ORAL ARGUMENT: December 15, 2015
REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 363 Wis.2d 656, 862 N.W.2d 903) (Ct. App. 2015 – Unpublished)
Circuit Court Polk County, L.C. Nos. 2012CF27, 2011CF293, 2011CF376, 2013CF107 Molly E. GaleWyrick Judge
For the defendant-appellant-petitioner, there were briefs by John A. Pray and the Frank J. Remington Center, University of Wisconsin Law School, and oral argument by John A. Pray.
For the plaintiff-respondent, the cause was argued by Jeffrey Kassel, assistant attorney general, with whom on the brief was Brad Schimel, attorney general.
ANN WALSH BRADLEY, J.
¶1 Petitioner, Patrick Tourville ("Tourville"), seeks review of an unpublished court of appeals decision denying his motion for post-conviction relief. He asserts that his trial counsel was ineffective for failing to object after the State allegedly breached the plea agreement by recommending consecutive sentences. Additionally, Tourville contends that there was an insufficient factual basis for the court to accept his guilty plea to the charge of party to the crime of felony theft.
¶2 Like the circuit court and court of appeals, we conclude that Tourville's trial counsel was not ineffective. Given that the State did not breach the plea agreement by arguing for consecutive sentences, Tourville fails to establish the deficient performance necessary for an ineffective assistance of counsel claim.
¶3 We also conclude that the circuit court's determination was not clearly erroneous. There was a sufficient factual basis to accept Tourville's guilty plea to the charge of party to the crime of felony theft. He willingly aided others who engaged in felony theft by taking them to his campsite, helping them open the safe, and disposing of the ill-gotten property. Accordingly, we affirm the court of appeals.
¶4 The underlying facts in this case are taken from the amended criminal complaint in case no. 2012CF27. The State charged Tourville with seventeen criminal counts in four separate, unrelated cases:
Case No. 2011CF293: Operating a motor vehicle without the owner's consent, misdemeanor theft, and obstructing an officer, with all counts charged as a repeater.
Case No. 2011CF376: Burglary while arming himself with a dangerous weapon, two counts of theft of a firearm, misdemeanor theft, felony bail jumping, and possession of a firearm by a felon, with all counts charged as a repeater.
Case No. 2012CF27: Party to the crime of felony theft, possession of a firearm by a felon, with both counts charged as a repeater.
Case No. 2013CF107: Possession of drug paraphernalia and five counts of felony bail jumping, with all counts charged as a repeater.
¶5 All charges from these four cases were incorporated into a single plea agreement. Tourville agreed to plead guilty or no-contest to felony theft as a party to a crime, felony bail jumping, burglary while armed with a dangerous weapon and misdemeanor theft, all as a repeater. The State agreed to dismiss and read in the remaining counts.
¶6 The circuit court received a plea questionnaire/waiver of rights form for each of the four cases. In three cases, a signed addendum was attached to the form that set forth the terms of the plea agreement. Only Tourville signed the addendum. Terms of the plea agreement stated in the signed addendum included: "The joint sentencing recommendation is to order a presentence investigation; the state will cap its recommendation at the high end of what the PSI orders."
¶7 A Presentence Investigation Report ("PSI") was filed with the court. It suggested a range of initial confinement ("IC") and extended supervision ("ES") for each charge, but made no recommendation regarding concurrent or consecutive sentences. The PSI recommended:
Case No. 2011CF293: 16-18 months IC, 6 months ES
Case No. 2011CF376: 4-6 years IC, 3-4 years ES
Case No. 2012CF27: 16-18 months IC, 6 months ES
Case No. 2013CF107: 1-2 years IC, 2 years ES
The circuit court asked Tourville's trial counsel if there were any errors or omissions in the PSI's recommendations that needed to be clarified. He responded that there were no errors or omissions in the PSI.
¶8 During sentencing, the prosecutor argued for the maximum in the PSI's ranges of sentencing recommendations. He sought the following:
Case No. 2011CF293: 18 months IC, 6 months ES
Case No. 2011CF376: 6 years IC, 4 years ES
Case No. 2012CF27: 18 months IC, 6 months ES
Case No. 2013CF107: 2 years IC, 2 years ES
The prosecutor also recommended that the circuit court impose consecutive sentences in all four cases, despite the fact that the PSI was silent on this issue.
¶9 Tourville's trial counsel did not object when the State recommended consecutive sentences. At the post-conviction motion hearing, he testified that there was no strategic reason for failing to object to the State's recommendation of consecutive sentences. Rather, he candidly stated that it "slipped my mind to object."
¶10 One of the charges to which Tourville pled guilty was felony theft as a party to the crime pursuant to Wis.Stat. §§ 943.20(1)(a), (3)(d), and 939.05. Several men, not including Tourville, stole a gun safe containing firearms and other tools. The men called Tourville, advised him that they had a safe and needed both a place to take it and help to break it open. They picked Tourville up at his residence and then went to Tourville's campsite at a resort. After they all participated in opening the safe, Tourville advised the other men where to dispose of it. Ultimately, they disposed of the safe in a swamp, along the side of the road. The men drove Tourville home, dropped him off and later paid Tourville in cash for his assistance.
¶11 Although Tourville did not participate in the planning or initial execution of the theft, the criminal complaint alleged Tourville "took and carried away" property as a party to the crime. The probable cause portion of the complaint sets forth the factual basis for the charge.
¶12 At the plea hearing, the circuit court questioned Tourville regarding the factual basis for the charge of party to the crime of felony theft. Tourville stated that he did not take part in the burglary, but gave the other men who did commit the burglary a place to go to open the safe:
The Court: On your plea you understand--by your plea you're acknowledging that on or about August 27, 2010 in this county with others you took and carried away moveable property belonging to another, specifically firearms belonging to a ...