State v. Michael E. Doege

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.
August 19, 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. 2018AP1752-CR Cir. Ct. No. 2014CF455

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL E. DOEGE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Walworth County: KRISTINE E. DRETTWAN, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

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. 2018AP1752-CR

¶1 PER CURIAM. Michael E. Doege appeals from a judgment of
conviction entered upon his guilty plea to one count of identity theft, and from an
order denying his postconviction motion for plea withdrawal. According to
Doege, his plea was unknowingly, unintelligently, and involuntarily entered
because at the time he pled, he incorrectly believed he would be able to appeal the
circuit court’s adverse other-acts ruling. For the reasons that follow, we affirm.

Background

¶2 Doege was charged with two counts of unauthorized use of an
individual’s personal identifying information (identity theft) based on allegations
that in 2008, Doege twice used his brother’s identification to get out of a traffic
ticket.

¶3 On the morning set for trial, the State brought up its intent to
introduce evidence of Doege’s driving record. At trial counsel’s request, the
circuit court granted an adjournment, and the State filed a motion to introduce
other-acts evidence, arguing that in two prior instances in Illinois, Doege “engaged
in similar conduct on those cases as in the present case.” Trial counsel opposed
the motion and, following a hearing, the circuit court ruled that the circumstances
of Doege’s two prior Illinois convictions for using his brother’s name would be
admissible at trial.

¶4 Pursuant to a negotiated plea agreement, Doege pled guilty to one
count of identity theft and the other count was dismissed and read in. The State
agreed not to request a specific sentence. The presentence investigation report
(PSI) was filed and its writer recommended a lengthy jail sentence. At Doege’s
request, sentencing was adjourned and Doege filed a motion for plea withdrawal,
alleging that he understood “there would be a joint recommendation of the parties

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No. 2018AP1752-CR

for probation,” and also that “[b]y some attorney client miscommunication or
another, the Defendant understood that his plea agreement would not consider any
recommendation by the State or the PSI for jail time.”

¶5 At a hearing on the motion, Doege testified that he decided to plead
guilty because when the other-acts evidence was ruled admissible, “I felt that it
was prejudicial against the jury and that I didn’t have a chance. Plus, [defense
counsel] recommended that I take it because the state said that they had no
recommendation and it was pretty much up to the Judge....” On cross-
examination, Doege confirmed that at the plea hearing, he understood that the
judge was not bound by any sentencing recommendations and could impose the
maximum, but said that he thought the PSI recommendation violated the State’s
plea agreement. Doege also said that he did not understand various aspects of the
plea colloquy; that he thought he could “within a reasonable time withdraw” his
plea; that he felt pressured into pleading because of the court’s other-acts ruling;
and that he had a “change of heart” regarding his plea once he saw the PSI writer’s
recommendation for jail time, which he did not like.

¶6 The circuit court denied the motion, finding that Doege was not
credible and had not demonstrated a fair and just reason for plea withdrawal. The
court viewed the crux of Doege’s claim as “whether or not he’s going to go to jail;
that’s what has brought all of this about.” The court did not find credible Doege’s
claims that he did not understand certain information at the plea hearing, reasoning
at one point, “quite frankly, Mr. Doege, you want to throw your attorney under the
bus because you don’t like the recommendation that came back in the PSI; that’s
what this is all about here today.” The court found contradictory Doege’s
statements that “[h]e didn’t know that probation was allowed to make a
recommendation in their PSI” and “he thought he could withdraw his guilty plea if

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No. 2018AP1752-CR

he did not like the recommendation in the PSI.” The court continued, “You are
basically grasping for anything here to be able to withdraw your plea and that
makes you not credible to this Court.” The court sentenced Doege to thirty days in
jail and imposed a $300 fine.

¶7 Doege filed a postconviction motion for plea withdrawal, alleging
that (1) his trial counsel was ineffective for misinforming him that he could appeal
the circuit court’s other-acts ruling despite having entered a guilty plea, and (2) his
plea was not knowing, intelligent, and voluntary because he believed he could
appeal the circuit court’s other-acts ruling.

¶8 At a postconviction evidentiary hearing, Doege testified that he pled
because he knew that the other-acts ruling was harmful to his case. He said that he
did not know that his guilty plea would waive his right to challenge the circuit
court’s ruling and that his trial counsel told him he could appeal the adverse
ruling.

