State v. Patrick K. Tourville , 367 Wis. 2d 285 ( 2016 )

2016 WI 17
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1248-CR, 2014AP1249-CR, 2014AP1250-CR,
2014AP1251-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Patrick K. Tourville,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 363 Wis. 2d 656, 862 N.W.2d 903)
(Ct. App. 2015 – Unpublished)
OPINION FILED: March 15, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 15, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Polk
JUDGE: Molly E. GaleWyrick
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by John A. Pray and the Frank J. Remington Center, University of
Wisconsin Law School, and oral argument by John A. Pray.
For the plaintiff-respondent, the cause was argued by
Jeffrey Kassel, assistant attorney general, with whom on the
brief was Brad Schimel, attorney general.
2016 WI 17
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2014AP1248-CR, 2014AP1249-CR, 2014AP1250-CR,
2014AP1251-CR
(L.C. Nos. 2012CF27, 2011CF293, 2011CF376, 2013CF107)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. MAR 15, 2016
Patrick K. Tourville, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the court of appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. Petitioner, Patrick Tourville
("Tourville"), seeks review of an unpublished court of appeals
decision denying his motion for post-conviction relief.1 He
asserts that his trial counsel was ineffective for failing to
object after the State allegedly breached the plea agreement by
recommending consecutive sentences. Additionally, Tourville
1
State v. Tourville, Nos. 2014AP1248-CR, 2014AP1249-CR,
2014AP1250-CR, 2014AP1251-CR, unpublished slip op., (Wis. Ct.
App. March 31, 2015) (affirming judgment and order entered by
the circuit for Polk County, Molly E. GaleWyrick, J.,
presiding).
Nos. 2014AP1248-CR thru 2014AP1251-CR
contends that there was an insufficient factual basis for the
court to accept his guilty plea to the charge of party to the
crime of felony theft.
¶2 Like the circuit court and court of appeals, we
conclude that Tourville's trial counsel was not ineffective.
Given that the State did not breach the plea agreement by
arguing for consecutive sentences, Tourville fails to establish
the deficient performance necessary for an ineffective
assistance of counsel claim.
¶3 We also conclude that the circuit court's
determination was not clearly erroneous. There was a sufficient
factual basis to accept Tourville's guilty plea to the charge of
party to the crime of felony theft. He willingly aided others
who engaged in felony theft by taking them to his campsite,
helping them open the safe, and disposing of the ill-gotten
property. Accordingly, we affirm the court of appeals.
I.
¶4 The underlying facts in this case are taken from the
amended criminal complaint in case no. 2012CF27. The State
charged Tourville with seventeen criminal counts in four
separate, unrelated cases:
Case No. 2011CF293: Operating a motor vehicle
without the owner's consent, misdemeanor theft, and
obstructing an officer, with all counts charged as a
repeater.
Case No. 2011CF376: Burglary while arming himself
with a dangerous weapon, two counts of theft of a
firearm, misdemeanor theft, felony bail jumping, and
2
Nos. 2014AP1248-CR thru 2014AP1251-CR
possession of a firearm by a felon, with all counts
charged as a repeater.
Case No. 2012CF27: Party to the crime of felony
theft, possession of a firearm by a felon, with both
counts charged as a repeater.
Case No. 2013CF107: Possession of drug
paraphernalia and five counts of felony bail
jumping, with all counts charged as a repeater.
¶5 All charges from these four cases were incorporated
into a single plea agreement. Tourville agreed to plead guilty
or no-contest to felony theft as a party to a crime, felony bail
jumping, burglary while armed with a dangerous weapon and
misdemeanor theft, all as a repeater. The State agreed to
dismiss and read in the remaining counts.
¶6 The circuit court received a plea questionnaire/waiver
of rights form for each of the four cases. In three cases, a
signed addendum was attached to the form that set forth the
terms of the plea agreement.2 Only Tourville signed the
addendum. Terms of the plea agreement stated in the signed
addendum included: "The joint sentencing recommendation is to
2
There was no addendum setting forth the terms of the plea
agreement attached to Case No. 2013CF107. However, all charges
from the four criminal cases were incorporated into a single
plea agreement and there is no argument advanced that the plea
does not apply to Case No. 2013CF107. The four cases were also
consolidated for appeal.
