State v. Nicholas J. Packer

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.
March 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. 2018AP1964-CR Cir. Ct. No. 2016CF342

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NICHOLAS J. PACKER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Shawano County: JAMES R. HABECK, 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).

¶1 PER CURIAM. Nicholas Packer appeals a judgment convicting
him of two counts of recklessly endangering safety by use of a dangerous weapon
No. 2018AP1964-CR

and one count of strangulation and suffocation as domestic abuse. Packer also
appeals an order denying his postconviction motion for plea withdrawal. Packer
contends the circuit court erred by denying him a hearing on his plea withdrawal
motion. We conclude the court properly denied the motion without a hearing
because the record conclusively demonstrates that Packer was not entitled to
withdraw his pleas. We therefore affirm.

BACKGROUND

¶2 The State initially charged Packer with four felonies (consisting of
two counts of attempted first-degree intentional homicide and two counts of
strangulation and suffocation) and eight misdemeanors. The charges arose out of
an incident in which a heavily intoxicated Packer repeatedly struck and choked his
pregnant girlfriend and struck his girlfriend’s estranged husband when he
attempted to intervene. Packer then pointed a loaded gun at his girlfriend and
pulled the trigger multiple times; however, the gun did not fire. The State
subsequently filed an Information restating all of the charges in the complaint,
except that a misdemeanor battery count was modified to charge a felony battery.

¶3 Packer moved to suppress statements he had made to police on the
night of the incident while he was handcuffed on the scene as responding officers
investigated. The circuit court denied the motion following a hearing at which two
deputy sheriffs testified about their observations and actions at the scene. After
the court denied the suppression motion, Packer and the State engaged in plea
negotiations.

¶4 Although the parties do not point to any complete statement of the
plea agreement in the record, the State does not dispute Packer’s assertion on
appeal that “it would appear” the parties agreed that Packer was to enter

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no-contest pleas to two reduced charges of recklessly endangering safety by use of
a dangerous weapon and to one of the strangulation counts. In exchange, the State
would dismiss and read in the other charges and cap the initial confinement
portion of its sentence recommendation to ten years. The agreement was silent as
to extended supervision.

¶5 On the day of the plea hearing, the State filed an amended
Information with four counts that reduced the two attempted first-degree
intentional homicide charges in Counts 1 and 2 to two counts of recklessly
endangering safety by use of a dangerous weapon; added a third felony reckless
endangerment charge identical to Count 1 as Count 3; renumbered and restated
one of the strangulation and suffocation counts as Count 4; and omitted the other
previously charged felonies and misdemeanors. Packer provided the circuit court
with a signed plea questionnaire indicating that he intended to enter no-contest
pleas to Counts 1, 2 and “8,” and that the State agreed to dismiss and read in “the
remaining counts.”

¶6 After reviewing the amended Information and plea questionnaire, the
circuit court advised Packer that Count 3 would be dismissed and read in. The
court did not ask Packer how he would plead to Counts 1, 2, or 4; did not explain
that Count 4 of the amended Information corresponded to Count 8 of the original
Information; and did not state that it was dismissing and reading in any of the
other counts from the original Information. The court also did not state at the plea
hearing that it found a factual basis for the pleas. Consistent with the plea
colloquy, but in apparent contradiction to the plea questionnaire, the court entered
a judgment of conviction indicating that the sole read-in charge was the additional
reckless endangerment count added in the amended Information.

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¶7 At sentencing, Packer apologized “for everything that happened that
night.” He also stated that he knew “exactly how much worse it could have been”
because he could have “destroyed four human lives, one before it even started.”
The only facts Packer challenged about the description of the offense by the State
and in the presentence investigation (PSI) were whether Packer had gone to get the
gun before or after his girlfriend’s ex-husband hit him with a baseball bat and
whether Packer had been aware that the safety was on while he was pulling the
trigger of the gun.

¶8 After the circuit court followed the State’s sentencing
recommendation and imposed prison sentences significantly longer than the
conditional jail time for which Packer had argued, Packer moved for plea
withdrawal. Packer first asserted that the plea colloquy was defective because the
court did not “clearly review the terms of the plea agreement with Mr. Packer to
be sure he understood them,” did not actually ask Packer to enter any pleas to
specific counts, and did not “establish there was a factual basis for accepting each
of the three counts” of conviction. Packer coupled those assertions with
allegations that he did not fully understand the terms of the plea agreement and did
not know what facts were being relied upon to support each count of conviction.
In addition, Packer claimed that his counsel provided ineffective assistance by
failing to discuss with him how many counts were in the amended Information, to
which counts he was expected to enter pleas, which counts were to be dismissed
and read in, the implications of reading in the dismissed charges, and what facts in
the record supported each count.

¶9 The circuit court denied Packer’s plea withdrawal motion without an
evidentiary hearing. The court first determined that its plea colloquy was
defective based on its failure to state that there was a factual basis for the pleas.

