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Triplett v. Smith

United States District Court, E.D. Wisconsin

June 26, 2018

JUDY P. SMITH, Respondent.


          William C. Griesbach, Chief Judge.

         Petitioner London Triplett entered pleas of guilty and was convicted in the Circuit Court for Milwaukee County on charges of human trafficking in violation of Section 940.302 of the Wisconsin Statutes (2013-14), felon in possession of a firearm in violation of Section 941.29, and pandering in violation of Section 944.33. He received a bifurcated sentence totaling eleven years initial confinement to be followed by nine years of extended supervision. After first seeking relief in the Wisconsin courts, Triplett filed a federal habeas petition pursuant to 28 U.S.C. § 2254 on the ground that his conviction and sentence violated his rights under the United States Constitution. Triplett claims that his guilty pleas were not knowing and voluntary, that the circuit court failed to conduct a proper plea colloquy, that his attorney provided ineffective assistance, and that the circuit court erred in denying his motion for post-conviction relief without a hearing. Am. Pet., ECF No. 24 at 6-9. For the reasons that follow, Triplett's petition will be denied and the case dismissed.


         Triplett was charged in a criminal complaint with twenty-one felonies, most of them related to the trafficking of two women suffering from heroin addiction as prostitutes, but also including charges related to his attempted kidnapping and murder of one of the victims. ECF No. 25-2 at 87-96. Run consecutively, the charges Triplett faced carried a maximum term of more than 360 years. Id. at 449-53. One count was later dismissed. Pursuant to a plea agreement, Triplett agreed to plead guilty to three counts in return for the State promising to dismiss and “read-in” the remaining seventeen. The State also agreed that it would recommend prison but make no recommendation as to the length of the sentence, and would recommend concurrent sentences, which it noted would cap Triplett's exposure at twenty-five years in the Wisconsin state prison system. Id. at 527.

         On April 5, 2013, Triplett signed a Plea Questionnaire/Waiver of Rights form and addendum along with his attorney. Id. at 97-98. According to the form, Triplett was 39 years old and had completed fourteen years of schooling. He acknowledged on the form that by entering a guilty plea, he was giving up his constitutional right to a jury trial and the various rights that accompany a jury trial. He also acknowledged that the elements of the crimes to which he was pleading guilty had been explained to him by his attorney and expressly referenced the jury instructions for each of the three crimes that were attached to the form. Among the express “understandings” set out in the form are the following two that are pertinent to the issues Triplett later raised:

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.
I understand that if the judge accepts my plea, the judge will find me guilty of the crime(s) to which I am pleading based upon the facts in the complaint and/or preliminary examination and/or as stated in court.

Id. at 98. The completed form was then presented to the court.

         At the beginning of the plea hearing, the prosecuting attorney explained the terms of the parties' agreement, noting that Triplett would be pleading guilty to one count each of human trafficking, pandering and felon in possession of a firearm, and that “all the remaining charges are being dismissed but read in for sentencing purposes.” Id. at 525. The prosecutor was particularly interested in making a record as to why Count 1, the attempted homicide charge, was being dismissed. She noted that Count 1 involved the shooting of one of the two women Triplett was charged with trafficking and expressed the state's view that it was “borderline between an attempted homicide and a recklessly endangering safety, depending on how the facts were to come in.” Id. The prosecutor explained further:

Certain statements from the victim led the state to believe - - and I'm still fairly confident that there were statements made by the defendant effectuating an intent at the time that this incident happened, which resulted in the defendant having a gun and pointing it at the victim. And then there being a struggle and the victim being hit in the buttocks with a bullet that ricocheted and hit the defendant in the hand.

Id. Despite the seriousness of this offense and the number of other offenses that were being dismissed, the prosecutor believed the agreed upon resolution of the charges was reasonable considering the number of vulnerable witnesses who would have to testify if the case were to go to trial. Id. at 526. The prosecutor emphasized that Triplett was pleading guilty to three counts, especially one of the human trafficking count, which she thought “most accurately characterizes the defendant's course of conduct here.” Id. She explained she had also charged him with a number of counts of delivery of heroin, noting that “those are a little bit more difficult to substantiate but were part of his total course of conduct, ” which she described as delivering heroin repeatedly and thereby controlling “the individuals he was trafficking or prostituting.” Id. at 527. Based on these considerations, the prosecutor thought the dismissals reasonable, especially since those charges would be considered as read-in offenses even though the defendant was not admitting all of the underlying facts.

         Triplett's attorney interrupted at that point only to emphasize that his client was not admitting the read-in offenses. Instead, he explained, “These are things that the state is telling you they [sic] believe happened.” Id. at 528. When asked further by the court, Triplett's attorney agreed that the dismissed charges were to be read in at sentencing, but noted his client was not agreeing that he committed those offenses and stated “we'll have something to say about the shooting now, if the court wants, or summarily at sentencing.” Id. The court explained that it was simply trying to make a clear record of the parties' agreement and then proceeded to question the defendant personally.

         In response to the court's questions, Triplett confirmed his age, education, and the fact that he was not under the influence of any drugs or alcohol and had never been treated for any mental illness or disorder. Triplett testified that he understood the maximum sentences for each of the three counts to which he was pleading guilty and that the court was not bound by the recommendations of the parties. He confirmed that he had gone over every one of the provisions of the plea questionnaire and waiver of rights form with his attorney and had likewise gone over the elements of each of the offenses and how they related to the facts of the case. Id. at 529-31. With respect to the human trafficking charge, the court specifically confirmed that Triplett had read over the jury instruction attached to the form. The court then asked Triplett:

And that you knowingly engaged in the trafficking. That you recruited, enticed or provided the victim of the offense without their consent. That you did so for the commercial sex ...

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