State v. Jonathan A. Ortiz-Rodriguez

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.
November 26, 2019
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. 2018AP2401-CR Cir. Ct. No. 2016CF2965

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JONATHAN A. ORTIZ-RODRIGUEZ,

DEFENDANT-APPELLANT.

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

Before Brash, P.J., Dugan and Fitzpatrick, JJ.

¶1 BRASH, P.J. Jonathan A. Ortiz-Rodriguez appeals from his
judgment of conviction for one count of first-degree sexual assault of a child under
the age of thirteen, to which he pled guilty. He also appeals from an order of the
trial court denying his postconviction motion without an evidentiary hearing.
No. 2018AP2401-CR

¶2 Ortiz-Rodriguez seeks to withdraw his plea on the ground that it was
not knowingly, intelligently, and voluntarily entered as a result of ineffective
assistance by his trial counsel. Pursuant to the plea agreement, the parties were
“free to argue” at sentencing regarding an appropriate sentence; however, Ortiz-
Rodriguez asserts that counsel incorrectly informed him that the State was going
to recommend an initial confinement term of five to eight years. Instead, the State
recommended an initial confinement term of twenty years, which the trial court
ultimately imposed.

¶3 The trial court denied Ortiz-Rodriguez’s postconviction motion
without an evidentiary hearing, finding that he had not alleged sufficient facts in
his motion to demonstrate that he was prejudiced by this claimed error. We
affirm.

BACKGROUND

¶4 On June 25, 2016, Ortiz-Rodriguez’s biological daughter, M.O., who
was born in August 2010, was diagnosed with gonorrhea. Around the same time,
Ortiz-Rodriguez was diagnosed with gonorrhea as well. M.O. was interviewed by
Milwaukee police, and told them that her “private parts were hurting because her
dad did something really bad.” She said that her dad had touched and licked her
private parts, and that he had “put his private parts inside her private parts about
seven times.” She further stated that he had told her to “be quiet” and “don’t ask
mom.”

¶5 Ortiz-Rodriguez was charged in July 2016 with repeated sexual
assault of a child. Upon conviction, this offense requires a minimum term of
initial confinement of twenty-five years. Ortiz-Rodriguez entered into a plea

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agreement to an amended charge of one count of sexual assault of a child, which
had no mandatory minimum term of initial confinement.

¶6 At the plea hearing on October 6, 2016, the State noted that “both
sides are free to argue on this amended plea deal.” Counsel for Ortiz-Rodriguez
agreed that was correct. Additionally, this information was included in an
attachment to the Addendum to Plea Questionnaire, which was signed by Ortiz-
Rodriguez.

¶7 At the sentencing hearing on October 25, 2016, the State again noted
that the parties were free to argue for an appropriate sentence, and recommended
twenty years of initial confinement with twenty years of extended supervision.
The State reminded the trial court that the amended charge did not carry a
mandatory minimum sentence of twenty-five years of initial confinement, as the
original charge had. In contrast, Ortiz-Rodriguez requested a range of five to
seven years of initial confinement.

¶8 The trial court noted that it was important for Ortiz-Rodriguez to
“understand how horrific and terrible this offense was.” It observed that he
required “significant assessment and treatment” as a sex offender, and that it
needed to impose a sentence that would “protect the community from [him]”
because “that treatment is going to be significantly long” based on the aggravating
facts of the case. Therefore, the court imposed a sentence of twenty years of
initial confinement with ten years of extended supervision.

¶9 Ortiz-Rodriguez filed a postconviction motion in October 2018,
seeking withdrawal of his plea. He asserted that his trial counsel was ineffective
in that counsel told him that the State had agreed to recommend a sentence of five
to eight years of initial confinement. He argued that he would not have entered the

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guilty plea but for this error by his trial counsel, and instead would have insisted
on going to trial.

¶10 The trial court denied the motion. It found that Ortiz-Rodriguez had
failed to allege any facts to show why he would have rejected the plea offer, which
“drastically altered his incarceration exposure, and risked a conviction on a
charge … [with] a minimum 25 years of confinement.” Therefore, the court held
that he had not demonstrated that he was prejudiced by the alleged error of trial
counsel. This appeal follows.