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No. 2018AP1964-CR

The court was satisfied, however, that the record conclusively demonstrated that
Packer was not entitled to relief on that ground because the facts set forth in the
complaint and adduced at the suppression hearing provided an ample factual basis
for the pleas, and Packer’s comments to the PSI agent and at sentencing further
demonstrated that he understood the factual basis of the charges. The court did
not address the discrepancies between the plea questionnaire on the one hand, and
the plea colloquy and the judgment of conviction on the other, regarding the
addition of a third reckless endangerment count, the enumeration of the
strangulation count, or what charges were to be dismissed and read in. Packer
now appeals.

DISCUSSION

¶10 To withdraw a plea after sentencing, a defendant must either: show
that the plea colloquy was defective and also allege the defendant did not
understand information that was supposed to have been provided; or demonstrate
some other manifest injustice undermining the fundamental integrity of the plea,
such as coercion, a genuine misunderstanding on the defendant’s part, an
insufficient factual basis to support the charge, ineffective assistance of counsel, or
a failure by the prosecutor to fulfill the plea agreement. See generally State v.
Bangert, 131 Wis. 2d 246, 251-52, 389 N.W.2d 12 (1986) (addressing defective
plea colloquies); Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972)
(adopting manifest injustice standard); State v. Krieger, 163 Wis. 2d 241, 249-51
& n.6, 471 N.W.2d 599 (Ct. App. 1991) (discussing manifest injustice standard).
To obtain a hearing on a postconviction motion, a defendant must allege material
facts sufficient to warrant the relief sought. State v. Allen, 2004 WI 106, ¶¶9, 36,
274 Wis. 2d 568, 682 N.W.2d 433.

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No. 2018AP1964-CR

¶11 A defendant who asserts that the procedures outlined in WIS. STAT.
§ 971.08 (2017-18)1 or other court-mandated duties were not followed at the plea
colloquy (i.e., a Bangert violation) and further alleges that he or she did not
understand information that should have been provided, is entitled to a hearing on
his or her plea withdrawal motion at which the State bears the burden of proving
that the plea was nonetheless knowingly, voluntarily and intelligently entered.
State v. Hampton, 2004 WI 107, ¶¶56-65, 274 Wis. 2d 379, 683 N.W.2d 14;
Bangert, 131 Wis. 2d at 274. A defendant who seeks to withdraw a plea on
grounds constituting a manifest injustice other than a Bangert violation (i.e., a
Nelson claim) is entitled to an evidentiary hearing when the motion alleges facts
(including those outside the record) which, if true, would entitle him or her to
relief. State v. Bentley, 201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996). In the
context of a plea withdrawal claim asserting ineffective assistance of counsel, the
facts alleged must establish both that counsel provided deficient performance and
that such performance prejudiced the defendant by inducing entry of the plea.
State v. Harris, 2004 WI 64, ¶11, 272 Wis. 2d 80, 680 N.W.2d 737.

¶12 No hearing is required on a plea withdrawal claim when the
defendant presents only conclusory allegations or when the record conclusively
demonstrates that the defendant is not entitled to relief. Nelson, 54 Wis. 2d at
497-98. Nonconclusory allegations should present the “who, what, where, when,
why, and how” with sufficient particularity for the circuit court to meaningfully
assess the claim. Allen, 274 Wis. 2d 568, ¶23.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP1964-CR

¶13 We will review the circuit court’s decision to deny a plea withdrawal
motion without an evidentiary hearing under the de novo standard, independently
determining whether the facts alleged, if true, would establish the denial of a
constitutional right sufficient to warrant the withdrawal of the plea as a matter of
right. Id., ¶9. In assessing whether the record conclusively demonstrates that no
manifest injustice warranting plea withdrawal has occurred, we are not limited to
reviewing the transcript of the plea hearing. State v. Cain, 2012 WI 68, ¶¶29-32,
342 Wis. 2d 1, 816 N.W.2d 177. We may consider the entire record, including the
sentencing hearing and other events that occurred after entry of the plea, as well as
any preliminary proceedings. Id. Our role is to determine not whether the circuit
court should have accepted the plea in the first instance but, rather, whether
withdrawal of the plea is necessary to correct a manifest injustice.

I. Bangert claims

¶14 Packer contends the plea colloquy was defective because the circuit
court: (1) did not “adequately review … the plea terms” to determine Packer’s
understanding of those charges to which Packer had agreed to enter pleas and
those which were going to be dismissed and read-in; and (2) failed to identify any
facts in the record to support the pleas. Packer further renews his accompanying
assertions that he did not understand to which charges he was going to enter pleas
and which charges were going to be dismissed and read-in, and that he was not
aware of what facts were being relied upon to support his pleas.

¶15 Packer’s first argument is based upon a misunderstanding of the
circuit court’s duties under Bangert. Specifically, the court did not have an
obligation under Bangert to confirm Packer’s understanding of the plea
agreement. Rather, the court had an obligation to determine “the defendant’s

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No. 2018AP1964-CR

understanding of the nature of the crime with which he [or she] is charged and the
range of punishments to which he [or she] is subjecting himself [or herself] by
entering a plea.” State v. Brown, 2006 WI 100, ¶35, 293 Wis. 2d 594, 716
N.W.2d 906 (emphasis added); see also WIS. STAT. § 971.08(1)(a). In other
words, the court’s obligations at the plea hearing focused on ensuring Packer’s
understanding of the charges in the amended Information, not the original
Information.

