State v. Anthony Ryan Holden

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.
May 14, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP343-CR Cir. Ct. No. 2019CF158

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTHONY RYAN HOLDEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Trempealeau County: THOMAS W. CLARK, Judge. 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).

¶1 PER CURIAM. Anthony Ryan Holden appeals a judgment, entered
upon his no-contest plea, convicting him of possession of methamphetamine, as a
No. 2023AP343-CR

party to the crime. Holden also appeals an order denying his postconviction motion
for plea withdrawal. Holden contends that he should be permitted to withdraw his
no-contest plea for two reasons: (1) his trial attorney was constitutionally
ineffective by failing to file a suppression motion; and (2) due to defects in the plea
colloquy, his plea was not knowing, intelligent, and voluntary. We reject these
arguments and affirm.1

BACKGROUND

¶2 On September 12, 2019, the State filed a criminal complaint charging
Holden with possession with intent to deliver methamphetamine (more than ten
grams but not more than fifty grams), a Class D felony, and possession of drug
paraphernalia, a misdemeanor, both counts as a party to the crime. According to the
complaint, on September 6, 2019, while working undercover, Investigator Eduardo
Hernandez of the Trempealeau County Sheriff’s Office arranged to purchase
fourteen grams of methamphetamine from Morgan Kilty-Morgan (hereinafter,
“Morgan”) in exchange for $550. Morgan agreed to meet Hernandez in the parking
lot of a motel in Osseo, Wisconsin, to make the exchange.

¶3 The complaint alleged that when Hernandez arrived at the motel
parking lot, he saw Morgan “walking beside a maroon truck” and observed a male
subject, later identified as Holden, in the vehicle’s driver’s seat. Hernandez then
placed Morgan and Holden under arrest. During a search of Holden’s person
incident to his arrest, Hernandez found “a large wad of U.S. currency” and a bag

1
Holden has not filed a reply brief in this appeal. By failing to file a reply brief, he has
not refuted the State’s arguments in support of the circuit court’s denial of his postconviction
motion. Unrefuted arguments may be deemed conceded. See Charolais Breeding Ranches, Ltd.
v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Nevertheless, we
exercise our discretion to address the merits of Holden’s appellate arguments.

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No. 2023AP343-CR

weighing 18.3 grams, which contained a substance that field tested positive for
methamphetamine. During a subsequent search of the truck, officers found three
additional bags containing substances that field tested positive for
methamphetamine, along with a glass pipe of the type commonly used for smoking
methamphetamine.

¶4 The complaint alleged that following Holden’s arrest, Holden waived
his Miranda2 rights and admitted that he had used methamphetamine several hours
before traveling to Osseo. Holden also admitted that Morgan “asked if he wanted
to make some money” and that he knew Morgan “was going to be selling stuff to
people who owed her money.” Morgan similarly admitted, after waiving her
Miranda rights, that she went to Osseo to sell methamphetamine and that Holden
agreed to transport her to Osseo for that purpose.

¶5 The State filed an Information containing the same charges as the
complaint. Pursuant to a plea agreement, however, the State later filed an amended
Information that changed Count 1 from possession with intent to deliver
methamphetamine, as a party to the crime, to possession of methamphetamine, as a
party to the crime. The amended Information described the amended Count 1 as “a
Class I Felony.” At Holden’s plea hearing, the State explained that under the plea
agreement, Holden would be entering a guilty or no-contest plea to the amended
charge and, in exchange, the State would recommend that the possession of drug
paraphernalia charge be dismissed and read in. The parties also agreed to jointly
recommend that the circuit court withhold sentence and place Holden on probation
for two years.

2
See Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2023AP343-CR

¶6 During the plea hearing, the prosecutor and the circuit court
repeatedly referenced the fact that the offense to which Holden was pleading was a
felony. Following a plea colloquy, supplemented by a signed plea questionnaire
and waiver of rights form, the court accepted Holden’s no-contest plea to the
amended charge of possession of methamphetamine, as a party to the crime, and
found him guilty of that offense. The court then proceeded directly to sentencing.
Consistent with the parties’ joint recommendation, the court withheld sentence and
imposed a two-year term of probation.

