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State v. Pegeese

Supreme Court of Wisconsin

May 31, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Javien Cajujuan Pegeese, Defendant-Appellant-Petitioner.

          Submitted on Briefs: Oral Argument: April 10, 2019

          REVIEW of a decision of the Court of Appeals. L.C. No. 2015CF1244 Affirmed.

          For the defendant-appellant-petitioner, there were briefs filed by Thomas B. Aquino, assistant state public defender. There was an oral argument by Thomas B. Aquino.

          For the plaintiff-respondent, there was a brief filed by Aaron R. O'neii, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general of Wisconsin. There was an oral argument by Aaron R. O'neii.

          ANNETTE KINGSLAND ZIEGLER, J.

         ¶1 This is a review of an unpublished, per curiam decision of the court of appeals, State v. Pegeese, No. 2017AP741-CR, unpublished slip op. (Wis. Ct. App. Jun. 21, 2018), affirming the circuit court's[1] order denying Javien Cajujuan Pegeese's ("Pegeese") postconviction motion to withdraw his guilty plea. Pegeese claims that the circuit court's plea colloquy was defective under Wis.Stat. § 971.08 (2015-16)[2] and State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12');">389 N.W.2d 12 (1986), because the circuit court failed to sufficiently explain, and Pegeese did not understand, the constitutional rights he would be waiving by entering a plea. As a result of the claimed defects, Pegeese argues that he did not knowingly, intelligently, and voluntarily enter his plea. Pegeese seeks to withdraw his plea and asks that this court remand to the circuit court for an evidentiary hearing under Bangert. Pegeese also requests that this court exercise its superintending authority to require circuit courts to, at every plea colloquy, verbally advise a defendant of each individual constitutional right being waived and verify that a defendant understands the waiver of each right.

         ¶2 The State asserts that the circuit court's plea colloquy was not defective because a "Plea Questionnaire/Waiver of Rights" form ("Form CR-227"), completed by Pegeese with counsel prior to the colloquy, expressly listed each constitutional right Pegeese waived and required Pegeese to indicate next to each right that he knew and understood the right he was waiving. The State asserts that the in-court colloquy otherwise ensured that Pegeese was knowingly, intelligently, and voluntarily waiving his constitutional rights. The State therefore argues that Pegeese has not met his burden to show that he is entitled to a Bangert hearing, and that this court should not exercise its superintending authority, as Pegeese proposes, that circuit courts be required to personally advise defendants of each constitutional right being waived.

         ¶3 The circuit court's colloquy with Pegeese verified that the constitutional rights at issue were contained in Form CR-227, that Pegeese completed and signed the form with counsel, and that he wanted no further time to discuss matters with his lawyer. The colloquy further verified that Pegeese comprehended the contents of the form, and he and his lawyer acknowledged that he understood each constitutional right he was waiving by pleading guilty. The circuit court concluded that Pegeese was "freely, knowingly[, ] and intelligently" entering his plea.[3]

         ¶4 We conclude that Pegeese has not met his burden to demonstrate that the plea colloquy was defective so as to entitle him to the relief requested. We further decline to exercise our superintending authority to impose a specific requirement that at a plea hearing circuit courts must individually recite and specifically address each constitutional right being waived and then otherwise verify the defendant's understanding of each constitutional right being waived. Therefore, we affirm the court of appeals.

         I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

         ¶5 On June 24, 2015, the State filed a criminal complaint charging then-16-year-old Pegeese with armed robbery as a party to a crime in violation of Wis.Stat. §§ 943.32(2) and 939.05. The criminal complaint alleged that on April 24, 2015, three individuals with their faces covered approached a pizza delivery driver, who was making a delivery to a home. It further alleged that one of the individuals ordered the delivery driver on the ground, that another individual brandished a pistol and struck the delivery driver in the head with the pistol, and that one of the three stole $168 in cash and a key fob from the delivery driver's pockets. According to the criminal complaint, police learned from the owner of the phone that was used to place the order for the pizza delivery that she overheard Pegeese and another person talking the next day about how one of them had "pistol whipped" the delivery driver.

         ¶6 On August 13, 2015, Pegeese pled guilty to robbery with threat of force as a party to a crime, in violation of Wis.Stat. §§ 943.32(1) (b) and 939.05. Prior to the plea hearing, Pegeese completed Form CR-227.[4] Specifically, the "Constitutional Rights" section of Form CR-227 states as follows:

I understand that by entering this plea, I give up the following constitutional rights:
I give up my right to a trial.
I give up my right to remain silent and I understand that my silence could not be used against me at trial.
I give up my right to testify and present evidence at trial.
I give up my right to use subpoenas to require witnesses to come to court and testify for me at trial.
I give up my right to a jury trial, where all 12 jurors would have to agree that I am either guilty or not guilty.
I give up my right to confront in court the people who testify against me and cross-examine them.
I give up my right to make the State prove me guilty beyond a reasonable doubt.
I understand the rights that have been checked and give them up of my own free will.

         Waiver of each of these constitutional rights is acknowledged by marking the box next to each with an "X."

         ¶7 In the form, Pegeese confirmed his understanding of his plea agreement with the State: a joint recommendation of three years of probation. Pegeese acknowledged that he understood "the judge is not bound by any plea agreement or recommendations and may impose the maximum penalty," and that he understood the maximum penalty he faced was 15 years in prison, a $50, 000 fine, or both. In the "Voluntary Plea" section of the form, Pegeese acknowledged, "I have decided to enter this plea of my own free will. I have not been threatened or forced to enter this plea. No promises have been made to me other than those contained in the plea agreement."

         ¶8 Pegeese signed and dated the form, which stated by the signature block:

I have reviewed and understand this entire document and any attachments. I have reviewed it with my attorney (if represented). 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.

         Pegeese's attorney also signed the form, acknowledging that he discussed the form with Pegeese, believed Pegeese understood the form and the plea agreement, and that Pegeese was pleading "freely, voluntarily, and intelligently."

         ¶9 During the August 13 plea hearing, the circuit court conducted the following plea colloquy with Pegeese:

THE COURT: Have you had enough time to talk to [your attorney] Mr. Hoag about your cases?
THE DEFENDANT: Yes, sir.
THE COURT: Has he answered all the questions you've had?
THE DEFENDANT: Yes, sir.
THE COURT: Do you need more time to talk with him today?
THE DEFENDANT: No, sir.
THE COURT: Are you satisfied with his representation?
THE DEFENDANT: Yes, sir.
THE COURT: You have provided me today with a Plea Agreement and Waiver of Rights document; correct?
THE DEFENDANT: Yes, sir.
THE COURT: That's your signature on the back side?
THE DEFENDANT: Yes, sir.
THE COURT: Did you read that document before you signed it?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand all the statements made in that document?
THE DEFENDANT: Yes, sir.
THE COURT: Any questions about anything in that document?
THE DEFENDANT: No, sir.
THE COURT: Mr. Hoag, you reviewed the Plea Questionnaire with him?
MR. HOAG: I read it to him, Your Honor.
THE COURT: Do you believe he understands it?
MR. HOAG: I do.
THE COURT: Mr. Pageese [sic], do you understand the Constitutional Rights you give up when you enter a plea today?
THE DEFENDANT: Yes, sir.
THE COURT: Any questions about those ...

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