State v. Colten R. Treu

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 13, 2022
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. 2021AP574-CR Cir. Ct. No. 2018CF778

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

COLTEN R. TREU,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Chippewa County: JAMES M. ISAACSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Colten Treu appeals from a judgment convicting
him of four counts of homicide by intoxicated use of a vehicle (each as a second or
No. 2021AP574-CR

subsequent OWI offense) and one count of hit-and-run involving great bodily
harm. He also appeals from an order denying his postconviction motion for plea
withdrawal. Treu contends that his pleas were not knowingly and voluntarily
made because he did not understand that entry of the pleas would waive his right
to challenge venue on appeal. Treu also claims that his trial attorneys provided
ineffective assistance by failing to fully and accurately explain the guilty-plea-
waiver rule to him. We reject both arguments and affirm.

BACKGROUND

¶2 The State charged Treu with ten felonies and a misdemeanor after
Treu huffed from a can of air duster, drove his vehicle into a troop of Girl Scouts
and their chaperones, who were collecting trash alongside a Chippewa County
highway, and then fled the scene. Three children and one of their mothers were
killed, while another child was seriously injured.

¶3 Treu moved for a change in venue, alleging that a fair jury could not
be impaneled in Chippewa County due to extensive pretrial publicity. The circuit
court denied the motion, opting instead to use a jury questionnaire to screen the
jury panel regarding their pretrial exposure to the incident’s publicity as well as
their ability to set it aside. Treu sought reconsideration of his venue motion after
reviewing the returned jury questionnaires, but the court again refused to move the
trial.

¶4 The State reached a plea agreement with Treu whereby he pled no
contest to the four homicide counts and guilty to the hit-and-run count in exchange
for the State’s recommendation that the other charges be dismissed and read in,
with both parties free to argue at sentencing. The circuit court subsequently

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sentenced Treu to aggregate terms of fifty-four years’ initial confinement followed
by forty-five years’ extended supervision.

¶5 Treu moved to withdraw his pleas following sentencing. He alleged
that his trial attorneys had erroneously advised him that he still would be able to
appeal the denial of his venue motion following his conviction. The circuit court
held an evidentiary hearing at which one of Treu’s trial attorneys testified that he
had told Treu that entering guilty or no-contest pleas “impacted his ability to
appeal” without specifying exactly what issues Treu would be precluded from
appealing. That attorney acknowledged that previously, when the case was still in
a pretrial posture, he had told Treu he would be able to appeal the venue ruling.

¶6 Treu’s second trial attorney testified she told Treu that he had “the
right to ask for appellate [counsel] to take a look at everything” even if he entered
pleas, and she would not have told Treu that any specific issues were not
appealable. To the contrary, she would typically tell defendants that if there were
any appealable issues, whether “something directly from the case” or based on
trial counsel’s performance, appellate counsel would have discretion to raise them.
The second attorney also said, however, that she did not specifically advise Treu
that his right to appeal the venue issue would be preserved.

¶7 Treu testified at the hearing that he had wanted to appeal the denial
of his venue motion from the start and that neither of his trial attorneys ever told
him that he would be unable to do so if he entered guilty or no-contest pleas. Treu
recounted that when he asked whether he would be able to appeal, in general,

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following his pleas, counsel1 told him “yes; but [his] appellate attorney would be
the one to tell [him] what and how to go about it.” Treu further asserted that he
would have gone to trial if he had known that he would not be able to appeal the
venue issue. He said that the denial of the venue motion was one of the main
reasons he decided to enter pleas because he did not believe he could get a fair
trial in Chippewa County.

¶8 The circuit court denied Treu’s plea withdrawal motion. Treu now
appeals, claiming that his pleas were unknowing and involuntary and that his trial
counsel provided him ineffective assistance.

DISCUSSION

¶9 A defendant seeking to withdraw a plea after sentencing on grounds
other than a defective plea colloquy must demonstrate by clear and convincing
evidence that refusal to allow plea withdrawal would result in a “manifest
injustice,” raising “serious questions affecting the fundamental integrity of the
plea.” State v. Dillard, 2014 WI 123, ¶83, 358 Wis. 2d 543, 859 N.W.2d 44
(citation omitted). Manifest injustice can occur when a defendant’s plea was not
knowingly and voluntarily entered or when a defendant was afforded ineffective
assistance of counsel. See id., ¶¶37, 84.