3
Nos. 2014AP1248-CR thru 2014AP1251-CR
order a presentence investigation; the state will cap its
recommendation at the high end of what the PSI orders."3
¶7 A Presentence Investigation Report ("PSI") was filed
with the court. It suggested a range of initial confinement
("IC") and extended supervision ("ES") for each charge, but made
no recommendation regarding concurrent or consecutive sentences.
The PSI recommended:
Case No. 2011CF293: 16-18 months IC, 6 months
ES
Case No. 2011CF376: 4-6 years IC, 3-4 years ES
Case No. 2012CF27: 16-18 months IC, 6 months ES
Case No. 2013CF107: 1-2 years IC, 2 years ES
The circuit court asked Tourville's trial counsel if there were
any errors or omissions in the PSI's recommendations that needed
to be clarified. He responded that there were no errors or
omissions in the PSI.
¶8 During sentencing, the prosecutor argued for the
maximum in the PSI's ranges of sentencing recommendations. He
sought the following:
Case No. 2011CF293: 18 months IC, 6 months ES
Case No. 2011CF376: 6 years IC, 4 years ES
3
The State argues in the alternative that it did not agree
to limit its sentencing recommendation to the "high end" of the
PSI recommendation and requests the case be remanded for factual
findings regarding the terms of the plea agreement if we
determine the agreement was breached. We need not address this
argument because we determine that the State did not breach the
terms of the plea agreement.
4
Nos. 2014AP1248-CR thru 2014AP1251-CR
Case No. 2012CF27: 18 months IC, 6 months ES
Case No. 2013CF107: 2 years IC, 2 years ES
The prosecutor also recommended that the circuit court impose
consecutive sentences in all four cases, despite the fact that
the PSI was silent on this issue.
¶9 Tourville's trial counsel did not object when the
State recommended consecutive sentences. At the post-conviction
motion hearing, he testified that there was no strategic reason
for failing to object to the State's recommendation of
consecutive sentences. Rather, he candidly stated that it
"slipped my mind to object."
¶10 One of the charges to which Tourville pled guilty was
felony theft as a party to the crime pursuant to Wis. Stat.
§§ 943.20(1)(a), (3)(d), and 939.05.4 Several men, not including
Tourville, stole a gun safe containing firearms and other tools.
The men called Tourville, advised him that they had a safe and
needed both a place to take it and help to break it open. They
picked Tourville up at his residence and then went to
Tourville's campsite at a resort. After they all participated
in opening the safe, Tourville advised the other men where to
dispose of it. Ultimately, they disposed of the safe in a
swamp, along the side of the road. The men drove Tourville
home, dropped him off and later paid Tourville in cash for his
assistance.
4
All subsequent reference to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
5
Nos. 2014AP1248-CR thru 2014AP1251-CR
¶11 Although Tourville did not participate in the planning
or initial execution of the theft, the criminal complaint
alleged Tourville "took and carried away" property as a party to
the crime. The probable cause portion of the complaint sets
forth the factual basis for the charge.
¶12 At the plea hearing, the circuit court questioned
Tourville regarding the factual basis for the charge of party to
the crime of felony theft. Tourville stated that he did not
take part in the burglary, but gave the other men who did commit
the burglary a place to go to open the safe:
The Court: On your plea you understand——by your plea
you're acknowledging that on or about August 27, 2010
in this county with others you took and carried away
moveable property belonging to another, specifically
firearms belonging to a Kevin Beyl without his consent
and with intent to keep them?
Mr. Miller: Do you understand those elements?
The Defendant: Intent, I never did the burglary. I
gave him a place to——
Mr. Steffen: Says party to the crime.
The Court: That's as a party to the crime.
The Defendant: Yeah. Guilty. I understand.
¶13 In an effort to clarify the record, the circuit court
again questioned Tourville regarding whether he understood the
factual basis for the charge of party to the crime of felony
theft. He again responded that he gave the other men a place to
open the safe:
The Court: All right. Finally in 13CF107——let's go
back to that so we make certain that the facts meet
6
Nos. 2014AP1248-CR thru 2014AP1251-CR
the elements of the crime. Mr. Miller, why don't you
articulate, you just both said it on the record and I
think Mr. Tourville did as well, but the facts that
meet the elements of the crime.