¶16 The record plainly shows the circuit court satisfied its obligation to
ensure that Packer understood the nature of the crimes in the amended Information
to which Packer agreed to enter pleas, as well as the penalties for those charges.
The amended Information contained three counts of recklessly endangering safety
by use of a dangerous weapon—the third of which was dismissed and read in at
the start of the plea hearing—and one count of strangulation. During the plea
colloquy, the court accurately informed Packer about the elements of the reckless
endangerment charges and the strangulation charge, as well as the applicable
penalties. The court emphasized that although the two reckless endangerment
charges to which Packer was pleading no contest had the same legal elements,
Count 1 was premised on facts related to Packer’s girlfriend and Count 2 was
premised on facts relating to the unborn child. Although the count number for the
strangulation charge changed from Count 8 in the original Information and plea
questionnaire to Count 3 in the amended Information, it was the only strangulation
charge contained in the amended Information and therefore there was no
possibility of confusion.

¶17 In addition, the circuit court advised Packer that he would not be
convicted of the additional reckless endangerment count and could not be charged
with it in the future, but that the court could consider the conduct underlying that

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No. 2018AP1964-CR

charge along with “the past counts they charged you with that are no longer there,
because a judge considers the total picture.” The manner in which the read-in
offenses would be treated was also accurately set forth in the signed plea
questionnaire that Packer provided to the court, as were the penalties for the
charged crimes.

¶18 In sum, the plea colloquy, which incorporated the plea questionnaire,
was not deficient in advising Packer about the nature of the charges contained in
the amended Information and their associated penalties, or how the dismissed
count from the amended Information would be treated. Whether the charges
included in the amended Information conformed with the plea agreement, or with
Packer’s understanding of the plea agreement—in terms of which counts were
supposed to be amended, added, dismissed outright or read in from the original
Information—raise separate questions that are not before us on Packer’s Bangert
claims. Such questions relate to matters outside the record, not to the circuit
court’s colloquy.

¶19 Turning to Packer’s second Bangert claim, it is true that the circuit
court neglected to explicitly state during its colloquy that it found a factual basis
for the pleas. However, Packer acknowledged on the plea questionnaire that the
court could rely upon the facts in the criminal complaint to find him guilty, he did
not dispute the basic facts from the complaint and the PSI at the sentencing
hearing, and he does not now dispute that the facts in the complaint, as well as
those adduced during a suppression hearing, would provide an adequate factual

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No. 2018AP1964-CR

basis for the counts of conviction.2 Therefore, even if the plea colloquy was
deficient in this regard, we are satisfied that the record conclusively demonstrates
that Packer is not entitled to plea withdrawal for lack of a factual basis to support
his pleas.

II. Nelson claims

¶20 Finally, Packer contends his trial counsel provided ineffective
assistance by failing to discuss with him the plea terms and the facts to support
each count. However, the facts alleged in his motion are conclusory and
insufficient to establish the prejudice component of a claim for plea withdrawal
based on ineffective assistance—that is, Packer fails to explain why he would not
have entered his pleas if counsel had provided additional or different information
to him.

¶21 Critically, Packer does not specify to which charges he believed he
was entering pleas or which charges he believed were to be read in pursuant to the
plea agreement, and how those beliefs might have differed from what occurred.
For the purpose of this opinion, we will assume Packer believed that he was to
enter pleas to an amended Count 1, an amended Count 2 and Count 8 from the
original Information, and that Counts 3 through 7 and 9 through 12 from the
original Information were to be dismissed and read in, because that is the most
reasonable inference we can make from the plea questionnaire and his arguments
on appeal.

2
To the extent Packer may be arguing that he did not know what the separate factual
basis was for the apparently duplicative reckless endangerment charge that was read in, he does
not cite any authority for the proposition that the circuit court needs to establish a factual basis for
read-in offenses at the plea hearing.

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No. 2018AP1964-CR

¶22 The only difference between Packer’s apparent understanding of the
plea agreement and what actually happened at the plea hearing relates to Count 3.
There is no explanation in the record as to how or why a third reckless
endangerment count was added to the amended Information, only to be dismissed
and read in. However, given that the alleged factual basis for Count 3—charging
recklessly endangering the safety of the victim, by pointing a loaded firearm at her
and pulling the trigger, under circumstances which show utter disregard for human
life—is identical to the alleged factual basis for Count 1, there is no logical reason
why the consideration of the apparently duplicative charge as a read-in would
affect Packer’s calculation regarding whether to go to trial. According to Packer’s
apparent understanding of the plea agreement, the circuit court was going to
sentence Packer for reckless endangerment based upon his conduct of aiming a
gun at his pregnant girlfriend and pulling the trigger regardless of whether Count 3
was added and then dismissed and read in. Thus, Packer was not prejudiced by his
counsel’s claimed failure to discuss with him the plea agreement terms related to
Count 3 and the facts related to each count of the amended Information.

By the Court.—Judgment and order affirmed.

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

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