley, the
postconviction court concluded that Sulla was not entitled to an
evidentiary hearing on his motion for plea withdrawal because
(1) Sulla's motion failed to alleged sufficient facts which, if
true, would have entitled Sulla to relief and (2) even if
Sulla's motion had alleged sufficient facts, the record
conclusively demonstrated that Sulla was not entitled to relief
because he was correctly informed of and thus understood the
effect of the read-in charges at sentencing.
¶15 Regarding the first prong of Nelson/Bentley, the
postconviction court reasoned,
Counsel was not deficient in his performance, vis-à-
vis the need to sufficiently advise/appraise the
defendant of the import of the arson read-in. Even if
you consider the affidavit of the defendant, he claims
that counsel told him he "was not admitting guilt and
that it [the arson] was just something the court would
'look at' at sentencing." Those are accurate
statements of the law. The court would not find him
guilty of the arson for purposes of exposure to a
sentence on that offense and "look at" is another way
to describe "consider". This court finds the
allegation does not even rise to the level of
deficiency.
12
No. 2013AP2316-CR
(Alterations in original.) Regarding the second prong of
Nelson/Bentley, the postconviction court explained,
Before the court even undertook a colloquy with
the defendant, the defendant's counsel went through
two documents with him . . . . The first is the
Modified Criminal Case Settlement form . . . . That
document bears the signature of both the defendant and
counsel. That exhibit clearly notes that the defendant
would be responsible for restitution in the two
amounts listed, which total $462,070.00. This document
alone completely undercuts the claim that he did not
know that the court would consider he committed the
arson; otherwise how do you get to that amount of
restitution without being held responsible for the
arson? You can't. . . .
The court additionally finds that . . . the Plea
Questionnaire/Waiver of Rights form has a section on
the back side entitled, "Understandings". The second
to last bullet in that box gives a legally proper and
sufficient explanation of how read-in offenses will be
considered by the sentencing court. Even the defendant
does not allege that they are deficient in any way and
the court finds and concludes that they are not (see
the Wisconsin Judicial Benchbook-Page 43-7, 2013
version and State v. Frey ¶62-77). Nor does the
defendant allege that he did not sign the waiver of
rights form with his attorney . . . . The defendant's
signature lies beneath a segment of language entitled,
"Defendant's Statement" which reads in pertinent part
that he has "reviewed and understand[s] this entire
document" which obviously would include the section
and bullet described above. But the record and this
court's findings in this regard do not stop there.
At the plea hearing, the transcript
reveals . . . that the defendant did understand the
court could consider his culpability as to the arson
in crafting [his] sentence under his pleas to count
one and three. Plea hearing TR. P.3 l.4-10; p.4 l.6-8
as well as l.22-25; p.5 l.1-5 as well as l.11-13; p.7
l.7-9; and p.10 l.5-8. Those references clearly and
conclusively demonstrate that the court's colloquy
with the defendant established that he knew that [the
13
No. 2013AP2316-CR
sentencing court] would consider [the read-
ins] . . . .
¶16 Throughout its analysis, the court highlighted several
specific facts: (1) Sulla agreed to have the arson charge read
into the record, (2) the read-in charge allowed Sulla to avoid
significant prison exposure from the arson charge, (3) Sulla
signed the Plea Questionnaire/Waiver of Rights form, which
explicitly informed Sulla that the court could consider the
read-in charges for purposes of sentencing and restitution, and
(4) the court at the plea hearing asked Sulla if he understood
that the read-in charges would be dismissed but read into the
record for consideration at sentencing, and Sulla said he
understood. Further, the postconviction court noted that under
this court's precedent, the sentencing court could have
considered the conduct underlying the arson charge even if the
charge had been dismissed or if Sulla had been acquitted of the
charge:
[T]he sentencing court could, in an exercise of
discretion[,] consider[] [that] he "committed" the
arson offense under the rubric of "character of the
accused" even if the state dismissed the count
outright or if he had a trial, and the jury acquitted
him of the count of arson. Either of those scenarios
would put him in exactly the same position he found
himself at the original sentencing, in terms of the
court's view of his behavior.
¶17 Relying on all of the information outlined above, the
court concluded that Sulla understood that the read-in charges
would be dismissed but read into the record for purposes of
sentencing and restitution. As a result, the court dismissed
14
No. 2013AP2316-CR
Sulla's postconviction motion to withdraw his plea without
holding an evidentiary hearing. Sulla appealed.
E. The Court of Appeals' Decision
¶18 The court of appeals reversed and remanded, concluding
that Sulla was entitled to an evidentiary hearing to determine
whether his pleas were knowing, intelligent, and voluntary. The
court of appeals was sympathetic to Sulla's claim that he did
not understand the effect of a read-in charge, remarking, "It is
not inherently implausible that a defendant would misunderstand
the read-in concept. The concept is not intuitively obvious to
non-lawyers." State v. Sulla, No.2013AP2316-CR, unpublished slip
op., ¶12 (Wis. Ct. App. May 21, 2015) (per curiam).
¶19 Utilizing Nelson/Bentley, the court of appeals first
concluded that Sulla's affidavit made a sufficient factual
allegation that he did not understand the concept of a read-in
charge. Id., ¶¶12-15. The court commented,
Sulla's allegation that his attorney told him "that
agreeing to the read-in offense of arson was not
admitting guilt and that it was just something the
Court would 'look at' at sentencing" is sufficient to
allege why Sulla may not have understood the read-in
concept. The alleged statement by counsel contains an
ambiguity that . . . adds to the potentially confusing
nature of the read-in concept.
Id., ¶13. According to the court of appeals, counsel's use of
the word "guilt" created ambiguity: "[T]here are two ways a non-
lawyer might plausibly understand [the phrase 'not admitting
guilt']. One way is that Sulla was not admitting to committing
the act of arson, and the other is that Sulla was not pleading
15
No. 2013AP2316-CR
guilty to an actual legal charge for doing that act." Id., ¶15
(emphasis in original). "[G]iven the potential for confusion
that is inherent in the read-in concept," the court concluded
that "Sulla has alleged sufficient facts that, if true, would
entitle him to relief." Id.
¶20 The court of appeals then went on to consider the
second prong of Nelson/Bentley——whether the record conclusively
demonstrated that Sulla was not entitled to relief. Id., ¶16.