Mr. Steffen: Judge, let me just say quickly that Mr.
Tourville's statement was I didn't do the burglary and
he's charged with a theft as a party to the crime. As
part of the theft it would be our——the allegations
that after the burglary took place and these
individuals were looking for a way to store or stash
the guns that were taken as a result of the burglary
. . . . It was listed out in the probable cause
statement as well.
The Defendant: I didn't give them nothing.
Mr. Miller: You were around them, you watched them,
you were aiding and abetting them.
The Defendant: I gave them a place to do it. I
didn't give them no materials or I didn't hide
nothing.
The Court: You gave them a place——
The Defendant: To cut open, yeah.
The Court: Material that was——
The Defendant: I didn't give them no material.
The Court: No. No. No. You gave them the
surroundings, the place to hopefully gain access to
the safe.
The defendant: Yeah.
The Court: Right.
The defendant: Yeah.
The Court: And everybody agrees that that meets the
elements of the crime.
Mr. Steffen: Yes.
7
Nos. 2014AP1248-CR thru 2014AP1251-CR
¶14 The circuit court accepted Tourville's plea and
sentenced him to consecutive prison sentences totaling 26 years.5
Tourville filed a post-conviction motion raising the same issues
that are now before this court. The court denied Tourville's
motion and the court of appeals affirmed the circuit court's
judgment and order.
II.
¶15 In this case we are asked to address issues involving
ineffective assistance of counsel, breach of a plea agreement,
and if there is a factual basis to support a guilty plea.
¶16 Whether counsel's actions constitute ineffective
assistance presents a mixed question of law and fact. State v.
Jenkins, 2014 WI 59, ¶38, 355 Wis. 2d 180, 848 N.W.2d 786.
Findings of fact will not be reversed unless they are clearly
erroneous. Id. The ultimate conclusion of whether counsel's
conduct breached the defendant's right to effective assistance
of counsel presents a question of law. Id.
¶17 The issue of whether the State breached the plea
agreement by arguing for consecutive sentences also presents a
question of law. State v. Williams, 2002 WI 1, ¶4, 249 Wis. 2d
492, 637 N.W.2d 733. This court reviews questions of law
independently from the determinations rendered by the circuit
court and court of appeals. Id.
5
Tourville's sentence included 14.5 years of initial
confinement plus 11.5 years of extended supervision.
8
Nos. 2014AP1248-CR thru 2014AP1251-CR
¶18 We review, under the clearly erroneous standard, the
issue of whether a factual basis exists for a charge to which
the defendant has entered a plea. "Unless it was clearly
erroneous, we will uphold the circuit court's determination that
there existed a sufficient factual basis to accept the plea."
State v. Sutton, 2006 WI App 118, ¶8, 294 Wis. 2d 330, 718
N.W.2d 146.
III.
¶19 We address first Tourville's argument that his trial
counsel was ineffective because he failed to object when the
State recommended consecutive sentences. Under Strickland v.
Washington, Tourville must establish that his trial counsel's
performance was deficient and that he was prejudiced as a result
of that deficient performance. 466 U.S. 668, 104 S. Ct. 2052
(1984).
¶20 Therefore, the threshold inquiry for Tourville's
ineffective assistance of counsel claim is whether the State's
actions constituted a breach of the plea agreement. If the
State did not breach the plea agreement, then the failure of
Tourville's counsel to object did not constitute deficient
performance. See, e.g., State v. Naydihor, 2004 WI 43, ¶9, 270
Wis. 2d 585, 678 N.W.2d 220.
¶21 Tourville has a constitutional right to the
enforcement of a negotiated plea agreement. Williams, 249 Wis.
2d 492, ¶37. An agreement by the State to recommend a
particular sentence may induce an accused to give up the
constitutional right to a jury trial. Id. "[O]nce an accused
9
Nos. 2014AP1248-CR thru 2014AP1251-CR
agrees to plead guilty in reliance upon a prosecutor's promise
to perform a future act, the accused's due process rights demand
fulfillment of the bargain." Id.
