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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.
April 9, 1998
A party may file with the Supreme Court a
                                                                                    Marilyn L. Graves                                petition  to  review  an  adverse  decision  by  the
                                                                                    Clerk, Court of Appeals                          Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                    of Wisconsin                                     STATS.
No.                                                                                 96-1547-CR
STATE OF WISCONSIN                                                                  IN COURT OF APPEALS
                                                                                    DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
WILLIE E. FLEMING A/K/A WILLIE L. FLEMING,
DEFENDANT-APPELLANT.
APPEAL from a judgment and orders of the circuit court for Rock
County:  J. RICHARD LONG, Judge.   Affirmed.
Before Dykman, P.J., Vergeront and Deininger, JJ.
PER CURIAM.    Willie  E.  Fleming  appeals  from  a  judgment  of
conviction, a sentencing order and an order denying his postconviction motion.
We reject Fleming’s arguments:                                                      (1) that because of his low mental functioning
and mental illness, his guilty plea was involuntary, unknowing and unintelligent;
(2) that his counsel was ineffective;  (3) that new  factors exist which  mandate




No(s). 96-1547-CR
reconsideration; or  (4) that a sentence of ten years’ imprisonment was unduly
harsh and unconscionable.   We therefore affirm.
A complaint dated May 19, 1993, alleged that while intoxicated on
drugs and alcohol, Fleming drew a loaded gun, and placed it to the back of James
Pulliam’s head.   Another man present, Robert Ayers, disarmed Fleming.   Police
were  called.  Upon  arrival,  police  confiscated  Fleming’s  gun.    Fleming  was
charged   with   intentionally   pointing   a   firearm   at   another,   contrary   to
§ 941.20(1)(c), STATS.; possession of a firearm by a felon as a repeater in violation
of § 941.29(2), STATS.; possession of a controlled substance (cocaine), contrary to
§ 961.41(1)(a), STATS.; and possession of a controlled substance (THC), contrary
to                                                                                          § 961.41(1)(b).1    Each of  the four charges contained a habitual criminality
enhancer under § 939.62(1)(a), STATS.
Fleming, through his counsel, entered into plea negotiations, and as a
result  pleaded  guilty  to  unlawfully  and  unintentionally  pointing  a  firearm  at
another  individual;  possession  of  a  weapon  by  a  felon;  and  possession  of  a
controlled substance (cocaine).   As a result, the State dropped the possession of
THC charge and other charges in unrelated cases.   After a sentencing hearing,
Fleming was sentenced to ten years’ imprisonment.   Thereafter, Fleming brought a
postconviction motion.   After a five-day hearing, the trial court rejected Fleming’s
arguments.   Fleming appeals to this court from the conviction, the sentencing and
the postconviction motion disposition.
A.  Plea Withdrawal
1    Fleming was charged under the old statute.   However, the legislature renumbered the
chapter in 1995.  See 1995 Wis. Act 448, § 323.
2




No(s). 96-1547-CR
Fleming argues that his low level mental functioning, coupled with
his mental illness, made him incapable of entering an intelligent, knowing and
voluntary  plea.    He  also  argues  that  the  circuit  court  erred  by  denying  his
postconviction motion to withdraw his plea.
A defendant who seeks to withdraw a guilty or no contest plea carries
the heavy burden of establishing, by clear and convincing evidence, that the trial
court  should  permit  the  defendant  to withdraw  the  plea  to  correct  a  “manifest
injustice.”   State v. Krieger, 163 Wis.2d 241, 249, 471 N.W.2d 599, 602 (Ct. App.
1991).   The motion to withdraw a plea is addressed to the sound discretion of the
trial court, and we will only reverse if the trial court fails to properly exercise its
discretion.   State v. Booth, 142 Wis.2d 232, 237, 418 N.W.2d 20,  22 (Ct. App.
1987).   Where, as in the postconviction motion hearing here, the circuit court is
acting as trier of fact, the weight to grant conflicting testimony is a matter for the
circuit court.   Matter of Estate of Czerniejewski, 185 Wis.2d 892, 898, 519 N.W.2d
702, 704-05 (Ct. App. 1994).  Stated another way, when more than one inference can
be drawn from conflicting evidence, a reviewing court must accept the inference
drawn by the trier of fact.   Rotor-Aire, Inc. v. Marth, 87 Wis.2d 773, 779, 275
N.W.2d 701, 704 (1979).
At the postconviction hearing, the court heard Fleming’s personal and
expert  evidence  that  he  was  mentally incapable2  of  a  knowing,  intelligent  and
voluntary plea.    The State presented expert evidence to the contrary, as it was
permitted to do under State v. Bangert, 131 Wis.2d 246, 275, 389 N.W.2d 12, 26
(1986).   Although Fleming downplays the State’s evidence and elevates his own, the
2  On appeal, Fleming argues that his plea was involuntary.   However, he makes no
argument that he was incompetent to enter the plea.
