State v. Orlando C. Davis

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.
October 1, 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. 2018AP2326-CR Cir. Ct. No. 2017CF632

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ORLANDO C. DAVIS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. KREMERS and MARY M. KUHNMUENCH,
Judges. Affirmed.
No. 2018AP2326-CR

¶1 DUGAN, J.1 Orlando C. Davis appeals the judgment of conviction,
entered on his guilty pleas to the following three misdemeanors: (1) intimidation
of a victim, as an act of domestic abuse, as a repeater; (2) knowingly violating a
domestic abuse order-injunction, as an act of domestic abuse, as a repeater; and
(3) criminal trespass to a dwelling, as an act of domestic abuse, as a repeater. He
also appeals the denial of his postconviction motion for an order allowing him to
withdraw his guilty pleas.2

¶2 In his motion, Davis alleged that during the plea colloquy the trial
court failed to explain the elements of the offenses that he was pleading guilty to,
and it did not determine if Davis had read the relevant jury instructions or if trial
counsel had read them to him. Davis argued that he did not understand the
elements of those offenses when he entered his guilty pleas and, therefore, his
pleas were not knowing, intelligent, or voluntary. As stated, the motion was
denied.

¶3 On appeal, Davis argues that the postconviction court erred as a
matter of law because it held that the trial court’s plea colloquy complied with
Wisconsin law and because it assigned him the burden of proving that his guilty
pleas were not knowing, intelligent, and voluntary. We affirm the judgment and
order.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
The Honorable Jeffrey A. Kremers presided over the case through sentencing. The
Honorable Mary M. Kuhnmuench presided over the postconviction proceedings. We refer to
Judge Kremers as the trial court and Judge Kuhnmuench as the postconviction court.

2
No. 2018AP2326-CR

BACKGROUND

¶4 On February 6, 2016, at approximately 2:00 a.m., in violation of a
domestic abuse injunction, Davis went to the Milwaukee County residence of G.L.
and forcibly entered her home. On February 8, 2016, the State charged Davis with
(1) felony intimidation of a victim, as an act of domestic abuse, as a repeater;
(2) knowingly violating a domestic abuse injunction, as an act of domestic abuse,
as a repeater; (3) criminal trespass, as an act of domestic abuse, as a repeater;
(4) criminal damage to property (less than $2500), as an act of domestic abuse, as
a repeater; and (5) disorderly conduct, as an act of domestic abuse, as a repeater.
The sole felony charge was the intimidation of a victim offense.

¶5 At the subsequent preliminary hearing, trial counsel moved to
dismiss the felony intimidation of a victim charge asserting that the State had not
shown that any force was used against the victim. The court commissioner denied
the motion relying on a police officer’s testimony that (1) Davis had pulled G.L.
out of a closet when she was making the 911 telephone call to report the incident,
and (2) when police knocked on the door to G.L.’s home, Davis held G.L. back to
prevent her from answering the door.

¶6 A jury trial was scheduled for July 19, 2017. Prior to trial, the
parties attempted to reach a plea agreement but the prosecution rejected Davis’s
request for reduction of the victim intimidation charge from a felony to a
misdemeanor.

¶7 When the trial court was about to convene the trial, the prosecutor
stated that the parties had reached a plea agreement. The prosecutor outlined the
agreement, which included reducing the victim intimidation charge from a felony
to a misdemeanor; Davis pleading guilty to that charge and to the charges of

3
No. 2018AP2326-CR

knowingly violating a domestic abuse injunction and criminal trespass. The two
other misdemeanor charges were dismissed, but read in for the purposes of
sentencing.

¶8 The trial court then engaged Davis in a colloquy that included
explaining the misdemeanor victim intimidation charge and the maximum possible
penalty for that charge. The trial court asked Davis whether he understood that
charge and the maximum possible penalty. Davis replied, “Yes, Your Honor.”
Davis then pled guilty to the charge.

