Preview:

COURT OF APPEALS
NOTICE
DECISION
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.
April 19, 2011
A party may file with the Supreme Court a
A. John Voelker                                                                                                                                              petition to review an adverse decision by the
Acting Clerk of Court of Appeals                                                                                                                             Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                             and RULE 809.62.
                                                                                                                                                             Cir. Ct. No.   2007CF1569
Appeal No.                                                                             2010AP839-CR
STATE OF WISCONSIN                                                                                                                                           IN COURT OF APPEALS
                                                                                                                                                             DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
CHRISTIAN R. COLON,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
PATRICIA D. MCMAHON, Judge.   Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1                                                                                     KESSLER, J.      Christian R. Colon appeals a decision and order of
the circuit court denying his motion for postconviction relief.   Colon argues that:
(1) the State breached a plea agreement by unilaterally withdrawing it when Colon
refused to testify against a co-defendant because the State played a direct role in




No.   2010AP839-CR
Colon’s decision not to testify and thereby violated his right to due process; (2) he
was entitled to a hearing on the issue; (3) his trial counsel was ineffective for not
objecting to the State’s withdrawal and sentence recommendation and for not
advising Colon that he could seek to withdraw his plea; and (4) he was entitled to
a Machner1 hearing on his ineffective assistance of counsel claim.   We affirm.
BACKGROUND
¶2                                                                                      According  to  the  criminal  complaint,  on  January  7,  2007,  three
armed and masked suspects entered Marty’s Party Bar in the City of Milwaukee.
One of the suspects, later identified as Joel Rivera, confronted the bar patrons and
demanded  money.    One  of  the  patrons,  Nicholas  Knutowski,  approached  the
masked men with a paint scraper and was shot twice and killed by Rivera.   The
group left without taking anything.
¶3                                                                                      Colon  was  arrested  in  connection  with  the  armed  robbery.    He
admitted to participating in the robbery, but said that he shouted “don’t shoot”
right before Knutowski approached the group, and that he fled the bar as Rivera
was shooting.   Colon also confessed to participating in three other armed robberies
of businesses that took place on December 22, 2006.
¶4                                                                                      Colon  was  charged  with  one  count  of  felony  murder,  attempted
armed robbery, as party to a crime, and six counts of armed robbery with the threat
of force, as party to a crime.   Pursuant to a plea agreement, Colon pled guilty to
felony murder and two counts of armed robbery with the threat of force, party to a
crime, and agreed to testify against Rivera.   In exchange for the pleas and Colon’s
promise to testify, the State agreed to dismiss and read-in the remaining four
1  State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2




No.   2010AP839-CR
charges  and  agreed  not  to  make  a  specific  recommendation  about  Colon’s
sentence.   The agreement also stated that if Colon materially breached any of the
terms of the agreement, the State would be relieved of the negotiation and that the
State  had  the  sole  authority to  determine  what  constituted  a  material  breach.
Colon indicated that he understood the terms and conditions of the agreement at
his plea hearing.
¶5                                                                                        Colon was to testify against Rivera at Rivera’s preliminary hearing
on February 5, 2009.   The night before the hearing, Colon and Rivera were placed
in the same cell by a deputy sheriff.   Colon was produced for the hearing, however
declined to testify.   He indicated that he had concerns for his safety, though he did
not reveal what, if anything, was said to him while he and Rivera were in the same
cell.   The State advised Colon and his trial counsel that Colon’s refusal to testify
violated the terms of the plea agreement and that the State would not be bound by
the agreement if Colon did not testify.   Colon conferred with his trial counsel and
indicated that he still would not testify.    The State subsequently dismissed the
charges against Rivera.
¶6                                                                                        At Colon’s sentencing hearing, the State informed the circuit court
that Colon had breached the plea agreement.   When the circuit court asked Colon’s
trial counsel whether Colon had breached the agreement, trial counsel responded,
“[u]nfortunately I think that  [the State] is correct.”    Colon’s trial counsel later
explained that he thought Colon’s placement in the same cell as Rivera led Colon
to fear for his family’s safety, though counsel did not state that Colon was actually
threatened.   The State did not reinstate the read-in charges, but it proceeded to
make a sentencing recommendation, which was followed by the circuit court.
Colon  was  sentenced  to  twenty-eight  years  for  the  felony  murder  charge,
comprised of twenty-two years of initial confinement and six years of extended
3




