State v. Brian Anthony Taylor

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 28, 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. 2019AP1770-CR Cir. Ct. No. 2016CF4422

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRIAN ANTHONY TAYLOR,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. WAGNER, Judge. Judgment affirmed.

Before Brash, P.J., Dugan and Donald, JJ.
No. 2019AP1770-CR

¶1 DONALD, J. Brian Anthony Taylor appeals a judgment of
conviction, following a no contest plea, to one count of child enticement. 1 We
affirm.

BACKGROUND

¶2 On September 26, 2016, Taylor was charged with one count of
repeated sexual assault of a child. According to the criminal complaint, the victim,
A.B., “made a disclosure at her after-school program” that her mother’s boyfriend
was sexually assaulting her. A.B. was six years old at the time.

¶3 Taylor ultimately pled no contest, but not before conflicting with three
appointed attorneys. On the morning the matter was scheduled for trial—after
numerous adjournments—the State informed the circuit court that it amended the
charge to one count of child enticement. The State informed the circuit court that
upon Taylor’s guilty or no contest plea, the State would recommend a fifteen-year
sentence to run concurrent to the revocation sentence Taylor was already serving.
Taylor’s defense counsel—his fourth at that point—informed the circuit court that
Taylor intended to plead no contest. The circuit court then proceeded with the
colloquy and the following exchange occurred:

The Court: So you understand then what the amended
information says, what the penalty is, and you understand the
[c]ourt’s not bound by any negotiations or plea bargains? Do
you understand that?

Taylor’s notice of appeal states that he is appealing the judgment of conviction and the
1

order denying his postconviction motion. Taylor filed a postconviction motion, pursuant to WIS.
STAT. RULE 809.30 (2017-18), asking the circuit court to allow him to withdraw his no contest plea
on the basis of ineffective assistance of counsel. Taylor does not argue ineffective assistance of
counsel on appeal. Accordingly, we do not address the order denying the postconviction motion.

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

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No. 2019AP1770-CR

The Defendant: Yes, sir.

The Court: And that you’d have to file as a sex offender.
You’re 34 years old, right?

The Defendant: Yes.

The Court: And are you currently receiving treatment for a
mental illness?

The Defendant: Yes, I am.

The Court: And you’re receiving medication?

The Defendant: Yes, I am.

The Court: That does not impair your ability to understand
what we’re doing here, does it?

The Defendant: I mean - -

The Court: You understand everything?

The Defendant: In a way I do because I haven’t took my
meds in, like, two days[] so - -

The Court: Pardon? But you understand - - you understand
what we’re doing though, right?

The Defendant: Yes.

The Court: You understand that you’re pleading no contest
to the amended charge?

The Defendant: Yes. She broke it down to me.

The Court: And you understand that, right?

The Defendant: Yes, sir.

Defense counsel explained that Taylor missed one dose of his antidepressant, but
that Taylor understood the terms and implications of the plea and that his cognition
was not compromised.

¶4 Approximately three weeks later, but prior to sentencing, Taylor
moved to withdraw his plea. Taylor alleged that a “fair and just” reason for plea

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No. 2019AP1770-CR

withdrawal existed because he did not take his medication on the day he entered his
plea, resulting in a hasty and confused decision to plead no contest. Taylor also
alleged that he did not adequately consult with defense counsel and that he contacted
counsel the week after entering his plea to discuss his “mistake.”

¶5 As relevant to this appeal, the State opposed the motion, arguing that
numerous trial delays were the result of Taylor’s multiple dismissals of defense
counsel, and that plea withdrawal would substantially prejudice the State.

¶6 At a hearing on the motion, Taylor testified that he felt pressured and
rushed by defense counsel when he made the decision to plead no contest. He
testified that he had not taken his Prozac that day and did not realize that he made a
mistake until he returned to his cell and took his medication.

¶7 Defense counsel testified that on the day before trial, she met with
Taylor at the jail for an “hour and a half, two hours maybe.” During that time she
“spoke with him at length about the possibility of” a modified plea offer from the
State. The following morning—the morning of trial—defense counsel told Taylor
that the State was willing to amend the charge to a lesser felony and recommend a
sentence of six years’ initial confinement and nine years’ extended supervision.
Defense counsel also informed Taylor that the State’s witnesses, including the
victim, were present. Defense counsel stated that Taylor asked counsel to request
that the State recommend a concurrent sentence and that Taylor expressed concern
about the victim’s testimony. The State agreed to recommend a concurrent
sentence, but defense counsel testified that Taylor had “a lot of questions. He was
very concerned that I wasn’t able to predict what the victim was going to say. And
that was something that was up in the air for I think everybody.” Defense counsel
testified that she spent a lot of time with Taylor answering his various questions, but

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No. 2019AP1770-CR

that she was unable to answer questions that would require her to predict the victim’s
testimony. She stated that Taylor was “uncomfortable” having to make a decision
about his plea without knowing what the victim’s testimony would entail, but
ultimately chose, of his own volition, to enter a no contest plea.

¶8 The State also reminded the circuit court that “[t]his case has been
dragging on for almost two years. The [S]tate has been ready for trial on six prior
dates. And we’ve drug [the victim] through the system preparing her for trial every
time.”

¶9 The circuit court denied Taylor’s motion to withdraw his plea. The
circuit court stated that it reviewed the extensive case history, the plea colloquy, and
the totality of the circumstances, and could not find a “manifest injustice”
warranting plea withdrawal. The circuit court also noted that “the [S]tate would
have been prejudiced or would be prejudiced given the passage of time and the
impact it would have on the victim and the victim’s ability to recall facts. And it
certainly would be punitive to that child’s development.”

