State v. Bryant Taylor Ellis ( 2021 )

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, 2021
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 No. 2020AP115-CR Cir. Ct. No. 2017CF270
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
BRYANT TAYLOR ELLIS,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Brown County: MARC A. HAMMER and KENDALL M. KELLEY, Judges.
Affirmed.
Before Stark, P.J., Hruz and Seidl, 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).
No. 2020AP115-CR
¶1 PER CURIAM. Bryant Ellis challenges the denial of his
postsentencing motion for plea withdrawal.1 Ellis claims: (1) the circuit court
failed to conduct an adequate plea colloquy; (2) his plea was not knowing,
intelligent and voluntary; and (3) his trial attorneys were ineffective for not
investigating and advising him about a potential presentencing motion for plea
withdrawal based on his presentencing psychological evaluation. We reject Ellis’s
arguments and affirm.
BACKGROUND
¶2 Green Bay police were dispatched following a 911 call from
eighteen-year-old Ellis, who stated he had been playing with a gun and shot his
best friend in the head, killing him. Ellis told police that he and his friend had
consumed alcohol and marijuana after Ellis’s parents had left their home. Ellis
stated that his friend had first pointed the gun at him “jokingly,” and Ellis then
pointed the gun at his friend “jokingly,” when he accidentally “hit” the trigger.
After police secured the scene, Ellis was transported to the police department.
¶3 Ellis’s mother subsequently arrived at the police department and told
them that she and her husband had gone to work and that Ellis had called her at
3:30 a.m. saying he shot his friend. When she asked Ellis what happened, Ellis
stated that he had gone downstairs to get a bottle of water and when he came back
upstairs, his friend had a gun pointed at Ellis and said “freeze mother fucker.”
Ellis thought he was “playing” because he knew the gun was unloaded. His friend
1
The Honorable Marc A. Hammer presided over Ellis’s sentencing and entered the
judgment of conviction. The Honorable Kendall M. Kelley presided over the postconviction
motion hearing and entered the postconviction order.
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No. 2020AP115-CR
tossed the gun on the bed, and Ellis picked it up and pointed it at his friend and
said, “no, you freeze mother fucker,” at which point Ellis “must’ve pulled the
trigger.” Ellis’s mother stated that she usually keeps the gun in a locked safe in
her bedroom “but due to Christmas money she had the unloaded gun under her
bed.” She also said Ellis had told her that he took the gun out “a couple days ago,”
but she was not sure exactly when that occurred.
¶4 Detectives then asked Ellis for further details, and he allegedly
explained that a few days before the shooting, he had taken the gun out of his
mother’s room while she was gone, and that it was unloaded in the case. Ellis
recounted that he had been playing with it in his room, and at that time it did not
have a magazine or bullets in it. Ellis also told police, however, that he loaded one
of the magazines when he took the gun. He also speculated that his friend may
have inserted the second magazine into the gun shortly prior to the shooting.
¶5 Ellis also told police that he had the gun in his room four or five
days, that his friend had come over three or four times, and that they had “played
around” with it. Ellis said there were times when his friend would point the gun at
the television and pull the trigger, and that his friend also pointed the gun at Ellis
and pulled the trigger “a few times.” Ellis also stated that the gun was loaded
when it was in his room and that they would play with it while it was loaded. Ellis
explained how they would load and unload the gun, and “rack” rounds out of the
gun.
¶6 Ellis said that when he went downstairs to get the water, the gun was
in one of his dresser drawers. He said that when he returned his friend pointed the
gun at him, but Ellis did not hear it click. His friend then put the gun down, and
they “did another shot of Jack Daniels.” Ellis said he was sitting on the floor near
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No. 2020AP115-CR
his friend when he grabbed the gun and started playing with it. He said he pointed
the gun at his friend and said “freeze.” He demonstrated how he pointed it across
his body, and when he pulled the trigger the gun went off. Ellis said he was high
and they “were buzzed,” and when he pulled the trigger, he thought it would just
go click, “like it always does.” A forensic pathologist determined the victim was
shot from a distance of two feet, and his death was caused by a gunshot wound
that entered above the victim’s right eyebrow and exited the back of his head.
