State v. John D. Carter ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 2, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal Nos.
2019AP598-CR Cir. Ct. Nos. 2014CF4880
2014CF5138
2019AP599-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JOHN D. CARTER,
DEFENDANT-APPELLANT.
APPEALS from judgments and an order of the circuit court for
Milwaukee County: JONATHAN D. WATTS and LINDSEY CANONIE
GRADY, Judges. Affirmed.
Before Brash, P.J., Dugan and Donald, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2019AP598-CR
2019AP599-CR
¶1 PER CURIAM. John D. Carter appeals from judgments, entered
upon his guilty pleas, convicting him of three drug-related charges. Carter also
appeals from an order denying his postconviction motion without a hearing.1
Carter asserts that: (1) the State breached the plea agreement and his trial attorney
was ineffective for failing to object to the breach; (2) his trial attorney improperly
counseled him about the State’s offer; (3) his trial attorney was ineffective for
failing to move to dismiss a conspiracy count; and (4) the trial court failed to
establish a factual basis for Carter’s plea to the conspiracy charge. We conclude
that the circuit court appropriately denied the postconviction motion without a
hearing and, accordingly, we affirm the judgments and order.
BACKGROUND
¶2 On November 3, 2014, Carter was one of twenty-two defendants
charged in a sealed twelve-count complaint.2 The complaint detailed an ongoing
investigation, beginning in 2012, of a street gang, its members, and its associates
and their various drug-related activities. Carter was charged with two offenses in
Milwaukee County Circuit Court case No. 2014CF4880: (1) conspiracy to
commit possession with intent to deliver more than fifty grams of heroin as a
second or subsequent offense and (2) conspiracy to commit possession with intent
to deliver more than forty grams of cocaine as a second or subsequent offense.
1
The Honorable Jonathan D. Watts accepted Carter’s pleas and imposed sentence; we
refer to him as the trial court. The Honorable Lindsey Canonie Grady denied Carter’s
postconviction motion; we refer to her as the circuit court.
2
Because the complaint described intercepted communications—i.e., wiretaps—it was
initially filed under seal. See State v. Gilmore, 201 Wis. 2d 820, 823, 549 N.W.2d 401 (1996).
The trial court unsealed the complaint at the plea hearing after Carter’s attorney indicated no
objection.
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¶3 On November 5, 2014, a search warrant was executed at Carter’s
residence. Carter and two others were in the residence, along with cash, drugs,
drug paraphernalia, and firearms. Carter gave a statement to police in which he
acknowledged that some of the heroin, cocaine, marijuana, and cash recovered
were his. In December 2014, Carter was charged with two offenses in Milwaukee
County Circuit Court case No. 2014CF5138: (1) possession with intent to deliver
more than fifty grams of heroin as a second or subsequent offense and
(2) possession with intent to deliver more than forty grams of cocaine as a second
or subsequent offense.
¶4 Carter agreed to resolve the two cases through a plea bargain. In
exchange for his guilty pleas to the heroin conspiracy charge in case
No. 2014CF4880 and the two possession with intent to deliver charges in case
No. 2014CF5138, the State would dismiss and read in the cocaine conspiracy
charge and dismiss the second-or-subsequent enhancer on all of the offenses. The
State additionally agreed that it would not recommend any particular sentence
length. The trial court conducted a plea colloquy and accepted Carter’s pleas.
Carter was later sentenced to thirty years’ imprisonment for the conspiracy charge
and fifteen years’ imprisonment for each possession charge; the sentences were set
consecutive to each other and to any other sentence.
¶5 Carter subsequently filed a postconviction motion, seeking to
withdraw his pleas. He alleged that: (1) the State breached the plea agreement
and trial counsel was ineffective for failing to object to the breach; (2) trial counsel
was ineffective because he failed to adequately discuss and convey the State’s
pretrial offer before Carter entered his pleas, so the pleas were not knowingly
made; (3) trial counsel was ineffective for failing to move to dismiss the heroin
conspiracy count for “lack of a factual basis within the complaint”; and (4) the
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trial court erred in finding a factual basis to support Carter’s plea to the conspiracy
charge. With respect to the plea agreement, Carter noted that, according to the
plea questionnaire form, the plea agreement called for the State to recommend
“prison,” but, at the plea and sentencing hearings, the State instead recommended
“substantial prison.” With respect to the factual basis for the conspiracy, Carter
asserted that the complaint was insufficient to support the conspiracy charge
because there was nothing to show Carter had an agreement with anyone to
commit a crime other than the sale of heroin itself. Following briefing, the circuit
court denied the motion without a hearing. Carter appeals.