¶7 Holden subsequently filed a postconviction motion for plea
withdrawal, arguing that his trial attorney was constitutionally ineffective “for
failing to move the court to suppress evidence that resulted from Mr. Holden’s
unlawful arrest.” Holden also argued that his plea was not knowing, intelligent, and
voluntary due to multiple defects in the circuit court’s plea colloquy. Specifically,
Holden claimed that the court: (1) failed to ensure that he understood “the nature
of the crime”—particularly, the nature of party to a crime liability; (2) failed to
advise him that the court was not bound by the plea agreement; and (3) failed to
ascertain whether any promises were made in connection with his anticipated plea,
which, according to Holden, would have revealed that Holden mistakenly believed
that he was pleading to a misdemeanor, rather than a felony.3

3
Holden’s postconviction motion also asserted that the plea colloquy was defective
because the circuit court failed to advise him of the potential immigration consequences of his plea,
as required by WIS. STAT. § 971.08(1)(c) (2021-22). The motion also asserted that “there was an
invalid waiver of [Holden’s] right to be present for [the] plea and sentencing hearing.” Holden
does not renew these arguments on appeal, and we therefore do not address them further. See A.O.
Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998)
(explaining that an issue raised in the circuit court, but not raised on appeal, is deemed abandoned).

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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No. 2023AP343-CR

¶8 The circuit court held an evidentiary hearing on Holden’s
postconviction motion, during which Holden, Holden’s trial attorney, and
Hernandez testified. Following the witnesses’ testimony, the court rejected
Holden’s ineffective assistance claim, concluding that a suppression motion
challenging the legality of Holden’s arrest would have been unsuccessful and that
Holden’s trial attorney “acted within professional norms” in not filing such a
motion.

¶9 The circuit court also rejected Holden’s claim that his plea was not
knowing, intelligent, and voluntary due to defects in the plea colloquy. The court
noted that it had “specifically informed” Holden of the elements of the offense
before he entered his plea and had confirmed that Holden understood those
elements. The court acknowledged that it had failed to inform Holden that it was
not bound by the plea agreement; however, the court concluded that Holden was not
entitled to relief on that basis because the court had followed the parties’ joint
sentence recommendation. Finally, the court rejected Holden’s claim that he had
“entered his no[-]contest plea under the impression that his plea would result in the
felony charge being reduced to [a] misdemeanor.” The court noted that both the
State and the court had referred to the charge as a felony during the plea hearing. In
addition, the court found incredible Holden’s testimony “that he thought he was
pleading to a misdemeanor and he told that to [his trial attorney.]”

¶10 The circuit court subsequently entered a written order denying
Holden’s postconviction motion, and Holden now appeals. Additional facts are
included below where necessary.

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No. 2023AP343-CR

DISCUSSION

¶11 To withdraw his or her plea after sentencing, a defendant must show
by clear and convincing evidence that a refusal to allow plea withdrawal would
result in manifest injustice. State v. Dillard, 2014 WI 123, ¶36, 358 Wis. 2d 543,
859 N.W.2d 44. As relevant here, a defendant may demonstrate manifest injustice
by showing that his or her trial attorney was constitutionally ineffective or by
showing that the plea was not knowing, intelligent, and voluntary. Id., ¶¶37, 84.
Both of these inquiries present questions of constitutional fact. Id., ¶¶38, 86. On
appeal, we will uphold the circuit court’s factual findings unless they are clearly
erroneous, but the application of the facts to the applicable legal standards is a
question of law that we review independently. Id.

I. Ineffective assistance of trial counsel

¶12 To prevail on an ineffective assistance of counsel claim, a defendant
must show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). If a defendant fails to make a sufficient showing on one prong of this
analysis, we need not address the other. Id. at 697.

¶13 Here, we need not address prejudice because, like the circuit court, we
conclude Holden has not shown that his trial attorney performed deficiently by
failing to file a suppression motion. It is well established that an attorney does not
perform deficiently by failing to file a suppression motion that would have been
properly denied. See, e.g., State v. Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d
209, 769 N.W.2d 110. In this case, a suppression motion challenging the legality
of Holden’s arrest would have been properly denied, and, as a result, Holden’s trial
attorney did not perform deficiently by failing to file such a motion.