The court began its analysis by pointing out what it believed
was a "potential inconsistency [] present in the standards
described in Bentley." Id., ¶17. It described the "potential
inconsistency" as follows:
[C]ase law requires a hearing to be held if the
defendant alleges facts that, if true, would entitle
the defendant to relief, but it also allows a hearing
to be denied if the record conclusively demonstrates
that the defendant is not entitled to relief. These
two concepts are potentially in conflict because the
former seems to require an evidentiary hearing
unconditionally, but the latter provides an option in
which it appears that an evidentiary hearing can
nonetheless be denied, even when the defendant makes
allegations that would entitle him to relief, if true.
The relationship of these concepts is not made
entirely clear in existing case law.
Id., ¶17. To reconcile this purported inconsistency, the court
of appeals invented its own test: "[W]e understand a record to
'conclusively demonstrate' the falsity of a defendant's factual
allegations when, even after hearing the expected testimony in
support of the postconviction motion at an evidentiary hearing,
no reasonable fact-finder could find in the defendant's favor,
in light of the rest of the record." Id., ¶18.
16
No. 2013AP2316-CR
¶21 Applying its new test, the court of appeals concluded
that "while . . . several aspects about the existing record []
cast doubt on the accuracy of Sulla's allegations, none of them
rise to the level of making it impossible for a reasonable fact-
finder to believe that Sulla failed to properly understand the
read-in concept . . . ." Id., ¶21. As a result, the court of
appeals remanded for an evidentiary hearing on Sulla's motion to
withdraw his plea.
¶22 On June 18, 2015, the State filed a petition for
review, which we granted. We now reverse the court of appeals.
II. STANDARD OF REVIEW
¶23 When examining a defendant's postconviction motion for
plea withdrawal, we employ the following standard of review.
"[W]hether a defendant's motion to withdraw a guilty plea 'on
its face alleges facts which would entitle the defendant to
relief' and whether the record conclusively demonstrates that
the defendant is entitled to no relief" are questions of law
that we review de novo. State v. Howell, 2007 WI 75, ¶78
,301 Wis. 2d 350
,734 N.W.2d 48
(footnotes omitted) (citing Bentley,201 Wis. 2d at 310
); see also State v. Allen,2004 WI 106, ¶9
,274 Wis. 2d 568
,682 N.W.2d 433
. However, "if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing." Allen,274 Wis. 2d 568, ¶9
(citing Bentley,201 Wis. 2d at 310-11
; Nelson,54 Wis. 2d at 497-98
). "We review a
17
No. 2013AP2316-CR
circuit court's discretionary decisions under the deferential
erroneous exercise of discretion standard." Id.
"A circuit court properly exercises its discretion when it has examined the relevant facts, applied the proper legal standards, and engaged in a rational decision-making process." Bentley,201 Wis. 2d at 318
. When reviewing a trial court's exercise of discretion, we are permitted to search the record for reasons to sustain such a determination. Klawitter v. Klawitter,2001 WI App 16
, ¶10 n.7,240 Wis. 2d 685
,623 N.W.2d 169
.
III. DISCUSSION
A. General Principles Regarding Plea Withdrawal
¶24 A defendant may withdraw his or her plea either before
or after sentencing. State v. Cain, 2012 WI 68, ¶24
,342 Wis. 2d 1
,816 N.W.2d 177
. "When a defendant moves to withdraw a plea before sentencing, 'a circuit court should "freely allow a defendant to withdraw his plea . . . for any fair and just reason, unless the prosecution [would] be substantially prejudiced."'"Id.
(quoting State v. Jenkins,2007 WI 96, ¶2
,303 Wis. 2d 157
,736 N.W.2d 24
). In contrast, "When a defendant moves to withdraw the plea after sentencing, the defendant 'carries the heavy burden of establishing, by clear and convincing evidence, that the trial court should permit the defendant to withdraw his plea to correct a "manifest injustice."'"Id.,
¶25 (quoting State v. Thomas,2000 WI 13, ¶16
,232 Wis. 2d 714
,605 N.W.2d 836
). "One way for a defendant
to meet this burden is to show that he did not knowingly,
intelligently, and voluntarily enter the plea." State v. Brown,
18
No. 2013AP2316-CR
2006 WI 100, ¶18
,293 Wis. 2d 594
,716 N.W.2d 906
; see also State v. Straszkowski,2008 WI 65, ¶28
,310 Wis. 2d 259
,750 N.W.2d 835
.
¶25 Two legal paths are available to a defendant who seeks
to withdraw his plea after sentencing. The first is via a motion
made pursuant to State v. Bangert, 131 Wis. 2d 246
,389 N.W.2d 12
(1986). "A defendant invokes Bangert when the plea colloquy is defective . . . ." Howell,301 Wis. 2d 350, ¶74
. The second is through a Nelson/Bentley motion for plea withdrawal. "[A] defendant invokes Nelson/Bentley when the defendant alleges that some factor extrinsic to the plea colloquy, like ineffective assistance of counsel or coercion, renders a plea infirm."Id.
Sulla brings his challenge pursuant to
Nelson/Bentley;12 thus, we limit our discussion to the plea
withdrawal procedure outlined in Nelson/Bentley.
¶26 The first prong of the Nelson/Bentley test provides:
"[I]f a motion to withdraw a guilty plea after judgment and
sentence alleges facts which, if true, would entitle the
defendant to relief, the trial court must hold an evidentiary
hearing." Bentley, 201 Wis. 2d at 309
(alteration in original) (quoting Nelson,54 Wis. 2d at 497
). To meet this first prong, a
12
Sulla does not challenge the court of appeals'
classification of his motion as a motion for plea withdrawal
under Nelson v. State, 54 Wis. 2d 489
,195 N.W.2d 629
(1972), modified by, State v. Bentley,201 Wis. 2d 303
,548 N.W.2d 50
(1996). Moreover, Sulla's brief to this court cites exclusively to Nelson/Bentley; it does not cite State v. Bangert,131 Wis. 2d 246
,389 N.W.2d 12
(1986).
19
No. 2013AP2316-CR
defendant must allege "sufficient material facts" that would
allow a reviewing court "to meaningfully assess a defendant's
claim." Allen, 274 Wis. 2d 568, ¶23
; see also Bentley,201 Wis. 2d at 314
("[A] defendant must do more than merely allege
that he would have pled differently; such an allegation must be
supported by objective factual assertions." (quoting Key v.