DISCUSSION

¶11 On appeal, Ortiz-Rodriguez maintains that the facts he alleged in his
postconviction motion were sufficient to entitle him to an evidentiary hearing. A
defendant seeking to withdraw his or her plea after sentencing “must prove, by
clear and convincing evidence, that a refusal to allow withdrawal of the plea
would result in ‘manifest injustice.’” State v. Brown, 2006 WI 100, ¶18, 293 Wis.
2d 594, 716 N.W.2d 906 (citation omitted). The “mere assertion” of manifest
injustice, however, “does not entitle a defendant to the granting of relief[.]” State
v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433 (citation and one
set of quotation marks omitted).

¶12 Indeed, a defendant is not automatically entitled to an evidentiary
hearing relating to his or her postconviction motion. State v. Bentley, 201 Wis. 2d
303, 309, 548 N.W.2d 50 (1996). Rather, the trial court is required to hold an
evidentiary hearing only if the defendant has alleged “sufficient material facts that,
if true, would entitle the defendant to relief.” Allen, 274 Wis. 2d 568, ¶14. This is
a question of law that we review de novo. Id., ¶9.

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¶13 If, on the other hand, the postconviction motion “does not raise facts
sufficient to entitle the movant to relief, or presents only conclusory allegations, or
if the record conclusively demonstrates that the defendant is not entitled to relief,”
the trial court, in its discretion, may either grant or deny a hearing. Id. We will
uphold such a discretionary decision if the trial court “has examined the relevant
facts, applied the proper legal standards, and engaged in a rational decision-
making process.” Bentley, 201 Wis. 2d at 318.

¶14 Manifest injustice as it relates to plea withdrawal may be
demonstrated by proving ineffective assistance of counsel. State v. Taylor, 2013
WI 34, ¶49, 347 Wis. 2d 30, 829 N.W.2d 482. To prove ineffective assistance of
counsel, a defendant must show that his trial counsel’s performance was deficient
and that the deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). The defendant “must prevail on both parts of the test to be
afforded relief.” Allen, 274 Wis. 2d 568, ¶26. We review de novo “‘the legal
questions of whether deficient performance has been established and whether it
led to prejudice rising to a level undermining the reliability of the proceeding.’”
State v. Roberson, 2006 WI 80, ¶24, 292 Wis. 2d 280, 717 N.W.2d 111 (citation
omitted). However, “[a] court need not address both components of this inquiry if
the defendant does not make a sufficient showing on one.” State v. Smith, 2003
WI App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854.

¶15 A claim of ineffective representation requires that a postconviction
evidentiary hearing be held “to preserve the testimony of trial counsel.” State v.
Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). Still, as noted
above, the trial court need not grant an evidentiary hearing if the postconviction
motion is insufficient. Roberson, 292 Wis. 2d 280, ¶43. To that end, the motion
“must include facts that ‘allow the reviewing court to meaningfully assess [the

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No. 2018AP2401-CR

defendant’s] claim.’” Allen, 274 Wis. 2d 568, ¶21 (citation omitted; brackets in
Allen). In other words, the motion must include a “factual basis” that supports the
assertions in the motion. Id.

¶16 In its decision denying Ortiz-Rodriguez’s motion, the trial court did
not address the deficiency prong of the Strickland test, assuming for the sake of
argument that Ortiz-Rodriguez’s trial counsel had told him that “free to argue”
meant that the State would make a recommendation of five to eight years of initial
confinement. Instead, the court focused on the prejudice prong. See Strickland,
466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.”).

¶17 In its analysis, the trial court noted that Ortiz-Rodriguez’s
allegations of prejudice “amount[ed] to a single sentence” which stated that he was
“prejudiced by counsel’s deficient performance because he would not have entered
his guilty plea but for counsel’s error.” The court, quoting Bentley, found this
“‘bare-bones allegation’ that [Ortiz-Rodriguez] would have pled differently” to be
“no more than a ‘conclusory allegation,’” which is not sufficient to demonstrate
prejudice. See id., 201 Wis. 2d at 316 (citation omitted).

¶18 We agree. As noted above, a postconviction motion “must include
facts that ‘allow the reviewing court to meaningfully assess [the defendant’s]
claim.’” See Allen, 274 Wis. 2d 568, ¶21 (citation omitted; brackets in Allen). As
the trial court pointed out, had Ortiz-Rodriguez not entered into the plea
agreement, he “would have faced highly incriminating direct and circumstantial
evidence,” such as the forensic interview of M.O., M.O.’s gonorrhea diagnosis,
and the fact that Ortiz-Rodriguez had also been diagnosed around that same time.