¶9 The trial court next explained the charge of violating a domestic
abuse injunction, as an act of domestic abuse, as a repeater, and stated the
maximum possible penalty for that charge. The trial court then asked Davis
whether he understood that charge and its maximum possible penalty. Davis
replied, “Yes, Your Honor.” Davis then also pled guilty to that charge.

¶10 The trial court then explained the charge of criminal trespass, as an
act of domestic abuse, as a repeater, and stated the maximum possible penalty for
that charge. It then asked Davis whether he understood that charge and its
maximum possible penalty. Davis answered, “Yes, Your Honor.” Davis then also
pled guilty to that charge.

¶11 The trial court also asked Davis whether his signature was on the
plea questionnaire and waiver of rights form and whether he had reviewed the
form with trial counsel. Davis responded, “Yes, Your Honor.”

¶12 The trial court next asked Davis whether he talked to trial counsel
“about what the elements of each charge are and the evidence the [S]tate would
have to prove [for] each of those elements[.]” Davis said, “Yes.” The trial court

4
No. 2018AP2326-CR

also asked Davis if he had read the portion of the complaint stating the factual
basis for the charges and whether it was accurate. Davis indicated that it was
accurate.

¶13 In addition, the trial court asked trial counsel if he was satisfied that
Davis was “entering his pleas freely, voluntarily, intelligently with full
understanding of the nature of the charges, maximum possible penalties and all the
rights he’s giving up by pleading guilty[.]” Trial counsel responded that he was
satisfied that Davis understood those matters. The trial court then accepted
Davis’s guilty pleas.

¶14 The trial court next began the sentencing portion of the hearing. The
prosecutor requested a global sentence of three years of initial confinement
followed by three years of extended supervision.3 Trial counsel requested a
lengthy period of probation, with an imposed and stayed sentence; or,
alternatively, no more than eighteen months of initial confinement, followed by an
unspecified term of extended supervision. The trial court imposed a global
sentence of three years of initial confinement followed by three years of extended
supervision. Judgment was entered.

¶15 Davis filed a postconviction motion seeking an order allowing him
to withdraw his guilty pleas. He alleged that the trial court failed in its mandatory
duty to advise him of the elements of each offense to which he pled guilty or to
make sure he was knowledgeable about the elements as stated in the jury
instructions. Davis would also testify that he did not understand those elements.

3
The prosecutor requested three consecutive sentences of one year in prison and one
year of extended supervision on each count.

5
No. 2018AP2326-CR

¶16 The postconviction court conducted an evidentiary hearing and both
Davis and trial counsel testified. The postconviction court then issued a lengthy
and detailed oral decision denying the motion. A written order was subsequently
entered. This appeal follows.

DISCUSSION

¶17 Davis argues that the postconviction court erred as a matter of law
when it held that the trial court’s plea colloquy complied with Wisconsin law. He
also argues that the postconviction court erred as a matter of law because it
assigned Davis the burden of proof on his claim that his guilty pleas were not
knowing, intelligent, and voluntary.

I. Applicable law and standards of review

¶18 State v. Bangert summarizes a trial court’s duties at a plea hearing,
which are designed to ensure that a defendant’s guilty or no-contest plea is
knowing, intelligent, and voluntary. See id., 131 Wis. 2d 246, 271-75, 389
N.W.2d 12 (1986).4 WISCONSIN STAT. § 971.08(1)(a) requires the trial court to
“determine that the plea is made voluntarily with understanding of the nature of
the charge and the potential punishment if convicted.” Nonetheless, Bangert does
not require that the trial court conduct a plea colloquy in a ritualized or formulaic
way; to the contrary, a trial court has considerable flexibility to conduct a plea
colloquy in a manner that best suits the circumstances. See State v. Hoppe, 2009
WI 41, ¶¶30, 32, n.18, 317 Wis. 2d 161, 765 N.W.2d 794.

