United States District Court, E.D. Wisconsin
REPORT AND RECOMMENDATION
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
Facts and Procedural History
December 13, 2009, three people robbed the Happy Wok
restaurant in Wauwatosa. (ECF No. 9-2 at 12 (all citations
reflect the ECF pagination).) In a search for additional
money, the three then burglarized the home of the
restaurant's owner. (ECF No. 9-2 at 12.) After being
confronted by a police officer as they attempted to flee the
home, one of the robbers shot the police officer, striking
her in the abdomen. Three suspects, including Thongsavahn
Rodthong, were arrested and charged with various offenses,
including armed robbery, burglary, and attempted murder.
eventually resolved the charges by pleading guilty to two
counts of robbery with use of force, Wis.Stat. §
943.32(1)(a), while armed, Wis.Stat. §
939.63(1)(b).(ECF No. 1-2 at 1.) He was sentenced to 12
years of initial confinement plus five years of extended
supervision as to each count, to be served consecutively.
(ECF No. 1-2 at 1.)
was appointed appellate counsel, who concluded that Rodthong
did not have any potentially meritorious claims for an
appeal. (ECF No. 9-2 at 54-56.) Rodthong then hired an
attorney to represent him on appeal, who filed a motion
asking that Rodthong be allowed to withdraw his guilty pleas.
(See ECF No. 12-3 (transcript of hearing on
motion).) The court denied the motion. (ECF No. 12-3 at
60-67.) Dissatisfied with his retained attorney's
performance, Rodthong informed him that he no longer wanted
his representation. (ECF No. 9-10.) The attorney moved to
withdraw and requested that counsel again be appointed to
represent Rodthong on appeal. (ECF No. 9-11.)
ruling on the motion, the court requested input from the
State Public Defender, which stated that Rodthong had been
told that, if he discharged his appointed counsel and
retained private counsel, it would not again appoint counsel
for Rodthong on appeal. (ECF Nos. 9-12; 9-16.) Therefore, it
stated it would not re-appoint counsel if his retained
attorney withdrew. (ECF Nos. 9-12; 9-16.) Rodthong discharged
his retained attorney anyway and asked the court to appoint
another attorney for him. (ECF No. 9-18.) The court denied
the motion, noting that Rodthong discharged two lawyers after
being specifically told that new counsel would not be
appointed to represent him if he did so. (ECF No. 9-19.)
circuit court denied a subsequent motion for reconsideration
(ECF No. 9-21), and the court of appeals likewise denied his
request for the reappointment of counsel (ECF No. 9-25). He
sought a writ of mandamus from the Wisconsin Supreme Court,
ordering the court of appeals to appoint counsel. (ECF No.
9-26.) The court denied the petition. (ECF No. 9-27.)
Rodthong appealed his conviction pro se. The court of appeals
affirmed his conviction (ECF No. 1-3) and the Wisconsin
Supreme Court denied review (ECF No. 1-4).
presents two claims for relief in his petition. First, he
argues that he was denied his constitutional right to counsel
on his initial appeal. (ECF No. 1 at 7-9.) Second, he argues
his pleas were not knowing, intelligent, and voluntary
because his attorney did not inform him that “read-in
crimes” could be considered at sentencing or that
restitution could be ordered. (ECF No. 1 at 7, 9-11.) Related
to this claim, although not explicitly articulated as a claim
in his petition, Rodthong argues in his brief that his plea
was unknowing because of errors by his trial counsel. Thus,
in conjunction with his claim that his plea was not knowing,
Rodthong argues that his trial counsel was ineffective. (ECF
No. 12 at 12-15.)
Standard of Review
federal court may consider habeas relief for a petitioner in
state custody “only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. §2254(a). Following the
passage of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a federal court generally may
grant habeas relief only if the state court decision was
“either (1) ‘contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,'
or (2) ‘based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.'” Miller v. Smith, 765 F.3d
754, 759-60 (7th Cir. 2014) (quoting 28 U.S.C. §
is beyond dispute that a guilty plea must be both knowing and
voluntary.” Parke v. Raley, 506 U.S. 20, 28
(1992). “The standard was and remains whether the plea
represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.”
Id. (quoting North Carolina v. Alford, 400
U.S. 25, 31 (1970)). This requires the defendant to have
“(1) full awareness of the plea's direct
consequences; (2) real notice of the true nature of the
charge against him; and (3) an understanding of the law in
relation to the facts.” Jurjens v. Dittman,
No. 14-cv-462-jdp, 2018 U.S. Dist. LEXIS 125841, at *8 (W.D.
Wis. July 27, 2018) (internal quotation marks and citations
omitted) (quoting Brady v. United States, 397 U.S.
742, 747-48 (1970); Henderson v. Morgan, 426 U.S.
637, 645 (1976); McCarthy v. United States, 394 U.S.
459, 466 (1969)). “If the plea is not voluntary and
knowing, then it violates due process, and is thus
void.” United States v. Gilliam, 255 F.3d 428,
433 (7th Cir. 2001).
of ineffective assistance of counsel are governed by the
well-established two-prong approach set forth in
Strickland v. Washington, 466 U.S. 668 (1984).
