Opinion
No. 2005AP731-CR.
Opinion Filed: January 26, 2006.
APPEAL from a judgment and an order of the circuit court for Milwaukee County: JEAN W. DI MOTTO, Judge. Affirmed.
Before Lundsten, P.J., Dykman and Vergeront, JJ.
Howell appeals a judgment of conviction and an order denying his request for plea withdrawal. He argues that the circuit court wrongly denied him an evidentiary hearing on his post-sentencing motion seeking plea withdrawal. We disagree and affirm the circuit court.
Background
¶ 2 A man named Marcus Pearson had a relationship with Howell's sister, April. There was a dispute between April and Pearson, and Howell feared that Pearson would hurt April. According to Howell, he was willing to "physically confront Mr. Pearson if necessary." On February 8, 2004, Howell, along with his cousin and a different sister, got into a car driven by that sister. These three located Pearson. Howell and his cousin got out of the car they were riding in and approached Pearson. Pearson was shot twice. One bullet fractured one of Pearson's fingers and another fractured one of Pearson's tibias.
¶ 3 The complaint alleged that Howell was the shooter, and the State charged him with first-degree reckless injury. On a date originally set for trial, new information came to light and the case was set over. Approximately one month later, the prosecutor moved to amend the complaint to add party-to-a-crime liability. The amendment was based on the possibility that the evidence at trial might show that Howell's cousin, not Howell, was the shooter. The court permitted the amendment and that same day Howell entered a guilty plea to the amended charge, first-degree reckless injury as party to a crime. Judge Richard Sankovitz presided over Howell's plea hearing.
¶ 4 Howell was subsequently sentenced by Judge Jean DiMotto. Judge DiMotto imposed seven years of initial confinement followed by seven years of extended supervision.
¶ 5 After sentencing, Howell filed a motion seeking plea withdrawal. In that motion, Howell asserted that his plea was not knowingly entered because he did not understand party-to-a-crime liability. Howell's motion contained several assertions, which we discuss below, purporting to support that general claim. Judge DiMotto denied the motion without a hearing.
Discussion
¶ 6 Howell argues that the circuit court wrongly denied him an evidentiary hearing on his post-sentencing motion seeking plea withdrawal. Howell's motion asserted that his plea was not knowing and voluntary because he did not understand that his mere presence at the shooting, combined with his failure to prevent the shooting, was insufficient to make him criminally liable for the shooting as a party to a crime. Howell argues that he was wrongly denied a hearing because his motion alleged facts that, if true, entitle him to plea withdrawal.
In the context of arguing that the plea colloquy was sufficient, the State argues that the party-to-a-crime concept was relevant during Howell's plea colloquy only with respect to Howell's understanding of what the State intended to prove as the factual basis for the crime. Whatever merit this argument may have, the State does not argue that Howell's plea was knowing and voluntary if Howell mistakenly thought he could be found guilty as a party to a crime based solely on proof that he was present when the shots were fired and that he failed to stop the shooting.
¶ 7 Although Howell did not expressly say so in his postconviction motion or, for that matter, in his appellate briefs, he is not relying on the burden-shifting scheme established in State v. Bangert , 131 Wis. 2d 246, 389 N.W.2d 12 (1986). Howell does not argue that the circuit court's plea colloquy was deficient. Rather, Howell argues that, despite the plea colloquy, he did not understand that his presence at the shooting and his failure to stop the shooting were, by themselves, inadequate to support party-to-a-crime liability. Thus, we ignore much of the State's responsive brief because it is structured around the Bangert burden-shifting framework. Rather, we focus our attention on whether Howell's motion alleged facts sufficient to require an evidentiary hearing.