United States, 806 F.2d 133, 139
(7th Cir. 1986))). Specifically, a defendant should "allege the five 'w's' and one 'h'; that is, who, what, where, when, why, and how." Allen,274 Wis. 2d 568, ¶23
.
¶27 The second prong of Nelson/Bentley provides: "[I]f the
defendant fails to allege sufficient facts in his motion to
raise a question of fact, or presents only conclusory
allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief, the trial court may in the
exercise of its legal discretion deny the motion without a
hearing." Bentley, 201 Wis. 2d at 309
-10 (quoting Nelson,54 Wis. 2d at 497-98
).
¶28 In this case, the court of appeals struggled to
properly apply Nelson/Bentley. Perhaps this is because the court
of appeals neglected to examine any recent case law from this
court. Indeed, the only law cited in the court of appeals'
opinion is Nelson (1972), Bentley (1996), and Bangert (1986).
Absent from the court of appeals' opinion is any reference to
our recent explanations of the Nelson/Bentley standard, which
include State v. Allen, 2004 WI 106
,274 Wis. 2d 568
,682 N.W.2d 433
, State v. Howell,2007 WI 75
,301 Wis. 2d 350
, 734
20
No. 2013AP2316-CR
N.W.2d 48, State v. Straszkowski, 2008 WI 65
,310 Wis. 2d 259
,750 N.W.2d 835
, and State v. Frey,2012 WI 99
,343 Wis. 2d 358
,817 N.W.2d 436
.
¶29 Had the court of appeals been so inclined, it could
have read and applied these cases, and a costly, time-consuming
appeal to this court could have been avoided. Be that as it may,
the court of appeals concluded that Nelson/Bentley's two prongs
potentially conflict because "the former seems to require an
evidentiary hearing unconditionally, but the latter provides an
option in which it appears that an evidentiary hearing can
nonetheless be denied, even if the defendant makes allegations
that would entitle him to relief, if true." Sulla, unpublished
slip op., ¶17. A review of our existing case law confirms that
we clarified any "potential inconsistency" years ago when we
explained,
Bentley might be interpreted to make an evidentiary
hearing mandatory whenever the motion contains
sufficient, nonconclusory facts, even if the record as
a whole would demonstrate that the defendant's plea
was constitutionally sound. Such an interpretation of
Nelson and Bentley, however, is not correct. The
correct interpretation of Nelson/Bentley is that an
evidentiary hearing is not mandatory if the record as
a whole conclusively demonstrates that defendant is
not entitled to relief, even if the motion alleges
sufficient nonconclusory facts.
Howell, 301 Wis. 2d 350
, ¶77 n.51; see also id., ¶150-153
(Prosser, J., dissenting) ("Two years ago in [another case], I
tried to explain the internal inconsistency I perceived in the
Bentley decision. . . . To its credit, the majority opinion
corrects this festering problem. . . . The majority's
21
No. 2013AP2316-CR
clarification of the Bentley opinion restores to the circuit
court the ability to form its independent judgment [on a Bentley
plea withdrawal motion] after a review of the [entire] record
and pleadings." (fourth and fifth alterations in original)
(quotation marks and citation omitted)).
¶30 To be clear, a circuit court has the discretion to
deny a defendant's motion——even a properly pled motion——to
withdraw his plea without holding an evidentiary hearing if the
record conclusively demonstrates that the defendant is not
entitled to relief. With this framework in mind, we move on to
consider whether the postconviction court, here, was required to
hold an evidentiary hearing on Sulla's motion before it
determined whether Sulla had entered his pleas in a knowing,
intelligent, and voluntary fashion. To answer this question we
must discuss (1) whether Sulla's motion to withdraw his plea
alleged facts which, if true, would entitle him to relief; (2)
whether the record conclusively demonstrates that Sulla is not
entitled to relief; and (3) whether the postconviction court
erroneously exercised its discretion when it denied Sulla's
postconviction motion to withdraw his plea without holding an
evidentiary hearing.
B. Read-in Charges and Their Role at Sentencing
¶31 Before turning to the three considerations listed
above, we first take a moment to discuss generally sentencing
and the role read-in charges play at sentencing.
¶32 "Wisconsin has a strong public policy that the
sentencing court be provided with all relevant information."
22
No. 2013AP2316-CR
State v. Frey, 2012 WI 99, ¶45
,343 Wis. 2d 358
,817 N.W.2d 436
(quoting State v. Guzman,166 Wis. 2d 577, 592
,480 N.W.2d 446
(1992)). Accordingly, a "sentencing court or jury must be permitted to consider any and all relevant information that reasonably might bear on the proper sentence for the particular defendant, given the crime committed."Id.
(quoting Wasman v. United States,468 U.S. 559, 563
(1984)). Notably, we have held that "'a sentencing court may consider uncharged and unproven offenses'" regardless of "whether or not the defendant consents to having the charge read in. Indeed, the court may consider not only 'uncharged and unproven offenses' but also 'facts related to offenses for which the defendant has been acquitted.'"Id.,
¶47 (quoting State v. Leitner,2002 WI 77, ¶45
,253 Wis. 2d 449
,646 N.W.2d 341
).
¶33 A read-in charge is any crime "that is uncharged or
that is dismissed as part of a plea agreement, that the
defendant agrees to be considered by the court at the time of
sentencing and that the court considers at the time of
sentencing the defendant for the crime for which the defendant
was convicted." Wis. Stat. § 973.20
(1g)(b).13 Similar toWis. Stat. § 973.20
(1g)(b), we have defined read-in charges as
"charges [that] are expected to be considered in sentencing,
with the understanding that read-in charges could increase the
sentence up to the maximum that the defendant could receive for
13
Chapter 973 of the Wisconsin Statutes governs sentencing.