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No. 2023AP343-CR

¶14 “A warrantless arrest is not lawful except when supported by probable
cause.” State v. Lange, 2009 WI 49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551.
“Probable cause for arrest exists when the totality of the circumstances within the
arresting officer’s knowledge would lead a reasonable police officer to believe that
the defendant probably committed a crime.” State v. Kutz, 2003 WI App 205, ¶11,
267 Wis. 2d 531, 671 N.W.2d 660. The information known to the officer must be
sufficient to lead a reasonable officer to believe that the defendant’s involvement in
a crime is more than a possibility, but it need not reach the level of proof beyond a
reasonable doubt, nor must it show that guilt is more likely than not. Id. Instead,
“[p]robable cause is a flexible, commonsense measure of the plausibility of
particular conclusions about human behavior.” Id. Furthermore, when an officer
“is confronted with two reasonable competing inferences, one justifying arrest and
the other not, the officer is entitled to rely on the reasonable inference justifying
arrest.” Id., ¶12.

¶15 At the hearing on Holden’s postconviction motion, Hernandez
testified that on the date in question, he arranged to purchase fourteen grams of
methamphetamine from Morgan. Morgan told Hernandez that “her guy” was with
her, and she arranged to meet Hernandez in Osseo to complete their transaction.
Based on his training and experience, Hernandez believed that when Morgan
referred to “her guy,” she meant her “drug connection.”

¶16 Hernandez further testified that Morgan told him to meet her at a
specific motel at a specific time and stated that she would be “inside a
maroon-colored pickup truck.” When Hernandez arrived at the specified location,
he saw a maroon-colored pickup truck in the parking lot. He also saw Morgan—
whom he identified based on a photograph that she had sent him—walking
approximately five to ten feet from the truck. Hernandez then exited his squad car

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No. 2023AP343-CR

and “tried to obtain [Morgan’s] attention,” but Morgan “immediately” turned away
from him and began walking toward the truck. At that point, Hernandez arrested
both Morgan and Holden, who was sitting in the truck’s driver’s seat.

¶17 The circuit court credited Hernandez’s testimony regarding the
circumstances leading up to Holden’s arrest. Based on Hernandez’s testimony, the
court concluded that it was “reasonable for … Hernandez to assume” that Holden
was “a participant … in bringing [Morgan] to the scene” and therefore “assist[ed]
in the … attempted delivery of methamphetamine” to Hernandez. Consequently,
the court concluded that Hernandez had probable cause to arrest Holden.

¶18 We agree with the circuit court’s analysis. At the time of Holden’s
arrest, the facts summarized above would have led a reasonable police officer to
believe that Holden had probably committed or was committing a crime—
specifically, the attempted delivery of methamphetamine. See Kutz, 267 Wis. 2d
531, ¶11. Thus, any motion to suppress based on the alleged illegality of Holden’s
arrest would have been properly denied.4 Consequently, Holden’s trial attorney did
not perform deficiently by failing to file a suppression motion. Because Holden
failed to demonstrate that his trial attorney was constitutionally ineffective, the court
correctly determined that Holden was not entitled to plea withdrawal on that basis.

4
Furthermore, we note that a suppression motion challenging the searches of Holden’s
person and vehicle also would have failed. The warrantless search of Holden’s person was
constitutionally permissible as a search incident to a lawful arrest. See State v. Denk, 2008 WI
130, ¶40, 315 Wis. 2d 5, 758 N.W.2d 775. The officers could also permissibly search Holden’s
vehicle incident to his arrest because it was “reasonable to believe evidence relevant to the crime
of arrest might be found in the vehicle.” See Arizona v. Gant, 556 U.S. 332, 343 (2009).

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No. 2023AP343-CR

II. Knowing, intelligent, and voluntary plea

¶19 As noted above, Holden also contends that he is entitled to plea
withdrawal because his plea was not knowing, intelligent, and voluntary due to three
defects in the plea colloquy. A defendant who seeks plea withdrawal based on an
alleged defect in the plea colloquy has the initial burden to satisfy a two-prong test.
State v. Pegeese, 2019 WI 60, ¶26, 387 Wis. 2d 119, 928 N.W.2d 590. First, the
defendant must make a prima facie showing that the circuit court violated
WIS. STAT. § 971.08 or another court-mandated duty during the plea colloquy.
Pegeese, 387 Wis. 2d 119, ¶26. Second, the defendant must allege that he or she
did not, in fact, know or understand the information that should have been provided
during the plea colloquy. Id.