¶ 8 In State v. Allen , 2004 WI 106, ¶¶ 12-24, 274 Wis. 2d 568, 682 N.W.2d 433, the supreme court reviewed the standard applied when defendants assert they are entitled to a postconviction evidentiary hearing. Relying on State v. Bentley , 201 Wis. 2d 303, 548 N.W.2d 50 (1996), and Nelson v. State , 54 Wis. 2d 489, 195 N.W.2d 629 (1972), the Allen court repeated the well-established rule:
First, [courts] determine whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief. This is a question of law that [appellate courts] review de novo. If the motion raises such facts, the circuit court must hold an evidentiary hearing. 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 (citations omitted). The issue here is whether Howell's motion presents only conclusory allegations, such that the circuit court was entitled to deny that motion without an evidentiary hearing. In this regard, "the motion must include facts that `allow the reviewing court to meaningfully assess [the defendant's] claim.'" Id. , ¶ 21 (quoting Bentley , 201 Wis. 2d at 314). A postconviction motion sufficient to meet this standard should "allege the five `w's' and one `h'; that is, who, what, where, when, why, and how." Allen , 274 Wis. 2d 568, ¶ 23.
¶ 9 We begin by clarifying the question presented. Although Howell's argument centers on his understanding of the meaning of party-to-a-crime liability and, in particular, aider-and-abettor liability, we need not explore the contours of what constitutes aiding and abetting because Howell's challenge hinges on a simple question: Did Howell allege sufficient facts in his postconviction motion to compel a hearing on whether, at the time he entered his plea, he acted under the mistaken belief that his mere presence at the shooting and his failure to stop the shooting were sufficient to support party-to-a-crime liability? Howell does not argue, for example, that approaching Pearson with his cousin after learning that his cousin was armed with a gun does not constitute aiding and abetting and, therefore, that he mistakenly thought this conduct supported party-to-a-crime liability. Indeed, when summarizing aider and abettor law, Howell's own appellate brief states: "[W]hen people knowingly come with guns, one can reasonably infer the intent to help each other if there is a shooting. . . ." With this clarification in mind, we examine Howell's postconviction motion in light of the legal principles summarized in Allen.
¶ 10 Howell's post-sentencing motion asserts that he did not understand that his mere presence at the shooting and his failure to stop the shooting were insufficient to create party-to-a-crime liability. According to Howell, if he had understood this fact, he would not have entered his guilty plea. Howell provided the following support for his general assertion:
1. Howell asserted that, based on an out-of-court explanation of the term "party to a crime" by his trial counsel, he believed he was guilty of first-degree reckless injury as a party to a crime because he was present at the shooting and did not prevent it.
2. Howell acknowledged that he knew the party-to-a-crime allegation was added to his charge because the prosecutor might be able to show that Howell assisted in putting Pearson in danger, but Howell claimed the reason he entered his plea was his mistaken belief that his mere presence at the shooting and his failure to prevent it were sufficient intentional assistance for purposes of party-to-a-crime liability.
3. Howell asserted that his mistaken belief was reinforced at the plea hearing when the prosecutor said there were two possibilities regarding what the State could prove at trial, one being that Howell's cousin was the shooter and "[Howell] was there with him, observed him with the gun as they got out of the car and would have approached [Pearson] in this situation."
4. Howell asserted that none of the statements made at the plea hearing indicated that simply failing to act to prevent the shooting was insufficient to support party-to-a-crime liability.
5. Howell acknowledged that, at sentencing, his trial counsel told the court that Howell "admitted a role in arranging for that firearm to be present," but Howell asserted he never said any such thing.
6. Howell asserted he would not have pled guilty had he realized "that his mere presence was not enough" because he first learned his cousin had a gun when he saw his cousin raise the gun and shoot it.
We conclude that these statements, individually and collectively, are conclusory within the meaning of Bentley because they do not "allow the reviewing court to meaningfully assess [Howell's] claim." See Bentley , 201 Wis. 2d at 314.
Howell's motion asserts several other factual details. We have reviewed these other details, but none arguably support his general assertion that at the time he entered his plea he did not understand that his mere presence at the shooting and his failure to stop the shooting were insufficient to create party-to-a-crime liability.