23
No. 2013AP2316-CR
the conviction in exchange for the promise not to prosecute
those additional offenses." Frey, 343 Wis. 2d 358, ¶68
(citation
omitted).14
¶34 In Straszkowski, we examined "the history of read-in
charges in this state" and set forth the proper procedure trial
counsel and circuit courts should undertake when advising
defendants about read-in charges. 310 Wis. 2d 259, ¶59
. There,
the defendant claimed that his plea was not "knowing and
intelligent because he was unaware that a charge dismissed but
read in under a plea agreement [was] deemed admitted for
purposes of sentencing the defendant on the charge to which the
defendant pled guilty." Id., ¶2. After analyzing our precedent,
we concluded that "Wisconsin's read-in procedure does not
require a defendant to admit guilt of a read-in charge for
purposes of sentencing and does not require a circuit court to
14
In State v. Frey, 2012 WI 99
,343 Wis. 2d 358
,817 N.W.2d 436
, we commented on the benefits both the State and a defendant receive from the read-in charge procedure.343 Wis. 2d 358, ¶¶69-74
. On the one hand, the State "preserves precious prosecutorial resources by not prosecuting other charges," while having the defendant "expose[] himself to the likelihood of a higher sentence within the sentencing range and the additional possibility of restitution for the offenses that are 'read-in.'" Id., ¶¶70, 73. On the other hand, the defendant cleans "his slate of several uncharged crimes with the safety of only receiving at most the maximum sentence on the crimes of which he is convicted and receive[s] immunity from future prosecution of any read-in offense." Id., ¶71 (quotation marks and emphasis omitted) (quoting Embry v. State,46 Wis. 2d 151, 158
,174 N.W.2d 521
).
24
No. 2013AP2316-CR
deem the defendant to admit as a matter of law to the read-in
crime for purposes of sentencing." Id., ¶92.
¶35 Consequently, we instructed trial counsel and circuit
courts to take the following approach when advising defendants
about read-in charges:
It is a better practice for prosecuting and defense
counsel and circuit courts to omit any reference to a
defendant admitting a read-in crime, except when the
defendant [chooses to] admit guilt, and simply to
recognize that a defendant's agreement to read in a
charge affects sentencing in the following manner: a
circuit court may consider the read-in charge when
imposing sentence but the maximum penalty of the
charged offense will not be increased; a circuit court
may require a defendant to pay restitution on the
read-in charges; and a read-in has a preclusive effect
in that the State is prohibited from future
prosecution of the read-in charge.
Id., ¶93 (footnotes omitted). Put simply, counsel and courts
should refrain from advising defendants that a read-in charge
necessitates admitting guilt. Id. Instead, counsel and courts
should advise defendants that (1) the read-in charge will be
considered by the sentencing court, but the maximum penalty will
not be increased; (2) the defendant may be required to pay
restitution on the read-in charge; and (3) the defendant may not
be prosecuted for the read-in charge in the future. Id. With
these general principles in mind, we now proceed to address
Sulla's claim.
C. Whether Sulla's Motion to Withdraw His Plea Alleged Facts
Which, if True, Would Entitle Him to Relief
¶36 Under the first prong of Nelson/Bentley, we examine
whether Sulla's motion alleged sufficient facts that, if true,
25
No. 2013AP2316-CR
would entitle Sulla to relief. Bentley, 201 Wis. 2d at 309
(quoting Nelson,54 Wis. 2d at 497
). As noted previously, for a motion to be sufficient, it must "allege the five 'w's' and one 'h'; that is, who, what, where, when, why, and how." Allen,274 Wis. 2d 568, ¶23
. These "five w's' and one 'h'" make it so that a reviewing court has enough sufficient facts that it can "meaningfully assess a defendant's claim."Id.
¶37 Sulla's affidavit stated, in pertinent part,
[M]y attorney De La Rosa told me that agreeing to the
read-in offense of arson was not admitting guilt and
that it was just something the Court would 'look at'
at sentencing. I did not understand and my Attorney
did not explain the effect that a read-in offense has
because Attorney De La Rosa did not explain it to me.
At its core, Sulla's motion to withdraw his plea and his
accompanying affidavit allege that, in spite of Attorney De La
Rosa specifically informing Sulla that the sentencing court
would "look at" (or consider) the read-in charge for the purpose
of sentencing, Sulla did not understand that the circuit court
would consider the read-in charges for purposes of imposing a
sentence.
¶38 The problem with Sulla's claim is that Attorney De La
Rosa's alleged statement "that agreeing to the read-in offense
of arson was not admitting guilt and that it was just something
the Court would 'look at' at sentencing" is a correct statement
of the law under Straszkowski and Frey. As we noted in both
Straszkowski and Frey, "when the State and a defendant agree
that charges will be read in, those charges are expected to be
considered in sentencing." Frey, 343 Wis. 2d 358, ¶68
; see also
26
No. 2013AP2316-CR
Straszkowski, 310 Wis. 2d 259, ¶93
("[A] circuit court may
consider the read-in charge when imposing sentence but the
maximum penalty of the charged offense will not be increased.").
¶39 Moreover, as noted previously in our discussion of
Straszkowski, "no admission of guilt from a defendant for
sentencing purposes is required (or should be deemed) for a
read-in charge to be considered for sentencing purposes and to
be dismissed." 310 Wis. 2d 259, ¶5
(emphasis added). Stated
simply, Attorney De La Rosa's alleged statements to Sulla (1)
"that agreeing to the read-in offense of arson was not admitting
guilt," and (2) that the read-in offense was something the court
would "look at" at sentencing are correct statements of the law
under our precedent.
¶40 Even assuming Sulla is entitled to an evidentiary
hearing because his motion alleged sufficient facts which, if
true, would entitle Sulla to relief, we could still consider
whether the record conclusively demonstrates that Sulla is not
entitled to relief because he in fact understood the effect the
read-in charges could have at sentencing. Here, we will proceed
to consider the remainder of the record to determine whether
Sulla in fact understood that the read-in charge would be
considered by the circuit court when fashioning Sulla's
sentence.
D. Whether the Record Conclusively Demonstrates
That Sulla is Not Entitled to Relief
¶41 Under the second prong of Nelson/Bentley, we examine
whether "the record conclusively demonstrates that the defendant
27
No. 2013AP2316-CR
is not entitled to relief." Bentley, 201 Wis. 2d at 309
-10 (quoting Nelson,54 Wis. 2d at 497-98
). If it so demonstrates, then the "trial court may in the exercise of its legal discretion deny the motion without a hearing."Id.