¶9 Trial counsel testified that he told Doege that the other-acts ruling
was “very bad” for his chances at trial. When asked whether he talked to Doege
about appealing the ruling, he stated, “This is honestly where it gets a little sketchy
for me. I ... believe so, but I’m not completely certain of that fact.” Counsel said
he “definitely did not advise” Doege that pleading guilty waived all challenges to
evidentiary rulings.

¶10 Counsel acknowledged that his notes evidenced no “meeting, or
phone call, or written communication with the defendant of any kind about
preserving an appellate right on the other acts motion ruling,” and that it would be
normal practice for him to document issues for appeal both in his notes and in a
letter to the client. However, he testified that he wrote Doege’s postconviction

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No. 2018AP1752-CR

counsel an email stating, “I think that I did not believe [Doege] would be waiving
that argument while pleading guilty.... As such, I believe I gave [Doege] wrong
advice as to the ability ... to appeal that issue.” When pressed, he reiterated that he
could not recall whether he actually told Doege that he could appeal the other-acts
ruling if he pled guilty.

¶11 After briefing, the postconviction court denied the plea-withdrawal
motion. As with Doege’s presentencing claim for plea withdrawal, the court
found Doege not credible, noting “inconsistencies and ... probably lies” in his
testimony. The court reasoned that it could not “rely on his testimony then in
trying to determine whether or not a manifest injustice has occurred here such that
[it] should allow him to withdraw his plea.” The court continued, “I find that his
testimony is completely self-serving, self-interested, and ... it changes for
whatever legal theory his defense is asserting on that particular day.” The court
wanted “the record to reflect the depth of the court’s concern with regard to
[Doege’s] veracity in these matters.”

¶12 As for defense counsel’s testimony, the circuit court found it “wishy-
washy” and “very murky.” The court had “the distinct impression that [defense
counsel] was inclined to help Mr. Doege with” the motion. In fact, the court “felt
like [defense counsel] ... threw himself under the bus” for Doege. The court
concluded that defense counsel’s testimony did not provide clear and convincing
evidence of a manifest injustice, either in the context of ineffective assistance, or
regarding the claim that Doege’s plea was not knowing, intelligent, and voluntary.

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No. 2018AP1752-CR

Discussion

¶13 It is well established that a defendant loses his or her right to appeal
most1 evidentiary rulings by entering a guilty or no-contest plea. See State v.
Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886 (resolving a case by
entry of a plea waives all nonjurisdictional defects, including constitutional
claims). This is often referred to as “the guilty-plea-waiver rule.” On appeal,
Doege abandons his ineffective assistance of counsel claim2 and argues that his
plea was not knowingly, voluntarily, and intelligently entered because he believed
he could appeal the circuit court’s other-acts evidentiary ruling despite having
entered a guilty plea pursuant to a plea agreement.

¶14 A defendant seeking to withdraw his or her plea after sentencing
must prove by clear and convincing evidence that plea withdrawal is necessary to
correct a manifest injustice. State v. Dillard, 2014 WI 123, ¶36, 358 Wis. 2d 543,
859 N.W.2d 44. “A manifest injustice occurs when there are serious questions
affecting the fundamental integrity of the plea which rendered it unknowing,
involuntary, and unintelligently entered.” State v. Denk, 2008 WI 130, ¶71, 315
Wis. 2d 5, 758 N.W.2d 775.

1
Pursuant to WIS. STAT. § 971.31(10) (2017-18), orders denying suppression motions
are reviewable on appeal from a final judgment or order that was entered upon the defendant’s
plea of guilty or no contest. All references to the Wisconsin Statutes are to the 2017-18 version
unless otherwise noted.
2
Doege’s appellate brief asserts that he is no longer pursuing this claim “[d]ue to the
credibility findings made by the circuit court.” Given that Doege’s remaining claim also relies on
the circuit court’s credibility findings, it would appear that Doege is distancing himself from the
court’s finding that he did not “intend [] all along to appeal the other acts motion,” and therefore
could not demonstrate prejudice.