¶7 Ellis was charged with first-degree reckless homicide with use of a
dangerous weapon; endangering safety by use of a weapon while intoxicated; and
possession of a firearm after having been adjudicated delinquent. Ellis and the
State reached a tentative plea deal, but Ellis’s trial counsel told the circuit court
that although Ellis did not want to go to trial, he did want more time to discuss the
case with his family. The court therefore removed the case from the trial calendar
and set a plea hearing for approximately five weeks later. At the subsequent plea
hearing, Ellis pleaded no contest to first-degree reckless homicide with use of a
dangerous weapon, and the remaining charges were dismissed and read in for
purposes of sentencing. The circuit court ordered a presentence investigation
report (PSI).
¶8 Prior to sentencing, and as part of the preparation of the PSI, Ellis’s
attorneys referred him for a psychological evaluation. A psychologist for the
defense testified at the sentencing hearing regarding his evaluation, concluding
that Ellis “is a low functioning young adult with cognitive deficits and other
limitations.” He also concluded that Ellis had “poor social skills and executive
functioning deficits which include poor decision making, impulsivity, and
uninhibited behaviors.” The psychologist further concluded that Ellis “is
struggling with a mood disorder, neurodevelopmental disorder and substance
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No. 2020AP115-CR
abuse.” Ellis’s trial counsel intended the testimony to be considered by the circuit
court, not to show that Ellis was not competent, but for the court’s consideration at
sentencing to show that his low functioning and other mental health issues
mitigated the seriousness of the offense. The trial attorneys did not ask the court
to question whether Ellis’s plea was knowingly, intelligently and voluntarily
entered, and they did not counsel Ellis to withdraw his plea.
¶9 Represented by postconviction counsel, Ellis moved after his
sentencing to withdraw his plea. He claimed: (1) the circuit court failed to
conduct an adequate plea colloquy; (2) his plea was not knowing, intelligent and
voluntary; and (3) his trial attorneys were ineffective for not investigating and
advising him about a potential plea withdrawal based on his psychological
evaluation.
¶10 Following a hearing, the circuit court denied Ellis’s motion. The
court concluded that the plea colloquy was sufficient to ensure the plea was
knowingly, intelligently and voluntarily entered. The court also concluded that
Ellis’s trial attorneys had not performed deficiently because they were aware of
the information in the psychological evaluation before Ellis entered his plea, and
they had no reason to believe Ellis did not understand the charge and his choices.
Ellis now appeals.
DISCUSSION
¶11 After sentencing, a plea will not be disturbed unless the defendant
establishes by clear and convincing evidence that a failure to withdraw the plea
will result in a manifest injustice. State v. Taylor, 2013 WI 34, ¶48, 347 Wis. 2d
30, 829 N.W.2d 482. Whether a defendant entered a knowing, intelligent and
voluntary plea is a question of constitutional fact. State v. Brown, 2006 WI 100,
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No. 2020AP115-CR
¶19, 293 Wis. 2d 594, 716 N.W.2d 906. We review the question independently,
while upholding the circuit court’s factual findings unless they are clearly
erroneous. Id. Whether counsel’s performance was deficient and prejudicial are
questions of law we review de novo. State v. Mayo, 2007 WI 78, ¶32, 301
Wis. 2d 642, 734 N.W.2d 115.
¶12 Ellis has failed to show by clear and convincing evidence that it
would be manifestly unjust to disallow his plea withdrawal. At the outset, we
construe Ellis’s arguments to be based on alleged defects in the plea colloquy. See
State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).2
¶13 The circuit court’s plea colloquy was adequate. Ellis completed and
signed a plea questionnaire and waiver of rights form, affirming that he had
completed eleven years of schooling; that he was not currently receiving treatment
for any mental illness or disorder; and that he understood the charge to which he
was pleading. Ellis also affirmed that he understood the constitutional rights he
was waiving by pleading no contest, among other things.
¶14 The circuit court addressed Ellis personally and asked Ellis if he had
gone over the plea questionnaire with his attorneys, and Ellis affirmed that he had
done so. The court also specifically asked Ellis if it could accept each statement
on the completed plea questionnaire form and its attachments “just as though you
made those statements here in open court today.” Ellis answered, “Yes, your
Honor.” The court asked, “In other words, may I accept them verbatim into the
2
In the circuit court, Ellis also appears to have sought to withdraw his plea based on
alleged defects in the plea colloquy itself, as the court recognized in its decision and order
denying Ellis’s motion to withdraw his plea. Ellis also seems to continue to advance his
arguments under that rubric on appeal.