¶42 In Allen, we considered what it meant for a record to
conclusively demonstrate that a defendant was not entitled to
the relief sought. 274 Wis. 2d 568, ¶30
. There, we explained that the record conclusively refuted the defendant's claim that his trial counsel failed to contact potential witnesses because it contained specific statements by the defendant's attorney indicating that the attorney had investigated and ruled out each witness suggested by the defendant.Id.
¶43 As in Allen, in this case, the record conclusively
refutes Sulla's claim that he was misinformed of and therefore
did not understand the effect a read-in charge could have at
sentencing. The record is replete with indications that Sulla
was properly informed and understood that the sentencing court
could consider the read-in charges when it determined his
sentence.
¶44 First, the Plea Questionnaire/Waiver of Rights form——
that Sulla read and signed——clearly explained the effect of a
read-in charge at sentencing:
[I]f any charges are read-in as part of a plea
agreement they have the following effects:
Sentencing——although the judge may consider
read-in charges when imposing sentence, the
maximum penalty will not be increased.
28
No. 2013AP2316-CR
Restitution——I may be required to pay
restitution on any read-in charges.
Future prosecution——the State may not prosecute
me for any read-in charges.[15]
¶45 Second, at the plea hearing, the circuit court
specifically discussed read-in charges——and their effect at
sentencing——with Sulla:
THE COURT: Mr. Sulla, I understand that of the four
counts made against you, you intend to withdraw your
not guilty pleas and instead plead no contest to
crimes in Counts 1 and 3 called armed burglary and
burglary both as habitual criminals. Is that right?
SULLA: Yes, ma'am.
THE COURT: And then you expect that both sides will
ask me to dismiss Counts 2 and 4, conspiracy to commit
arson and operating motor vehicle without owner's
consent, again both as habitual criminal, but have me
consider those offenses when I sentence you, also
true?
SULLA: Yes, ma'am.
. . . .
THE COURT: These pleas are knowing, voluntary, and
intelligent. They and the dismissed charges are
sufficiently supported by fact. I accept the pleas,
find the defendant to be a habitual criminal. Find him
guilty as he's charged in Counts 1 and 3 and on the
request of both parties and for the reasons provided
by the district attorney, dismiss Counts 2 and 4. I'll
consider them at sentencing.
(Emphasis added.)
15
We note that the three points listed in the Plea
Questionnaire/Waiver of Rights form match the three points we
listed in State v. Straszkowski, 2008 WI 65, ¶93
,310 Wis. 2d 259
,750 N.W.2d 825
.
29
No. 2013AP2316-CR
¶46 Third, at the sentencing hearing, the circuit court
explained precisely what effect that the read-in arson charge
would have on its sentencing determination for Count 1:
I want to say two things. One is, you asked me to
dismiss it and consider it as a read-in. So I'm going
to. I'm not going to consider that you are uninvolved
with it. You gave me a victim--you gave me a plea
questionnaire that says that you understand that if
charges are read in as part of the plea agreement they
have the following effect; at sentencing, the judge
may consider read-in charges when imposing sentence,
but the maximum penalty will not be increased and that
you might be required to pay restitution for read-in
charges and that the State can't prosecute you
separately for it in the future.
(Emphasis added.)
¶47 Fourth, Sulla agreed to pay over $460,000 in
restitution to the victims. As was noted by the postconviction
court, this large sum of money can only be computed by factoring
in the destruction of the victim's home due to arson (one of the
read-in charges).
¶48 Finally, at the time of sentencing, Sulla had amassed
a rather extensive criminal record. Included in his criminal
record were 17 other charges that had been dismissed and read
into the record. The fact that Sulla has past experience with
read-in charges only further refutes his claim that he did not
understand the effect a read-in charge could have at sentencing.
In short, Sulla is not entitled to an evidentiary hearing on his
motion for plea withdrawal because the record conclusively
demonstrates that Sulla is not entitled to relief. Sulla was
30
No. 2013AP2316-CR
properly informed of and understood the effect the read-in
charges would have at sentencing.
E. Whether the Postconviction Court Erroneously Exercised Its
Discretion When it Denied Sulla's Postconviction Motion to
Withdraw His Plea Without Holding an Evidentiary Hearing
¶49 We turn to our final consideration: whether the
postconviction court erroneously exercised its discretion when
it denied Sulla's postconviction motion to withdraw his plea
without holding an evidentiary hearing. As discussed previously,
"A circuit court properly exercises its discretion when it has
examined the relevant facts, applied the proper legal standards,
and engaged in a rational decision-making process." Bentley, 201 Wis. 2d at 318
.
¶50 Here, the circuit court both orally and in writing set
forth its reasons for denying Sulla's motion to withdraw his
plea without holding an evidentiary hearing. The postconviction
court began its analysis by properly articulating the
Nelson/Bentley framework. Next, the postconviction court made
extensive and substantiated factual findings. Based on these
findings, the postconviction court determined that Sulla was not
entitled to an evidentiary hearing on his motion because his
affidavit did not allege sufficient facts which, if true, would
entitle Sulla to relief. In reaching this conclusion, the
postconviction court properly recognized that the statements
Sulla takes issue with in his motion for plea withdrawal are in
fact "accurate statements of the law."
31
No. 2013AP2316-CR
¶51 Though the court could have ended its analysis there,
it proceeded to consider whether Sulla was not entitled to an
evidentiary hearing on his motion because the record
conclusively demonstrated that Sulla was not entitled to relief.
In making that determination, the postconviction court combed
through the entire record, highlighting the read-in language
used in the Plea Questionnaire/Waiver of Rights form and the
language used by the circuit court at the plea hearing and the
sentencing hearing. Moreover, the postconviction court, citing
our decision in Frey, properly zeroed in on the fact that the
sentencing court could have considered the arson charge even if
Sulla had refused to have the charge read in as part of his plea
agreement. See Frey, 343 Wis. 2d 358, ¶47
. Relying on the entire
record, and our case law, the postconviction court reasoned that
Sulla was not entitled to an evidentiary hearing on his motion
because the record conclusively demonstrated that Sulla was not
entitled to relief, as Sulla was properly informed of and
understood the effect the read-in charges would have at
sentencing.
¶52 Stated otherwise, the postconviction court properly
exercised its discretion when it denied Sulla's postconviction
motion to withdraw his plea without holding an evidentiary
hearing because it applied the proper legal standard, examined
the relevant facts, and engaged in a rational decision-making
process. The postconviction court had an abundance of
information on which it could base its determination; thus, it
32
No. 2013AP2316-CR
was well within its discretion when it dismissed Sulla's motion
to withdraw his plea without holding an evidentiary hearing.