No.   2010AP839-CR
supervision.   He was sentenced to sixteen years for each of the armed robbery
charges, comprised of twelve years of initial confinement for each charge and four
years of extended supervision for each charge, to be served consecutively.
¶7                                                                                       Colon filed a postconviction motion on December 23, 2009, alleging
that the State unilaterally and unfairly withdrew from the plea agreement because
the deputy sheriff, as an agent of the State, negligently placed Rivera and Colon in
the same cell despite an order to keep the two separate.   Colon also alleged that his
counsel was ineffective for various reasons.    The circuit court denied Colon’s
motion.  This appeal follows.
DISCUSSION
¶8                                                                                       Colon argues on appeal that the State breached the plea agreement
when it unilaterally withdrew from the agreement and that Colon would have
fulfilled the requirements of the agreement had the State not negligently placed
Colon and Rivera in the same holding cell the night before Rivera’s preliminary
hearing.   He contends that he was entitled to an evidentiary hearing to determine
whether a breach occurred.   Colon also argues that his trial counsel was ineffective
for failing to object to the State’s withdrawal from the plea agreement and its
subsequent sentencing recommendation and for failing to inform Colon that he
could seek to withdraw his plea.   Colon further contends that the circuit court
erred  when  it  denied  his  motion  without  holding  a  Machner  hearing.    We
conclude that:                                                                           (1)  Colon breached the terms of the plea agreement when he
refused to testify against Rivera; (2) the circuit court did not err when it denied
Colon’s motion without a hearing; (3) Colon’s trial counsel was not ineffective;
and (4) Colon did not allege sufficient facts in his motion that would entitle him to
a Machner hearing.   We affirm.
4




No.   2010AP839-CR
A.  Breach of the Plea Agreement.
¶9                                                                                         Colon argues that because he and Rivera were placed in the same
holding cell contrary to an order to keep the two separate,2 the State’s “hands were
unclean” and the State was therefore unable to withdraw from the agreement
without an evidentiary hearing.   Colon contends that because a deputy sheriff is an
arm of the State, the State played a direct role in Colon’s decision not to testify
because it gave Rivera the opportunity to threaten Colon.   Because we find that no
evidence in the record suggests that Colon was threatened, we disagree.
¶10    We have previously stated that “a plea agreement is analogous to a
contract and, therefore, we draw upon contract law principles to interpret a plea
agreement.”   State v. Toliver, 187 Wis. 2d 346, 355, 523 N.W.2d 113 (Ct. App.
1994).   The construction of a written contract is a question of law that we review
de novo.   Id.   We will construe a contract as it stands if the language is plain and
unambiguous.    Id.                                                                        “The  analogy  to  contract  law,  however,  is  not  entirely
dispositive because a plea agreement also implicates a defendant’s due process
rights.”   Id.
¶11                                                                                        “[A] prosecutor is relieved from the terms of a plea agreement where
it  is  judicially  determined  that  the  defendant  has  materially  breached  the
conditions of the agreement.”   State v. Rivest, 106 Wis. 2d 406, 414, 316 N.W.2d
395 (1982).                                                                                “[A] material and substantial breach of a plea agreement is one that
violates the terms of the agreement and defeats a benefit for the nonbreaching
party.”   State v. Bowers, 2005 WI App 72, ¶15, 280 Wis. 2d 534, 696 N.W.2d
255.
2  The order does not appear to be a part of the record; however, neither party disputes
that the order was in place.
5




No.   2010AP839-CR
¶12    The language of the plea agreement in the case at bar clearly and
unambiguously  states  that  Colon’s  refusal  to  testify  against  Rivera  would
constitute  a  material  and  substantial  breach  and that the  State  possessed  sole
discretion to determine whether a breach is material and substantial.   Specifically,
the agreement states:
Should  the  defendant  agree  to  testify  and  for  whatever
reason fails to cooperate fully and answer all questions put
to him at the trial or any other hearing regarding the co-
defendants the State would consider that a material breach
to these negotiations.
….
A  further  condition  precedent  to  this  offer  is  that  the
defendant  must  agree  that  should  he  violate  any of  the
terms  and  conditions  of  this  negotiation  including  after
pleading guilty and before sentencing, that the defendant
should the State, at the State’s sole discretion, believe that
the defendant has violated any of these negotiations that the
defendant does know and agree that any material breach by
the  defendant  of  these  negotiations  or  violation  of  the
conditions precedent set forth above will be considered as a
material breach to the negotiations which would relieve the
State of its promised negotiation as set forth above and
would allow the  State,  at sentencing,  to make  whatever
recommendation it felt to be appropriate.
¶13    Colon agreed to these provisions.   He contends, however, that he
decided not to testify against Rivera because he feared for his family’s safety after
erroneously being placed in the same holding cell as Rivera.   Nothing in the record
supports Colon’s insinuation that he was threatened.   Prior to the start of Colon’s
sentencing hearing, the State introduced a memorandum prepared by Assistant
District Attorney David Robles, the prosecutor handing Rivera’s case, in which
the assistant district attorney discusses the decision to dismiss the charges against
Rivera based on Colon’s refusal to testify.   The memorandum states that Colon
indicated safety concerns for his family after being placed in the same cell as
6




