State v. Matthew D. Brown

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.
July 9, 2019
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. 2018AP37-CR Cir. Ct. No. 2015CF36

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MATTHEW D. BROWN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Marinette County: JAMES A. MORRISON, Judge. 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).

¶1 PER CURIAM. Matthew Brown appeals a judgment, entered upon
his guilty pleas, convicting him of one count of possession with intent to deliver
No. 2018AP37-CR

between eleven and fifty grams of heroin and one count of possession with intent
to deliver more than forty grams of cocaine. He also appeals the order denying his
motion for postconviction relief. Brown argues he is entitled to plea withdrawal
because a defective plea colloquy rendered his plea unknowing, unintelligent, and
involuntary. Brown also contends the circuit court imposed an illegal sentence.
For the reasons discussed below, we affirm the judgment and order.

BACKGROUND

¶2 The State charged Brown with possession with intent to deliver
between eleven and fifty grams of heroin; possession with intent to deliver more
than forty grams of cocaine; two counts of possessing tetrahydrocannabinols
(THC); possession of drug paraphernalia; and resisting or obstructing an officer.
The first four counts were charged as second and subsequent offenses, and all six
counts were charged as a repeater. In exchange for his guilty pleas to the two
possession with intent to deliver charges, both without the penalty enhancers, the
State agreed to dismiss and read in the remaining counts. The State also agreed it
would either recommend five years’ initial confinement and five years’ extended
supervision, or jointly recommend four years’ initial confinement and five years’
extended supervision.

¶3 Before the plea hearing, Brown filed several pro se motions and, at
the plea hearing, he expressed frustration that his attorney did not file certain
motions on his behalf. Brown also stated he wanted to enter pleas because he did
not believe he could get a fair trial due to his counsel’s level of representation.
The circuit court gave Brown the opportunity to obtain another lawyer, but Brown
declined and opted to proceed with the plea hearing, explaining that he simply

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wanted the court to know that he did not intend to sell the drugs to anyone; rather,
they were for his personal use.

¶4 The record shows there were discrepancies between the charging
documents, the plea colloquy, and the plea questionnaire as to the amount of
cocaine at issue. The charging documents properly stated that Brown was charged
with possession with intent to deliver more than forty grams of cocaine. While
reviewing the elements of that crime during the plea colloquy, however, the circuit
court told Brown the State would have to prove he intended to deliver less than
forty grams of cocaine. The court similarly misstated the amount of the charge
two more times during the colloquy. Furthermore, the plea questionnaire states
Brown was pleading to possession with intent to deliver not more than fifty grams
of cocaine. The court ultimately accepted Brown’s pleas.

¶5 Following the plea hearing, Brown filed a pro se request for plea
withdrawal that also stated a desire to discharge his attorney. The circuit court
granted counsel’s subsequent motion to withdraw, and Brown was appointed a
new attorney.

¶6 At a presentence motion hearing, defense counsel informed the
circuit court that “an additional term” had come up with respect to Brown’s plea
agreement. Specifically, in exchange for the dismissal of pending charges in
Michigan—charges that could have subjected Brown to life in prison under that
state’s three-strikes law—Brown agreed to have those charges read in for
sentencing purposes. Brown also agreed to pay $1400 in restitution to the State of
Michigan to compensate a drug enforcement team for buy money it expended
during controlled buys. Counsel stated that due to this agreement, Brown no
longer wished to withdraw his plea. Brown personally confirmed his

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No. 2018AP37-CR

understanding of these additional terms and agreed the matter should proceed to
sentencing.

¶7 Consistent with the plea agreement, the parties jointly recommended
four years’ initial confinement and five years’ extended supervision. The circuit
court, however, determined the recommendation was “not adequate,” and it
imposed concurrent seventeen-year sentences consisting of twelve years’ initial
confinement and five years’ extended supervision. The court also ordered $1400
in restitution to the Michigan drug enforcement team.

