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Rodthong v. McDermott

United States District Court, E.D. Wisconsin

June 12, 2019

THONGSAVAHN RODTHONG, Petitioner,
v.
JENNIFER MCDERMOTT, [1] Respondent.

          REPORT AND RECOMMENDATION

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         1. Facts and Procedural History

         On 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.

         Rodthong 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).[2](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.)

         Rodthong 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.)

         Before 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.)

         The 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.)

         Therefore, 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).

         2. Petitioner's Claims

         Rodthong 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.)

         3. Standard of Review

         A 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. § 2254(d)(1), (2)).

         4. Analysis

         4.1. Guilty Plea

         “It 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).

         Claims 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)).

         When a 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)).

         4.1.1. Restitution

         Under 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).

         Rodthong 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 prosecutions.

         Rodthong 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.

         The 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).

         Viewed 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.

         Moreover, 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).

         Rodthong 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.

         4.1.2. “Read-In” Crimes

         Under 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 that the

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 ...

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