State v. Oshay Shayfer Randolph

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 17, 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. 2019AP1750-CR Cir. Ct. No. 2016CF681

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

OSHAY SHAYFER RANDOLPH,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: MARK A. SANDERS, Judge. Affirmed.

Before Brash, P.J., Donald and White, 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. 2019AP1750-CR

¶1 PER CURIAM. Oshay Shayfer Randolph appeals the judgment of
conviction, following guilty pleas, to one count of felony murder and one count of
attempted burglary, both as a party to a crime. Randolph contends that the circuit
court erred in denying his presentence motion for plea withdrawal. Upon review,
we affirm.

BACKGROUND

¶2 On February 13, 2016, Randolph was charged with one count of
felony murder, one count of first-degree recklessly endangering safety as a party
to a crime, and one count of being a felon in possession of a firearm. According to
the criminal complaint, on October 18, 2015, Randolph and others attempted to
rob an individual during a drug delivery, resulting in the individual being shot in
the hip. The complaint further states that two days later, Randolph and others shot
into a home, and later that day, shot and killed Michael Schoos during an
attempted robbery. Multiple amended informations were subsequently filed;
however, as relevant to this appeal, an amended information added an additional
charge of attempted burglary as a party to a crime.

¶3 The matter proceeded to trial, but the circuit court ultimately
declared a mistrial after it was discovered that one of the jurors was untruthful
during voir dire.

¶4 Prior to the commencement of a second trial, the State filed a
consolidated witness list, which included Bradley Thomas Wallace, also known as
Bradley Lee (hereinafter, “Thomas”).1 Randolph ultimately pled guilty to one
1
Because the circuit court refers to Bradley Thomas Wallace/Bradley Lee as “Thomas,”
we do the same for consistency.

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No. 2019AP1750-CR

count of felony murder and one count of attempted burglary as a party to the
crime.

¶5 Prior to sentencing, however, Randolph filed a motion to withdraw
his guilty pleas. The motion alleged that “after the pleas were entered, the State
turned over information that one of the [S]tate’s witnesses, [Thomas], had testified
falsely in a federal proceeding[].” Specifically, the motion alleged:

one consideration that prompted me to enter my guilty
pleas was the [S]tate’s intention to call [Thomas] as a
witness against me. Thomas would supposedly testify to
admissions made by me while in the Milwaukee County
Jail. Since the time I entered my guilty pleas, the State
turned over information substantiating that Thomas
testified falsely in a federal proceeding in North Carolina in
2005. Had I known this, along with the fact that I would
not be given a full opportunity to cooperate with law
enforcement, at the time I entered my guilty pleas, I would
not have done so.

(Some formatting altered.)

¶6 At a hearing on the motion, Randolph indicated that the only reason
he chose to plead guilty was because, had the matter gone to trial, Thomas would
have testified that Randolph confessed to his role in the events of October 18 and
20, 2015. Randolph, through counsel, introduced the sentencing memorandum
about Thomas’s alleged perjury as an exhibit. The memorandum stated that
Thomas perjured himself in a federal trial and a sentence enhancement was
requested on the basis of the perjury. Specifically, the memorandum stated that
Thomas gave false testimony in the trial of his codefendant and tried to elicit false
testimony from the victim of the financial crimes Thomas and the codefendant
committed. The circuit court stated that it reviewed the memorandum but
ultimately denied Randolph’s motion. As relevant to this appeal, the circuit court
stated:

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No. 2019AP1750-CR

The … reason [Randolph] seeks to withdraw his
plea is because … of what he describes in his testimony as
Mr. [Thomas] perjuring himself or being a liar. There is no
evidence of either of those things. The only evidence in the
record in this case is that Mr. [Thomas] was—that the
government in a federal matter in 2005 sought to enhance
his sentencing guideline calculation with the argument that
he must have pled guilty or he must have perjured himself
because the defendant was convicted.

….

…[H]ow that would have come into play or if it
would have come into play in connection with the current
trial or Mr. Randolph’s trial adds another level of
speculation. There is insufficient information for me to
conclude that the information contained in that government
sentencing memorandum that was provided to the
defense … is a fair and just reason to allow Mr. Randolph
to withdraw his plea.

….

Even if [that reason was] fair and just, the State
would have suffered substantial prejudice. That prejudice
lies in the fact that witnesses that had agreed to testify
against Mr. Randolph in exchange for something in their
plea agreements—no doubt something equally vague as the
State taking their consideration into account—have been
sentenced.

Now, there is no question that they could be
compelled to live up to their end of the plea agreement,
even if they have already been sentenced….

But the fact that a witness would need to be
compelled could compromise that witness’s credibility.
The fact that a witness could need to be compelled could
compromise that witness’s subjective desires to be
completely candid….

….

The circumstances as they exist on the record do not
reveal a fair and just reason to allow Mr. Randolph to
withdraw his plea. Even if there were a fair and just
reason, the facts on the record do reveal substantial
prejudice to the State. As a result, Mr. Randolph’s motion
to withdraw his plea is denied.

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No. 2019AP1750-CR

¶7 The circuit court imposed twenty years of initial confinement and
ten years of extended supervision for count one, the felony murder, and a
consecutive sentence of two years of initial confinement and two years of
extended supervision for count two, the attempted burglary, amounting to an
aggregate sentence of twenty-two years of confinement and twelve years of
extended supervision.

¶8 This appeal follows.

DISCUSSION

¶9 A defendant may withdraw a plea prior to sentencing upon showing
any fair and just reason for his or her change of heart beyond the simple desire to
have a trial, as long as the prosecution has not been substantially prejudiced by its
reliance on the plea. See State v. Garcia, 192 Wis. 2d 845, 861-62, 532 N.W.2d
111 (1995).

¶10 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

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No. 2019AP1750-CR

the motion for plea withdrawal unless there is substantial prejudice to the
prosecution. Kivioja, 225 Wis. 2d at 283-84.

¶11 Because we conclude that allowing Randolph to withdraw his guilty
pleas would result in substantial prejudice to the State, we need not address
whether a fair and just reason for plea withdrawal exists. At the time Randolph
filed his motion, Randolph’s codefendants had already agreed to testify against
him as a part of their plea agreements and had already been sentenced. As the
circuit court noted, the codefendants had already received the benefit of their
agreements with the State and would therefore have dramatically reduced
incentives to testify truthfully against Randolph. Any attempts to compel
testimony from the accomplices would impact their credibility. The State
indicated that witness testimony was critical to its case against Randolph.
Allowing Randolph to withdraw his guilty pleas would prejudice the State’s
ability to try Randolph with credible evidence.

¶12 For the foregoing reasons, we affirm the circuit court.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2017-18).

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