¶ 11 Howell's assertion that his misunderstanding was based on his attorney's explanation of party-to-a-crime liability is conclusory. Howell's motion does not assert that his trial counsel told Howell he was liable as a party to a crime simply because he was present and did not prevent the shooting. Rather, Howell merely asserted that his misunderstanding was "based" on some unknown thing counsel told him. What does this mean? What did counsel say that might have misled Howell? Howell's failure to assert what his counsel said prevents a meaningful assessment of his claim that he misunderstood.
¶ 12 Howell's assertion that he pled guilty because of his mistaken belief that his mere presence and his failure to prevent the shooting were sufficient assistance for purposes of party-to-a-crime liability, while acknowledging that he knew the party-to-a-crime allegation was added because the prosecutor might be able to show that Howell assisted in putting Pearson in danger, amounts to a textbook example of a conclusory allegation. Stripped down, this part of Howell's motion provides no facts that might explain why Howell would have misunderstood.
¶ 13 Turning to the third item listed above, we fail to understand Howell's assertion that his alleged mistaken belief was reinforced at the plea hearing when the prosecutor said that one of the possible reasons Howell was liable was that "[Howell] was there with [his cousin], observed [his cousin] with the gun as they got out of the car and would have approached [Pearson] in this situation." The court asked if it could accept those facts as true. Howell's counsel said that those "are the facts upon which Mr. Howell has indicated his guilt to me as well." Howell's counsel then asked Howell if that was correct, and Howell answered, "Yes." Thus, Howell was agreeing at the plea hearing that it was true that he knew his cousin had a gun as the two men got out of the car they arrived in and, nonetheless, Howell still approached Pearson with his cousin. This admission contradicts Howell's new assertion that he first learned that his cousin had the gun when the gun was raised and fired. Moreover, this admission fits aider-and-abettor liability, as described in Howell's own appellate brief ("[W]hen people knowingly come with guns, one can reasonably infer the intent to help each other if there is a shooting. . . ."). Thus, we fail to understand how the assertion even arguably supports Howell's request for an evidentiary hearing.
¶ 14 Howell's assertion that none of the statements made at the plea hearing indicated that merely failing to act to prevent the shooting was insufficient to support party-to-a-crime liability is simply not true. Although the circuit court did not define the word assist, most of the statements made at the hearing in that regard indicated that Howell's participation was active. When the circuit court asked if it would "be fair to state that the [party-to-a-crime] amendment to the information comprises the prospect that at trial the evidence might show that Mr. Howell didn't pull the trigger, but that he assisted people in putting [Pearson] in a place where he could be shot by somebody else," Howell responded, "Yes." Later, the court explained to Howell that the "State would have to prove either that you were the person who did all those things or that you intentionally assisted someone else who was doing those things, knowing what they were doing" (emphasis added). The court asked Howell if he understood that, and Howell again answered, "Yes." Finally, we have already recounted that Howell admitted at the plea hearing that he saw that his cousin had a gun as they got out of the car, yet Howell still approached Pearson with his cousin. At no time during the plea hearing did anyone say that mere presence constituted assistance for purposes of party-to-a-crime liability.
¶ 15 Howell's assertion that he never told his trial counsel that he had a role in arranging for the firearm to be present, even though at sentencing his counsel said that, does not address Howell's understanding of party-to-a-crime liability at the time of the plea hearing. One manner of assisting would have been to arrange for a firearm to be present, but another alternative is the one Howell acknowledged to be true at the plea hearing, namely, that he approached Pearson knowing that his cousin had a gun.
¶ 16 Finally, we address Howell's assertion that he would not have pled guilty had he realized "that his mere presence was not enough" because he first learned his cousin had a gun when he saw his cousin raise the gun and shoot it. We understand Howell's logic to be that he must not have understood that mere presence was insufficient because, according to this new allegation, he had no involvement in the shooting other than being a witness to it. The flaw in this reasoning is obvious. Defendants routinely enter pleas with an understanding of what the State must prove even though they claim that they are not actually guilty of the charged crime. Howell's new factual allegation, even if true, is not inconsistent with him understanding that the State had to prove more than his mere presence at the time his cousin raised the gun and started shooting at Pearson.
