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State v. Cooper

Supreme Court of Wisconsin

June 20, 2019

State of Wisconsin, Plaintiff-Respondent,
Tyrus Lee Cooper, Defendant-Appellant-Petitioner.

          Submitted on Briefs: Oral Argument: April 15, 2 019

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 380 Wis.2d 508, 913 N.W.2d 514 (2018 - unpublished)

          Circuit Court Milwaukee county L.C. No. 2011CF2815 Joseph M. Donald Judge

          For the defendant-appellant-petitioner, there were briefs filed by Nora E. Gierke and Gierke Law LLC, Wauwatosa. There was an oral argument by Nora E. Gierke.

          For the plaintiff-respondent, there was a brief filed by Lisa E.F. Kumfer, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Lisa E.F. Kumfer.

          DANIEL KELLY, J.

         ¶1 Mr. Tyrus Lee Cooper moved the circuit court, prior to sentencing, to withdraw his guilty plea. The circuit court refused his request. Two years later, we disciplined his attorney (Michael J. Hicks) for professional misconduct that included his handling of Mr. Cooper's defense.[1]Mr. Cooper believes our opinion in that disciplinary proceeding proved his counsel had provided ineffective assistance in his criminal case. That, he says, is a "fair and just reason" for withdrawing his plea. For the following reasons, we disagree.[2]

         I. BACKGROUND

         ¶2 Mr. Cooper was charged with a single count of armed robbery as a party to a crime.[3] The State Public Defender appointed Mr. Hicks to represent Mr. Cooper after the circuit court permitted his previous counsel to withdraw. Shortly afterwards, Mr. Cooper wrote to Mr. Hicks (in January of 2013) requesting a copy of discovery materials and raising concerns about his case-requests and concerns that he would repeat in subsequent letters. On October 8, 2013, which was approximately two weeks before his scheduled trial, Mr. Cooper personally wrote to the circuit court to claim that Mr. Hicks was interfering with his right to aid in his defense. He said Mr. Hicks had not provided him with a copy of the discovery materials and had failed to subpoena key witnesses. He also said he had not spoken to Mr. Hicks, by phone or in person, and therefore could not be prepared for trial.

         ¶3 Shortly before trial, the State offered to recommend a sentence of three years of initial confinement and three years of extended supervision if Mr. Cooper pled guilty as charged. He agreed, and on October 21, 2013, the circuit court heard his plea. Prior to accepting it, the circuit court[4] confirmed that Mr. Cooper understood the plea agreement, maximum penalties, and elements of the charge. In response to the circuit court's questions, Mr. Cooper affirmatively asserted that he was aware of the constitutional rights he was waiving. The circuit court confirmed on the record that Mr. Cooper was of sound mind and capable of "freely, knowingly, and voluntarily"[5] entering the plea.

         ¶4 The circuit court specifically asked Mr. Cooper about the allegations he made in his letter of October 8, 2013. Mr. Cooper stated that he wanted the circuit court to take "[n]o actions" with respect to the letter and indicated that he wanted the letter "disposed of." Mr. Cooper's final statement with respect to his plea was "I fully understand. I feel confident in what I did." The circuit court set sentencing for January 9, 2014.

         ¶5 Approximately three weeks before sentencing, Mr. Cooper personally sent another letter to the circuit court, this time asking to withdraw his plea "due to the fact of ineffective assistance of counsel." Mr. Cooper wrote that he was unaware that Mr. Hicks had been suspended from practicing law during part of his representation.[6] And he claimed Mr. Hicks lied by failing to notify him of his suspension. He also said Mr. Hicks misled him into accepting the plea by stating he was destined to lose at trial. The circuit court allowed Mr. Hicks to withdraw as counsel and rescheduled the sentencing hearing.

         ¶6 Mr. Cooper's newly-appointed counsel formally moved to withdraw the plea. The motion asserts that the issues raised in the October 2013 letter were not resolved before the circuit court accepted the plea. It repeats many of the concerns Mr. Cooper listed in that letter, including that Mr. Hicks had not met with him from December 2012 until October 8, 2013, to discuss his case, and that Mr. Hicks failed to provide him with a copy of discovery materials. The motion also repeats the assertion that he had been unaware that Mr. Hicks' law license had been suspended. Finally, Mr. Cooper alleged that he did not knowingly and voluntarily enter his plea.

         ¶7 At the hearing on the plea-withdrawal motion, Mr. Cooper's new counsel said that if Mr. Cooper had known Mr. Hicks' license had been suspended, he would have asked for another lawyer. He also asserted that Mr. Cooper entered his plea in haste because he believed his attorney was not prepared for trial. However, Mr. Cooper's counsel also indicated that, if the circuit court granted his motion, Mr. Cooper might just enter the same plea because he was satisfied with the State's recommendation. Mr. Cooper testified at the hearing and claimed that he had believed part of the plea agreement included reducing the armed robbery charge to something with a lower maximum penalty. He did not say what he believed the reduced charge would have been. The circuit court questioned Mr. Cooper on this point, noting that the charge to which he pled had been read to him at the plea hearing, as well as its elements and the maximum penalty, and that he had affirmatively responded that he understood and wanted to enter his plea. Mr. Cooper said he thought the circuit court was required to read the original charge, but that he would actually be convicted of a lesser offense.