¶22 As the court of appeals explained in State v. Bowers,
the issue of concurrent and consecutive sentences is "extremely
important" to a guilty plea. 2005 WI App 72, ¶16, 280 Wis. 2d
534, 696 N.W.2d 255 (quoting State v. Howard, 2001 WI App 137,
¶18, 246 Wis. 2d 475, 630 N.W.2d 244). "The designation of
concurrent or consecutive time can affect the actual amount of
time served, the application of pre-sentence credit, parole
eligibility dates, the date a defendant is allowed to access
rehabilitative services, and other factors." Howard, 246 Wis.
2d at ¶18. "A recommendation of concurrent sentences can also
send a signal to the trial court that the agreement contemplates
a lesser sentence than one where consecutive sentences are
recommended." Id.
¶23 The court of appeals observed that a defendant is not
entitled to relief when the breach is merely a technical one
rather than a substantial and material breach of the agreement.
Id., ¶15. "A material and substantial breach is a violation of
the terms of the agreement that defeats the benefit for which
the accused bargained." Williams, 249 Wis. 2d 492, ¶38.
¶24 When a plea agreement "undisputedly indicates that a
recommendation is to be for concurrent sentences, an undisputed
recommendation of consecutive sentences that is not corrected at
the sentencing hearing constitutes a material and substantial
breach of the plea agreement as a matter of law." Howard, 246
10
Nos. 2014AP1248-CR thru 2014AP1251-CR
Wis. 2d 457, ¶19. The remedy for a breach that is material and
substantial is either to vacate the plea agreement or resentence
the defendant under the terms of the original plea agreement.6
Williams, 249 Wis. 2d 492, ¶38; see also State v. Smith, 207
Wis. 2d 258, 268, 558 N.W.2d 379 (1997).
¶25 Interpretation of a plea agreement is rooted in
contract law. Bowers, 280 Wis. 2d 534, ¶16 (citing State v.
Deilke, 2004 WI 104, ¶12, 274 Wis. 2d 595, 682 N.W.2d 945).
"Contract law demands that each party should receive the benefit
of its bargain; no party is obligated to provide more than is
specified in the agreement itself." Id. (citations omitted).
"While the government must be held to the promises it made, it
will not be bound to those it did not make. To do otherwise is
to strip the bargaining process itself of meaning and content."
Id. (quoting United States v. Fentress, 792 F.2d 461, 464-65
(4th Cir.1986)).
¶26 In this case, the plea agreement was silent as to
whether Tourville's sentences would be concurrent or
consecutive. The plea agreement stated: "The joint sentencing
recommendation is to order a presentence investigation; the
state will cap its recommendation at the high end of what the
PSI orders." Tourville's signed plea questionnaire/waiver of
rights form also stated: "[n]o promises have been made to me
other than those contained in the plea agreement."
6
Tourville requests resentencing, rather than withdrawal of
the guilty plea.
11
Nos. 2014AP1248-CR thru 2014AP1251-CR
¶27 The PSI recommended a range of initial confinement and
extended supervision for each charge, but made no recommendation
for either concurrent or consecutive sentences. It recommended:
Case No. 2011CF293: 16-18 months IC, 6 months
ES
Case No. 2011CF376: 4-6 years IC, 3-4 years ES
Case No. 2012CF27: 16-18 months IC, 6 months ES
Case No. 2013CF107: 1-2 years IC, 2 years ES
During sentencing, the prosecutor argued for the PSI's maximum
sentencing recommendations. He also recommended that the
circuit court impose consecutive sentences in all four cases,
despite the fact that the PSI was silent on this issue.
¶28 Tourville argues that by recommending consecutive
sentences, the State breached the plea agreement. He contends
that because the PSI made no recommendation regarding whether
the sentences were to be served consecutively or concurrently,
the State's recommendation went beyond the "high end" of the
PSI. If this court finds that the State breached the plea
agreement, Tourville asserts his trial counsel was ineffective
by failing to object to the prosecutor's recommendation for
consecutive sentences.
¶29 Both the circuit court and the court of appeals relied
on Bowers, 280 Wis. 3d 534, in denying Tourville's motion for
post-conviction relief. In Bowers, the defendant argued that
because the plea agreement was silent on the question of whether
his sentence should run concurrently or consecutively with the
sentence he was already serving, the State breached the plea
12
Nos. 2014AP1248-CR thru 2014AP1251-CR
agreement by recommending a consecutive sentence. 280 Wis. 2d
534, ¶14. The Bowers court explained that "in the absence of
any indication that the parties expected the State to either
remain silent or recommend concurrent sentences, we are
reluctant to engraft these conditions into a fully integrated
plea agreement." Id., ¶16.
