State v. Rodney Richardo King

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.
January 3, 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. 2019AP182-CR Cir. Ct. No. 2016CF4866

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RODNEY RICHARDO KING,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.

Before Brash, P.J., Kessler and Dugan, 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. 2019AP182-CR

¶1 PER CURIAM. Rodney Richardo King appeals a judgment
convicting him of one count of second-degree sexual assault and one count of
possession of narcotics. King also appeals an order denying his postconviction
motion seeking plea withdrawal. He argues that he received ineffective assistance
of counsel because his trial counsel promised him that he would receive a five-
year term of initial confinement. We affirm.

¶2 King was charged with two counts of second-degree sexual assault,
one of which involved an unconscious victim, one count of strangulation and
suffocation, one count of false imprisonment with use of a dangerous weapon, and
one count of possession of narcotics. The charges stemmed from two separate
incidents and involved different victims, T.K. and J.M. Pursuant to a plea
agreement, King pled guilty to one count of second-degree sexual assault as to
T.K. and one count of possession of narcotics. He was sentenced to sixteen years
of initial confinement and ten years of extended supervision for the sexual assault.
He was sentenced to a concurrent term of fourteen months of initial confinement
and fourteen months of extended supervision for possession of narcotics.

¶3 King moved for postconviction relief, arguing that he should be
allowed to withdraw his pleas. The circuit court denied the motion as
inadequately pled. King then filed a supplemental postconviction motion that
fleshed out his allegations and provided additional supporting material. The
circuit court again denied the motion without a hearing.

¶4 “When a defendant seeks to withdraw a guilty plea after sentencing,
he must prove, by clear and convincing evidence, that a refusal to allow
withdrawal of the plea would result in manifest injustice.” State v. Taylor, 2013
WI 34, ¶24, 347 Wis. 2d 30, 829 N.W.2d 482 (internal quotation marks omitted;

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No. 2019AP182-CR

citation omitted). A manifest injustice occurs if the defendant was denied the
effective assistance of counsel. State v. Dillard, 2014 WI 123, ¶84, 358 Wis. 2d
543, 859 N.W.2d 44. A defendant receives ineffective assistance of counsel if
counsel’s performance is deficient and the deficient performance prejudices the
defense. State v. Bentley, 201 Wis. 2d 303, 312, 548 N.W.2d 50 (1996). Where,
as here, a defendant contends that he would have gone to trial but for a
misrepresentation by his trial counsel, the defendant must explain with specificity
why he would have gone to trial. Id. at 314-16.

¶5 King argues that his trial counsel misrepresented the consequences
of pleading guilty because counsel unequivocally promised that King would
receive five years of initial incarceration if he entered his pleas. King further
contends that he would not have pled guilty but for the promise of a five-year
sentence because he did not sexually assault one of the victims, T.K.

¶6 Assuming for the sake of argument that King’s counsel
unequivocally promised King that he would receive a five-year sentence, King has
not shown that he was prejudiced. During the plea colloquy, the circuit court
clearly informed King that he could receive up to forty-three and one-half years of
imprisonment for the two charges and King twice acknowledged that he
understood this information. The circuit court warned King that it was not bound
by the plea agreement, and King said that he understood. King indicated that no
one had made any promises to him to induce him to enter his guilty pleas. King
also reviewed and signed a plea questionnaire and waiver of rights form that
explained that he could receive up to the maximum of forty-three and one-half
years of imprisonment for the two charges. King’s claim that he was guaranteed
that he would be sentenced to only five years of initial confinement based on
counsel’s alleged promise is directly contradicted by the record.

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No. 2019AP182-CR

¶7 Moreover, King’s claim that he would have gone to trial if he
thought he would receive more than five years of initial incarceration is not
adequately explained in light of the facts. Had King gone to trial, he would have
faced a possible sentence of ninety-nine years in prison. There was strong
evidence of King’s guilt, including DNA evidence to support the sexual assault
that was dismissed pursuant to the plea agreement. King’s assertion that he would
not have gone to trial because he did not sexually assault T.K. fails to address the
charges related to the second victim, J.M., and does not explain why King would
have risked a jury trial on all five charges in light of the evidence against him and
the lengthy prison term he would have faced. Therefore, King has not
demonstrated a reasonable probability that, but for the alleged promise, he would
have gone to trial. See id. at 316. (“Without facts to support his allegation that he
pled guilty only because of the misinformation, [the defendant’s] allegation
amounts to merely a self-serving conclusion.”). The circuit court properly denied
King’s motion without a hearing because he did not make a sufficient allegation of
prejudice.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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