State v. Lapiate P. Boone

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 13, 2025
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. 2023AP2118-CR Cir. Ct. No. 2019CF714

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LAPIATE P. BOONE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Racine
County: WYNNE P. LAUFENBERG, Judge. Affirmed.

Before Neubauer, P.J., Gundrum, and Grogan, 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).
No. 2023AP2118-CR

¶1 PER CURIAM. Lapiate P. Boone appeals the judgment entered after
he pled no contest to first-degree intentional homicide (WIS. STAT. § 940.01(1)(a)
(2023-24)1) and battery (WIS. STAT. § 940.20(1m)(b)).2 He also appeals the order
denying his postconviction motion seeking plea withdrawal. We affirm.

BACKGROUND

¶2 The State charged Boone with one count of battery (WIS. STAT.
§ 940.20(1m)(b)), one count of first-degree intentional homicide (WIS. STAT.
§ 940.01(1)(a)), one count of attempted first-degree intentional homicide
(§ 940.01(1)(a)), and one count of mayhem (WIS. STAT. § 940.21), all of which
arose from an altercation between Boone and the victims.3 At the initial appearance,
the prosecutor stated that first-degree intentional homicide was “punishable by life
imprisonment[.]” The initial Complaint, as well as later court filings, also advised
that “upon conviction [of first-degree intentional homicide, Boone] shall be
sentenced to imprisonment for life.” The State filed an Information in July 2019,
and Boone initially pled not guilty to the charges. On March 19, 2021, three days
before the jury trial was scheduled to begin, Boone pled no contest to first-degree
intentional homicide and battery. The attempted first-degree intentional homicide
and mayhem counts were dismissed but read in.

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
Both charges involved use of a dangerous weapon enhancers, see WIS. STAT.
§ 939.63(1)(b) and (1)(c), and the battery charge also carried a domestic abuse assessment, see WIS.
STAT. § 973.055(1).
3
These are the charges as reflected in the Second Amended Complaint filed in
October 2020, some of which include the domestic abuse surcharge (WIS. STAT. § 973.055(1)) and
all of which include the use of a dangerous weapon enhancer (WIS. STAT. § 939.63(1)(b) and
(1)(c)). Boone had initially faced additional charges that were later removed.

2
No. 2023AP2118-CR

¶3 Before the plea hearing, Boone met with his attorneys and completed
a plea questionnaire form. One section of the form stated “I understand that the
judge is not bound by any plea agreement or recommendations and may impose the
maximum penalty.” Following that statement, the form listed the maximum penalty
for first-degree intentional homicide as “[m]andatory life imprisonment,” and the
mandatory minimum penalty as “[l]ife imprisonment” with “possible parole after
20 years.” The form also stated that the “State will stand silent on parole eligibility.”

¶4 At the plea hearing, the circuit court reviewed the maximum and
minimum penalties listed on the form, and Boone confirmed that he understood
them and did not have any questions. Boone also confirmed that he had discussed
the charges he was agreeing to plead to and the possible defenses with his attorneys
and that he had enough time to do so. The court asked Boone whether his attorneys
had “made any promises to [him] that when we come back for a sentencing, that
[he] would be receiving a specific sentence from me?” He responded, “No, ma’am.”
At the sentencing hearing, the court sentenced Boone “to life imprisonment without
eligibility for extended supervision.”

¶5 In April 2023, Boone filed a postconviction motion seeking plea
withdrawal: (1) based on his allegations that the plea colloquy was defective; and
(2) because he received ineffective assistance of counsel. He claimed that the
colloquy was defective because the circuit court did not inform him that it was not
bound by the plea agreement, and alleged that his attorneys provided ineffective
assistance of counsel because they did not inform him that the court was not bound
by the plea agreement and could sentence him to life imprisonment without the
possibility of extended supervision.

3
No. 2023AP2118-CR

¶6 The circuit court held a hearing on Boone’s postconviction motion in
September 2023. When asked about the plea questionnaire form and whether he
had reviewed it with his attorneys, Boone said he could not “recall that document.”
When presented with the form, he stated he could not remember going over it with
his attorneys despite acknowledging that the form stated he had “reviewed … this
entire document and any attachments” “with my attorney” and that his signature
appeared directly below that statement. He also stated that he could not remember
being told that the court could deny him the possibility of extended supervision, and
testified that he had agreed to enter the plea because he believed he would receive
extended supervision.

¶7 One of Boone’s trial attorneys testified that he spoke with Boone
multiple times throughout the case about whether he wanted to plead or go to trial.
He stated that the agreement was that Boone would plead no contest to the
first-degree intentional homicide charge and that the State would not take a position
on the possibility of extended supervision. He further testified that he and his
supervisor had discussed the possibility of extended supervision with Boone and
would have made it clear to him that there was no guarantee of extended
supervision, even if he agreed to the plea deal. The attorney explained that Boone
did not want to put his children on the stand as witnesses and that this was a major
factor for him in deciding to agree to the plea deal. According to Boone’s attorney,
Boone was very engaged and participated in strategy conversations, and he believed
Boone would have asked him a question when reviewing the plea questionnaire
form if there was something he did not understand.