¶30 Tourville advances that Bowers should be distinguished
because: (1) the State's sentence recommendation involved four
charges here, rather than only one in Bowers; and (2) the
language of Tourville's plea agreement is significantly
different from Bowers' plea agreement. In the alternative,
Tourville argues that even if Bowers does apply, this court
should overrule Bowers because it was wrongly decided. We
disagree.
¶31 First, we do not agree that the facts of this case are
distinguishable from Bowers. Whether a sentence recommendation
involves four charges or one charge in addition to a sentence
already being served, a recommendation of consecutive sentences
has the same effect on the defendant. In both cases, the length
of time the defendant will serve is increased by a
recommendation that the sentences be served consecutively. Both
defendants could have, but did not, negotiate for an agreement
that the State recommend the sentences be served concurrently.
¶32 We are also not persuaded by Tourville's argument that
the language of the plea agreement warrants a different outcome
in this case than in Bowers. Here, the signed addendum stated:
"The joint sentencing recommendation is to order a presentence
13
Nos. 2014AP1248-CR thru 2014AP1251-CR
investigation; the state will cap its recommendation at the high
end of what the PSI orders." In Bowers, the terms of the plea
agreement were: "State to recommend 2 yrs. Initial confinement;
3 years extended supervision." 280 Wis. 2d 534, ¶2.
¶33 Regardless of any differences in the language of the
plea agreements, the tenets of contract interpretation set forth
in Bowers apply with equal force here. The key issue is whether
the plea agreement contains language regarding concurrent or
consecutive sentences. Both the plea agreement and the PSI in
this case, as well as the plea agreement in Bowers, were silent
as to whether the sentences would be concurrent or consecutive.
If the recommendation for concurrent sentences was not bargained
for and is not contained within the terms of the plea agreement,
we will not engraft those terms into the agreement.
¶34 We also do not agree that Bowers was wrongly decided
and ought to be overruled. The Bowers court analyzed and was
guided by case law from both Wisconsin and other jurisdictions
in reaching its determination.
¶35 Central to its analysis was the premise that in the
absence of a provision in a plea agreement regarding sentencing,
courts will not find a breach of the plea agreement when the
State recommends consecutive sentences. See id., ¶19 (citing
Fentress, 792 F.2d at 464-65 (holding that the prosecution did
not breach a plea agreement by asking the court to order
restitution and consecutive sentences, where the agreement did
not mention either restitution or consecutive sentences and the
government otherwise kept its promises on the proposed length of
14
Nos. 2014AP1248-CR thru 2014AP1251-CR
imprisonment); White v. United States, 308 F.3d 927, 929 (8th
Cir. 2002) (concluding that the government did not breach a plea
agreement by recommending that the defendant's new sentence
should run consecutive to his probation revocation sentence
because the plea agreement contained no provision for the
sentences to be served concurrently); Doles v. State, 55 P.3d
29, 34 (Wyo. 2002) (determining that because there was no
agreement that the sentence was to be concurrent, and the terms
of the agreement did not establish that the prosecutor was
required to refrain from asking for a consecutive sentence, it
was permissible for the prosecutor to argue for a consecutive
sentence).
¶36 We agree with the Bowers court that the reasoning in
State v. Zanelli, 212 Wis. 2d 358, 367, 569 N.W.2d 301 (Ct. App.
1997), is applicable to a plea agreement that is silent as to
the issue of concurrent or consecutive sentences. In Zanelli,
212 Wis. 2d at 367, the court of appeals explained that because
the plea agreement was silent regarding a future ch. 980
proceeding, the record did not reflect that the defendant had
bargained for the State's promise to forego a ch. 980
proceeding. The Zanelli court concluded that there was no
breach of the plea agreement. Id. at 368. Similarly, when a
plea agreement is silent regarding concurrent or consecutive
sentences, the defendant has not bargained for the State's
promise to refrain from recommending the sentences be served
consecutively.