IV. CONCLUSION
¶53 To summarize, we conclude that the postconviction
court was not required to hold an evidentiary hearing before it
determined whether Sulla had entered his pleas in a knowing,
intelligent, and voluntary fashion. Here, the postconviction
court properly exercised its discretion when it denied Sulla's
postconviction motion to withdraw his plea without first holding
an evidentiary hearing because it applied the proper legal
standard, examined the relevant facts, and engaged in a rational
decision making process. Moreover, when we apply the
Nelson/Bentley test to this case, we conclude that Sulla is not
entitled to an evidentiary hearing on his postconviction motion
to withdraw his plea. The record in this case, specifically the
Plea Questionnaire/Waiver of Rights form and the transcripts
from the plea hearing and the sentencing hearing, conclusively
demonstrates that Sulla is not entitled to relief because he was
correctly informed of and understood the effect of the read-in
charges at sentencing.
By the Court.—The decision of the court of appeals is
reversed.
33
No. 2013AP2316-CR.awb
¶54 ANN WALSH BRADLEY, J. (concurring). I agree with the
majority that the circuit court did not erroneously exercise its
discretion when it denied the defendant's postconviction motion
for plea withdrawal without an evidentiary hearing. Majority op.
at ¶7. The circuit court applied the proper legal standards and
engaged in a rational decision-making process. Id.
¶55 I write separately, however, to address read-in
offenses. The court of appeals observed that "the potential for
confusion [] is inherent in the read-in concept." It also
described the procedure as "not intuitively obvious," and as
containing "a certain inconsistency." State v. Sulla, No.
2013AP2316-CR, unpublished slip op., ¶¶12, 15 (Wis. Ct. App. May
21, 2015) (per curiam). I agree.
¶56 The confusion is only exacerbated when defendants
consent to have a charge read-in, but continue to proclaim their
innocence of that charge. In those situations, greater
attention need be employed by the court and counsel to ensure a
constitutionally valid plea.
¶57 Accordingly, I recommend a better practice. Given the
potential for confusion and the uncertainties detailed below, I
urge circuit courts and counsel to make additional efforts to
guarantee that defendants understand all the consequences of
read-in charges, ensuring that the plea is knowingly,
intelligently, and voluntarily made.
I
¶58 A brief history of the read-in procedure is helpful in
explaining why it poses a challenge today. This court first
1
No. 2013AP2316-CR.awb
used the term "read-in" in Austin v. State, 49 Wis. 2d 727
,183 N.W.2d 56
(1971).1 In that case, the court examined the validity
of plea bargains involving read-in charges, focusing on the
subsequent immunity granted to defendants. It first explained
the read-in procedure, noting that the "admitted uncharged
offenses" expose a defendant to a longer sentence:
Under our read-in procedure, the defendant does not
plead to any charges and therefore is not sentenced on
any of the read-in charges but such admitted uncharged
offenses are considered in sentencing him on the
charged offense. Thus under the read-in procedure,
the defendant does not run the risk of consecutive
sentences or even concurrent sentences. His only risk
is a longer sentence for the crime charged but this
sentence cannot exceed the maximum.
Id. at 732
.
¶59 The court then observed that the read-in procedure was
an outgrowth of English common law which permitted consideration
of uncharged offenses at the request of the accused (referred to
as the practice of "taking into account"). Id.
English practice was to refrain from subsequently prosecuting offenses that had been taken into account.Id.
Relying on notions of
fairness, the Austin court determined that this practice
1
Although Austin was the first case from this court to use
the term "read in," a few earlier cases described the procedure.
See, e.g., Embry v. State, 46 Wis. 2d 151, 158
,174 N.W.2d 521
(1970) ("Upon agreement between the state and the accused, the
judge may take these [dismissed] offenses into consideration and
the prosecution agrees not to prosecute."); State v. Smith, 45 Wis. 2d 39, 42
,172 N.W.2d 18
(1969) ("In the instant case the
defendant voluntarily agreed to allow the judge to consider
unproven offenses so that, should the state later attempt to
prosecute him, he could successfully assert the defense of
double jeopardy.").
2
No. 2013AP2316-CR.awb
constituted good public policy and upheld the read-in procedure.
Id. at 736.
¶60 Since Austin, the idea that read-in charges were
"admitted" was included in multiple opinions. See, e.g., State
v. Lackershire, 2007 WI 74
, ¶27 n.7,301 Wis. 2d 418
,734 N.W.2d 23
("When charges are read in during sentencing, the defendant
admits to having committed the underlying crimes, but does not
plead guilty to the charges, and therefore is not sentenced for
those charges."); State v. Martel, 2003 WI 70, ¶21
,262 Wis. 2d 483
,664 N.W.2d 69
("offenses that are dismissed and read in are
admitted by the defendant for purposes of consideration at
sentencing on the crime or crimes for which the defendant is
convicted"); State v. Floyd, 2000 WI 14, ¶25
,232 Wis. 2d 767
,606 N.W.2d 155
("Read-ins constitute admissions by the defendant
to those charges."); In Interest of R.W.S., 162 Wis. 2d 862
, 866 n.1,471 N.W.2d 16
(1991) ("[The defendant] is not sentenced on
these read-in charges, but these admitted, uncharged offenses
are considered in sentencing him or her on the charged
offense.").
¶61 However, as this court has acknowledged, Austin did
not state that a defendant's admission was required for
Wisconsin's read-in procedure. State v. Straszkowski, 2008 WI 65, ¶68
,310 Wis. 2d 259
,750 N.W.2d 835
. Further, some cases "describe the defendant's admission of a read-in charge not as an actual admission of guilt but rather as an admission as a matter of law that the defendant makes simply by agreeing to read in a dismissed charge."Id.,
¶¶69-73 (citing State v.
3
No. 2013AP2316-CR.awb
Cleaves, 181 Wis. 2d 73
,510 N.W.2d 143
(Ct. App. 1993); State v. Szarkowitz,157 Wis. 2d 740, 753
,460 N.W.2d 819
(Ct. App. 1990)). Other cases described the read-in procedure without making reference to the defendant's actual or deemed admission of guilt. Martinkoski v. State,51 Wis. 2d 237
,186 N.W.2d 302
(1971); Embry v. State,46 Wis. 2d 151
,174 N.W.2d 521
(1970).