No.   2010AP839-CR
Rivera, but that Colon did not divulge any information about any conversation he
may have had with Rivera.   The State also called Detective Katherine Hein, one of
the  detectives  who  investigated  the  Knutowski  murder,  to  testify  about  the
contents of the memo.   Detective Hein, who was present when Colon indicated his
decision not to testify, confirmed that the contents of the memo were correct.
¶14    Colon’s counsel also attempted to explain Colon’s decision at the
sentencing hearing, however he did not state anything definitively pointing to a
threat made by Rivera.   Colon’s counsel stated:
I’m not sure what all happened … but apparently the jailers
at the County Jail for some reason put Mr. Colon and Mr.
Rivera in the same cell even though there was an order to
keep separate and I think at that point I think Mr. Colon did
get scared and did get concerned.
….
I think what occurred, and I was told by  [Colon]
about that, I was also told by his mother … and his aunt
and his brother  … that Mr. Colon was utterly concerned
about the safety of his family because unfortunately the
Riveras  and  the  Colons  live  essentially  in  the  same
geographic area.   And Mr. Colon felt he would sacrifice
himself so-to-speak in regard to making the deal for less
time to cooperate because he didn’t want the Rivera people
to then take revenge on the family.   That’s I think … the
situation.
¶15    Colon’s assertion that his cell placement led him to fear for his
family fails also because Colon must have been aware of the fact that his family
and Rivera’s family lived in the same vicinity prior to Colon’s acceptance of the
plea.   Further, had Colon fulfilled his obligation to testify, he would have been in
Rivera’s  presence  at  the  preliminary  sentencing  hearing.    Presumably,  Colon
would have been fearful for his family at that point as well.
7




No.   2010AP839-CR
¶16    Colon’s argument that his due process rights were violated by the
State’s withdrawal from the agreement is also without merit.                                 “The supreme court
stated                                                                                       …  that  the  constitutional  due  process  requirements  of   ‘decency  and
fairness’ are satisfied if the party seeking to vacate a plea agreement establishes
that there is a material and substantial breach of the agreement.”   Toliver, 187
Wis. 2d at 357 (citation omitted).   The language of the agreement is clear that a
refusal to testify constitutes a material breach and that the sole authority to make
such a determination belongs to the State.   Colon affirmed that he reviewed the
terms of the agreement with his counsel prior to accepting it.   The record supports
nothing more than a conclusion that Colon changed his mind about testifying
against Rivera and therefore breached the plea agreement.   That Rivera may have
had the opportunity to threaten Colon is not the same as actually threatening
Colon.  No evidence of a threat exists in the record.3
B.  Evidentiary Hearing on the Breach.
¶17    Colon  contends  that  the  State  did  not  have  sole  authority  to
determine whether to withdraw from the plea agreement after Colon had already
entered his plea.    He argues that under Rivest, only the circuit court had the
authority to make that determination because the State played a direct role in
Colon’s decision not to testify.   We disagree.
¶18    Our supreme court in Rivest explained that when the State seeks
release from its obligations under a plea agreement on the basis of an alleged
breach by the defendant, an evidentiary hearing should be held to determine if the
3  Because  we  have  determined  that  no  evidence  in  the  record  supports  Colon’s
implication that he was threatened, we do not address whether the Sheriff’s Department  (a
separate department from the District Attorney’s office) contributed to Colon’s decision.
8