15
Nos. 2014AP1248-CR thru 2014AP1251-CR
¶37 In sum, we agree with both the circuit court and the
court of appeals that Bowers controls the outcome of this case.
We likewise conclude that because the State did not breach the
plea agreement when it recommended that Tourville serve
consecutive sentences, Tourville has failed to establish
deficient performance by his trial counsel. Accordingly,
Tourville's trial counsel was not ineffective when he failed to
object to the State's sentencing recommendations.
IV.
¶38 We address next Tourville's argument that there was an
insufficient factual basis for the circuit court to accept his
guilty plea as a party to the crime of felony theft. Although
Tourville did not participate in the planning or initial
execution of the theft, the complaint alleged Tourville "took
and carried away" property as a party to the crime. Tourville
argues that there is an insufficient factual basis for the plea
because he did not "take and carry away" property of another.
¶39 "[A] post-sentencing motion for withdrawal of a guilty
plea should only be granted when necessary to correct a manifest
injustice." State v. Johnson, 200 Wis. 2d 704, 708, 548 N.W.2d
91 (Ct. App. 1996). The circuit court's failure to establish a
sufficient factual basis that the defendant committed the
offense to which he pleads is manifest injustice. State v.
Smith, 202 Wis. 2d 21, 25, 549 N.W.2d 232 (1996) (citing White
v. State, 85 Wis. 2d 485, 488, 271 N.W.2d 97 (1978).
¶40 Pursuant to Wis. Stat. § 971.08(1)(b), a circuit court
must "make such inquiry as satisfies it that the defendant in
16
Nos. 2014AP1248-CR thru 2014AP1251-CR
fact committed the crime charged" before accepting a defendant's
guilty plea. A sufficient factual basis for the guilty plea
requires a showing that "the conduct which the defendant admits
constitutes the offense charged." State v. Lackershire, 2007 WI
74, ¶33, 301 Wis. 2d 418, 734 N.W.2d 23 (quoting White, 85 Wis.
2d at 488).
¶41 The duties established in Wis. Stat. § 971.08 are
"designed to ensure that a defendant's plea is knowing,
intelligent, and voluntary." Id., ¶34 (quoting State v. Brown,
2006 WI 100, ¶23, 293 Wis. 2d 594, 716 N.W.2d 906). "A
defendant's failure to realize that the conduct to which she
pleads guilty does not fall within the offense charged is
incompatible with that plea being 'knowing' and 'intelligent.'"
Id., ¶35.
¶42 The elements of felony theft are stated in Wis. Stat.
§ 943.20:
(1) ACTS. Whoever does any of the following may be
penalized as provided in sub. (3):
(a) Intentionally takes and carries away, uses,
transfers, conceals, or retains possession
of moveable property of another without the
other's consent and with intent to deprive
the owner permanently of possession of such
property.
¶43 The State must plead one of the elements of theft in
the criminal complaint. Jackson v. State, 92 Wis. 2d 1, 10, 284
N.W.2d 685 (Ct. App. 1979). However, the State may not charge
the defendant in the disjunctive by alleging multiple
alternative elements of theft. Id. Here, the criminal
17
Nos. 2014AP1248-CR thru 2014AP1251-CR
complaint alleged the element that Tourville "took and carried
away" the property of another.
¶44 Tourville was charged as a party to the crime of
felony theft. Wis. Stat. § 939.05 sets forth the elements of
the charge of party to a crime:
(1) Whoever is concerned in the commission of a crime
is a principal and may be charged with and
convicted of the commission of the crime although
the person did not directly commit it and
although the person who directly committed it has
not been convicted or has been convicted of some
other degree of the crime or of some other crime
based on the same act.
(2) A person is concerned in the commission of the
crime if the person:
(a) Directly commits the crime; or
(b) Intentionally aids and abets the commission
of it; or
(c) Is a party to a conspiracy with another to
commit it or advises, hires, counsels or
otherwise procures another to commit it.
¶45 In this case, three men, not including Tourville,
stole a gun safe containing firearms and other tools. The men
called Tourville, advised him that they had a safe and needed
both a place to take it and help to break it open. They picked
Tourville up at his residence and then went to Tourville's
campsite at a resort. After they all participated in opening
the safe, Tourville advised the other men where to dispose of
it. Ultimately, they disposed of the safe in a swamp, along the
side of the road. The men drove Tourville home and dropped him
18
Nos. 2014AP1248-CR thru 2014AP1251-CR
off. They subsequently paid Tourville in cash for his
assistance.