¶10 The circuit court ultimately sentenced Taylor to a fifteen-year term of
imprisonment, bifurcated as six years of initial confinement and nine years of
extended supervision, concurrent to any other sentence he was then serving. This
appeal follows.

DISCUSSION

¶11 On appeal, Taylor contends that the circuit court erroneously denied
his presentence motion to withdraw his plea because Taylor established a fair and
just reason to withdraw his plea in that the plea was rushed and entered in haste.
Taylor also contends that the circuit court applied the wrong legal standard when

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No. 2019AP1770-CR

denying his motion, that the circuit court erroneously determined that the State
would be substantially prejudiced by Taylor’s plea withdrawal, and that the circuit
court’s decision was not supported by the record.

¶12 A circuit court’s discretionary decision to deny plea withdrawal will
be upheld on appeal when “the circuit court reached a reasonable conclusion based
on the proper legal standard and a logical interpretation of the facts.” State v.
Kivioja, 225 Wis. 2d 271, 284, 592 N.W.2d 220 (1999). “While courts should
liberally grant plea withdrawal prior to sentencing, withdrawal is not automatic.”
State v. Leitner, 2001 WI App 172, ¶24, 247 Wis. 2d 195, 633 N.W.2d 207. The
request to withdraw a guilty plea prior to sentencing may be granted where the
defendant proves by a preponderance of the evidence that a fair and just reason
exists for doing so. Id., ¶26. A “fair and just” reason means some adequate reason
for a defendant’s change of heart other than the desire to have a trial. Id., ¶25. Once
the defendant has met his or her burden, the circuit court should grant the motion
for plea withdrawal unless there is substantial prejudice to the prosecution. Kivioja,
225 Wis. 2d at 283-84.

¶13 Here, the circuit court stated that Taylor could not establish a manifest
injustice warranting plea withdrawal, and determined that plea withdrawal would
result in substantial prejudice to the State. We conclude that, while the circuit court
may have misspoken during the course of its oral recitation of the standard, 2 its
statements taken as a whole demonstrate its understanding and application of the

2
Different standards apply depending on when the motion is made. A presentence motion
to withdraw a guilty plea required Taylor to give a “fair and just reason” and was subject to the
existence of no substantial prejudice to the State. See State v. Shanks, 152 Wis. 2d 284, 288-89,
448 N.W.2d 264 (Ct. App. 1989). A post-sentence motion to withdraw a guilty plea requires a
showing of “manifest injustice.” State v. Booth, 142 Wis. 2d 232, 237, 418 N.W.2d 20 (Ct. App.
1987).

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No. 2019AP1770-CR

correct legal standard. See id. at 287 (stating that when the circuit court applies the
wrong legal standard to a case, the appellate court will not reverse the erroneous
exercise of the circuit court’s discretion where the appellate court finds that the facts
of the record, applied to the correct legal standard, support the circuit court’s
conclusion based on a rational conclusion that a reasonable judge could reach). We
conclude that the circuit court properly exercised its discretion in determining that
there would be substantial prejudice to the State if Taylor were to withdraw his
plea.3

¶14 In making this determination, the circuit court took note of the
victim’s young age, a letter from the case worker, the victim’s ability to recall the
details of her assaults, and the impact on the victim’s development. The circuit
court was familiar with the facts of this case and was aware of the record.

¶15 The record reveals that the victim was six years old when she first
reported the assaults and Taylor was charged. A letter from the victim’s case worker
detailed the impact of Taylor’s court proceedings on the victim. The letter detailed
the victim’s confusion over why Taylor was not in prison for the harm he caused
her, the victim’s relief when Taylor pled no contest, and the victim’s bravery when
having to go to court on multiple occasions. The letter indicated that the victim
would do her utmost to recall details of the assaults if Taylor’s plea was withdrawn,
but that she would undergo tremendous stress if forced to testify.

¶16 The record also reveals that Taylor’s case was scheduled for trial six
times, but that his dissatisfaction with multiple lawyers led to multiple delays

3
The parties disagree as to whether the State conceded a fair and just reason for Taylor’s
plea withdrawal, however, we need not address this argument because even if Taylor did establish
a fair and just reason for plea withdrawal, he cannot rebut evidence of substantial prejudice to the
State.

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No. 2019AP1770-CR

spanning nearly two years. Taylor entered his no contest plea under the guidance
of his fourth appointed counsel. The State indicated that it spent considerable time
preparing for trial numerous times and that it feared the victim’s ability to recall
pertinent details should Taylor withdraw his plea and the matter again be scheduled
for trial.

¶17 “In light of the facts of the record, as well as the recognition of the
effects of protracted criminal proceedings on the victim’s memory, we determine
that the circuit court properly concluded the State would suffer substantial prejudice
as a result of [Taylor’s] plea withdrawal.” See State v. Bollig, 2000 WI 6, ¶46, 232
Wis. 2d 561, 605 N.W.2d 199 (where the defendant’s repeated dismissal of
appointed counsel led to trial delays and the defendant attempted to withdraw his
plea prior to sentencing, it was reasonable for the circuit court to consider the length
of the delay and the effect of the delay on the victim’s memory in denying the
motion to withdraw, despite the existence of a fair and just reason for plea
withdrawal). It is “reasonable [for the circuit court] to consider the impact a plea
withdrawal would have on the child victim, the State’s key witness.” Id. The circuit
court properly exercised its discretion.

¶18 For the foregoing reasons, we affirm.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

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