DISCUSSION
¶6 Carter asked that the circuit court hold a Machner hearing on his
motion to withdraw his pleas. See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d
905 (Ct. App. 1979). A Machner hearing is a prerequisite for consideration of an
ineffective assistance of counsel claim. See id. at 804. To withdraw a plea after
sentencing, a defendant must demonstrate manifest injustice by clear and
convincing evidence. See State v. Sulla, 2016 WI 46, ¶24, 369 Wis. 2d 225, 880
N.W.2d 659. Ineffective assistance of counsel, failure to establish a sufficient
factual basis to support a charge, and the State’s breach of a plea agreement are
each factual situations that could constitute manifest injustice. See State v.
Thomas, 2000 WI 13, ¶17, 232 Wis. 2d 714, 605 N.W.2d 836; State v. Krieger,
163 Wis. 2d 241, 251 n.6, 471 N.W.2d 599 (Ct. App. 1991).
¶7 The mere assertion of manifest injustice, however, is insufficient to
entitle a defendant to relief. See State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d
568, 682 N.W.2d 433. “A hearing on a postconviction motion is required only
when the movant states sufficient material facts that, if true, would entitle the
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defendant to relief.” Id. Whether the motion alleges sufficient facts is a question
of law. See id., ¶9. If the motion raises sufficient material facts, the circuit court
must hold a hearing. See id. If the motion does not raise sufficient material facts,
if the motion presents only conclusory allegations, or if the record conclusively
shows the defendant is not entitled to relief, then the decision to grant or deny a
hearing is left to the circuit court’s discretion. See id. The circuit court, however,
has the discretion to deny “even a properly pled motion ... without holding an
evidentiary hearing if the record conclusively demonstrates that the defendant is
not entitled to relief.” See Sulla, 369 Wis. 2d 225, ¶30. A circuit court’s
discretionary decisions are reviewed for an erroneous exercise of that discretion, a
deferential standard. See id., ¶23.
I. The Alleged Plea Breach
¶8 A defendant “has a constitutional right to the enforcement of a
negotiated plea agreement.” State v. Tourville, 2016 WI 17, ¶21, 367 Wis. 2d
285, 876 N.W.2d 735. However, “[n]ot all breaches of a plea agreement require a
remedy.” State v. Howard, 2001 WI App 137, ¶15, 246 Wis. 2d 475, 630 N.W.2d
244. A technical breach of the agreement will not warrant relief; the breach must
be material and substantial. See State v. Naydihor, 2004 WI 43, ¶10, 270 Wis. 2d
585, 678 N.W.2d 220. “A material and substantial breach is a violation of the
terms of the agreement that defeats the benefit for which the accused bargained.”
Tourville, 367 Wis. 2d 285, ¶23 (citation omitted).
¶9 “Whether the State breached a plea agreement is a mixed question of
fact and law.” Naydihor, 270 Wis. 2d 585, ¶11. The precise terms of the
agreement and the historical facts around the breach are questions of fact, and we
review the circuit court’s factual determinations under the clearly erroneous
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standard of review. See id. “Whether the State’s conduct constitutes a material
and substantial breach of the plea agreement is a question of law that this court
reviews de novo.” Id.¶10 Carter contends that the plea agreement, as presented to and
accepted by him and as memorialized on the plea questionnaire he signed, called
for the State to recommend prison at sentencing.3 Instead, the State recommended
substantial prison, thereby breaching the plea agreement.
¶11 The circuit court concluded that “[t]he record is unequivocally clear
that the defendant understood the plea offer was for ‘substantial prison.’” It noted
that, at the plea hearing, the State indicated its global sentencing recommendation
would be for substantial prison. Defense counsel agreed that this was the offer.
