State v. Sterling Ross Olsen

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.
January 16, 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. 2018AP2059-CR Cir. Ct. No. 2016CF90

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

STERLING ROSS OLSEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: JAMES P. DALEY and KARL HANSON, Judges. Affirmed.

Before Blanchard, Kloppenburg and Nashold, 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. 2018AP2059-CR

¶1 PER CURIAM. Sterling Olsen appeals a judgment of conviction
for armed robbery as a party to the crime and an order denying postconviction
relief.1 Olsen contends that his plea lacked a factual basis; that he did not
understand that his plea waived his right to a trial and that he pled only because he
felt “scared” and “pressured”; and that his trial counsel was ineffective.
Alternatively, Olsen seeks sentence modification on the ground that his sentence
was unduly harsh. For the reasons set forth in this opinion, we reject these
contentions. We affirm.

¶2 On January 14, 2016, Olsen was charged with armed robbery,
burglary, false imprisonment, criminal damage to property, and misdemeanor
theft, all as a party to a crime. The criminal complaint alleged the following.
During the early morning hours of January 12, 2016, police responded to a report
of an armed robbery at a home in Janesville. While police were on scene, B.F.
returned to the home. B.F. informed police that, several days prior, he had shown
Olsen $3,500 in cash. B.F. stated that he believed that Olsen arranged the robbery
to steal the money. Police made contact with Olsen, who confirmed that B.F. had
shown him more than $3,000 in cash. Olsen told police that he and B.F. had
posted a Snapchat photo of the two of them displaying the cash. Olsen told police
that B.F. had then accused Olsen of stealing $1,000 from B.F., and that B.F. had
confronted Olsen about the theft and had slapped Olsen in the face.

¶3 During the police investigation on January 12, 2016, police
discovered Facebook messages between Olsen and Jontae Pegeese that “suggested

1
The Honorable James P. Daley presided over the plea and sentencing hearings and
entered the judgment of conviction. The Honorable Karl Hanson presided over postconviction
proceedings and entered the order denying the postconviction motion.

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involvement in illicit activity over the night.” Police made contact with Pegeese,
who told police that Olsen had told him the previous day that there was a “guy”
who sold pills and was “weak” and “flimsy” with his money. Pegeese understood
that Olsen was referring to the “guy” in Olsen’s recent Snapchat photo who
appeared with Olsen displaying a large amount of cash. Pegeese stated that Olsen
told him that they could rob the “guy” for his cash and pills.

¶4 Police also spoke to Pegeese’s girlfriend that day, who told police
that Pegeese told her the prior day that he had talked with Olsen about doing a
robbery together that night, and that, earlier that morning, Pegeese told her he took
part in the robbery with Olsen. Police again spoke with Pegeese, who then
admitted that he had been picked up by Damien Hewlett for the purpose of
participating in the robbery. Pegeese stated that three men he did not know were
also in the car with Hewlett. He stated that Olsen was not in the car, but that
Olsen was in communication with Hewlett “organizing the event.”

¶5 Pursuant to a plea agreement, Olsen pled guilty to armed robbery as
a party to a crime, and the remaining charges were dismissed and read in for
sentencing purposes. The circuit court found that Olsen’s statements in court and
the criminal complaint set forth a factual basis for his plea. The court sentenced
Olsen to twelve years of initial confinement and six years of extended supervision.

¶6 Olsen filed a postconviction motion raising three issues. First, Olsen
argued that his plea lacked a factual basis for party-to-a-crime liability. Second,
he argued that he was entitled to plea withdrawal to correct a manifest injustice
because his plea was not knowing, intelligent, and voluntary. He argued that he
did not understand that his plea waived his future trial rights, and that he pled
guilty only because he was “scared” and “pressured.” He also argued that his trial

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counsel was ineffective by advising him that he would get a lesser sentence if he
pled. He stated that his counsel told him that he would be sentenced to only eight
years if he entered a plea, and that he would not have entered the plea but for his
counsel’s sentencing representations. Third, Olsen argued that he was entitled to
sentence modification because his sentence was unduly harsh compared to
sentences received by the other codefendants convicted of the robbery.