¶8 Appointed counsel filed a no-merit notice of appeal and no-merit
report. Upon an independent review of the record, this court identified several
issues for counsel to review. Counsel subsequently responded that he had
identified at least one issue of arguable merit that Brown wished to pursue;
therefore, we rejected the no-merit report, dismissed the appeal, and extended the
time for Brown to file a postconviction motion.

¶9 Brown filed a postconviction motion for plea withdrawal, claiming
he did not understand the nature of count two—the possession with intent to
deliver cocaine charge—because the circuit court misstated that Brown was
alleged to have possessed less than, rather than more than, forty grams of cocaine.
Brown also claimed his trial counsel was ineffective by failing to advise
him: (1) that he could proceed to sentencing without agreeing to anything
regarding the Michigan charges; and (2) that the court had no authority to impose
restitution or costs for the Michigan buy money, or to even consider the Michigan
charges at his Wisconsin sentencing. Brown additionally sought resentencing
based on the restitution order and the court’s consideration of the Michigan

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No. 2018AP37-CR

charges as read-ins. The court denied the motion after a hearing and this appeal
follows.

DISCUSSION

¶10 Brown argues the circuit court erred by denying his postconviction
motion for plea withdrawal. Decisions on plea withdrawal requests are
discretionary and will not be overturned unless the circuit court erroneously
exercised its discretion. State v. Spears, 147 Wis. 2d 429, 434, 433 N.W.2d 595
(Ct. App. 1988). In a postconviction motion for plea withdrawal, the defendant
carries the heavy burden of establishing, by clear and convincing evidence, that
plea withdrawal is necessary to correct a manifest injustice. See State v. Thomas,
2000 WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d 836.

¶11 The manifest injustice standard requires the defendant to show “a
serious flaw in the fundamental integrity of the plea.” Id. (citation omitted). One
way for a defendant to meet this burden is to show that he or she did not
knowingly, intelligently, and voluntarily enter the plea. State v. Brown, 2006 WI
100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906. Whether a plea is knowing,
intelligent, and voluntary is a question of constitutional fact. Id., ¶19. We accept
the circuit court’s findings of historical and evidentiary facts unless they are
clearly erroneous, but we determine independently whether those facts
demonstrate that the defendant’s plea was knowing, intelligent, and voluntary. Id.

¶12 Where, as here, a defendant moves to withdraw his or her plea based
on an error in the plea colloquy, the defendant must: (1) make a prima facie

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No. 2018AP37-CR

showing of a violation of WIS. STAT. § 971.08 (2017-18)1 or another
court-mandated duty; and (2) allege that he or she did not, in fact, know or
understand the information that should have been provided during the plea
colloquy. State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986). If the
defendant satisfies these obligations, the burden shifts to the State to prove by
clear and convincing evidence that the defendant’s plea was knowing, intelligent,
and voluntary despite the inadequacy of the plea colloquy. Id. The State may
utilize any evidence in the record “to show that the defendant in fact possessed the
constitutionally required understanding and knowledge which the defendant
alleges the inadequate plea colloquy failed to afford him [or her].” Id. at 274-75.

¶13 Here, the State concedes that at the plea hearing the circuit court
misinformed Brown as to the elements of possession with intent to deliver more
than forty grams of cocaine by telling Brown the State would need to prove he
possessed less than forty grams. Further, Brown alleged he did not, in fact, know
or understand that charge. At the postconviction motion hearing, however, the
court determined that the State satisfied its burden of proving, by clear and
convincing evidence, that Brown nonetheless knowingly, intelligently, and
voluntarily entered a guilty plea on that count. The State demonstrated that the
forty-five-year-old Brown could read and write the English language; that he
completed eleven years of school; and that he obtained a GED. The State also
established that Brown read the criminal complaint, which states Brown possessed
63.7 grams of cocaine. Brown also confirmed that he read the Information and the
Amended Information, both of which alleged that Brown possessed more than

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP37-CR

forty grams of cocaine. Although Brown testified at the motion hearing that he
did not understand what the “greater than” symbol represented on the charging
documents, the description for that crime on each document specifically alleged
that Brown “did possess with intent to deliver … cocaine, in an amount of more
than 40 grams.”

