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State v. Sulla

Supreme Court of Wisconsin

June 14, 2016

State of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Richard J. Sulla, Defendant-Appellant.

          ORAL ARGUMENT: January 20, 2016.

         REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 364 Wis.2d 405, 866 N.W.2d 404) (Ct. App. 2015 – Unpublished)

         Circuit Court Jefferson County (L.C. No. 2011CF221), David J. Wambach Justices.

          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.

          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         ¶1 This is a review of an unpublished decision of the court of appeals, [1] which reversed the Jefferson County Circuit Court's[2] order denying Richard Sulla's ("Sulla") postconviction motion to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 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 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. 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 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]

         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:

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?
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 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.

(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 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 plea[10] 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" 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 ...

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