¶7 The circuit court held a postconviction motion hearing. At the outset
of the hearing, the circuit court asked Olsen’s postconviction counsel whether he
intended to call any witnesses. Postconviction counsel stated that he had not
procured trial counsel as a witness for the hearing, stating his belief that the
hearing was to determine if a Machner2 hearing would be scheduled. The court
asked the State if it objected to setting a future Machner hearing date. The State
took the position that Olsen had forfeited his ineffective assistance of counsel
claim by failing to obtain trial counsel’s testimony for the hearing. The circuit
court found that Olsen had adequate notice that the hearing would be an
evidentiary hearing on the postconviction motion because Olsen received notice of
the hearing and because the court’s calendar indicated that the hearing was
scheduled for a three-hour period. The court concluded that Olsen had waived his
ineffective assistance of counsel claim by failing to have his trial counsel present
for the hearing. The court stated that it would address the other claims raised in
the postconviction motion.

¶8 The parties first argued whether there was a factual basis for Olsen’s
plea as a party to the crime. The court found that there was a factual basis to

2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2018AP2059-CR

support the plea, citing information from the criminal complaint and from the
presentence investigation report (PSI).

¶9 The court then moved on to the next argument in the postconviction
motion, that is, Olsen’s claim for plea withdrawal on the ground that the plea was
not knowing, intelligent, and voluntary. The court noted that Olsen had the burden
to demonstrate that his plea was not knowing, intelligent, and voluntary. The
court reiterated its finding that Olsen had waived his ineffective assistance of
counsel claim. The court asked postconviction counsel whether the court needed
to address anything else on that claim, despite the waiver. Defense counsel stated
that there was nothing else for the court to address. The court therefore did not
make any findings as to Olsen’s claim that his plea was not knowing, intelligent,
and voluntary.

¶10 Finally, the court addressed whether Olsen’s sentence was unduly
harsh. The court explained that the sentence was warranted based on Olsen’s role
in organizing the robbery. The court denied Olsen’s postconviction motion.
Olsen appeals.

¶11 A defendant seeking to withdraw a plea after sentencing must
demonstrate by clear and convincing evidence that plea withdrawal is necessary to
correct a manifest injustice. See State v. Krieger, 163 Wis. 2d 241, 249-51,
471 N.W.2d 599 (Ct. App. 1991). A manifest injustice occurs if the circuit court
fails to establish a factual basis for the plea. See id. at 254-55. “[E]stablishing a
factual basis … is necessary for a valid plea” and “helps ensure that the
defendant’s plea is knowing and intelligent.” State v. Lackershire, 2007 WI 74,
¶¶34-35, 301 Wis. 2d 418, 734 N.W.2d 23. The question is whether the
“undisputed facts actually constitute the crime charged,” which this court reviews

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No. 2018AP2059-CR

de novo as a question of law. See id., ¶¶24, 48; see also State v. Stewart, 2018 WI
App 41, ¶15, 383 Wis. 2d 546, 916 N.W.2d 188.

¶12 “‘[W]hen applying the manifest injustice test, “a reviewing court
may look beyond the plea hearing transcript” to the totality of the circumstances.’”
Stewart, 383 Wis. 2d 546, ¶15 (quoted source omitted). We may look to other
portions of the record, including the sentencing hearing transcript, to determine
whether a factual basis for the plea has been established. See id. Proof beyond a
reasonable doubt is not necessary to establish the factual basis. See State v.
Spears, 147 Wis. 2d 429, 435, 433 N.W.2d 595 (Ct. App. 1988). Moreover, the
factual basis requirement is further relaxed when, as here, a plea has been
negotiated between the parties. See State v. Smith, 202 Wis. 2d 21, 25,
549 N.W.2d 232 (1996).

¶13 Olsen contends that there are insufficient facts in the record to
establish a factual basis for his plea to armed robbery as a party to a crime. Party-
to-a-crime liability may be established by showing that the defendant intentionally
aided and abetted the commission of the crime or was a party to a conspiracy with
others to commit the crime. WIS. STAT. § 939.05.3 A defendant intentionally aids
and abets the commission of a crime if the defendant assists those who committed
the crime, or was ready and willing to assist and those who committed the crime
knew of the defendant’s willingness to assist. WIS JI—CRIMINAL 401. A
defendant is a member of a conspiracy if, with the intent that a crime be

3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP2059-CR

committed, the defendant agrees with or joins with others for the purpose of
committing that crime. Id.