¶20 If the defendant fails to satisfy his or her burden on either of these
prongs, the circuit court must deny the defendant’s motion for plea withdrawal. Id.,
¶27. If, however, the defendant satisfies both prongs, the court must hold an
evidentiary hearing on the defendant’s motion, during which the burden of proof
shifts to the State to show by clear and convincing evidence that the defendant’s
plea was knowing, intelligent, and voluntary, despite any defects in the plea
colloquy. Id. “The State may use ‘any evidence’ to prove that the defendant’s plea
was knowing, intelligent, and voluntary, including any documents in the record and
testimony of the defendant or defendant’s counsel.” State v. Taylor, 2013 WI 34,
¶32, 347 Wis. 2d 30, 829 N.W.2d 482 (citation omitted).

¶21 As noted above, in his postconviction motion, Holden first asserted
that the plea colloquy was defective because the circuit court failed to ensure that
he understood “the nature of the crime.” See WIS. STAT. § 971.08(1)(a). More

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No. 2023AP343-CR

specifically, Holden contended that the court did not explain the concept of party to
a crime liability.

¶22 The State concedes that under some circumstances, a circuit court has
a duty to ensure during a plea colloquy that a defendant understands the meaning of
party to a crime liability. See State v. Howell, 2007 WI 75, ¶55, 301 Wis. 2d 350,
734 N.W.2d 48. The State also concedes that the court “did not explore Holden’s
understanding of party to a crime liability” during Holden’s plea colloquy.
Nevertheless, the State contends that the court’s failure in that regard “did not render
the plea invalid under the facts of this case.” We agree with the State’s analysis for
two reasons.

¶23 First, under the specific facts of this case, it was not necessary for the
circuit court to ensure that Holden understood the concept of party to a crime
liability. Under WIS. STAT. § 939.05, a person may be criminally liable as a party
to a crime if he or she: “(a) Directly commits the crime; or (b) Intentionally aids
and abets the commission of it; or (c) Is a party to a conspiracy with another to
commit it or advises, hires, counsels or otherwise procures another to commit it.”
Sec. 939.05(2)(a)-(c). When a person is alleged to have directly committed a crime,
and when the circuit court explains the elements of that crime during the plea
colloquy, it is “not necessary … for the [circuit] court to additionally explain the
concept of party to a crime liability.” State v. Brown, 2012 WI App 139, ¶¶13-15,
345 Wis. 2d 333, 824 N.W.2d 916.

¶24 In this case, Holden was alleged to have directly committed the crime
of possession of methamphetamine. That offense required the State to prove three
elements: (1) that Holden possessed a substance; (2) that the substance was
methamphetamine; and (3) that Holden knew or believed that the substance was

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No. 2023AP343-CR

methamphetamine. See WIS JI—CRIMINAL 6030 (2024). According to the
complaint, following Holden’s arrest, law enforcement found a substance on
Holden’s person that field tested positive for methamphetamine.5 At sentencing,
Holden’s attorney conceded that Holden “was found with meth on his person.”
Because Holden was alleged to have directly committed the crime of possession of
methamphetamine, the circuit court did not need to explain party to a crime liability
to Holden during the plea colloquy. See Brown, 345 Wis. 2d 333, ¶¶13-15.

¶25 Second, even if the circuit court was required to explain party to a
crime liability to Holden, the record shows that Holden failed to meet his burden on
the second prong of the plea withdrawal analysis. Again, that prong requires a
defendant to allege that he or she did not know or understand the information that
should have been provided during the plea colloquy. Pegeese, 387 Wis. 2d 119,
¶26. Holden’s postconviction motion alleged that the court never explained the
concept of party to a crime liability to him, but the motion did not allege that Holden
did not understand that concept at the time that he entered his plea. A defendant’s
failure to allege actual unawareness of information that should have been provided
during the plea colloquy is fatal to his or her postsentencing claim for plea
withdrawal. See State v. Grant, 230 Wis. 2d 90, 101-02, 601 N.W.2d 8
(Ct. App. 1999).

¶26 Holden’s postconviction motion also asserted that the plea colloquy
was defective because the circuit court failed to inform him that it was not bound
by the plea agreement. The State concedes that the court was required—and
failed—to provide this information during the plea colloquy. See State v. Hampton,

5
During the plea hearing, Holden’s attorney stipulated that the circuit court could rely on
the allegations in the complaint as the factual basis for Holden’s no-contest plea.