¶14 Further, the State showed that Brown was active in his own case,
having filed several pro se motions, including a challenge to an officer’s
credibility based on Brown’s comparison of the complaint narrative and the police
report. Brown also personally asserted a “lack of intent to sell” defense before
entering his guilty pleas. Because the State based the intent-to-deliver charges on
the amount of drugs Brown possessed, it is reasonable to infer that Brown knew
exactly how much cocaine was at issue in count two. Moreover, at sentencing,
both the prosecutor and the circuit court stated that Brown’s plea to count two
involved more than sixty grams of cocaine, and Brown never questioned those
statements. Although Brown was, of course, sentenced after the plea hearing, we
are persuaded this information is relevant to establish his understanding of the
subject charge. See Bangert, 131 Wis. 2d at 274-75. If Brown truly
misunderstood the cocaine charge, his past interactions with the court suggest he
would have raised an issue at the time of sentencing.

¶15 Finally, the circuit court found that because Brown, through his
numerous pro se filings, had demonstrated a “very competent grasp of what the
charges were,” his claims to the contrary were “not credible.” A court acting as
factfinder is the ultimate arbiter of credibility. State v. Bailey, 2009 WI App 140,
¶15, 321 Wis. 2d 350, 773 N.W.2d 488. Because the State offered clear and
convincing evidence to establish that Brown entered a knowing, intelligent, and

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No. 2018AP37-CR

voluntary plea, despite any deficiency in the plea colloquy, the court properly
exercised its discretion in denying the plea withdrawal motion.

¶16 Brown also claims the circuit court imposed an illegal sentence by
ordering restitution for the Michigan charges and reading in those charges for
sentencing purposes. We conclude Brown is judicially estopped from asserting
these claims. The equitable doctrine of judicial estoppel “precludes a party from
asserting a position in a legal proceeding and then subsequently asserting an
inconsistent position.” State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817
(1996). The doctrine requires proof of three conditions. First, the defendant’s
later position must be “clearly inconsistent” with the earlier position. Id. at 348.
Second, “the facts at issue should be the same in both cases.” Id. Third, “the
party to be estopped must have convinced the first court to adopt its position.” Id.

¶17 Here, Brown’s position on appeal is clearly inconsistent with his
previous position because he asked the circuit court to take the action about which
he now complains. The facts at issue are the same, and Brown asked the court to
adopt his position. Thus, Brown is estopped from raising these challenges to the
sentence and the restitution order.

¶18 Although not argued by the State, we alternatively conclude that
even assuming Brown’s challenges to the legality of the sentence and restitution
order have merit, his arguments are barred by the doctrine of invited error. See
State v. Butler, 2009 WI App 52, ¶15, 317 Wis. 2d 515, 768 N.W.2d 46 (appellate
court may affirm a circuit court for any reason, even if not relied on by either the
circuit court or raised by the parties). The doctrine of invited or strategic error was
summarized in State v. Gary M. B., 2004 WI 33, ¶11, 270 Wis. 2d 62, 676
N.W.2d 475: “A defendant cannot create his [or her] own error by deliberate

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No. 2018AP37-CR

choice of strategy and then ask to receive the benefit from that error on appeal.”
Here, Brown asked the sentencing court to take the action he now opposes in order
to avoid a potential life sentence in Michigan. This court will not review the
merits of a strategic or invited error that was induced by Brown’s own argument in
the circuit court.2

By the Court.—Judgment and order affirmed.

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

2
For the first time in his reply brief, Brown asserts an ineffective assistance of counsel
claim. “It is a well-established rule that we do not consider arguments raised for the first time in
a reply brief.” Bilda v. County of Milwaukee, 2006 WI App 57, ¶20 n.7, 292 Wis. 2d 212, 713
N.W.2d 661. Moreover, the argument is undeveloped. Therefore, we decline to address it. See
State v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App. 1994) (we need not address
undeveloped arguments).

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