¶46 At the plea hearing, the circuit court questioned
Tourville as to whether he understood the elements of the crime
to which he was pleading guilty. Tourville insisted that he did
not commit the burglary, but only gave the thieves a place to
go.
¶47 In an effort to clarify the record, the circuit court
again questioned Tourville regarding whether he understood the
factual basis for the charge of party to the crime of felony
theft. He again responded that he gave the other men a place to
open the safe:
The Defendant: I gave them a place to do it. I
didn't give them no materials or I didn't hide
nothing.
The Court: You gave them a place——
The Defendant: To cut open, yeah.
The Court: Material that was——
The Defendant: I didn't give them no material.
The court: No. No. No. You gave them the
surroundings, the place to hopefully gain access to
the safe.
The defendant: Yeah.
The Court: Right.
The defendant: Yeah.
¶48 Tourville argues that at the plea hearing, no facts
were presented that he took or carried away property. His
contention is that the only facts alleged at the hearing were
19
Nos. 2014AP1248-CR thru 2014AP1251-CR
that he helped open the safe and provided a means to hide the
property. Thus, Tourville contends that there was no factual
basis for the plea because felony theft involves the "taking and
carrying away" of property. See Wis. Stat. § 943.20(1)(a).
¶49 In order to aid and abet a crime, the defendant need
be only a willing participant. State v. Marshall, 92 Wis. 2d
101, 122, 284 N.W.2d 592 (1979). "Such participation as would
constitute aiding and abetting does not even require that the
defendant be present during the [crime]." Id. "One need not
perform an act which would constitute an essential element of
the crime in order to aid and abet that crime. It is only
necessary that he undertake some conduct (either verbal or
overt), which as a matter of objective fact aids another person
in the execution of a crime, and that he consciously desire or
intend that his conduct will in fact yield such assistance."
Id.
¶50 As the court of appeals explained, "asportation... is
a transaction which continues beyond the point in time when the
property of another is taken." State v. Tourville, Nos.
2014AP1248-CR, 2014AP1251-CR, 2014AP1249-CR, 2014AP1250-CR,
unpublished slip op., ¶8 (Wis. Ct. App. March 31, 2015) (citing
State v. Grady, 93 Wis. 2d 1, 6, 286 N.W.2d 607 (Ct. App. 1979)).
“With regard to the crime of larceny in particular, it is
generally held that one may be guilty of larceny as a principal
where the crime was incomplete until he contributed his aid in
the asportation or taking possession of and removal of stolen
20
Nos. 2014AP1248-CR thru 2014AP1251-CR
property.” Grady, 93 Wis. 2d at 6 (citing Hawpetoss v. State, 52
Wis. 2d 71, 78, 187 N.W.2d 823 (1971)).
¶51 We recognize that Tourville was not charged directly
with committing felony theft. Rather, he was charged as a party
to the crime of felony theft because he willingly aided the
other thieves in their continued efforts to carry away the safe
and the guns. Tourville aided the other thieves when he took
them to his campsite, helped open the safe, and assisted in the
disposal of the safe along the side of the road in a swamp.
Indeed, he was even subsequently paid for his services. These
facts provide a sufficient basis for Tourville's guilty plea to
the charge of party to the crime of felony theft.
¶52 In sum, we conclude that Tourville's trial counsel was
not ineffective. Because the State did not breach the plea
agreement by arguing for consecutive sentences, Tourville fails
to establish the deficient performance necessary for an
ineffective assistance of counsel claim.
¶53 We also conclude that the circuit court's
determination was not clearly erroneous. There was a sufficient
factual basis to accept Tourville's guilty plea to the charge of
party to the crime of felony theft. He willingly aided others
who engaged in felony theft by taking them to his campsite,
helping them open the safe, and disposing of the property.
Accordingly, we affirm the court of appeals.
By the Court. – The decision of the court of appeals is
affirmed.
21
Nos. 2014AP1248-CR thru 2014AP1251-CR
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