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No. 2023AP343-CR

2004 WI 107, ¶20, 274 Wis. 2d 379, 683 N.W.2d 14. Nevertheless, we agree with
the State that this error was harmless because the court ultimately followed the
parties’ joint recommendation and imposed a two-year term of probation. See State
v. Johnson, 2012 WI App 21, ¶14, 339 Wis. 2d 421, 811 N.W.2d 441. Under these
circumstances, Holden received “exactly what he bargained for” by entering into
the plea agreement, and the court’s failure to advise him that it was not bound by
the plea agreement did not affect Holden’s substantial rights. See id. As such, this
deficiency in the plea colloquy does not give rise to a manifest injustice that would
permit Holden to withdraw his no-contest plea.6

¶27 Finally, Holden’s postconviction motion alleged that the plea
colloquy was defective because the circuit court failed to ascertain whether any
promises were made to him in connection with his anticipated plea. See State v.
Bangert, 131 Wis. 2d 246, 262, 389 N.W.2d 12 (1986). Holden alleged that this
inquiry would have revealed that he was under the mistaken belief that he was
pleading to a misdemeanor, rather than a felony. Following the postconviction
hearing, the court rejected this claim, concluding the record showed that Holden
understood that he was pleading to a felony.

¶28 Again, we agree with the circuit court’s conclusion. The amended
Information described the amended Count 1—i.e., possession of methamphetamine,
as a party to the crime—as “a Class I Felony.” In addition, when setting forth the
terms of the plea agreement during the plea hearing, the prosecutor affirmatively

6
In addition, we note that Holden again failed to meet his burden on the second prong of
the plea withdrawal analysis with respect to his claim that the circuit court failed to inform him that
it was not bound by the plea agreement. Although Holden’s postconviction motion alleged that the
court failed to provide that information during the plea colloquy, the motion did not allege that
Holden was unaware of that information at the time he entered his plea. See State v. Pegeese, 2019
WI 60, ¶26, 387 Wis. 2d 119, 928 N.W.2d 590; State v. Grant, 230 Wis. 2d 90, 101-02, 601
N.W.2d 8 (Ct. App. 1999).

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No. 2023AP343-CR

stated that the charge to which Holden would be pleading was “a Class I Felony.”
Thereafter, during the plea colloquy, the court asked Holden, “Do you understand
that if you’re convicted of this felony you may not vote in any election until your
civil rights are restored?” (Emphasis added.) The court subsequently asked Holden,
“Do you understand if you plead guilty to this felony it would be unlawful for you
to possess a firearm?” (Emphasis added.) In both instances, Holden responded that
he understood. At no point during the plea colloquy did Holden express any
confusion about whether he was pleading to a misdemeanor or a felony.

¶29 At the postconviction hearing, Holden’s trial attorney testified that
during plea negotiations, he “likely” would have told Holden that it was possible
the felony charge could be reduced to a misdemeanor. Counsel testified, however,
that before Holden entered his plea, counsel would have “confirmed” that Holden
understood that he was pleading to a felony. Counsel further testified that he “would
have gone over the specific collateral consequences that come along with” being
convicted of a felony. Counsel did not recall Holden expressing any confusion
about the “felony/misdemeanor distinction in this case,” nor did counsel recall
Holden stating that he would only plead to a misdemeanor.

¶30 Holden testified at the postconviction hearing that based on his trial
attorney’s representations, he believed that he would be pleading to a misdemeanor.
Holden also testified that he would not have accepted the plea deal if he had known
that he would be pleading to a felony. On cross-examination, however, Holden
conceded that his trial attorney never told him that the charge to which he would be
pleading was a misdemeanor, rather than a felony. Instead, Holden made that
“assumption” because the possibility of pleading to a misdemeanor had been
“brought up” at some point. Nevertheless, Holden asserted that he told his trial
attorney that he believed he was pleading to a misdemeanor.

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No. 2023AP343-CR

¶31 The circuit court found incredible Holden’s testimony “that he
thought he was pleading to a misdemeanor and he told that to [his trial attorney.]”
That credibility determination is amply supported by the record and is not clearly
erroneous. See State v. Domke, 2011 WI 95, ¶58, 337 Wis. 2d 268, 805 N.W.2d
364 (“We will uphold the circuit court’s credibility determination unless it is clearly
erroneous.”). Given the court’s credibility determination and the other evidence
summarized above, the State met its burden to prove by clear and convincing
evidence that Holden understood that he was pleading to a felony, rather than a
misdemeanor. See Pegeese, 387 Wis. 2d 119, ¶27. Accordingly, the court properly
rejected Holden’s claim for plea withdrawal based on that alleged
misunderstanding.

By the Court.—Judgment and order affirmed.

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

14