No.   2010AP839-CR
alleged breach was sufficiently material to release the State from the agreement.
Id.,                                                                                          106 Wis.  2d at  411.   However, in the present case, it cannot seriously be
argued  that  Colon’s  refusal  to  testify  against  Rivera  was  not  material  to  the
agreement.    The  State’s  case  against  Rivera  obviously  depended  on  Colon’s
testimony, otherwise such serious charges would not have been dismissed by the
State when Colon breached the agreement.   The clear language of the agreement
authorized the State to withdraw in the event of a breach by Colon.   See Toliver,
187 Wis. 2d at 358 (where the agreement to testify against a co-defendant is an
essential part of the plea agreement, a refusal to testify is a material breach that
does not necessarily warrant an evidentiary hearing).    The  “State did not seek
release from the agreement but in reality was merely enforcing the sanctions of
[the agreement].”   See id.
C.  Ineffective Assistance of Counsel.
¶19    Colon asserts on appeal that he was denied the effective assistance of
counsel when his trial counsel did not object to the State’s withdrawal of the plea
agreement, did not object to the State’s sentence recommendation and did not
advise him that he could seek to withdraw his plea.   He also asserts that the circuit
court erred when it denied his ineffective assistance of counsel claim without
holding a Machner hearing.   We disagree.
¶20                                                                                           “Whether  a  defendant’s  postconviction  motion  alleges  sufficient
facts to entitle the defendant to a hearing for the relief requested is a mixed
standard of review.”    State v. Allen,  2004 WI  106,  ¶9,  274 Wis.  2d  568,  682
N.W.2d  433.                                                                                  “First,  we  determine  whether  the  motion  on  its  face  alleges
sufficient material facts that, if true, would entitle the defendant to relief.   This is a
question of law that we review de novo.”   Id.   If the motion alleges such facts, the
9




No.   2010AP839-CR
defendant is entitled to a hearing.   Id.   However, if the motion does not allege such
facts, presents only conclusory allegations, or if the record conclusively shows that
the defendant is not entitled to relief, the circuit court has the discretion to deny
the motion without a hearing.   Id.
¶21    Colon’s motion does not allege sufficient facts to succeed on such a
claim.   To succeed on a claim for ineffective assistance of counsel under the Sixth
Amendment, a defendant must make sufficient showings under the two-part test
put forth in Strickland v. Washington, 466 U.S. 668 (1984).   The first part of the
test requires a defendant to show that counsel’s performance was deficient.   Id. at
687.                                                                                      “This requires showing that counsel made errors so serious that counsel was
not  functioning  as  the                                                                 ‘counsel’  guaranteed  the  defendant  by  the  Sixth
Amendment.”   Id.   The second part of the test requires a showing that the deficient
performance prejudiced the defendant.   Id.
¶22    In  denying  Colon’s  ineffective  assistance  of  counsel  claim,  the
circuit court noted that it was Colon who materially breached the agreement and
stated that the court would not have allowed him to withdraw his guilty plea.
Colon’s breach, under the clear terms of the agreement, gave the State the right to
withdraw the agreement and make a sentencing recommendation.    Colon was
aware of the conditions of his plea agreement as well as the consequences for not
complying with the agreement, as was made clear by his trial counsel at the
change  of  plea  hearing.    The  court  confirmed  with  trial  counsel  that  Colon
“[understood] the nature of the charges and the effects of his pleas.”   Further, the
circuit court confirmed with trial counsel and the defendant that the defendant read
the plea and reviewed the terms with trial counsel.    Colon’s contention that a
hearing would have revealed the State’s direct role in his decision not to testify
also fails because, as discussed, no evidence exists in the record as to what, if any,
10




No.   2010AP839-CR
threats were made by Rivera.   Therefore, Colon’s counsel was not ineffective for
failing to object to the State’s enforcement of its rights under the terms of the
agreement.                                                                          This  also  includes  the  State’s  right  to   make   a  sentence
recommendation.   Colon also fails to acknowledge that had a court allowed him to
withdraw his guilty plea, he could have been subjected to four additional charges
of armed robbery and possibly could have dramatically increased his sentence.
“[T]rial  counsel                                                                   [is]  not  ineffective  for  failing  or  refusing  to  pursue  feckless
arguments.”   Toliver, 187 Wis. 2d at 360.   Colon’s claims are conclusory and do
not, on their face, allege sufficient facts that would require a hearing.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.
11

Download 62908-0.pdf

Wisconsin Law