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Furthermore, M.O.’s mother, Y.H., had given a statement regarding a conversation
she had with a prostitute who was at Ortiz-Rodriguez’s house: the prostitute had
told Y.H. that Ortiz-Rodriguez had asked the prostitute about sexually transmitted
diseases; that he had admitted to the prostitute that he had given gonorrhea to his
daughter; and that he was seeking a way to explain M.O.’s diagnosis.

¶19 Moreover, the trial court pointed out that the plea agreement
favorably altered Ortiz-Rodriguez’s incarceration exposure, in that it eliminated a
charge that upon conviction would have resulted in a twenty-five year mandatory
minimum term of initial confinement. Therefore, the court determined that he had
not alleged sufficient facts to entitle him to an evidentiary hearing.

¶20 Ortiz-Rodriguez argues that there are no additional facts to allege,
because “[o]f course” he would take the favorable plea offer that he alleges his
trial counsel relayed to him, even if he had been determined to go to trial. He
further contends that requiring more facts than that would mean that “a motion for
plea withdrawal based on misadvice about the plea agreement simply cannot be
pled to secure a hearing. Ever.” To explain his argument, he notes the holding in
Hill v. Lockhart, 474 U.S. 52 (1985), where the defendant claimed ineffective
assistance of counsel based on his trial counsel’s misinformed him regarding his
parole eligibility. Id. at 53. The United States Supreme Court held that the
postconviction motion had failed to allege “special circumstances that might
support the conclusion that he placed particular emphasis on his parole eligibility
in deciding whether or not to plead guilty.” Id. at 60.

¶21 Ortiz-Rodriguez argues that his postconviction motion satisfies the
standard set forth in Hill. He infers that he is not required to plead any “special
circumstances” in his postconviction motion because his understanding of the plea

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No. 2018AP2401-CR

agreement—a twelve-to-fifteen-year difference in initial confinement—was so
significant that it was obviously his reason for accepting the plea, and no further
factual allegations are necessary. In other words, Ortiz-Rodriguez argues that the
courts should make assumptions regarding a defendant’s reasoning as opposed to
requiring specific factual allegations.

¶22 Under this reasoning, in the absence of factual allegations we are
apparently to assume that Ortiz-Rodriguez placed a greater emphasis on the
State’s presumed sentencing recommendation than on the plea agreement itself,
which was beneficial to Ortiz-Rodriguez—a reduced charge that required no
mandatory minimum term of initial confinement, generally considered a favorable
outcome. This argument also requires us to disregard the fact that the trial court,
regardless of plea negotiations, is not required to accept the State’s sentencing
recommendation. See State v. Williams, 2002 WI 1, ¶24, 249 Wis. 2d 492, 637
N.W.2d 733 (“A sentencing court is not bound or controlled by any understanding
between an accused and the State regarding the sentence[.]”). Based on these
considerations—and due to Ortiz-Rodriguez’s failure to make any specific factual
allegations to show otherwise—we agree with the trial court that Ortiz-Rodriguez
has not demonstrated that he was prejudiced by the alleged misadvice of trial
counsel.

¶23 Indeed, under the reasoning presented by Ortiz-Rodriguez, the trial
court would essentially always have to grant evidentiary hearings for
postconviction motions seeking plea withdrawal based on ineffective assistance of
counsel as long as a defendant makes “a mere conclusory allegation of prejudice
to obtain a hearing[.]” See Bentley, 201 Wis. 2d at 317. This directly contradicts
our supreme court’s holding in Bentley—to which we are bound—which

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No. 2018AP2401-CR

recognized that such allowances would frustrate “the fundamental interest in the
finality of guilty pleas[.]” Id.

¶24 Thus, following our supreme court’s directive in Bentley, we reject
Ortiz-Rodriguez’s argument that his postconviction motion contained sufficient
facts that would entitle him to an evidentiary hearing. See Allen, 274 Wis. 2d 568,
¶21. We therefore affirm the trial court’s denial of his postconviction motion
without granting a hearing. See Bentley, 201 Wis. 2d at 318.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

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