State v. Alejandro Juan Gutierrez

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 27, 2021
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 Nos. 2020AP498-CR Cir. Ct. Nos. 2017CF1451
2017CF1903
2020AP499-CR 2018CF579
2020AP500-CR 2018CF581
2020AP501-CR

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ALEJANDRO JUAN GUTIERREZ,

DEFENDANT-APPELLANT.

APPEAL from judgments and an order of the circuit court for Brown
County: MARC A. HAMMER, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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).
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¶1 PER CURIAM. Alejandro Gutierrez appeals judgments, entered
upon his no-contest pleas, convicting him of child enticement; third-degree sexual
assault; strangulation and suffocation; false imprisonment; burglary of a dwelling;
and two counts of felony bail jumping, with both the false imprisonment and
burglary counts as party to a crime. He also appeals the order denying his motion
for postconviction relief. Gutierrez argues he is entitled to plea withdrawal
because a defective plea colloquy rendered his pleas unknowing, unintelligent, and
involuntary. For the reasons discussed below, we affirm the judgments and order.

BACKGROUND

¶2 Gutierrez was charged in four Brown County cases with eight felony
and four misdemeanor offenses. In exchange for his no-contest pleas to seven of
the offenses, as delineated above, the State agreed to recommend that the circuit
court dismiss and read in the remaining charges. After a plea colloquy, the court
accepted the pleas, stating that it was satisfied Gutierrez’s no-contest pleas were
knowing, intelligent, and voluntary; that Gutierrez understood and waived his
rights freely and voluntarily; and that there was a sufficient factual basis to support
the pleas.

¶3 On five of the offenses, the circuit court imposed concurrent prison
sentences resulting in an aggregate twenty-year sentence, consisting of ten years’
initial confinement and ten years’ extended supervision. With respect to the
felony bail jumping convictions, the court withheld sentence and imposed two
years’ probation on each count concurrent to each other, but consecutive to the
prison sentences. Gutierrez’s postconviction motion for plea withdrawal was
denied without a hearing, and this appeal follows.

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DISCUSSION

¶4 Gutierrez argues the circuit court erred by denying his
postconviction motion for plea withdrawal without a hearing. Decisions on plea
withdrawal requests are discretionary and will not be overturned unless the circuit
court erroneously exercised its discretion. State v. Spears, 147 Wis. 2d 429, 434,
433 N.W.2d 595 (Ct. App. 1988). In a postconviction motion for plea withdrawal,
the defendant carries the heavy burden of establishing, by clear and convincing
evidence, that plea withdrawal is necessary to correct a manifest injustice. See
State v. Thomas, 2000 WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d 836. The
manifest injustice standard requires the defendant to show “a serious flaw in the
fundamental integrity of the plea.” Id. (citation omitted).

¶5 One way for a defendant to meet this burden is to show that he or
she did not knowingly, intelligently and voluntarily enter the plea. State v.
Brown, 2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906. Whether a plea is
knowing, intelligent, and voluntary is a question of constitutional fact. Id., ¶19.
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. Id.

¶6 A defendant may move to withdraw his or her plea based on an error
within the plea colloquy—otherwise known as a Bangert claim—by: (1) making
a prima facie showing of a violation of WIS. STAT. § 971.08 (2019-20),1 or another

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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court-mandated duty; and (2) alleging that he or she did not, in fact, know or
understand the information that should have been provided during the plea
colloquy. State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986). If the
defendant satisfies these obligations, 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 inadequacy of the plea colloquy. Id. The State may
utilize any evidence in the record “to show that the defendant in fact possessed the
constitutionally required understanding and knowledge which the defendant
alleges the inadequate plea colloquy failed to afford him [or her].” Id. at 274-75.

¶7 Additionally, or alternatively, a defendant may establish a manifest
injustice by proving “that some factor extrinsic to the plea colloquy … renders a
plea infirm.” See State v. Howell, 2007 WI 75, ¶74, 301 Wis. 2d 350, 734 N.W.2d
48. This is known as a Nelson/Bentley claim. See State v. Bentley, 201 Wis. 2d
303, 548 N.W.2d 50 (1996); Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629
(1972). “A defendant’s Nelson/Bentley motion must meet a higher standard for
pleading than a Bangert motion.” Howell, 301 Wis. 2d 350, ¶75. To obtain a
Nelson/Bentley evidentiary hearing, a postconviction motion should present its
allegations in a “who, what, where, when, why, and how” format, with sufficient
particularity to allow the circuit court to meaningfully assess the claim. State v.
Allen, 2004 WI 106, ¶23, 274 Wis. 2d 568, 682 N.W.2d 433. A circuit court has
discretion to deny a Nelson/Bentley motion without an evidentiary hearing if a
defendant fails to allege sufficient facts to raise a question of fact, presents only
conclusory allegations, or if the record demonstrates that the defendant is not
entitled to relief. Nelson, 54 Wis. 2d at 497-98. When reviewing a circuit court’s

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discretionary decision, we use the deferential erroneous exercise of discretion
standard. Bentley, 201 Wis. 2d at 311.

¶8 Here, Gutierrez’s postconviction motion appeared to assert claims
under both Bangert and Nelson/Bentley. Specifically, Gutierrez alleged: (1) the
circuit court failed to ask him “whether he had used drugs or alcohol on the date of
the hearing to such an extent that he was unable to understand the effect of his
actions”; and (2) the court did not “inquire as to whether he was suffering, at the
time of [the] plea[s], from a mental health issue, whether he was taking medication
for that issue, or the effect that either that mental health issue or the medication
had on [his] ability to understand what he was doing” when he entered his pleas.
In an accompanying affidavit, Gutierrez averred that “[p]rior to the time that he
entered his plea[s], [he] had been diagnosed with depression, anxiety, suicidal
thoughts, conduct disorder, ADHD, negativism, and self-defeating personality
traits.” Gutierrez further averred that he had been prescribed medications for these
conditions, he was not taking the medications at the time he entered his pleas, and
the failure to receive and take prescribed drugs rendered him incapable of
understanding the consequences of his pleas.