¶ 17 We conclude that, although Howell made a number of assertions in his postconviction motion, those assertions do not permit a meaningful assessment of his claim that when he entered his plea he mistakenly believed his mere presence at the shooting and his failure to stop the shooting were sufficient to support party-to-a-crime liability. If Howell had more information or was prepared to make more detailed statements that would actually provide a plausible explanation for why he misunderstood, that information should have been presented in his motion seeking a hearing. Having failed to present in his motion specific information that logically provides a plausible explanation for his misunderstanding, he is not entitled to an evidentiary hearing.
The State argues that Howell's motion was deficient because it was accompanied only by his counsel's affidavit containing hearsay assertions about what Howell claimed to be true. According to the State, there is a general rule that hearsay recitations in an affidavit are insufficient to trigger an evidentiary hearing and we should apply that general rule here. Although we decide this case in favor of the State on other grounds, we briefly comment on this argument. The State relies on State v. Lass , 194 Wis. 2d 591, 535 N.W.2d 904 (Ct.App. 1995), and State v. Bruckner , 151 Wis. 2d 833, 447 N.W.2d 376 (Ct.App. 1989). There may be merit to the proposition that defendants seeking a postconviction plea withdrawal evidentiary hearing should generally be required to submit affidavits from the witnesses the defendant intends to call at that hearing, but the authority the State points to provides little support for the idea. In Lass , we did not address whether the circuit court wrongly denied the defendant an evidentiary hearing. Rather, we concluded that an affidavit containing hearsay was insufficient to support a request for disclosure of the identity of a confidential informer. Lass , 194 Wis. 2d at 599-600. In Bruckner , we did address the denial of an evidentiary hearing, but did not purport to set forth any general rule. Rather, in dictum in a footnote, we addressed the prerequisites for holding a Franks hearing, not hearings generally. Bruckner , 151 Wis. 2d at 864-65 n. 15. Furthermore, even in the Franks context, the footnote does not say that an affidavit based on personal knowledge is generally required. See id.
¶ 18 Finally, we note that our analysis does not track the analysis used by the circuit court. The circuit court denied Howell's request for plea withdrawal because Howell's new assertion that he misunderstood party-to-a-crime liability was inconsistent with an admission he made at the plea hearing, inconsistent with an assertion made by his trial counsel, and inconsistent with Howell's own assertions at sentencing. As we understand the court's analysis, it simply did not believe Howell's new assertion in light of contrary evidence in the record. Although it is not clear that the circuit court was thinking in terms of whether an evidentiary hearing was required, it is apparent that the court effectively concluded that it would not believe Howell's new assertion, even if the court heard from Howell personally under oath. We need not address the propriety of this analysis. Whether a postconviction motion alleges sufficient facts that, if true, would entitle a defendant to an evidentiary hearing is a question of law that we review de novo. Bentley , 201 Wis. 2d at 309-10. We have relied on our independent review of Howell's motion, not on the circuit court's analysis.
In fairness to the circuit court, Howell's postconviction motion obscures its request for an evidentiary hearing. Although on the first page of his motion Howell requests an evidentiary hearing, the arguments in his motion are not phrased in terms of the need for an evidentiary hearing and there is no mention of the legal standard governing when an evidentiary hearing is required. Further, when Howell actually requests relief at the end of his motion he does not request a hearing, but instead requests an order allowing plea withdrawal. Thus, it would be easy to read Howell's motion as a request for a ruling based only on the assertions and arguments in that motion. We recommend that postconviction motions seeking an evidentiary hearing set forth and argue the legal standards governing when a hearing is required. We also recommend that there be a request for a hearing in the part of a motion judges are most likely to look at when checking to see the relief sought, that is, the concluding lines of the motion where defendants indicate the relief sought.
By the Court. — Judgment and order affirmed.