The trial court asked Carter directly whether he understood that the State was
“going to recommend for all three counts that your sentence be substantial prison,”
and Carter personally confirmed his understanding. The State also informed the
trial court that there were no earlier, more favorable plea offers, and defense
counsel agreed. Later, at the sentencing hearing, the State reiterated that its
recommendation would be for substantial prison. Thus, based on its conclusion
that the offer was only for substantial prison, the circuit court also concluded that
no breach had occurred.
3
Carter’s argument is premised on the contents of the plea questionnaire form, yet he
failed to include the form in his appendix. We remind counsel that the appellant’s appendix is
required to contain, among other things, “limited portions of the record essential to an
understanding of the issues raised[.]” WIS. STAT. RULE 809.19(2)(a) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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¶12 Carter argues that he has “submit[ted] sufficient facts to raise a
question of fact as to the exact wording of the plea agreement” such that there
should be a hearing on his motion. But even accepting it as true that Carter
believed the agreement called for the State to recommend prison, he has not
alleged any facts to show that the State made or believed that to be its offer: there
is no other part of the record that refers to a simple prison recommendation; the
only agreement the State ever referenced on the record was an agreement to
recommend substantial prison; the State indicated on the record that it had made
no other offers; and Carter acknowledges that his trial attorney, not the State, filled
out the plea questionnaire form.
¶13 Moreover, Carter’s trial attorney did not object to the State’s
supposed breach, so Carter’s right to directly challenge any breach has been
forfeited. See State v. Liukonen, 2004 WI App 157, ¶¶1, 6, 276 Wis. 2d 64, 686
N.W.2d 689. Therefore, the proper analytical framework is ineffective assistance
of counsel, see id., ¶6, so Carter also contends that his trial attorney was
ineffective for failing to object to the breach.
¶14 The requirements for showing ineffective assistance of counsel are
well established. A defendant must show that counsel’s performance was
deficient and that the deficiency prejudiced the defense. See State v. Balliette,
2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334. “Whether counsel was
ineffective is a mixed question of fact and law.” Id., ¶19. The defendant must
satisfy both elements of the test, and we need not address both prongs if the
defendant fails to make a sufficient showing on one of them. See State v.
Maloney, 2005 WI 74, ¶14, 281 Wis. 2d 595, 698 N.W.2d 583. In this case, the
threshold question on the ineffective assistance claim is whether the State’s
actions in fact constituted a breach of the plea agreement. See Naydihor, 270
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Wis. 2d 585, ¶9. However, the circuit court determined that the record
demonstrated the agreement was for the State to recommend substantial prison
and, as a result, there was no breach; failure to object to a non-existent breach of a
plea agreement cannot constitute deficient performance. See id.¶15 Relatedly, Carter also claims trial counsel was ineffective in
counseling him about the plea, asserting that trial counsel told him the offer was
for prison, not substantial prison. He argues that he was prejudiced because “he
understood the pretrial offer to mean one thing, but it turned out it meant
something else[.]”
¶16 In the plea withdrawal context, though, a demonstration of prejudice
requires the defendant to show “that there is a reasonable probability that, but for
the counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” See State v. Bentley, 201 Wis. 2d 303, 312, 548 N.W.2d 50 (1996)
(citation omitted). In the postconviction motion, Carter alleges only that had he
“known the recommendation was for ‘substantial prison’, he would not have
accepted the proposed offer.” However, this assertion is conclusory: Carter does
not explain why he was willing to accept an offer where the State would
recommend prison but not one where the State would recommend substantial
prison, nor does he explain why he would have rejected an offer for substantial
prison on three counts and insisted on going to trial on four counts. See Allen, 274
Wis. 2d 568, ¶23 (to be sufficient, a postconviction motion should allege “who,
what, where, when, why, and how”).
¶17 In sum, the postconviction motion does not allege sufficient material
facts regarding the terms of the plea agreement, the State’s alleged breach thereof,
or trial counsel’s deficient performance. Thus, the circuit court had the discretion
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to refuse a hearing on the issue and deny the motion, and we are not persuaded
that the circuit court erroneously exercised its discretion in doing so.
