State v. Cortez Lorenzo Toliver

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.
September 16, 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 No. 2018AP836 Cir. Ct. No. 2009CF459
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
CORTEZ LORENZO TOLIVER,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Racine County:
FAYE M. FLANCHER, Judge. Affirmed.
Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
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. 2018AP836
¶1 PER CURIAM. Cortez Lorenzo Toliver appeals pro se from a
circuit court order denying his WIS. STAT. § 974.06 (2017-18)1 postconviction
motion without a hearing. Toliver contends that he is entitled to an evidentiary
hearing on the issue of whether he should be permitted to withdraw his guilty
pleas. Because Toliver’s claims are barred by § 974.06(4), and State v. Escalona-
Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), and because the record
conclusively shows that Toliver is not entitled to relief on the merits of his plea
withdrawal claim, we affirm.
¶2 When he was sixteen years old, Toliver pled guilty to and was
convicted of the crimes of first-degree reckless injury and attempted robbery, both
involving the use of a dangerous weapon. The postconviction court denied
Toliver’s WIS. STAT. § 974.02 motion for sentencing relief. On direct appeal,
Toliver argued that the circuit court erroneously exercised its discretion when it
denied his reverse waiver motion, and in imposing sentence. We affirmed the
judgment of conviction and order denying postconviction relief. State v. Toliver,
No. 2012AP393-CR, unpublished slip op. (WI App April 4, 2013). The
Wisconsin Supreme Court granted review, and affirmed this court’s decision.
¶3 Toliver filed a pro se WIS. STAT. § 974.06 motion seeking to
withdraw his guilty pleas, arguing that the circuit court conducted an inadequate
plea colloquy under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
Specifically, Toliver asserted that the plea-taking court failed to (1) ascertain
whether any promises or threats were made to induce his pleas, (2) establish
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2018AP836
whether Toliver understood the nature of the crimes and the range of punishments
he faced, and (3) ascertain whether a factual basis existed to support the charges of
conviction. In support, Toliver attached a copy of the plea hearing transcript.
Toliver’s motion alleged that his postconviction counsel “chose not to introduce a
challenge” to the plea colloquy. The motion did not affirmatively allege that
Toliver’s postconviction counsel was ineffective for failing to challenge the plea
colloquy.
¶4 The circuit court denied Toliver’s WIS. STAT. § 974.06 motion
without a hearing on two grounds. First, the court determined that the plea hearing
transcript “conclusively demonstrates that the court conducted a thorough plea
colloquy with [Toliver].” Second, the court determined that Toliver’s motion
failed “to state any reason why an issue concerning the adequacy of the plea
colloquy was not raised in a motion preceding the first appeal[,]” and that
therefore, his claims were procedurally barred. Toliver appeals.
¶5 Absent a sufficient reason, a defendant is procedurally barred from
raising claims in a WIS. STAT. § 974.06 postconviction motion that could have
been raised in a prior postconviction motion or appeal. See § 974.06(4);
Escalona-Naranjo, 185 Wis. 2d at 181-82, 184-86. Whether a sufficient reason is
stated is a question of law subject to de novo review. State v. Romero-Georgana,
2014 WI 83, ¶30, 360 Wis. 2d 522, 849 N.W.2d 668.
¶6 We conclude that the claims in Toliver’s WIS. STAT. § 974.06
postconviction motion are procedurally barred. Toliver previously pursued a
postconviction motion and direct appeal under WIS. STAT. RULE 809.30. He could
have but did not raise claims challenging the propriety of the plea-taking
procedure, including the purported Bangert deficiencies he now asserts. Toliver’s
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No. 2018AP836
§ 974.06 motion fails to assert any reason, let alone a sufficient reason, explaining
why he did not raise these claims earlier. As such, Toliver was not entitled to a
hearing on his § 974.06 postconviction motion.
¶7 Toliver asserts for the first time on appeal that postconviction
counsel provided ineffective assistance by failing to challenge the entry of
Toliver’s guilty pleas in his original postconviction motion. The ineffective
assistance of postconviction counsel may constitute a sufficient reason for
purposes of overcoming Escalona’s procedural bar where the defendant alleges
particular material facts which, if proven, demonstrate that he or she is entitled to
relief. See State v. Balliette, 2011 WI 79, ¶79, 336 Wis. 2d 358, 805 N.W.2d 334.
In order to overcome the presumption that postconviction counsel acted
reasonably, a WIS. STAT. § 974.06 motion must allege specific facts showing both
that counsel’s performance was deficient and that this deficiency was prejudicial.
Id., ¶63.
¶8 To the extent that Toliver’s WIS. STAT. § 974.06 motion attempted to
plead the ineffective assistance of postconviction counsel, it is insufficient on its
face to require an evidentiary Machner2 hearing. Balliette, 336 Wis. 2d 358, ¶18
(whether a § 974.06 postconviction motion alleges sufficient facts to require a
hearing is a question of law reviewed de novo). To entitle the defendant to a
hearing, the motion must “allege the five ‘w’s’ and one ‘h’”; that is, [the] who,
what, where, when, why, and how” of the defendant’s claim, within its four
2
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979) (where a
defendant claims he or she received the ineffective assistance of counsel, an evidentiary hearing
“is a prerequisite … on appeal to preserve the testimony of … counsel”).