6
No. 2020AP115-CR
record just as though you and I went through this form and the attachments line by
line on the record.” Ellis again answered, “Yes, your Honor.” The court further
asked, “And if we did that, if we went through it line by line, would you tell me
that you understand each line on the—each of the pages and that you agree with
them in the way that they’ve been filled out.” Ellis answered, “Yes, sir.”
¶15 The circuit court also advised Ellis during the plea colloquy that it
was not bound by the terms of any plea agreement and could impose the maximum
potential punishment allowed by law. The court further ascertained that no
promises, agreements or threats were made in connection with Ellis’s anticipated
plea. The court also asked Ellis’s trial counsel whether, given that Ellis was “a
very young person,” if counsel was “satisfied that he appreciates the gravity of his
decision to go forward in this fashion today?” Counsel answered, “Yes, your
Honor.” The court stated that it was relying on counsel’s representations, as well
as on Ellis’s answers to the court’s questions.
¶16 Ellis nevertheless argues that the circuit court “did nothing to
provide to or elicit from the defendant any substantive information related to the
elements.”3 But Ellis indicated on the plea questionnaire that he understood the
elements of the offense. In addition, the jury instructions containing the elements
of the offense were attached to the plea questionnaire. As the court noted in its
decision denying the motion for plea withdrawal, Ellis’s trial attorneys went
through the elements with him “line by line, [and a trial attorney] made a mark
3
In this regard, Ellis relies on State v. Hoppe, 2009 WI 41, 317 Wis. 2d 161, 765
N.W.2d 794. We are not persuaded, however, that the circuit court relied entirely on the plea
questionnaire and waiver of rights form as a substitute for a substantive in-court plea colloquy, as
occurred in Hoppe. See id., ¶31.
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No. 2020AP115-CR
next to each of the elements, which indicated that the element was discussed and
that the defendant had communicated that he had understood.” The court asked
Ellis during the plea colloquy whether, if it were to read the elements of the crime
to him, would he give the same answer that he had provided on the plea
questionnaire, and Ellis said he would. Moreover, the jury instructions attached to
the plea questionnaire are marked with the initials “B.E.” next to each element.
¶17 Furthermore, the circuit court specifically asked Ellis during the plea
colloquy if his attorneys had explained to him the elements of the crime, and Ellis
answered that they had. The court asked Ellis if he had enough time to discuss his
case with his attorneys and if they had answered all his questions. Ellis answered,
“Every single one.” The court then asked, “[I]f I were to ask you to tell me in
your own words why you believe you’re guilty of” first-degree reckless homicide
with the use of a dangerous weapon, “would you tell me the same basic facts as
are contained within the Criminal Complaint that relate to that count.” Ellis again
answered, “Yes, your Honor.”
¶18 As the circuit court itself recognized, while it could have asked Ellis
if he understood each specific element, there is no reason to think he would have
said “no.” Neither Ellis nor his trial attorneys gave the court any reason to doubt
that Ellis understood the elements of the offense. We conclude the plea colloquy
was not deficient.
¶19 In addition, we are unpersuaded that Ellis’s plea was not entered
knowingly, intelligently or voluntarily. During the plea hearing, the circuit court
noted that Ellis had been “listening carefully” and “answering confidently.” The
court also stated that Ellis “seem[ed] to understand what [he was] doing here
today.” In its decision and order denying the motion to withdraw his plea, the
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No. 2020AP115-CR
court also noted that Ellis’s trial attorneys had testified that they were aware of
Ellis’s cognitive difficulties, so they “took the time [they] needed to [talk] with
[him] to make sure” that they conveyed the necessary information to him, and “he
understood it.”
¶20 Both of Ellis’s trial attorneys testified at the postconviction hearing
that they “had prior experience with low-functioning defendants,” and “neither
believed that there was any issue as to Ellis’s competency, even after receiving the
results of [the psychological] evaluation.” The circuit court emphasized that
“nothing that occurred during the plea colloquy itself raised any concerns that Ellis
did not understand the plea agreement.” Ellis’s attorneys testified that they went
through the plea questionnaire with Ellis on several occasions.4 After initially
agreeing to plead no contest to the single count, Ellis decided he wanted more time
to discuss the case with his family. The plea hearing was therefore delayed for
five weeks, and after that delay Ellis still wanted to plead no contest.