II. The Factual Basis for the Conspiracy Charge
¶18 Carter also contends that there is an insufficient factual basis in the
complaint for the charge of conspiracy with intent to deliver more than fifty grams
of heroin. He makes two arguments based on this premise: first, that trial counsel
was ineffective for failing to move to dismiss the heroin conspiracy count in case
No. 2014CF4880 at any point prior to his plea, and second, that the trial court
failed to comply with its mandatory duty to establish a factual basis for Carter’s
plea to that offense. The circuit court “concur[red] with the State[’s response
brief] that an adequate factual basis for conspiracy to commit possession with
intent deliver heroin (>50 g) exists … in the 59-page complaint.”
¶19 The sufficiency of a criminal complaint as a charging document is
reviewed for probable cause. See State v. Reed, 2005 WI 53, ¶11, 280 Wis. 2d 68,
695 N.W.2d 315. Whether a complaint states probable cause is a question of law
we review de novo. See id. “We look within the four corners of the complaint to
see whether there are facts or reasonable inferences set forth that are sufficient to
allow a reasonable person to conclude that a crime was probably committed and
that the defendant probably committed it.” See id., ¶12.
¶20 A guilty plea must be supported by a factual basis. See State v.
Thomas, 232 Wis. 2d 714, ¶17 (failure to establish sufficient factual basis for
crime to which defendant is pleading constitutes manifest injustice warranting plea
withdrawal). Thus, before accepting a guilty plea, the trial court must “[m]ake
such inquiry as satisfies it that the defendant in fact committed the crime charged.”
See WIS. STAT. § 971.08(1)(b); State v. Brown, 2006 WI 100, ¶23, 293 Wis. 2d
9Nos. 2019AP598-CR
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594, 716 N.W.2d 906. “[A] factual basis for a plea exists if an inculpatory
inference can be drawn from the complaint or facts admitted to by the
defendant[.]” State v. Black, 2001 WI 31, ¶16, 242 Wis. 2d 126, 624 N.W.2d 363.
“[I]n the context of a negotiated guilty plea,” the trial court “need not go to the
same length to determine whether the facts would sustain the charge as it would
where there is no negotiated plea.” State v. Smith, 202 Wis. 2d 21, 25, 549
N.W.2d 232 (1996) (citation omitted). We will uphold the trial court’s
determination of a sufficient factual basis unless such determination was clearly
erroneous. See Tourville, 367 Wis. 2d 285, ¶18.
¶21 WISCONSIN STAT. § 961.41(1m) criminalizes the knowing
possession of a controlled substance with either the purpose to, or an awareness
that actions are practically certain to, cause transfer of the substances from one
person to another. See id.; see also WIS JI—CRIMINAL 6035. Such intent may be
demonstrated by “evidence of the quantity … of the substances possessed[.]” See
§ 961.41(1m). To prove conspiracy, the State must show: (1) the defendant
intended that the crime be committed; (2) the defendant was a member of a
conspiracy to commit it; and (3) one or more conspirators performed an act
towards the commission of the crime that went beyond planning and agreement.
See WIS JI—CRIMINAL 570; see also WIS. STAT. §§ 939.31, 961.41(1x). “A
person is a member of a conspiracy if, with intent that a crime be committed, the
person agrees with or joins with another for the purpose of committing that
crime.” WIS JI—CRIMINAL 570. “A conspiracy is a mutual understanding to
accomplish some common criminal objective or to work together for a common
criminal purpose. It is not necessary that the conspirators had any express or
formal agreement[.]” Id.
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¶22 Carter’s main argument on this issue is that under State v. Cavallari,
214 Wis. 2d 42, 52-53, 571 N.W.2d 176 (Ct. App. 1997), “mere knowledge by the
supplier of the purchaser’s intent to further distribute the contraband is not
enough. Rather, the evidence must show an agreement between the parties.”
(Emphasis in Cavallari.) Carter also contends that, under federal case law,
“[s]imply being part of a ‘buyer-seller’ agreement cannot alone sustain a
conspiracy conviction because the sale has no separate criminal object.” See, e.g.,
United States v. Torres-Ramirez, 213 F.3d 978, 981 (7th Cir. 2000). Carter
asserts that there is nothing in the complaint “to show an agreement between Mr.
Carter and [his alleged co-conspirator, Charles Ortiz, Jr.,] to commit a crime other
than the sale of heroin itself” and nothing in the complaint showing Carter had any
awareness of what Ortiz was doing beyond their buyer-seller relationship. The
State asserts that Cavallari does not control because Cavallari was charged with
conspiracy to deliver, not conspiracy to possess with intent to deliver. We agree
with the State.