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No. 2018AP836
corners. State v. Allen, 2004 WI 106, ¶23, 274 Wis. 2d 568, 682 N.W.2d 433.
Toliver’s motion is wholly conclusory and does not begin to meet this pleading
standard.
¶9 Finally, putting aside the pleading deficiencies in Toliver’s WIS.
STAT. § 974.06 postconviction motion, the circuit court properly denied the
motion without a hearing because the record as a whole conclusively demonstrates
that the plea-taking court performed its duties in compliance with WIS. STAT.
§ 971.08, and Bangert.
¶10 Under WIS. STAT. § 971.08, the record of the plea colloquy must
show that the defendant entered his or her pleas with an understanding of the
nature of the charges, the constitutional rights being waived, the factual basis for
the pleas, and the maximum penalties. Bangert, 131 Wis. 2d at 261-62, 265. A
motion seeking plea withdrawal due to a defective plea colloquy must
(1) demonstrate a deficiency in the plea colloquy, and (2) allege that the defendant
did not otherwise know or understand the information that should have been
provided at the plea hearing. Id. at 274. “Whether [a defendant] has pointed to
deficiencies in the plea colloquy that establish a violation of WIS. STAT. § 971.08
or other mandatory duties at a plea hearing is a question of law we review de
novo.” State v. Brown, 2006 WI 100, ¶21, 293 Wis. 2d 594, 716 N.W.2d 906.
¶11 Toliver asserts that the plea colloquy was defective in three ways,
none of which is borne out by the record. First, the circuit court satisfied its duty
to ascertain that Toliver’s pleas were not induced by improper threats or promises
by asking him the following:
Q. Is anyone threatening you or forcing you to give up any
of these constitutional rights?
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No. 2018AP836
A. No, ma’am.
…
Q. Has anyone made any threats or promises to you to get
you to change your plea today?
A. No, ma’am.
¶12 Second, the circuit court ascertained Toliver’s understanding of the
nature of his crimes and the potential punishment he faced:
Q. Now my understanding is that you are going to be
entering pleas to both counts in the information, correct?
A. Yes, ma’am.
Q. Again with respect to Count 1, first degree reckless
injury with use of a dangerous weapon, sir, do you
understand that that is a Class D felony. And upon
conviction you may be fined not more than 100 thousand
dollars, imprisoned not more than 25 years, or both. And
because this was with use of a dangerous weapon you
understand that the maximum term of imprisonment may
be increased by up to five years for [a] total of 30 years in
prison?
A. Yes, Ma’am.
Q. And you understand with respect to Count 2 attempted
robbery with use of force with use of a dangerous weapon
that that is a Class E felony and upon conviction with the
weapon enhancer you are facing a $25,000 fine, 12 and a
half years in prison or both?
A. Yes, Ma’am.
…
Q. So that that’s clear, sir, with the weapon enhancer on
Count 2 you are looking at [a] total of potentially 12 and a
half years in prison and [a] $25,000 fine or both, correct?
A. Yes, Ma’am.
…
Q. Do you understand, sir, that I don’t have to follow
recommendations made by the state, recommendations
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No. 2018AP836
made by [trial counsel], or any recommendations that may
be made in the PSI. And that I am free to sentence you to
the maximum term of incarceration on each count?
A. Yes, ma’am.
Q. Do you need any additional time to talk to [trial
counsel]?
A. No, ma’am.
Q. Has [trial counsel] explained to you the elements of both
first degree reckless injury with use of a dangerous weapon
and attempted robbery with use of force with a dangerous
weapon?
A. Yes, ma’am.
Q. And in fact he has attached the elements directly to the
plea questionnaire, correct?
A. Yes, ma’am.
Q. Do you understand those elements?
A. Yes, ma’am.
Q. For either offense there do you need me to review the
elements of the crime with you again today on the record?
A. No, ma’am.
¶13 The information provided by the circuit court concerning the nature
of Toliver’s crimes and the maximum penalties he faced was accurate and
complete under governing statute and case law, including State v. Hoppe, 2009
WI 41, ¶¶30-31, 317 Wis. 2d 161, 765 N.W.2d 794 (the defendant’s plea
questionnaire may properly be used by the court “when discharging its plea
colloquy duties.”). Nothing more was required.
¶14 Toliver points out that during the plea colloquy, he “entered a total
of 39 responses to the questions from the circuit court” with a perfunctory “yes,
ma’am,” “no, ma’am,” or “guilty.” To the extent he is arguing that the court was
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No. 2018AP836
required to ask him open-ended questions, we are not persuaded. Toliver does not
identify any portion of the plea colloquy that might have signaled to the court that
Toliver was confused or did not understand the court’s questions. Toliver’s “yes”
and “no” answers were responsive to the questions asked, and he told the court he
did not need it to review the elements with him on the record.
¶15 Toliver’s third alleged plea-colloquy deficiency—that the circuit
court failed to ascertain the existence of a factual basis—fares no better. After
ascertaining trial counsel’s consent to “use the underlying criminal complaint and
the amended Information as a factual basis for the change of plea … [,]” the court
stated that it had reviewed these documents and “does find a factual basis for the
change of plea.” The facts set forth in the criminal complaint satisfy the elements
of the crimes to which Toliver pled. That is sufficient to fulfill the court’s plea-
taking duties. See State v. Black, 2001 WI 31, ¶4, 242 Wis. 2d 126, 624 N.W.2d
363.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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