State v. Tommie Lee Carter

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.
December 28, 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 No. 2021AP68-CR Cir. Ct. No. 2019CF311

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TOMMIE LEE CARTER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: T. CHRISTOPHER DEE and JOSEPH R. WALL, Judges.
Order reversed and cause remanded with directions.

Before Brash, C.J., Dugan 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. 2021AP68-CR

¶1 PER CURIAM. Tommie Lee Carter appeals his judgment of
conviction entered after he pled guilty to attempted robbery with the threat of
force. He also appeals the order denying his postconviction motion without a
hearing. Carter seeks to withdraw his plea on the grounds that it was not knowing,
intelligent, and voluntary because the nature of the offense was never adequately
explained to him. We agree, and therefore reverse the order denying his
postconviction motion, and remand this matter for an evidentiary hearing on his
claim.1

BACKGROUND

¶2 The charge against Carter stems from an incident that occurred at a
gas station located on East North Avenue in Milwaukee. According to the
complaint, J.J.R. was at the gas station to do some electrical repair work. When
J.J.R. walked out of the gas station to his work van, a male followed him,
produced a rifle from his clothing, pointed it at J.J.R. and demanded money. J.J.R.
grabbed the barrel of the rifle and began struggling with the suspect.

¶3 J.J.R. was able to get the rifle away from the suspect. Being a hunter
and familiar with firearms, J.J.R. worked the pump to eject the shell from the rifle,
but nothing came out. J.J.R. then pointed the gun at the ground and pulled the
trigger, but the rifle did not discharge. J.J.R. threw the rifle on the ground away
from the suspect, and told him to “just go away.” The suspect picked up the rifle
and fled on foot, and J.J.R. then called the police.

1
While Carter appeals both his judgment of conviction and the order denying his
postconviction order, we address only the order for the reasons set forth in this opinion.

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No. 2021AP68-CR

¶4 The police were able to obtain video camera surveillance from the
gas station, showing the incident as described by J.J.R. They released a picture of
the suspect to the media, and received multiple calls identifying the suspect as
Carter. The callers included Carter’s parole agent as well as a former prison guard
who knew Carter from when he was previously incarcerated. The police then
showed J.J.R. a photo array that included Carter, and J.J.R. identified Carter as the
person who had attempted to rob him at the gas station.

¶5 Carter was arrested and charged with attempted armed robbery with
a habitual criminality repeater enhancer. Carter entered into a plea agreement
whereby the charge was reduced to attempted robbery with the threat of force, and
the habitual criminality repeater enhancer was removed. Carter subsequently
entered a no contest plea pursuant to that agreement in September 2019.2

¶6 During the plea colloquy, the trial court explained the elements of
the offense by referring to the plea questionnaire and the addendum to the plea
questionnaire, which included the jury instruction listing the elements of the
crime. The court confirmed that Carter’s counsel had gone over all of the plea
paperwork with him, and that Carter understood it. However, the jury instruction
that was attached to the plea paperwork was for robbery as a completed crime, as
opposed to attempted robbery.

¶7 The matter proceeded to sentencing in October 2019. The trial court
imposed the maximum term of imprisonment of seven and one-half years,

2
The Honorable T. Christopher Dee took Carter’s plea and imposed sentence; we refer
to him as the trial court. Due to judicial rotation, Carter’s postconviction motion was decided by
the Honorable Joseph R. Wall; we refer to him as the postconviction court.

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No. 2021AP68-CR

bifurcated as five years of initial confinement followed by two and one-half years
of extended supervision. See WIS. STAT. § 943.32(1)(b); WIS. STAT. § 939.32(1g);
WIS. STAT. § 939.50(3)(e) (2019-20).3

¶8 Carter subsequently filed a postconviction motion seeking to
withdraw his plea. Specifically, Carter argued that his plea was not knowingly,
intelligently, and voluntarily entered because he was unaware of the second
element of attempted robbery—proving that Carter “did acts toward the
commission of the crime of [robbery] which demonstrate unequivocally, under all
of the circumstances, that [Carter] intended to and would have committed the
crime of [robbery] except for the intervention of another person or some other
extraneous factor.” See WIS JI—CRIMINAL 580. Carter asserted that the trial
court erred by relying on the plea questionnaire which had the wrong jury
instruction attached, and further, that the court never stated the correct elements
for attempted robbery on the record, nor did it direct Carter’s trial counsel to state
the correct elements for the record.