¶23 Cavallari discusses the evidence necessary to establish an agreement
between seller and buyer that the buyer would deliver drugs to third parties. See
id., 214 Wis. 2d at 50-54. In Carter’s case, the question is whether the evidence
sufficiently establishes an agreement between the buyer and seller that the buyer
would possess the purchased drug with the intent to deliver the drugs to third
parties. It is true that our supreme court “did not intend a buyer-seller relationship
for a small amount of drugs for a buyer’s personal use to be deemed a conspiracy.”
See id. at 49. But while Cavallari holds that more than a single sale of a large
quantity of a controlled substance is necessary to show a conspiracy to deliver, the
same does not hold true for a conspiracy to possess with intent to deliver.
Whereas a delivery conviction requires evidence of the act of delivering the drugs,
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a conviction for possession with intent requires only the act of possessing with the
requisite intent—which, as noted, may be shown by the quantity of substances
possessed. WIS. STAT. § 961.41(1m). Thus, the sale of a large quantity of drugs
would support an inference that the seller intended that the buyer possess the drugs
with intent to deliver, and that the seller entered into an agreement with the buyer
for the buyer to commit that crime.
¶24 According to the criminal complaint in case No. 2014CF4880,
investigators learned that Ortiz belonged to the gang being probed. Ortiz was a
heroin trafficker operating in Milwaukee, and it was determined that Carter was
one of Ortiz’s suppliers. Initially, Ortiz would contact Jesus Correa to obtain
heroin; however, intercepted communications made it clear that Correa was only
the middleman, not the supplier. After Correa was incarcerated, Ortiz started
obtaining heroin directly from Carter, and the complaint sets forth additional
information detailing how investigators concluded that Carter was the supplier.
¶25 Between September 24 and October 20, 2014, Carter directly
supplied Ortiz with a total of 250 grams of heroin. The complaint further explains
that one gram of heroin can be broken down into twenty to fifty smaller portions,
meaning 250 grams supplied between 5,000 and 12,500 individual hits.
¶26 Based on the above, including the quantity of the heroin that Carter
provided, we are satisfied that the complaint contains more than enough probable
cause to support the conspiracy charge. Any motion prior to the plea seeking to
dismiss the complaint for lack of probable cause would have failed, and counsel is
not ineffective for failing to pursue a meritless motion. See State v. Wheat, 2002
WI App 153, ¶14, 256 Wis. 2d 270, 647 N.W.2d 441.
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¶27 During the plea colloquy, the trial court asked Carter if he had read
the complaint; Carter acknowledged that he knew “what the charge is about.” The
trial court then referred Carter to the jury instructions for conspiracy and
possession with intent to deliver, and Carter acknowledged that he understood
each crime’s elements. The trial court then explained that it was “going to ask
[Carter] questions about what [he] did that shows that [he] did the crime …. It’s
called a factual basis.” The trial court’s questions and Carter’s answers
established that Carter admitted that: (1) he intended that the crime of possession
with intent to deliver more than fifty grams of heroin be committed; (2) this can be
shown by the fact that Carter “did it on a whole bunch of occasions”; (3) he was a
member of a conspiracy, acting with other people working together as part of a
plan or scheme; and (4) he committed an act in furtherance of the conspiracy when
he transferred heroin to Ortiz. Carter’s attorney additionally agreed that the trial
court could use the complaint “for an additional factual basis.”
¶28 Thus, the trial court had not only the facts in the complaint to rely
on, but also the facts to which Carter admitted. See Black, 242 Wis. 2d 126, ¶16.
Based on the foregoing, we discern no error by the trial court in conducting the
plea colloquy and no erroneous exercise of discretion in its determination that a
factual basis for the plea existed.
¶29 In sum, the record conclusively establishes that there was probable
cause stated in the complaint for the heroin conspiracy charge and the trial court
appropriately satisfied itself of a sufficient factual basis for Carter’s plea to the
conspiracy charge, a decision that was not clearly erroneous. Thus, we are not
persuaded that the circuit court erroneously exercised its discretion in denying
Carter’s motion without a hearing on this point, either.
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By the Court.—Judgments and order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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