¶62 In 1995, the legislature incorporated a reference to
read-in procedures into the statute governing restitution, Wis. Stat. § 973.20
. Specifically, it drafted subsection (1g) to
insert a definition of "read-in crime" into the restitution
statute and add provisions making it clear that restitution
could be ordered for those crimes. The preliminary draft
assumed that a read-in crime required an admission by the
defendant:
"Read-in crime" means any crime that is uncharged,
that the defendant admits to having committed and that
the court considers at the time of sentencing the
defendant for the crime for which the defendant was
convicted.
1995 A.B. 467, § 3, LRB-0353/1.
¶63 However, as detailed in Strazkowski, the Department of
Justice (DOJ) objected to this definition, asserting that it was
inconsistent with the law on read-ins. 310 Wis. 2d 259, ¶¶82-83
(citing Correspondence/Memorandum: Department of Justice, Aug.
11, 1995, in Bill Drafting File 1995 Wis. Act 141). It proposed
an alternative definition that would not require an admission by
4
No. 2013AP2316-CR.awb
the defendant.2 The Legislature ultimately adopted the DOJ's
proposed language. See Wis. Stat. § 973.20
(1g)(b).
¶64 After reviewing the case law and this legislative
history, Straszkowski directly addressed whether a defendant is
deemed to have admitted or is required to admit guilt when a
plea includes a read-in charge. Observing that "this court has
not necessarily been consistent in describing read-in offenses,"
and that the restitution statute, Wis. Stat. § 973.20
(1g), "makes no reference to any sort of admission, whether actual or deemed," it determined that no admission of guilt was required or presumed for read-in purposes.310 Wis. 2d 259, ¶¶85, 88, 92
.
¶65 Straszkowski advised that "prosecuting attorneys,
defense counsel, and circuit courts should hereafter avoid (as
they did in the instant case) the terminology 'admit' or 'deemed
admitted' in referring to or explaining a defendant's agreement
to read in charges." Id., ¶94. Further, it specifically
withdrew language in the case law "that may be read as
intimating that when a charge is read in a defendant must admit
2
The Department of Justice proposed the following language:
"Read-in" means any crime that is uncharged or which
is dismissed as part of a plea agreement, that the
defendant agrees to be considered by the court at
sentencing and that the court considers at the time of
sentencing the defendant for the crime for which the
defendant was convicted.
Correspondence/Memorandum: Department of Justice, Aug. 11, 1995,
at 2, in Bill Drafting File 1995 Wis. Act 141 (emphasis in
original).
5
No. 2013AP2316-CR.awb
or is deemed to admit the read-in charge for sentencing
purposes." Id., ¶95.
¶66 The only substantive court discussion of read-in
procedures since Straszkowski is contained in State v. Frey,
2012 WI 99
,343 Wis. 2d 358
,817 N.W.2d 436
. In that case, the court addressed whether a circuit court could consider dismissed charges in imposing sentences when they were not read-in.Id.
Its analysis repeated Straszkowski's discussion of read-in
procedures and explained how they differed from charges that are
dismissed. Id., ¶¶63-73, 77-80.
II
¶67 Although Straszkowski clarified part of the read-in
procedure, it remains a thorny concept. The circuit court in
this case was correct when it stated that counsel's explanation
of a read-in charge——that it was not an admission of guilt, but
something that the court would look at during sentencing——was an
"accurate statement[] of law." Further, it correctly described
the Plea Questionnaire/Waiver of Rights form as "legally
proper."3 However, even as such understandings prevail, there is
a lack of clarity when it comes to the application of read-in
procedures, especially in the context of a defendant's assertion
of innocence.
¶68 Confusion from the bar and the bench regarding read-in
procedures persists, as is reflected in unpublished opinions
3
The Plea Questionnaire/Waiver of Rights form advises
defendants that "the judge may consider read-in charges when
imposing sentence. . . ."
6
No. 2013AP2316-CR.awb
from the court of appeals.4 Doubtlessly some of this confusion
stems from the fact that Straszkowski withdrew language from our
precedent that some courts had been following for decades.5 And
as I review plea and sentencing transcripts, it appears that
courts and counsel continue to rely on now withdrawn language
from past precedent.
¶69 Given the red flags raised by the court of appeals'
admonitions that the read-in procedure is not intuitively
obvious and contains the potential for inconsistency and
inherent confusion, sentencing courts and practitioners may need
4
See, e.g., State v. Triplett, No. 2014AP2825-CR (Wis. Ct.
App. Apr. 14, 2016) (decision on publication pending) (counsel
allegedly told defendant that "the read-in charges could not
[be] considered by the judge at sentencing because he was not
admitting to the read-in offenses"); State v. Buckles, No.
2014AP2717-CR, unpublished slip op., ¶9 (Wis. Ct. App. Nov. 10,
2015) (attorney advised defendant that "the read-in offenses
could be used by the State for restitution purposes only and not
as "aggravating" factors during sentencing"); State v. Clayton-
Jones, No. 2010AP2239-CR, unpublished slip op., ¶32 (Wis. Ct.
App. Dec. 15, 2011) ("what neither [the defendant] nor our own
non-exhaustive review of the case law makes clear is what must
minimally occur before alleged conduct is treated as a 'read-in'
for purposes of the Wisconsin rule prohibiting a future
prosecution.").
5
See, e.g., State v. Cleaves, 181 Wis. 2d 73, 79
,510 N.W.2d 143
(Ct. App. 1993) (observing that the defendant's "'admission' to the charges came when he allowed the dismissed crimes to be 'read in.'"); State v. Mattes,175 Wis. 2d 572, 581
,499 N.W.2d 711
(Ct. App. 1993) (describing read-ins as "admitted uncharged offense[s]"); State v. Szarkowitz,157 Wis. 2d 740, 753
,460 N.W.2d 819
(Ct. App. 1990) (relying on Austin
for the conclusion that "In Wisconsin, when a defendant agrees
to crimes being read in at the time of sentencing, he makes an
admission that he committed those crimes.").
7
No. 2013AP2316-CR.awb
to take special care with read-in charges, especially in the
context of protestations of innocence.