4
If the trial court fails at one of the duties, it is called a Bangert violation and a motion
raising the alleged error is called a Bangert motion. State v. Cross, 2010 WI 70, ¶19, 326
Wis. 2d 492, 786 N.W.2d 64.

6
No. 2018AP2326-CR

¶19 Under Wisconsin case law,

[o]nce the defendant files a Bangert motion entitling him to
an evidentiary hearing, 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 identified defects in the plea colloquy. If the
State carries its burden of proof that the guilty plea was
knowing, intelligent, and voluntary, the plea remains valid.
Otherwise, the defendant may withdraw the guilty plea.

Hoppe, 317 Wis. 2d 161, ¶44 (footnote and paragraph structure omitted). The
State may “rely on the totality of the evidence, much of which will be found
outside the plea hearing record.” Id., ¶47 (citation omitted).

¶20 When considering whether the State met its burden of showing that
the defendant’s guilty pleas were entered knowingly, intelligently, and voluntarily,
we accept the postconviction court’s findings of fact unless they are clearly
erroneous, see id., ¶45, and do not disturb its credibility determinations, see
State v. Turner, 114 Wis. 2d 544, 550, 339 N.W.2d 134 (Ct. App. 1983).
However, we independently determine whether such facts establish that the
defendant’s pleas were knowing, intelligent, and voluntary. See Hoppe, 317
Wis. 2d 161, ¶45.

II. Davis’s pleas were knowing, intelligent, and voluntary

¶21 Davis argues that the postconviction court erred as a matter of law
when it ruled that the plea colloquy satisfied the Bangert requirements. He also
argues that the postconviction court erred in concluding that Davis’s pleas were
knowing, intelligent, and voluntary. We disagree. The crux of Davis’s Bangert
challenge is that the trial court breached its statutory obligation to ensure that he
understood the elements of the offenses to which he pled guilty.

7
No. 2018AP2326-CR

¶22 Davis signed a plea questionnaire and waiver of rights form stating,
“I understand that the crime(s) to which I am pleading has/have elements that the
State would have to prove beyond a reasonable doubt if I had a trial. These
elements have been explained to me by my attorney or as follows[.]” The form
also states, “I have reviewed and understand this entire document and any
attachments. I have reviewed it with my attorney.”

¶23 Davis’s Bangert hearing testimony about whether he had been
advised about the elements of the offenses prior to the plea hearing conflicted with
trial counsel’s hearing testimony. Davis testified that he signed the plea
questionnaire and waiver of rights form because he thought that was “what [he]
was supposed to do.” However, he “didn’t fully understand everything” and he
“just signed off on it.”

¶24 Davis stated that he did not know what an element of an offense was
until postconviction counsel explained it to him. He also testified that he
previously pled guilty to charges against him in three other cases, which included
a felony, without ever knowing what an element was. Further, Davis testified that
he has an undergraduate degree in business management.

¶25 Davis did not recall trial counsel telling him about the elements of
the charged offenses. Nor did he recall trial counsel discussing with him the jury
instruction for criminal trespass to dwellings and for violating a temporary
restraining order, even though those instructions were filed with the plea
questionnaire and waiver of rights form.

¶26 He further testified when he pled guilty he did not know, with
respect to the violation of a domestic injunction charge, that if he went to trial the
State would have to prove beyond a reasonable doubt that he knew that he was

8
No. 2018AP2326-CR

violating an injunction. He also stated that at that time he also did not know, with
respect to the criminal trespass to a dwelling charge, that if he went to trial the
State would be required to prove that the trespass was under circumstances tending
to cause a breach of the peace.

¶27 By contrast, trial counsel testified that prior to the plea hearing, he
reviewed the complaint with Davis, he discussed the elements of all the charges
against Davis with him, and that he had discussed the elements of the offenses
with Davis multiple times during the case. Trial counsel also testified that, after
the prosecution offered to amend the victim intimidation charge from a felony to a
misdemeanor on the morning of the trial, he completed the plea questionnaire and
waiver of rights form with Davis, he reviewed the entire form and addendum with
Davis, and Davis signed the form in his presence. Trial counsel also discussed the
jury instructions for the three offenses to which Davis was pleading guilty.