¶14 Olsen contends that there are no facts showing that he intentionally
aided and abetted the armed robbery or that he was part of a conspiracy to commit
the armed robbery. Olsen asserts that, in addition to the minimal facts in the
complaint, the facts in the PSI show only that Olsen identified B.F.’s house for
Hewlett and Pegeese and participated in discussions with them about a plan to
“scare” B.F. Olsen asserts that the facts show that he then left the group when he
was dropped off at his home around 2:30 p.m. and that he was sleeping and
ignored multiple phone calls from Pegeese while the robbery occurred overnight.
He asserts that those facts fall short of setting forth a basis for party-to-a-crime
liability. He argues that this case is distinguishable from State v. Tourville,
2016 WI 17, 367 Wis. 2d 285, 876 N.W.2d 735, pointing out that Tourville had
done acts to aid and abet that are not present here. See id., ¶¶45, 51 (factual basis
for plea to felony theft as party to a crime found where three men stole a gun safe
and then picked up Tourville, they all went to Tourville’s campsite and
participated in opening the safe, and Tourville advised the men where to dispose
of the safe and was paid for his assistance). Olsen also contends that, if he had
been part of a conspiracy, he withdrew from the conspiracy by withdrawing from
the group ten hours before the robbery occurred. See WIS JI—CRIMINAL 412
(defendant withdraws from conspiracy if the defendant no longer desires that the
crime be committed and notifies the other parties of the withdrawal within a
reasonable amount of time before commission of the crime to allow the others to
also withdraw).

¶15 The State responds by highlighting the following additional facts
from the complaint and the PSI, which the State asserts establish a factual basis for

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No. 2018AP2059-CR

the plea. Olsen stole money from B.F., which led to a dispute between them.
Olsen told Pegeese that he knew a drug dealer who was “weak” and “flimsy” with
his money, and that they could rob him and get a lot of cash and pills. Olsen told
Pegeese and Hewlett that the money displayed in the Snapchat photo belonged to
B.F. Olsen showed Pegeese and Hewlett where B.F.’s house was located and told
them what kind of car B.F. drove. Olsen acknowledged that they had a plan for
Olsen, Pegeese, and Hewlett to “wait for [B.F.], beat him up and take his money.”
Olsen told Pegeese, “Ok I’m down,” meaning he was in for the robbery, although
Olsen did not plan to participate. Olsen’s Facebook in-box “suggested
involvement in illicit activity” during the night of the robbery. Specifically, Olsen
sent messages to Pegeese that Olsen could only be the driver because he did not
want to be seen. Olsen was not present during the robbery, but was “in
communication” with Hewlett and was “organizing the event.” The next day,
Olsen sent a message to Pegeese asking whether he “did that thing,” and Pegeese
answered that he had not.

¶16 The State argues that Tourville does not suggest that a defendant
must be present during a crime to establish a factual basis for party-to-a-crime
liability. See Tourville, 367 Wis. 2d 285, ¶49 (“In order to aid and abet a crime,
the defendant need be only a willing participant. ‘Such participation as would
constitute aiding and abetting does not even require that the defendant be present
during the [crime].’” (citation omitted; quoted source omitted)). The State
contends that the facts showing that Olsen continued to communicate with the
others as to the robbery establish that Olsen did not withdraw from the conspiracy.

¶17 We conclude that there was a sufficient factual basis for Olsen’s plea
to armed robbery as a party to a crime. The facts set forth above are sufficient to
establish that Olsen joined with others in a plan to take money from B.F. by force,

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No. 2018AP2059-CR

that Olsen then assisted the others involved in the plan by identifying B.F.’s house
and car and remaining in communication and organizing the robbery while it was
underway, and that Olsen then checked on the status of the planned robbery the
following day. See WIS. STAT. §§ 943.32(2) (setting forth elements of armed
robbery) and 939.05(2) (setting forth party-to-a-crime liability). Because the facts
in the record set forth a sufficient factual basis for Olsen’s plea to armed robbery
as a party to a crime, Olsen is not entitled to plea withdrawal based on lack of a
factual basis.