¶8 In a thorough written decision, the postconviction court found that
there was no defect in the plea colloquy and explained that even if there had been,
the State had proved by clear and convincing evidence that Boone’s pleas were

4
No. 2023AP2118-CR

knowing, intelligent, and voluntary. Specifically, the court noted that it had
informed Boone of the maximum penalty for the first-degree intentional homicide
charge and that the State did not make any recommendation as to whether Boone
should be eligible for extended supervision. The court found that based on
everything discussed at the plea hearing, Boone knew it could impose a sentence
making him ineligible for extended supervision. The court also found that trial
counsel had reviewed the potential penalties with Boone, that they told him there
were no guarantees regarding extended supervision, and that both attorneys were
experienced defense attorneys. Accordingly, the court determined that Boone failed
to show that his attorneys’ performance was deficient and that he therefore could
not establish that he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶9 “Whether a guilty plea was entered knowingly, intelligently, and
voluntarily is a question of constitutional fact.” State v. Fugere, 2019 WI 33, ¶17,
386 Wis. 2d 76, 924 N.W.2d 469. We uphold the circuit court’s findings of fact
unless they are clearly erroneous. State v. Brown, 2006 WI 100, ¶19, 293 Wis. 2d
594, 716 N.W.2d 906. Whether those facts show that Boone entered the plea
knowingly, intelligently, and voluntarily is a question of law we review de novo.
See id. Whether counsel rendered ineffective assistance “presents a mixed question
of law and fact.” State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d
305. We review de novo whether the facts satisfy Strickland v. Washington’s4 two-
prong ineffective assistance of counsel test. State v. Domke, 2011 WI 95, ¶33, 337
Wis. 2d 268, 805 N.W.2d 364.

4
Strickland v. Washington, 466 U.S. 668, 687 (1984).

5
No. 2023AP2118-CR

DISCUSSION

¶10 A defendant attempting to withdraw a plea post-sentencing must show
“by clear and convincing evidence” that plea withdrawal is necessary to correct a
“‘manifest injustice.’” Brown, 293 Wis. 2d 594, ¶18 (citation omitted). A
defendant may establish a manifest injustice by showing that the defendant did not
knowingly, intelligently, and voluntarily enter the plea. Id., ¶19. A defendant can
show this if the plea colloquy was defective. See, e.g., State v. Taylor, 2013 WI 34,
¶32, 347 Wis. 2d 30, 829 N.W.2d 482. A defendant who moves to withdraw a plea
based on a defective plea colloquy has the initial burden of establishing the
two-prong test under Bangert: “the defendant must (1) make a prima facie showing
of a violation of WIS. STAT. § 971.08 or other court-mandated duty, and (2) allege
that the defendant did not, in fact, know or understand the information that should
have been provided during the plea colloquy.” Taylor, 347 Wis. 2d 30, ¶32 (citing
State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986)). Once the
defendant establishes the two prongs, the defendant is entitled to an evidentiary
hearing where the State has the burden to show with clear and convincing evidence
that the plea was knowing, intelligent, and voluntary despite the defective plea
colloquy. Taylor, 347 Wis. 2d 30, ¶32. Pursuant to § 971.08(1)(a), the circuit court,
during the plea colloquy, must “determine that the plea is made voluntarily with
understanding of the nature of the charge and the potential punishment if convicted.”

Defective Plea

¶11 Boone contends that the plea colloquy was defective and is grounds
for plea withdrawal based on his contention that the circuit “court failed to inform
[him] that it was not bound by the plea negotiations,” and thus did not confirm that
Boone understood the potential punishment if convicted. The Record belies his

6
No. 2023AP2118-CR

claim, as it establishes that Boone was, in fact, given this information. Specifically,
in addition to confirming that Boone had reviewed the plea questionnaire, which
directly stated that the court was “not bound by any plea agreement or
recommendations and may impose the maximum penalty[,]” with his attorneys, the
court also confirmed with Boone that he had not been promised “a specific
sentence[.]” There is simply no way to construe this as anything other than the court
having explained to Boone that it had full discretion to impose any sentence within
the minimum and maximum penalties allowed by law, regardless of what may have
been discussed during the course of plea negotiations. Furthermore, even if Boone
could have established that the plea colloquy was defective, he still would not be
entitled to plea withdrawal because the court held a hearing at which the State
proved that Boone’s plea was knowing, intelligent, and voluntary.

Ineffective Assistance

¶12 A defendant may also establish that a manifest injustice occurred by
proving that trial counsel provided ineffective assistance. State v. Dillard, 2014 WI
123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44. To show that counsel provided
ineffective assistance, the defendant must prove: (1) that counsel’s performance was
deficient; and (2) this deficiency prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Counsel’s performance was deficient if the
representation fell below the objective standard of reasonableness under the
circumstances. Id. at 687-88. Prejudice occurs when “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.

¶13 Boone claims his trial counsel provided ineffective assistance because
they “failed to inform [him] that the [circuit] court was not required to follow the

7
No. 2023AP2118-CR

plea agreement or recommendation.” He also argues his attorneys “did not inform
[him] that the court could sentence [him] to one life term without the possibility for
release on extended supervision.”

¶14 After hearing testimony from both Boone and one of his trial counsel,
the circuit court found: (1) Boone’s trial counsel were experienced; (2) his counsel
reviewed the potential penalties with Boone and had told him there were no
guarantees regarding extended supervision; (3) his counsel reviewed the plea
questionnaire in its entirety with the defendant; and (4) the defendant and counsel
discussed the possibility of life imprisonment without extended supervision. Based
on these findings, the court concluded that Boone’s lawyers were not deficient, and
the Record supports the court’s findings and conclusion. Trial counsel’s testimony
at the hearing, together with the plea questionnaire form, refutes Boone’s
self-serving contentions. The fact that Boone alleges he does not remember going
over the plea questionnaire form or having had the relevant discussions appears to
stem from his “[d]isappointment in the eventual punishment[, which] does not rise
to the level of a manifest injustice.” See Taylor, 347 Wis. 2d 30, ¶49. Because
Boone has failed to show that his trial counsel were deficient, he cannot establish
that he received ineffective assistance of counsel.

By the Court.—Judgment and order affirmed.

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

8