Hicks v. Hepp, 871 F.3d 513, 525 (7th Cir. 2017). A
petitioner must demonstrate both that his attorney's
performance was deficient and that he was prejudiced as a
result. Id. at 525-26. The first prong
“requires that the petitioner demonstrate that
counsel's representation fell below an objective standard
of reasonableness.” Id. at 525. “What is
objectively reasonable is determined by the prevailing
professional norms.” Id. But there is a
wide-range of permissible conduct, and “counsel is
strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment.” Id. (quoting
Strickland, 466 U.S. at 690). The prejudice prong
“requires the petitioner to demonstrate a
‘reasonable probability that, but for counsel's
unprofessional errors,' the outcome would have been
different.” Id. at 526 (quoting Knowles v.
Mirzayance, 556 U.S. 111, 127 (2009)).
claim of ineffective assistance of counsel is presented in a
habeas petition, the petitioner faces “a high
hurdle.” Id. “The Supreme Court has
instructed that under these circumstances, [the federal
court] must employ a ‘doubly deferential' standard,
one which ‘gives both the state court and the defense
attorney the benefit of the doubt.'” Id.
(quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)).
Wisconsin law, there is no requirement that a defendant be
advised that he might be ordered to pay restitution if he
pleads guilty. State v. Dugan, 193 Wis.2d 610, 624,
534 N.W.2d 897, 902 (Ct. App. 1995). Although a defendant
must be informed of the “direct” consequences of
his guilty plea, Brady, 397 U.S. at, 755, the
Wisconsin Court of Appeals concluded restitution is a
collateral consequence (ECF No. 1-3, ¶ 18).
argues that “lower federal courts agree that
restitution is a direct consequence of a guilty plea”
(ECF No. 12 at 11), but the cases he cites in support of this
contention, United States v. Fox, 941 F.2d 480, 484
(7th Cir. 1991) and Wilson v. Furlong, No. 91-1195,
1991 U.S. App. LEXIS 27780, at *10 (10th Cir. Nov. 14, 1991),
were discussing Fed. R. Crim. P. 11 and its requirement that
defendants pleading guilty to federal crimes be
advised of “the court's authority to order
restitution, ” Fed. R. Crim. P. 11(b)(1)(K). That
federal procedural rule has no applicability in state
also quotes Morales v. Boatwright, 580 F.3d 653, 662
(7th Cir. 2009), as saying, “Before the court accepts a
plea of guilty … the court must inform the defendant
of, and determine that the defendant understands … the
court's authority to order restitution.” (ECF No.
12 at 11.) Although this is an accurate quotation of Fed. R.
Crim. P. 11, Morales says no such thing; the word
“restitution” never appears in the decision.
Supreme Court having never said otherwise, the Wisconsin
Court of Appeals reasonably concluded that restitution is a
collateral consequence of a conviction. Thus, the court of
appeals' decision that restitution is a collateral
consequence is not contrary to or an unreasonable application
of clearly established federal law. And the Constitution does
not require a defendant be advised of such collateral
consequences before pleading guilty. Virsnieks v.
Smith, 521 F.3d 707, 715 (7th Cir. 2008).
through the lens of alleged ineffective assistance of
counsel, the court finds this claim lacks merit. No. basis
exists for concluding that Rodthong's trial counsel was
deficient for not telling him that he might be ordered to pay
restitution if he pled guilty. Wisconsin law is clear that a
defendant need not be informed of his restitution obligation
for his plea to be knowing.
there is no basis for concluding that Rodthong was
prejudiced. “In the context of a guilty plea, a
petitioner demonstrates prejudice by ‘show[ing] that
there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have
insisted on going to trial.'” Perrone v. United
States, 889 F.3d 898, 908 (7th Cir. 2018) (quoting
Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Prejudice
does not depend upon the petitioner being able to prove that
“had he gone to trial, the result of that trial would
have been different than the result of the plea
bargain.” Lee v. United States, 137 S.Ct.
1958, 1965 (2017) (internal quotation marks omitted).
argues that, if he had known he might be found jointly and
severally liable for $370 in restitution, he would have
rejected the plea offer and insisted on trial. But he was
facing over 150 years in prison if convicted at trial. The
notion that the prospect of having to pay $370 would have led
him to reject an offer that cut this potential punishment by
more than two-thirds is wholly unbelievable. Thus, Rodthong
has failed to demonstrate a reasonable probability that, if
he had known of the prospect of restitution, he would have
insisted on trial. See Perrone, 889 F.3d at 908.
Wisconsin law, there are two types of dismissals of criminal
charges. A charge may either be “dismissed” or
“dismissed but read in.” Wisconsin law regarding
read-in charges has been complex, nuanced, and at times
contradictory. See State v. Straszkowski, 2008 WI
65, ¶58, 310 Wis.2d 259, 750 N.W.2d 835. When a charge
is “dismissed but read in, ” the defendant agrees
circuit court may consider the read-in charge when imposing
sentence but the maximum penalty of the charged offense will
not be increased; a circuit court may require a defendant to
pay restitution on the read-in charges; and a read-in has a
preclusive effect in that the ...