¶70 Previously a unanimous court of appeals voiced
concerns about the need to ensure a defendant properly
understands the consequences of a read-in charge. Cleaves, 181 Wis. 2d at 80
n.1. In his concurrence, Judge Nettesheim recommended that circuit courts engage in a personal colloquy to establish that the defendant understands all of the consequences of a read-in charge that may apply.Id. at 81
(Nettesheim, J.
concurring) (emphasis in original). I resurrect that
recommendation.
¶71 Further, I acknowledge that uncertainties, not
previously addressed by this court, continue to linger. We have
advised that "the circuit court may consider the read-in charge
when imposing a sentence." Straszkowski, 310 Wis. 2d 259, ¶93
(emphasis added). Similarly, the majority declares that "the
read-in charge will be considered by the sentencing court."
Majority op., ¶35 (emphasis added). Yet we do not explain how
read-ins should be considered when defendants maintain their
innocence.
¶72 The absence of guidance in this area is particularly
striking considering the wealth of information that has been
provided in the somewhat analogous situation of an Alford plea.6
6
The term "Alford plea" refers to the practice where "the
defendant pleads guilty while either maintaining his innocence
or not admitting having committed the crime." State v. Garcia,
192 Wis. 2d 845, 856
,532 N.W.2d 111
(1995). It is named after
a United States Supreme Court case which determined that the
(continued)
8
No. 2013AP2316-CR.awb
In both situations, defendants protest their innocence, but
nevertheless can acquiesce to the possibility of serving a
prison sentence for the offense.
¶73 Given the rights that a defendant relinquishes when
entering an Alford plea, special care is taken to ensure that
such a plea is knowing, intelligent, and voluntary.7 For
instance, the Wisconsin Jury Instructions recommend that courts
address "special questions to defendants to assure that they
understand that if the plea is accepted, an unequivocal criminal
judgment will be entered——a judgment that will allow imposition
of the same penalties that could follow regular guilty plea."
Wis. JI-Criminal SM-32A at 12 (1995).
¶74 It advises the court to "ask defense counsel to make a
statement on the record to show that the nature and consequences
of the Alford plea were thoroughly discussed with the defendant
and what the defendant's understanding of that discussion was."
Id. at 12. It also provides a script for courts to use when
accepting Alford pleas. Id. at 13-14. These safeguards
ameliorate the uncomfortable fit of accepting a guilty plea
while the defendant protests innocence. State v. Garcia, 192 Wis. 2d 845, 858
,532 N.W.2d 111
(1995). practice was constitutional, North Carolina v. Alford,400 U.S. 25
(1970).
7
The rights waived by entering an Alford plea include "the
privilege against self-incrimination, the right to a trial by
jury, and the right to confront one's accusers." State v.
Hampton, 2004 WI 107, ¶22
,274 Wis. 2d 379
,683 N.W.2d 14
.
9
No. 2013AP2316-CR.awb
¶75 To further protect defendants entering Alford pleas,
we require strong evidence of guilt before a court can accept
such a plea. Id., at 857. This court has provided detailed
guidance clarifying that standard, explaining that it falls
between "beyond reasonable doubt" and the proof necessary to
meet the factual basis requirement behind a guilty plea:
The requirement of a higher level of proof in Alford
pleas is necessitated by the fact that the evidence
has to be strong enough to overcome a defendant's
"protestations" of innocence. Although strong proof
of guilt is less than proof beyond a reasonable doubt,
State v. Spears, 147 Wis. 2d 429, 435
,433 N.W.2d 595
(Ct. App. 1988), it is clearly greater than what is
needed to meet the factual basis requirement under a
guilty plea.
State v. Smith, 202 Wis. 2d 21, 27
,549 N.W.2d 232
(1996)
(internal citation omitted).8 No similar guidance is available
for courts struggling with how to consider a read-in charge when
the defendant maintains innocence.
8
State v. Spears, 147 Wis. 2d 429, 435
,433 N.W.2d 595
(Ct.
App. 1988), similarly described the concept of "strong proof of
guilt":
First, it is not the equivalent of proof beyond a
reasonable doubt. Indeed, the court suggested that
the trial court's conclusion in that case that there
was a factual basis for the plea "was equivalent to a
finding that the proof of guilt was strong." Second,
the Johnson court framed the inquiry as whether the
record "indicates that a sufficient factual basis was
established at the plea proceeding to substantially
negate [the] defendant's claim of innocence."
(citing State v. Johnson, 105 Wis. 2d 657, 664
,314 N.W.2d 897
(Ct. App. 1981)).
10
No. 2013AP2316-CR.awb
¶76 With our current precedent, courts and defense
attorneys can give advice that is "proper" and "legally
accurate," even though it fails to address the ambiguities in
the read-in procedure. When defendants maintain their innocence
of read-in charges, it remains uncertain how those charges will
be considered. How much weight should a sentencing court accord
to those read-in charges? Are there circumstances where they
are not entitled to any weight? Should this court adopt the
strong proof requirement set forth in Smith, 202 Wis. 2d at 27
, and Garcia,192 Wis. 2d at 857
-58?
¶77 I am mindful of the legal landscape allowing
sentencing courts to consider all relevant information,
including dismissed, uncharged, and unproven offenses. Frey,
343 Wis. 2d 358, ¶¶45-47
. Nevertheless, it is not always clear how to reconcile the concept of being able to lengthen a prison sentence for an offense where a defendant maintains innocence with the underpinnings of our system of justice. Those underpinnings include the presumption of innocence, the privilege against self-incrimination, the right to confront one's accuser, and the right to present a defense. State v. Hampton,2004 WI 107, ¶22
,274 Wis. 2d 379
,683 N.W.2d 14
.
Absent clarification on how sentencing courts should consider
read-in charges where defendants maintain their innocence, this
tension remains unaddressed.
III
¶78 An antidote to the confusions and uncertainties that
attend a read-in offense which is accompanied with a
11
No. 2013AP2316-CR.awb
protestation of innocence, lies in giving the defendant more
information. I urge circuit courts and counsel to make
additional efforts to guarantee that defendants understand all
the consequences of read-in charges, ensuring that the plea is
knowingly, intelligently, and voluntarily made. Accordingly, I
respectfully concur.
¶79 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this concurrence.
12
No. 2013AP2316-CR.awb
1