¶9 The postconviction court rejected Carter’s argument. It found that
the record demonstrated that the trial court had explained to Carter “the essential
elements the State would have to prove at a trial beyond a reasonable doubt to
convict him of an attempt.” Therefore, the postconviction court denied Carter’s
motion without a hearing. This appeal follows.

3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP68-CR

DISCUSSION

¶10 In seeking plea withdrawal after sentencing, a defendant “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). One way to establish a manifest
injustice is to show that the plea was not knowingly, intelligently, and voluntarily
entered. Id.

¶11 This is based on the requirement that before the trial court accepts a
guilty or no contest plea, it must “[a]ddress the defendant personally and
determine that the plea is made voluntarily with understanding of the nature of the
charge and the potential punishment if convicted” and “[m]ake such inquiry as
satisfies it that the defendant in fact committed the crime charged.” WIS. STAT.
§ 971.08(1)(a)-(b). This is a “mandatory requirement” which the trial court
undertakes with the defendant, through a personal colloquy, to “ascertain his
understanding of the nature of the charge[.]” State v. Bangert, 131 Wis. 2d 246,
260, 389 N.W.2d 12 (1986). A plea is not considered to be voluntary “unless the
defendant has a full understanding of the charges against him [or her].” Id. at 257.

¶12 In that vein, a defendant’s motion to withdraw his or her plea on the
grounds that it was not knowing, intelligent, or voluntary must meet a two prong
test: the defendant must (1) “make a prima facie showing of a violation of WIS.
STAT. § 971.08 or other court-mandated duty”; and (2) “allege that the defendant
did not, in fact, know or understand the information that should have been
provided during the plea colloquy.” State v. Cajujuan Pegeese, 2019 WI 60, ¶26,
387 Wis. 2d 119, 928 N.W.2d 590 (citation omitted). If the defendant satisfies
both of these prongs, “then that defendant is entitled to an evidentiary hearing,

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No. 2021AP68-CR

also known as a Bangert hearing.” Cajujuan Pegeese, 387 Wis. 2d 119, ¶27
(internal quotation marks omitted). Whether a defendant has met those prongs are
questions of law that we review de novo. Brown, 293 Wis. 2d 594, ¶21.

¶13 Pursuant to WIS. STAT. § 939.32(3), the attempt to commit a crime
has two elements: “(1) an intent to commit the crime charged; and (2) sufficient
acts in furtherance of the criminal intent to demonstrate unequivocally that it was
improbable the accused would desist from the crime of his or her own free will.”
State v. Stewart, 143 Wis. 2d 28, 34, 420 N.W.2d 44 (1988). Specifically, for the
offense of attempted robbery, the State must prove that the defendant (1) intended
to commit robbery; and (2) “did acts toward the commission of the crime” of
robbery which “demonstrate unequivocally, under all of the circumstances, that
the defendant intended to and would have committed” the robbery “except for the
intervention of another person or some other extraneous factor.” WIS JI—
CRIMINAL 580. Because the incorrect jury instruction was included in the plea
paperwork, it was incumbent on the trial court to fully explain the elements of the
crime to which Carter was pleading—in particular, the second element, as it
pertains to the attempt element of the crime—in order to comply with WIS. STAT.
§ 971.08. See Brown, 293 Wis. 2d 594, ¶21.

¶14 The State asserts that the trial court adequately explained the second
element during the colloquy when it described that the State would have to prove
that Carter, “with intent to steal … attempted to take property from the person of
J.J.R., the owner, by threatening the imminent use of force against that person, and
with intent thereby to compel the owner of the property to acquiesce in the taking
or carrying away of said property.” Indeed, the State points out that “[t]he
intervention of another person or some other extraneous factor that prevents the

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No. 2021AP68-CR

accused from completing the crime is not an element of the crime of attempt.” See
Stewart, 143 Wis. 2d at 31.

¶15 Rather, charging a defendant for an attempted crime seeks to
“punish[] an individual for acts that further the criminal objective,” because “[t]he
law does not ordinarily punish a person for guilty intentions alone.” Id. at 37.
Thus, the second element in the attempt statute focuses on “what conduct, ‘when
engaged in with a purpose to commit a crime or to advance toward the attainment
of a criminal objective, should suffice to constitute a criminal attempt.’” See id.
(citation omitted).

