State v. Robert David Fernandez Close

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.
February 7, 2023
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. 2021AP153 Cir. Ct. Nos. 2004CF127
2004CF165
2021AP154

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT DAVID FERNANDEZ CLOSE,

DEFENDANT-APPELLANT.

APPEALS from orders of the circuit court for Pierce County:
JOSEPH D. BOLES, Judge. Order in 2021AP153 vacated and cause remanded
with directions; order in 2021AP154 affirmed.

Before Stark, P.J., Hruz and Gill, 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. 2021AP153
2021AP154

¶1 PER CURIAM. Robert Close, pro se, appeals from orders denying
his postconviction motions for plea withdrawal in two Pierce County criminal
cases. Close contends that he was entitled to an evidentiary hearing on his
motions. We conclude that the circuit court lacked subject matter jurisdiction to
hear the plea withdrawal motion in Pierce County case No. 2004CF127. We
therefore vacate the order in that case and remand with directions that the court
enter an order dismissing Close’s motion on jurisdictional grounds. In Pierce
County case No. 2004CF165, the record conclusively demonstrates that Close is
not entitled to relief. We therefore affirm the court’s denial of Close’s motion in
that case without a hearing.

BACKGROUND

¶2 In Pierce County case No. 2004CF127, Close pled guilty to
possession with intent to deliver less than 200 grams of THC. On August 18,
2019, the Department of Corrections (DOC) discharged Close from the sentence
imposed following the revocation of Close’s probation in that case.

¶3 In Pierce County case No. 2004CF165, Close pled guilty to sexual
assault of a child under the age of sixteen, subject to a deferred entry of judgment
agreement (DEJA).1 The minutes from the plea hearing referred to the disposition
of an additional misdemeanor in 2004CF165 and charges in four other cases—

1
Although the agreement was labeled as a deferred prosecution agreement, it called for
Close to enter a plea and for the charge to be dismissed prior to sentencing if certain conditions
were fulfilled. Compare WIS. STAT. § 971.39 (2019-20) (deferred prosecution), with State v.
Wollenberg, 2004 WI App 20, 268 Wis. 2d 810, 674 N.W.2d 916 (2003) (deferred entry of
judgment and sentencing as condition of plea agreement).

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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Nos. 2021AP153
2021AP154

none of which were charges filed in 2004CF127. The DEJA itself did not
condition the entry of Close’s plea to the sexual assault charge, or the dismissal of
that charge prior to entry of judgment, upon the events in any other case. On
May 22, 2020, the DOC discharged Close from the sentence imposed in Pierce
County case No. 2004CF165, following the revocation of the DEJA and from a
subsequent order for reconfinement after the revocation of extended supervision in
that case.

¶4 On May 7, 2020, Close moved to withdraw his pleas in both case
Nos. 2004CF127 and 2004CF165, pursuant to WIS. STAT. § 974.06. Close alleged
that his trial counsel provided ineffective assistance in 2004CF127 by failing to
file—or to advise Close that he had a basis to file—a suppression motion, and that
Close was required to plead guilty in 2004CF127 as part of his plea deal in
2004CF165. The circuit court denied the plea withdrawal motions on their merits
without a hearing, and Close appeals.

DISCUSSION

Case No. 2004CF127

¶5 The Wisconsin Supreme Court has held that in order for a circuit
court to have subject matter jurisdiction over a defendant’s postconviction motion
filed under WIS. STAT. § 974.06, that defendant must still be in custody on the
sentence being challenged. Theisen v. State, 86 Wis. 2d 562, 570, 273 N.W.2d
314 (1979). Whether a circuit court has subject matter jurisdiction is a question of
law subject to de novo review. State v. Schroeder, 224 Wis. 2d 706, 711, 593
N.W.2d 76 (Ct. App. 1999).

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Nos. 2021AP153
2021AP154

¶6 Here, the circuit court lacked subject matter jurisdiction to review
Close’s motion to withdraw his plea in case No. 2004CF127 because Close had
already been discharged from DOC custody on the sentence imposed in that case
before Close filed the motion. “When a court or other judicial body acts in excess
of its jurisdiction, its orders or judgments are void.” Kohler Co. v. DILHR,
81 Wis. 2d 11, 25, 259 N.W.2d 695 (1977). We therefore vacate the order
denying Close’s plea withdrawal motion in case No. 2004CF127 on its merits, and
we remand with directions that the court instead enter an order dismissing the
motion for lack of subject matter jurisdiction. See State v. Theoharopoulos, 72
Wis. 2d 327, 334, 240 N.W.2d 635 (1976).

Case No. 2004CF165

¶7 In order to obtain a hearing on a postconviction motion, a defendant
must allege material facts sufficient to warrant the relief sought. State v. Allen,
2004 WI 106, ¶¶9, 36, 274 Wis. 2d 568, 682 N.W.2d 433. No hearing is required,
though, when the defendant presents only conclusory allegations or when the
record conclusively demonstrates that he or she is not entitled to relief. Nelson v.
State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972).

¶8 Here, the records contradict Close’s allegation that his plea in case
No. 2004CF165 was conditioned upon him also entering a plea in case
No. 2004CF127. The pleas were entered on different days; neither set of minutes
for either plea hearing makes reference to the other case; and the DEJA does not
condition either the entry of a plea or the dismissal of the charge in case
No. 2004CF165 upon the entry of a plea in case No. 2004CF127. Furthermore, to
the extent that Close is alleging some connection outside of the records between
his pleas in the two cases, that allegation is conclusory. In particular, Close fails

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Nos. 2021AP153
2021AP154

to specify when or where that alleged plea agreement was made or to provide any
plausible explanation for why he would not have entered into a DEJA on the
sexual assault charge if he knew he had a potential suppression issue on the THC
charge. We conclude that the circuit court properly denied Close’s motion to
withdraw his plea in case No. 2004CF165 without a hearing.

By the Court.—Order in 2021AP153 vacated and cause remanded
with directions; order in 2021AP154 affirmed.

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

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