         ¶8 The circuit court denied Mr. Cooper's motion on June 27, 2014 (a date that will have some significance to our analysis). It concluded that the plea colloquy demonstrated that Mr. Cooper knowingly, intelligently, and voluntarily entered his plea, and that the matters in the October 8, 2013, letter had been properly addressed. It also concluded that granting Mr. Cooper's motion would cause substantial prejudice to the State. The circuit court made no factual findings regarding communications between Mr. Hicks and Mr. Cooper. In due course, the circuit court sentenced Mr. Cooper to five years of confinement and five years of extended supervision. Mr. Cooper appealed.

         ¶9 Two years after Mr. Cooper moved to withdraw his plea (and while his appeal was pending), we decided a disciplinary case brought by the Office of Lawyer Regulation (OLR) against Mr. Hicks. See In re Disciplinary Proceedings Against Hicks, 2016 WI 31, 368 Wis.2d 108, 877 N.W.2d 848');">877 N.W.2d 848. After initially contesting the charges, Mr. Hicks withdrew his answer and filed a written "no contest" plea, agreeing that the referee could use the complaint's facts as a basis for identifying violations of the Rules of Professional Conduct for Attorneys.[7] Id., ¶¶6-7. Based on that representation, the referee concluded that Mr. Hicks had engaged in nineteen acts of misconduct, including five that related to his representation of Mr. Cooper. Id., ¶¶6, 28.[8]The OLR's complaint said that Mr. Hicks had failed to provide requested discovery documents to Mr. Cooper and failed to notify him and the circuit court of his license suspension for part of the time he was representing Mr. Cooper. Id., ¶¶23, 26. The complaint also said that Mr. Hicks did not discuss preparation for trial with Mr. Cooper, nor did he address the issues raised in Mr. Cooper's letters. Id., ¶¶23-24. Based on these facts, the OLR referee concluded, as a matter of law, that Mr. Hicks' misconduct "prevent[ed] [Mr. Cooper] from adequately understanding and participating in his own defense" in violation of SCR 20:1.4(a) (2) .[9] Hicks, 368 Wis.2d 108, ¶28.

         ¶10 After reviewing the referee's report, we accepted his "factual findings as taken from the OLR's complaint." Id., ¶39. We also agreed "with the referee that those factual findings are sufficient to support a legal conclusion that Attorney Hicks engaged in the professional misconduct set forth in the 19 counts" contained in the OLR's complaint. Id.

         ¶11 On appeal, Mr. Cooper argued (in part) that our decision in Hicks established that he had received ineffective assistance of counsel prior to entering his guilty plea. The court of appeals considered the well-known analytical structure we use to assess such claims[10] and concluded that Mr. Cooper had failed to show the allegedly deficient performance caused him prejudice. Therefore, the court of appeals affirmed the circuit court. State v. Cooper, No. 2016AP375-CR, unpublished slip op. (Wis. Ct. App. Feb. 27, 2018).

         ¶12 We granted Mr. Cooper's petition for review, which presented the first and third of the following three issues. We asked the parties to brief the second issue:

1. When Cooper's counsel engaged in serious professional misconduct, preventing Cooper from adequately understanding and participating in his own defense, did this constitute ineffective assistance of counsel and provide Cooper with a fair and just reason to withdraw his guilty plea prior to sentencing?
2. In deciding whether Cooper may withdraw his guilty plea, is the circuit court bound by the Supreme Court's findings and/or conclusions in In re Disciplinary Proceedings Against Hicks, 2016 WI 31, 368 Wis.2d 108, 877 N.W.2d 848');">877 N.W.2d 848 (2016), including, but not limited to, language stating that the failure of Cooper's trial counsel to properly communicate with him prevented him from adequately understanding and participating in his own defense . . . ?
3. Did the circuit court erroneously exercise its discretion when it denied defendant's motion to withdraw his plea prior to sentencing without a sufficient evidentiary record to support a finding that withdrawal of the plea pre-sentencing would result in substantial prejudice to the State?

         For the reasons set forth below, we affirm the court of appeals.


         ¶13 "[W]hether a defendant may withdraw his plea is left to the sound discretion of the circuit court." State v. Bollig, 2000 WI 6, ¶28, 232 Wis.2d 561, 605 N.W.2d 199 (citation omitted). We review the circuit court's decision for an erroneous exercise of discretion. State v. Jenkins, 2007 WI 96, ¶30, 303 Wis.2d 157, 736 N.W.2d 24. We will sustain an exercise of discretion if the circuit court "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175 (1982).

         ¶14 "A claim for ineffective assistance of counsel is a mixed question of fact and law." State v. Wood, 2010 WI 17, ¶16, 323 Wis.2d 321, 780 N.W.2d 63. We sustain the circuit court's factual findings "unless they are clearly erroneous." State v. Doss, 2008 WI 93, ¶23, 312 Wis.2d. 570, 754 N.W.2d. 150. "Whether counsel's performance was deficient and prejudicial to his . . . client's defense is a question of law that we review de novo." State v. Hunt, 2014 WI 102, ¶22, 360 Wis.2d 576, 851 N.W.2d. 434.