¶10 We review whether manifest injustice has occurred as a “question of
constitutional fact.” State v. Taylor, 2013 WI 34, ¶25, 347 Wis. 2d 30, 829

1
It is not clear from Treu’s testimony which attorney he claimed made that statement,
although from the context of the entire hearing, it appears it was the second attorney who
testified.

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N.W.2d 482. Under this standard, we accept the circuit court’s findings of
historical or evidentiary fact unless they are clearly erroneous, but we
independently determine whether those facts are sufficient to establish a
constitutional violation. Id.

¶11 As a threshold issue related to our standard of review, we note that
the circuit court determined that Treu’s trial attorneys had not misadvised him
about his ability to appeal the venue issue. The court did not, however, make any
specific factual findings regarding what, precisely, the attorneys did say to Treu.
The court also did not make any factual findings regarding whether Treu believed
at the time he entered his pleas that he would be able to appeal the venue issue and
whether or how such belief affected his decision to accept the plea deal.

¶12 To avoid a remand for fact finding, we will assume for the purpose
of this appeal the facts most favorable to Treu from the testimony at the
postconviction hearing described above. These assumed facts include
that: (1) Treu wanted to appeal the venue decision because he did not believe he
could get a fair trial in Chippewa County; (2) when Treu specifically asked one of
his trial attorneys whether he still would be able to appeal after pleading no contest
and guilty to some of the charges, the attorney responded, “[Y]es; but [his]
appellate attorney would be the one to tell [him] what and how to go about it”;
(3) counsel’s response led Treu to erroneously believe that he would be able to
appeal the venue decision after his pleas were entered; and (4) Treu would not
have pled no contest and guilty to the charges he did if he understood that by
doing so he would be waiving the right to appellate review of the venue issue.

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1. Knowing and Voluntary Nature of Pleas.

¶13 Treu first claims that his pleas are manifestly unjust because they
were unknowingly and involuntarily entered. A plea is not knowing and voluntary
unless the defendant understands both the nature of the crimes to which he or she
is pleading and the constitutional rights being relinquished. State v. Hoppe, 2008
WI App 89, ¶10, 312 Wis. 2d 765, 754 N.W.2d 203. Not every misunderstanding
of the law negates the knowing and voluntary nature of a defendant’s plea,
however. State v. Brown, 2004 WI App 179, ¶11, 276 Wis. 2d 559, 687 N.W.2d
543. A plea will still be deemed knowing and voluntary when a defendant’s
misunderstanding stems from a “lack of information” or his or her “own
inaccurate interpretation” about the collateral consequence of a plea and it is not
“based on any information provided by defense counsel or the prosecutor.”
Id., ¶¶7, 12.

¶14 Treu relies upon State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d
744 (1983), for the proposition that a defendant who is not adequately advised
about the guilty-plea-waiver rule and enters a plea under the mistaken belief that
he or she will be able to appeal an issue that would be subject to the rule is entitled
to withdraw his or her plea.2 In Riekkoff, the defendant expressly conditioned a
plea (with the agreement of the State and acceptance by the circuit court) upon the
preservation of his right to appeal a pretrial evidentiary ruling. Id. at 121-22. The
supreme court held that “any condition which a defendant seeks to place upon the

2
As a general matter, the guilty-plea-waiver rule provides that a guilty or no-contest plea
waives all nonjurisdictional defects and defenses, including constitutional claims. See State v.
Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886.

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plea is a nullity.” Id. at 128. The court therefore concluded that the guilty-plea-
waiver rule applied to the evidentiary ruling—notwithstanding the acquiescence of
the State and the circuit court in the defendant’s attempt to preserve the issue. Id.
However, because the defendant entered his plea under the misapprehension that
he had preserved his right to appeal the evidentiary ruling, the court further
concluded that the defendant’s plea was neither knowing nor voluntary. Id.

¶15 The State argues that Riekkoff is distinguishable from this case
because: (1) the guilty-plea-waiver rule is a collateral consequence of a plea; and
(2) here, Treu’s mistaken belief that he would be able to seek appellate review of
the venue decision was not based upon any actual misinformation provided by his
trial attorneys. Treu disputes both points.