¶18 A manifest injustice also occurs if a plea was not knowing,
intelligent, and voluntary based on facts extrinsic to the plea colloquy, such as a
plea that was coerced or that resulted from ineffective assistance of counsel. See
State v. Sulla, 2016 WI 46, ¶¶24-25, 369 Wis. 2d 225, 880 N.W.2d 659; State v.
Taylor, 2013 WI 34, ¶49, 347 Wis. 2d 30, 829 N.W.2d 482. At an evidentiary
hearing, the defendant has the burden to prove by clear and convincing evidence
that withdrawal of the guilty plea is necessary to correct a manifest injustice. See
State v. Hoppe, 2009 WI 41, ¶60, 317 Wis. 2d 161, 765 N.W.2d 794. On our
review of a circuit court’s decision following an evidentiary hearing, we accept the
court’s factual findings unless they are clearly erroneous, but we independently
determine whether those facts demonstrate that the defendant’s plea was knowing,
intelligent, and voluntary. See id., ¶61.

¶19 Olsen contends that his plea was not knowing, intelligent, and
voluntary on grounds that he did not understand that his plea would waive his right
to a trial, and because he was “scared” and “just wanted to get it over with.” He
cites his letter to his postconviction counsel seeking a trial, and contends that he
would not have asked for a trial if he understood that his plea waived that right.
Olsen argues that his assertions that he was “scared” and “just wanted to get it

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No. 2018AP2059-CR

over with” establish that his plea was not intelligently entered because it was
based on emotion rather than logic. He also contends that his trial counsel was
ineffective by allegedly telling him that he would receive a lesser sentence of only
eight years if he entered a plea, and that he was pressured into entering his plea by
his counsel’s erroneous advice.

¶20 The problem with Olsen’s arguments that his plea was not knowing,
intelligent, and voluntary is that he failed to pursue them at the postconviction
motion hearing. At the hearing, Olsen did not argue that he did not understand
that his plea waived his right to a trial or that he only pled because he felt scared
and pressured. He did not present any evidence to meet his burden to prove those
claims, and the circuit court made no factual findings related to them. Olsen did
not properly pursue his claim of ineffective assistance of counsel because he failed
to preserve his trial counsel’s testimony. See State v. Giebel, 198 Wis. 2d 207,
218, 541 N.W.2d 815 (Ct. App. 1995) (“‘[I]t is a prerequisite to a claim of
ineffective representation on appeal to preserve the testimony of trial counsel’ at a
postconviction hearing.” (quoted source omitted)).4 Because Olsen effectively
abandoned these claims in the circuit court, they were not properly preserved for

4
Olsen contends that the circuit court erred by finding that Olsen waived his claim of
ineffective assistance of counsel when he failed to procure his trial counsel’s testimony at the
postconviction motion hearing. He asserts that he believed that the hearing would be a status
hearing to determine whether to hold an evidentiary hearing. However, Olsen does not develop
any argument challenging the circuit court’s factual finding that Olsen was provided sufficient
notice that the scheduled hearing was an evidentiary hearing. Instead, Olsen urges this court to
reach the issue despite forfeiture and to remand for an evidentiary hearing. See State v. Leitner,
2001 WI App 172, ¶42, 247 Wis. 2d 195, 633 N.W.2d 207 (forfeiture is a matter of judicial
administration, and this court may reach forfeited issue if the matter is a recurring issue of
sufficient importance). We are not persuaded that this issue is properly addressed despite the
conceded forfeiture.

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No. 2018AP2059-CR

appeal. See State v. Ledger, 175 Wis. 2d 116, 135, 499 N.W.2d 198 (Ct. App.
1993).5

¶21 Finally, Olsen contends that his sentence was unduly harsh. He
points out that he received a harsher sentence than some of his codefendants who
were present during the armed robbery, asserting that he deserved a lesser
sentence since he was not actually present. We are not persuaded.