         III. ANALYSIS

         ¶15 A court will generally grant a pre-sentencing request to withdraw a guilty plea upon presentation of a fair and just reason for doing so. State v. Canedy, 161 Wis.2d 565, 582, 469 N.W.2d 163 (1991) ("The appropriate and applicable law in the case before the court, is that a defendant should be allowed to withdraw a guilty plea for any fair and just reason, unless the prosecution would be substantially prejudiced.") (emphasis omitted) . This has been described as a "liberal rule" that fosters "the efficient administration of criminal justice" by "reduc[ing] the number of appeals contesting the 'knowing and voluntariness' of a guilty plea . . . ." Libke v. State, 60 Wis.2d 121, 127-28, 208 N.W.2d 331 (1973) . If the defendant establishes an appropriate reason by a preponderance of the evidence, Canedy, 161 Wis.2d at 583-84, the State may nonetheless defeat the motion by proving substantial prejudice. Bollig, 232 Wis.2d 561, ¶34.

         ¶16 The phrase "fair and just" is not, of course, susceptible to precise definition, and our cases have identified many reasons for withdrawing a plea that meet this standard. For example, an adequate reason "will likely exist if the defendant shows that the circuit court failed to conform to its statutory or other mandatory duties in the plea colloquy, and the defendant asserts misunderstanding because of it." Jenkins, 303 Wis.2d 157, ¶62. See also Bollig, 232 Wis.2d 561, ¶31 ("[I]f [the defendant] was unaware of his requirement to register as a convicted sex offender, he presented a fair and just reason for plea withdrawal."); State v. Shanks, 152 Wis.2d 284, 290, 448 N.W.2d 264 (Ct. App. 1989) ("Genuine misunderstanding of a guilty plea's consequences is a ground for withdrawal.") (citation omitted). "[H]aste and confusion in entering the plea" is a fair and just reason for withdrawing a plea, as is "coercion on the part of trial counsel." State v. Shimek, 230 Wis.2d 730, 739, 601 N.W.2d 865');">601 N.W.2d 865 (Ct. App. 1999) (citation omitted). Indeed, we have said that "the mere showing of some adequate reason for defendant's change of heart" will suffice. Canedy, 161 Wis.2d at 583 (citation and internal marks omitted) . But there are limits on the reasons we will accept as adequate. At a minimum, a "fair and just reason" must be something other than a bare desire to have a trial. Id.

         ¶17 Mr. Cooper says he should be allowed to withdraw his plea because he received ineffective assistance of counsel from Mr. Hicks before he pled. If true, that would certainly entitle him to relief because such a justification satisfies even the more rigorous post-sentencing "manifest injustice" plea-withdrawal standard. State v. Dillard, 2014 WI 123, ¶84, 358 Wis.2d 543, 859 N.W.2d 44 ("One way to demonstrate manifest injustice is to establish that the defendant received ineffective assistance of counsel.").

         A. Hicks as Proof of Ineffective Assistance of Counsel ¶18 The proof Mr. Cooper offers to establish the deficiency of his counsel is of no small moment, for he offers us the words of our own opinion in which we announced Mr. Hicks' discipline for his misconduct in handling Mr. Cooper's defense. Specifically, he says we conclusively answered the deficiency question when we addressed Count 13 of the OLR's complaint, which says:

By failing between the date on which he received [Mr. Cooper's] letter in January 2013 and February 12, 2013, between March 11, 2013 and August 16, 2013, and between August 18, 2013 and October 20, 2013, to communicate with [Mr. Cooper] regarding the issues raised in [Mr. Cooper's] January 2013 letter and to otherwise consult with [Mr. Cooper] regarding trial strategy and preparation, thereby preventing [Mr. Cooper] from adequately understanding and participating in his own defense, [Attorney] Hicks violated SCR 20:1.4(a)(2).

Hicks, 368 Wis.2d 108, ¶28 (quoting OLR's complaint) (emphasis added) (some alterations in original). However, for the following three reasons, we conclude that our decision in Hicks has no material effect on the resolution of Mr. Cooper's case.

         ¶19 First, with respect to what we said in Hicks, there is a distinction to be drawn between our quotation of the OLR's complaint, on the one hand, and on the other our review of the referee's factual findings and our independent conclusions of law. We said we would accept the referee's "factual findings as taken from the OLR's complaint," id., ΒΆ39, which means we must review the referee's findings of fact and the OLR complaint's allegations to determine whether we adopted the statement upon which Mr. Cooper relies. The factual background supporting Mr. Hicks' misconduct appears in paragraphs 52-62 of the OLR's complaint. The passage on which Mr. Cooper relies appears in paragraph 63, which is not part of the factual background but is the formal accusation of misconduct against Mr. Hicks. The referee's report tracked the complaint's distinction between the facts, on the one hand, and on the other the formal accusation of misconduct. Consequently, the referee's findings of fact do not contain the assertion that Mr. Hicks "prevent[ed] [Mr. Cooper] from ...

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