¶16 The direct consequences of a plea about which a defendant must be
informed “are those that have a definite, immediate, and largely automatic effect
on the range of a defendant’s punishment.” State v. LeMere, 2016 WI 41, ¶31,
368 Wis. 2d 624, 879 N.W.2d 580 (citation omitted). In contrast, collateral
consequences are indirect and, rather than flowing from the conviction, “‘may be
contingent on a future proceeding in which a defendant’s subsequent behavior
affects the determination’ or may ‘rest[] not with the sentencing court, but instead
with a different tribunal or government agency.’” Id. (citation omitted).

¶17 We note that Riekkoff does not explicitly state whether it is treating
the guilty-plea-waiver rule as a direct or collateral consequence of the plea. Nor
has either party cited any other case that addresses that specific question. The
circuit court’s discussion in Riekkoff provides some support for each position. At
one point, the court noted that “once the guilty plea is accepted, as a matter of law
the right to appeal the reserved issues is waived.” Riekkoff, 112 Wis. 2d at 128

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(emphasis added). The court also stated, however, that the guilty-plea-waiver rule
is one of administration, which an appellate court may decline to enforce.
Id. at 124. We conclude that the guilty-plea-waiver rule is a collateral
consequence because it does not come into effect unless a defendant seeks to
appeal a waived issue and a different tribunal decides to apply the rule.

¶18 Because the guilty-plea-waiver rule is a collateral consequence, it is
not enough for Treu to show that he mistakenly believed he would be able to
appeal the venue decision on appeal. He must demonstrate that one or both of his
trial attorneys, the prosecutor, or the circuit court actually misinformed him on that
point. Treu made no allegation that the court or prosecutor had misinformed him,
however, and he admitted that neither of his attorneys specifically said that Treu
could appeal the venue issue. At least one of the attorneys told Treu that he could
appeal, generally. That is a true statement because Treu could appeal the validity
of his pleas, his sentences, a jurisdictional issue, or any other issue that a
reviewing court could decide to address, notwithstanding Treu’s failure to
preserve it. It is also true that postconviction or appellate counsel could be
expected to discuss with Treu what issues were viable for appeal.

¶19 Ultimately, then, Treu’s misunderstanding was the result of a lack of
more specific information about the guilty-plea-waiver rule and his own inaccurate
interpretation about what issues he would be able to appeal. Because Treu has not
alleged that he misunderstood any direct consequences of his pleas, and he has not
established that he was actually misinformed about any collateral consequences,
we conclude his pleas were knowing and voluntary.

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2. Ineffective Assistance of Counsel.

¶20 To establish a claim of ineffective assistance of counsel, a defendant
must prove two elements: (1) deficient performance by counsel; and (2) prejudice
resulting from that deficient performance. State v. Sholar, 2018 WI 53, ¶32, 381
Wis. 2d 560, 912 N.W.2d 89. In order to demonstrate deficient performance, a
defendant must overcome a presumption that counsel’s actions fell within a wide
range of professional conduct. Strickland v. Washington, 466 U.S. 668, 689
(1984). In the context of a plea withdrawal motion, prejudice is established by
demonstrating a reasonable probability that, but for counsel’s deficient
performance, the defendant would have gone to trial. State v. Jeninga, 2019 WI
App 14, ¶12, 386 Wis. 2d 336, 925 N.W.2d 574. We need not address both
elements of the test if the defendant fails to make a sufficient showing on one of
them. State v. Swinson, 2003 WI App 45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12.
Here, we conclude that counsel’s performance was not deficient.

¶21 Treu contends that his trial attorneys provided ineffective assistance
by failing “to clearly advise” him that he would be waiving his right to appeal the
venue decision. The failure to inform a defendant about a collateral consequence
of a plea does not constitute deficient performance, however. LeMere, 368
Wis. 2d 624, ¶30; see also State v. Kosina, 226 Wis. 2d 482, 485, 595 N.W.2d 464
(Ct. App. 1999) (“No manifest injustice occurs, however, when the defendant is
not informed of a collateral consequence.”). Because Treu’s trial attorneys had no
obligation to tell him about the guilty-plea-waiver rule at all, they did not perform
deficiently by providing him with incomplete information about it. Nor, as we
have discussed above, did they actually misinform Treu that he would be able to
appeal the venue decision. We therefore conclude that Treu was not afforded

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ineffective assistance of counsel, and the circuit court properly denied Treu’s plea
withdrawal motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

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