5
If the circuit court had exercised its discretion to deny Olsen’s postconviction motion
without a hearing, we would have affirmed that decision on appeal. See State v. Sulla, 2016 WI
46, ¶27, 369 Wis. 2d 225, 880 N.W.2d 659 (“‘[I]f the defendant fails to allege sufficient facts in
his motion to raise a question of fact, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief,’” the court may exercise its
discretion to deny the motion without an evidentiary hearing (quoted source omitted)); State v.
Howell, 2007 WI 75, ¶78, 301 Wis. 2d 350, 734 N.W.2d 48 (we independently review the legal
question of whether a postconviction motion sets forth sufficient facts to entitle the defendant to
relief and, if so, whether the record nonetheless conclusively demonstrates that the defendant is
not entitled to relief). In his postconviction motion, Olsen asserted in conclusory fashion that he
did not understand that his plea waived his right to a trial, that he only entered his plea because he
felt scared and pressured, and that his counsel told him that he would receive a lesser sentence of
eight years if he pled. However, Olsen’s only factual support for his claim that he did not
understand that his plea waived his right to a trial was his letter to his postconviction counsel
stating that he wanted a trial. Olsen argued that he would not have stated to his counsel that he
wanted a trial if he knew that his guilty plea had waived his right to a trial. We fail to follow the
logic of this argument. Nothing about Olsen’s statement to his counsel indicated that Olsen
believed he was entitled to a trial despite his guilty plea. Additionally, Olsen’s conclusory claims
of feeling scared and pressured to enter a plea were not supported by sufficient factual assertions
to require a hearing. See State v. Allen, 2004 WI 106, ¶23, 274 Wis. 2d 568, 682 N.W.2d 433
(explaining that allegations in a postconviction motion should include “the five ‘w’s’ and one ‘h’
.... A motion that alleges, within the four corners of the document itself, the kind of material
factual objectivity we describe above will necessarily include sufficient material facts for
reviewing courts to meaningfully assess a defendant’s claim.”). Finally, Olsen’s claim of
ineffective assistance of counsel did not sufficiently explain why he would not have pled guilty
absent counsel’s alleged advice that a guilty plea would result in an eight-year sentence. See id.;
see also State v. Provo, 2004 WI App 97, ¶18, 272 Wis. 2d 837, 681 N.W.2d 272 (“‘Counsel’s
incorrect prediction concerning defendant’s sentence ... is not enough to support a claim of
ineffective assistance of counsel.’” (quoted source omitted)). Because Olsen’s claims that his
plea was not knowing, intelligent, and voluntary were conclusory and lacked sufficient factual
support, we would have affirmed the circuit court’s decision had the court denied the motion
without a hearing.

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No. 2018AP2059-CR

¶22 A sentence is unduly harsh “‘only where the sentence is so excessive
and unusual and so disproportionate to the offense committed as to shock public
sentiment and violate the judgment of reasonable people concerning what is right
and proper under the circumstances.’” See State v. Grindemann, 2002 WI App
106, ¶31, 255 Wis. 2d 632, 648 N.W.2d 507 (quoted source omitted). “A mere
disparity between the sentences of codefendants is not improper if the individual
sentences are based upon individual culpability and the need for rehabilitation.”
State v. Toliver, 187 Wis. 2d 346, 362, 523 N.W.2d 113 (Ct. App. 1994). Thus,
“[t]he mere fact that the … sentences [among codefendants] are different is not
enough to support a conclusion that [a] sentence is unduly disparate. Even
leniency in one case does not transform a reasonable punishment in another case
into a cruel one.” State v. Perez, 170 Wis. 2d 130, 144, 487 N.W.2d 630 (Ct. App.
1992).

¶23 Olsen asserts that his sentence was unduly harsh based solely on the
fact that Olsen, unlike his codefendants, was not physically present during the
armed robbery. However, Olsen does not argue that the circuit court failed to
impose sentences based on individual culpability and the need for rehabilitation,
and points to no facts in the record as to the rationales underlying his
codefendants’ sentences.

¶24 We conclude that Olsen’s sentence was not unduly harsh. The
sentencing court explained that it considered the facts pertinent to the standard
sentencing factors and objectives, including the seriousness of the crime and
Olsen’s role in organizing it, Olsen’s character, and the need to protect the public.
See State v. Odom, 2006 WI App 145, ¶7, 294 Wis. 2d 844, 720 N.W.2d 695.
Additionally, the court imposed a sentence well within the maximum Olsen faced
upon his conviction. See WIS. STAT. §§ 943.32(2) (armed robbery is a Class C

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No. 2018AP2059-CR

felony); 939.50(3)(c) (Class C felony punishable by up to forty years of
imprisonment) (2013-14). A sentence well within the maximum is unlikely to be
unduly harsh. See Grindemann, 255 Wis. 2d 632, ¶31. In sum, the fact that Olsen
was not physically present but received a harsher sentence than some of his
codefendants who were at the robbery scene is insufficient to establish that
Olsen’s sentence was unduly harsh.

By the Court.—Judgment and order affirmed.

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

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