¶28 Based on his conversations with Davis, trial counsel believed that
Davis had an understanding of the nature of the charges and the elements of the
offenses. Trial counsel also testified that if he had any reason to believe that Davis
did not understand anything related to the plea process, he would have asked the
trial court for more time or proceeded differently.

¶29 Trial counsel also specifically recalled that, prior to Davis’s pleas, he
talked to Davis about whether he had been served with the domestic abuse
injunction and what the State would have to show to prove that he violated a
domestic abuse injunction because, based on his earlier discussions with Davis, it
appeared that Davis had not been served and trial counsel was considering filing a
motion to dismiss that charge. However, it was later established that Davis had
been served.

9
No. 2018AP2326-CR

¶30 Trial counsel also stated that he makes a practice of filing the
applicable jury instructions when he files the plea questionnaire and waiver of
rights form because he knows from his appellate criminal work that issues
frequently arise regarding whether a defendant understood the elements of the
crime. He also wants to be certain the defendants he represents understand the
factual basis for their pleas and the elements of the offenses. Trial counsel
explained that he did not file the intimidation of a victim jury instruction in
Davis’s case, because he only had the felony version with him, not the
misdemeanor version. So, he reviewed the felony intimidation of a victim
instruction with Davis and specifically told him that the fourth element did not
apply to the misdemeanor level charge.

¶31 In its decision, the postconviction court explained that it found trial
counsel’s testimony that he went over the jury instructions for the three offenses to
which Davis plead guilty credible. It concluded that trial counsel’s testimony
established that, prior to the plea colloquy, trial counsel had fully informed Davis
of the nature and the elements of the charges. The postconviction court found trial
counsel’s testimony about reviewing the applicable jury instructions with Davis
before Davis pled guilty was “far more credible” than that of Davis on the same
issue. The postconviction court compared trial counsel’s “very deliberate and
careful” explanation about reviewing the jury instructions with Davis to Davis’s
conclusory, uncorroborated denials, and it found trial counsel’s testimony to be
more credible than Davis’s testimony. The postconviction court had the
opportunity to hear Davis and trial counsel testify and to observe their demeanor
in the courtroom. We will not disturb the postconviction court’s credibility
determination. See Fidelity & Deposit Co. v. First Nat’l Bank, 98 Wis. 2d 474,
485, 297 N.W.2d 46 (Ct. App. 1980) (stating that “[w]here the trial court is the

10
No. 2018AP2326-CR

finder of fact and there is conflicting evidence, the trial court is the ultimate arbiter
of the credibility of witnesses”).

¶32 Based on the postconviction court’s findings of fact, we conclude
that the trial court clearly and properly relied upon trial counsel’s testimony that,
prior to the plea hearing, he reviewed the elements of the relevant offenses with
Davis and that Davis understood the elements of the offenses to which he was
pleading guilty. Therefore, we conclude that the trial court did not breach its
statutory duty to make certain that Davis understood the elements of each offense
to which he was pleading guilty. Furthermore, to the extent any breach of that
duty could be found, we conclude that the State met its burden of showing that
Davis’s plea was knowing, intelligent, and voluntary.5

CONCLUSION

¶33 For the reasons stated, we conclude that Davis’s guilty pleas were
knowing, intelligent, and voluntary. Therefore, we affirm the judgment and order.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)(4).

5
Davis argues that the postconviction court erred as a matter of law because it allocated
the burden of proof to him. However, we have independently determined that the State met its
burden of proof. See Hoppe, 317 Wis. 2d 161, ¶44. Therefore, we need not address the issue.
See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (stating that appeals
should be decided on the narrowest possible grounds).

11