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No. 2018AP1752-CR

¶15 In deciding whether to allow a defendant to withdraw a plea, the
circuit court may also assess the credibility of the proffered explanation for the
plea withdrawal request. See State v. Kivioja, 225 Wis. 2d 271, 291,
592 N.W.2d 220 (1999). We will not overturn credibility determinations on
appeal unless the testimony upon which they are based is inherently or patently
incredible or in conflict with the uniform course of nature or with fully established
or conceded facts. Global Steel Prods. Corp. v. Ecklund Carriers, Inc., 2002 WI
App 91, ¶10, 253 Wis. 2d 588, 644 N.W.2d 269.

¶16 “Whether a plea is knowing, intelligent, and voluntary is a question
of constitutional fact. 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.” State v. Brown, 2006 WI 100, ¶19, 293 Wis. 2d 594,
716 N.W.2d 906.

¶17 We conclude that the circuit court properly denied Doege’s plea
withdrawal motion on the ground that he failed to prove by clear and convincing
evidence that he believed he could appeal the other-acts ruling even after pleading
guilty. The court found Doege’s testimony patently incredible and Doege does not
challenge the court’s factual findings.

¶18 Doege argues that his trial counsel’s testimony, coupled with
historical facts in the record, establish that Doege incorrectly believed he could
appeal the other-acts ruling. We are not persuaded. Trial counsel’s statement that
he “definitely” did not advise Doege about the effect of the guilty-plea-waiver rule
does not establish what Doege believed at the time he entered his plea. To the
extent Doege relies on trial counsel’s testimony that he believed he advised Doege

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No. 2018AP1752-CR

he could still appeal the adverse ruling, his reliance is misplaced. While it is true
that the circuit court did not explicitly find trial counsel’s testimony incredible as a
matter of law, it did find the testimony “wishy-washy” and “very murky” such that
it believed counsel “threw himself under the bus” for Doege. On the record as a
whole, the circuit court could not find that trial counsel affirmatively told Doege
he would be able to appeal the other-acts ruling even if he pled guilty. Put
differently, the court implicitly found that trial counsel did not misinform Doege
about the consequences of his guilty plea. These findings are not clearly
erroneous and support a determination that plea withdrawal is not necessary to
correct a manifest injustice.

¶19 Similarly, we reject Doege’s argument that historical record facts
prove by clear and convincing evidence that his plea was infirm. That he pled
guilty rather than going to trial due to the other-acts ruling does not remotely
establish that he thought he could appeal that ruling upon pleading guilty.
Additionally, the fact that he sought to withdraw his plea prior to sentencing only
undermines his argument. It supports the postconviction court’s credibility
findings that Doege’s testimony “changes for whatever legal theory his defense is
asserting on that particular day,” and that trial counsel “threw himself under the
bus” to help Doege.

¶20 Finally, though not necessary to affirm, we find persuasive the
State’s argument that even if Doege did not know about the guilty-plea-waiver
rule, he has not established a manifest injustice entitling him to plea withdrawal.

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No. 2018AP1752-CR

¶21 Not every misunderstanding of the law by a defendant negates the
knowing and voluntary nature of a plea. Brown, 293 Wis. 2d 594, ¶11. The cases
relied on by Doege— Riekkoff and Dawson3— are distinguishable. In each, the
defendant explicitly bargained for an unenforceable, unattainable benefit. See
Riekkoff, 112 Wis. 2d at 128-29 (plea conditioned on the unenforceable right to
appeal an evidentiary ruling); Dawson, 276 Wis. 2d 418, ¶¶2-4 (plea induced by
State’s unenforceable promise to reopen and amend the charges upon Dawson’s
completion of probation). The records in both of those cases showed that the
unenforceable benefit was a “primary inducement” for the defendants’ pleas, and
that “the State and the trial court acquiesced in [the defendant’s] mistaken view.”
Dawson, 276 Wis. 2d 418, ¶¶13-14. In the instant case, nothing suggests that
Doege’s plea was induced by or conditioned upon his ability to appeal the other-
acts ruling. As the postconviction court found, “there’s really no evidence in the
record that the defendant intended all along to appeal the other acts motion,” and
“the only indication … that he wanted to appeal the other acts motion comes from
his [postconviction hearing] testimony just a few weeks ago, which is different
from his earlier testimony.” Under the circumstances of this case, plea withdrawal
is not necessary to prevent a manifest injustice.

By the Court.—Judgment and order affirmed.

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

3
See State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983); State v. Dawson,
2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12.

9