¶21 To the extent Ellis is arguing that he was not competent to
understand the plea colloquy and make an informed decision due to cognitive,
emotional and mental health issues, the circuit court satisfied itself that Ellis was
capable of understanding the plea. Indeed, Ellis’s competency was part of what
the plea colloquy was designed to determine. Ellis points to nothing in the
psychological evaluation demonstrating that he was incapable of entering his plea
4
Ellis argues that in a case where first-degree reckless homicide is charged, several
meetings would not be enough for any person to determine whether to enter a plea—much less
for a person whom the parties recognize as “slow.” It is not the number of meetings that matters
for purposes of determining whether a plea is knowing, however; it is whether counsel is able to
convey the necessary information to the defendant such that the defendant understands it and can
decide what to do. Ellis’s trial attorneys testified that they did exactly that.
9
No. 2020AP115-CR
knowingly, intelligently and voluntarily nearly three months before the
psychological evaluation was completed. And, at the time of the psychological
evaluation, Ellis indicated that he was then capable of understanding his plea,
despite his limitations. Nor does Ellis adequately explain what questions he thinks
the circuit court could have asked him to further ensure that he was pleading no
contest knowingly, intelligently and voluntarily. The record demonstrates that
Ellis knowingly, intelligently and voluntarily entered his plea.
¶22 We turn now to the claim of ineffective assistance of counsel. The
circuit court denied Ellis’s ineffective assistance of counsel claim after a hearing.
The court concluded that Ellis’s trial attorneys did not perform deficiently by not
telling him before sentencing that he could withdraw his plea based on information
in the psychological evaluation. The court noted that the results of the evaluation
they had ordered before sentencing “were neither surprising nor novel to trial
counsel.” The court also emphasized that both attorneys testified that Ellis did not
want to go to trial. The court concluded, “It therefore cannot be said that either
attorney had any reason to suspect that, due to his cognitive impairment, Ellis did
not understand the elements of the offense to which he was pleading or the
ramifications of entering his plea.”
¶23 We agree with the circuit court’s conclusions. Ellis contends his
trial counsel “simply needed to consider [the need to withdraw the plea] and
discuss it with Mr. Ellis.” According to Ellis, he thereby lost the opportunity to
withdraw his plea under the “any fair and just reason” presentence plea withdrawal
standard. Ellis’s claim that his trial attorneys performed deficiently is dependent,
however, on the premise that he would have been able to withdraw his plea
presentence for a fair and just reason, and that he had a legitimate defense that
could prevail at trial. See State v. Jenkins, 2007 WI 96, ¶28, 303 Wis. 2d 157,
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No. 2020AP115-CR
736 N.W.2d 24. A fair and just reason must be something more than the desire to
have a trial. Id., ¶32.
¶24 Ellis appears to argue that the fair and just reason to withdraw his
plea was his not understanding the elements of the offense, and he relies upon the
results of the psychological evaluation to support his argument. The circuit court
recognized, however, that nothing in the psychological evaluation would have led
his trial attorneys to believe that he did not understand the elements. At best, the
results of the psychological evaluation would have led counsel to believe that they
needed to spend more time with Ellis to make sure he understood the elements,
which is what they did. Moreover, Ellis does not explain what defense his
attorneys should have realized he could have mounted. His statements to law
enforcement show that the State could easily prove the elements of the crime, as
there is little dispute Ellis shot his friend in the head with criminally reckless
conduct that created an unreasonable risk of death or great bodily harm. See
WIS JI—CRIMINAL 990 (2006).
¶25 Ellis said that he had loaded and unloaded the gun multiple times
and did not know if he had unloaded it the night before he killed his friend because
he had been smoking marijuana and drinking alcohol. He did not check to
confirm that the gun was unloaded; he simply pointed it at his friend’s head from
two feet away and pulled the trigger. It is difficult to view that conduct as
anything but utter disregard for human life. In addition, Ellis gave conflicting
statements concerning the facts. We have no reason to doubt Ellis’s attorneys’
conclusions when they told Ellis that he had no legitimate defense and that he
would have a hard time winning at trial. A circuit court would have no proper
reason to grant a plea withdrawal motion based on Ellis later deciding that his trial
attorneys were somehow wrong and that he actually had a real defense.
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No. 2020AP115-CR
¶26 In short, Ellis has not proved that his attorneys performed deficiently
or that he suffered prejudice. The court properly exercised its discretion in
denying Ellis’s plea withdrawal motion.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2019-20).
12