¶16 Put another way, an attempted criminal offense does not occur until
“the accused’s acts move beyond … the time during which the accused has formed
an intent to commit the crime but has not committed enough acts and may still
change his mind and desist.” See id. at 42. “The most difficult problem in the law
of attempts has been to formulate a satisfactory approach or test to describe what
constitutes culpable conduct” to prove that second element. Id. at 37. To that end,
the language in WIS JI—CRIMINAL 580 explains how the second element is
established: “the intervention of another person or other extrinsic force [that]
prevents completion of the criminal act … is indicative of the fact that the
defendant intended to commit the crime because it shows that he did not
voluntarily cease from completion of the crime[.]” Hamiel v. State, 92 Wis. 2d
656, 665, 285 N.W.2d 639 (1979). However, “[t]he conduct element of
[§] 939.32(3) is satisfied when the accused engages in conduct which
demonstrates that only a circumstance beyond the accused’s control would prevent
the crime, whether or not such a circumstance actually occurs.” See Stewart, 143
Wis. 2d at 42. Thus, the second element of attempt “requires a judgment in each

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No. 2021AP68-CR

case that the accused has committed sufficient acts that it is unlikely that he would
have voluntarily desisted from commission of the crime.” Id.

¶17 Therefore, the extraneous factor language of WIS JI—CRIMINAL 580,
while not an element of attempt, assists in explaining the nature of a criminal
attempt offense. Carter alleges that he was unaware of the second element of
attempted robbery, and that the trial court’s description of the offense during the
plea colloquy did not adequately explain the nature of that offense.

¶18 The State contends that the “stop-the-film” test should be applied to
resolve this issue. In that test, the accused’s acts are to be “viewed as a film in
which the action is suddenly stopped, so that the audience may be asked to what
end the acts are directed.” See Stewart, 143 Wis. 2d at 42. If it is determined that
there is “only one reasonable answer to this question then the accused has done
what amounts to an ‘attempt’ to attain that end. If there is more than one
reasonably possible answer, then the accused has not yet done enough.” Id.
(citation omitted). The goal of the “stop-the-film” test is to determine “whether
the accused’s acts unequivocally demonstrate an intent to commit the crime
rendering voluntary desistance from the crime improbable.” Id.

¶19 However, this test has been employed where the issue was the
sufficiency of the evidence. See id. at 37; Hamiel, 92 Wis. 2d at 667. In contrast,
here the issue is whether Carter understood the elements of the crime to which he
was entering a plea. Therefore, the stop-the-film test is not applicable in this case.

¶20 Instead, we find State v. Howell, 2007 WI 75, 301 Wis. 2d 350, 734
N.W.2d 48, instructive. In Howell, the issue before our supreme court was
whether the trial court’s explanation during the plea colloquy of the offense, where
the defendant was charged as a party to a crime, was sufficient. Id., ¶37. The

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No. 2021AP68-CR

supreme court held that it was not, stating that the trial court’s explanation by
“[s]imply stating that the State would have to prove that [the defendant] ‘assisted’
or ‘intentionally assisted’ the shooter” was not sufficient to explain the nature of
party to a crime liability. Id., ¶48.

¶21 We conclude that in this case, the trial court’s basic explanation of
the nature of the offense of attempted robbery during the colloquy—that Carter
intended to steal J.J.R.’s property—did not fully encompass the requirements of
the second element relating to attempt. As a result, it did “not amount to a clear
explanation of the charge.” See id., ¶48.

¶22 Therefore, Carter has established a prima facie case that there was a
violation of WIS. STAT. § 971.08, and has sufficiently alleged that he did not know
or understand the information regarding the second element of attempt that should
have been provided at the plea hearing. See Brown, 293 Wis. 2d 594, ¶39.
Having satisfied both of these prongs, Carter is entitled to a Bangert evidentiary
hearing. See Cajujuan Pegeese, 387 Wis. 2d 119, ¶27.

¶23 Accordingly, we reverse the order of the postconviction court
denying Carter’s postconviction motion, and remand this matter for an evidentiary
hearing. We note that with this instruction we are not determining whether the
postconviction court should ultimately grant or deny Carter’s motion to withdraw
his guilty plea.

By the Court.—Order reversed and cause remanded with directions.

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

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