¶9 With respect to his Bangert claim, the specific questions that
Gutierrez claims were omitted during the plea colloquy are not required by WIS.
STAT. § 971.08 or Bangert and its progeny. See Brown, 293 Wis. 2d 594, ¶35.
Gutierrez nevertheless argues that the circuit court was required to ascertain
whether he “actually” understood the proceeding and, without inquiry into
Gutierrez’s mental health, the court failed to confirm that Gutierrez had the
capacity to make informed decisions. We are not persuaded.

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¶10 Prior to the plea hearing, Gutierrez completed and signed a plea
questionnaire and waiver of rights form in which he acknowledged his
understanding of the elements of the offenses, the potential punishment for each
offense, and the constitutional rights he waived by entering no-contest pleas.
Significantly, Gutierrez checked boxes indicating he was not “currently receiving
treatment for a mental illness or disorder,” and he had not “had any alcohol,
medications, or drugs within the last 24 hours.” During the plea colloquy,
Gutierrez confirmed that he had “[c]arefully reviewed” the form before signing it.
The circuit court was entitled to credit the truth of Gutierrez’s assertions in the
plea questionnaire form. See State v. Hoppe, 2008 WI App 89, ¶18, 312 Wis. 2d
765, 754 N.W.2d 203 (recognizing that a plea questionnaire form is an intrinsic
part of the plea colloquy, as its use can “lessen the extent and degree of the
colloquy otherwise required”).

¶11 At the outset of the plea hearing, the plea agreement was read into
the record, Gutierrez confirmed it was a correct summary of the agreement, and he
further confirmed that he understood what the parties were “going to do today.”
The circuit court’s plea colloquy, as supplemented by the plea questionnaire and
waiver of rights form, confirmed Gutierrez’s understanding of the elements of the
offenses, the penalties that could be imposed, and the constitutional rights he
waived by entering no-contest pleas. The court confirmed that Gutierrez
understood the court was not bound by the terms of the plea agreement, see State
v. Hampton, 2004 WI 107, ¶2, 274 Wis. 2d 379, 683 N.W.2d 14, and it advised
Gutierrez of the deportation consequences of his pleas, as mandated by WIS. STAT.
§ 971.08(1)(c). Additionally, the court properly found that a sufficient factual
basis existed in the record to support the conclusion that Gutierrez committed the

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crimes charged. Ultimately, Gutierrez points to no part of the plea colloquy that
would have signaled to the court that Gutierrez might not have “actually”
understood either the court’s questions or what Gutierrez was saying he
understood due to the use of drugs, alcohol, mental illness or medications taken
for that mental illness. Because Gutierrez failed to make a prima facie case to
support his motion for plea withdrawal based upon a Bangert violation, the court
properly denied his claim without a hearing.

¶12 Alternatively, Gutierrez’s motion under Nelson/Bentley is also
facially insufficient to obtain an evidentiary hearing. Gutierrez appears to argue
that his affidavit and a doctor’s report submitted with the presentence investigation
report (“PSI”) establish that he suffered from a mental illness that affected his
competency to enter his pleas. With respect to the affidavit, Gutierrez averred that
he had been diagnosed with various mental health issues “prior to the time that he
entered his plea[s]” and that he was not receiving prescribed medications at the
time of the plea hearing. Neither his postconviction motion nor his affidavit,
however, specified when Gutierrez was diagnosed with these conditions; who
diagnosed the disorders; and what drugs were prescribed and their purpose or
effect. Gutierrez also failed to allege that at the time of his pleas he continued to
suffer from previously diagnosed mental or emotional disorders, or what
medications he was currently prescribed. Moreover, Gutierrez failed to explain
how any of his alleged diagnoses or the absence of medication affected his ability
to understand the consequences of his no-contest pleas. His motion provided no
documentation or expert evidence to support his claim. Rather, he solely relied on
his conclusory affidavit.

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¶13 With respect to the doctor’s report, the circuit court noted in its order
denying Gutierrez’s postconviction motion that a licensed psychologist had
conducted an evaluation in conjunction with the PSI to address Gutierrez’s mental
health issues, treatment needs, and risk management. Neither the doctor’s report
nor the PSI, however, suggested that Gutierrez had been prescribed medication at
the time of the plea hearing or that he otherwise lacked an understanding of the
consequences of his pleas. The court added:

The simple fact that [Gutierrez] was prescribed medication
in the past, for one of numerous mental health conditions,
would require the Court to speculate as to which conditions
were operative, which conditions affected [Gutierrez], and
which conditions, if any, would have as a consequence a
lack of understanding regarding the legal process.

Ultimately, Gutierrez’s motion failed to provide the “what,” “when,” “who,” and
“how” answers necessary for the circuit court to meaningfully assess his claim.
See Allen, 274 Wis. 2d 568, ¶23. As the court noted, “[t]he record is void of any
influence or suggestion that [Gutierrez] did not understand what he was doing at
the time he entered his pleas.” Because Gutierrez failed to allege sufficient facts
and relied on only conclusory allegations to support his Nelson/Bentley claim, the
court properly denied his motion without a hearing.

By the Court.—Judgments and order affirmed.

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

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