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No(s). 96-1547-CR
weight to grant conflicting evidence is a matter for the trier of fact.   Czerniejewski,
185  Wis.2d  at  898,                                                                         519  N.W.2d  at  704-05.    The  record  contains  two  state
psychologists’  testimony  to  the  effect  that  Fleming  was  capable  of  entering  a
knowing, intelligent and voluntary plea.    Therefore, we must sustain the circuit
court’s finding that Fleming understood the proceedings, and he was capable of
entering a proper guilty plea.
Fleming argues that the court erred because the plea colloquy was
perfunctory and should have been more searching.   We have carefully reviewed
the plea colloquy.    The court twice asked Fleming to be sure to speak up if
anything happened that he could not understand, and Fleming both times stated he
would.   The court also asked him numerous times whether he was understanding
the  proceedings,  and  Fleming  each time  responded  “yes.”    As  to  each  count
individually, the court read the charge to Fleming, explained the possible penalty,
ascertained Fleming’s understanding, and asked Fleming how he wanted to plead.
The court also ascertained that Fleming understood he was waiving his
constitutional rights, and informed him that the court was not bound by the State’s
recommendation.   The court asked trial counsel’s opinion on whether Fleming was
acting intelligently, knowingly and voluntarily, and also inquired whether Fleming
was satisfied with trial counsel’s services.   Finally, the trial court ascertained that no
promises or threats had been made to Fleming.   Thus, the plea colloquy complied
with  the  requirement  that  the  court  personally  determine  the  defendant’s
understanding.   Bangert, 131 Wis.2d at 268, 389 N.W.2d at 24.
Fleming argues, however, that he was under compulsion to plead
guilty.   He points to his mental state, his previous intoxication, his drug-dependent
life  style  and  his  need  for  treatment.     We  reject  this  argument.  An  inner
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No(s). 96-1547-CR
compulsion to plead guilty does not void a plea.   As the court explained in State v.
McKnight, 65 Wis.2d 582, 590, 223 N.W.2d 550, 555 (1974):
The inquiry that the trial court is required to make relates
solely to the voluntariness of the plea or waiver, and to
their  being  knowledgeably and  intelligently made.    The
decision as to waiver or plea is for the defendant to make.
He is not required to state his reasons, and the court is not
required to locate them.
B.  Ineffective Assistance of Counsel
Fleming argues that he received ineffective assistance of counsel
before sentencing because counsel did not aggressively investigate and litigate the
case.    He  also  argues  that  he  received  ineffective  assistance  of  counsel  at
sentencing.   To prevail on his claim of ineffective assistance of counsel, Fleming
must show:                                                                                (1) his counsel’s performance was deficient; and  (2) that deficient
performance prejudiced his defense.   Strickland v. Washington,  466 U.S.  668,
687  (1984).    We must scrutinize counsel’s performance to determine whether
“counsel’s representation fell below an objective standard of reasonableness.”   Id.
at 688.   See also State v. Ambuehl, 145 Wis.2d 343, 351, 425 N.W.2d 649, 652
(Ct. App. 1988).
1.  Effectiveness of Counsel Prior to Sentencing
Defendant  offered  several  versions  of  the  events  underlying  the
charges, and finally admitted that due to intoxication with a variety of drugs as
well as alcohol, he had no real recollection of the events.   There was no question,
however, that the others present implicated Fleming in holding a loaded gun to
another man’s head, and that police retrieved the gun.
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No(s). 96-1547-CR
Given these circumstances, it is not surprising that counsel chose to
compromise this case, rather than aggressively pursue investigation, or mount an
active and aggressive defense.   Counsel effectuated this strategy by arranging a
plea agreement.    Fleming pleaded guilty to three of the original four charges;
unrelated charges against him in other cases were dropped; and the State agreed to
recommend three years’ imprisonment, out of a possible ten.   We agree with the
circuit court that far from being ineffective, trial counsel achieved an excellent
result.    The fact that postconviction counsel may have chosen to try the case
differently does not invalidate trial counsel’s strategy.                               “[S]trategic choices ... are
virtually unchallengeable.” Strickland, 466 U.S. at 690-91.
2.   Effectiveness of Counsel at Sentencing
Under  the  plea  agreement,  the  State  agreed to recommend  three
years’ imprisonment.   Fleming contends that the State breached this agreement,
and that counsel ineffectively failed to object.    The record, however, does not
support this argument.   At sentencing, the prosecutor stated:
[T]he state is respectfully asking the court to sentence Mr.
Fleming to a period of three years in the Wisconsin State
Prison System on each of the three charges that are before
the Court and to run those sentences concurrent with one
another ... for a total of three years.
Fleming  argues  that  trial  counsel  failed  to  endorse  the  plea
agreement.   At sentencing counsel argued that “warehousing” Fleming would not
address his needs for treatment.   Instead, counsel asked that Fleming be placed on
probation in an intensive treatment program for “as long as it takes.”   We do not
understand  an  argument  for  a  lesser  degree  of  punishment  to  be  ineffective
assistance of counsel.   Stated another way, when counsel argued for treatment on
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No(s). 96-1547-CR
probation  rather  than  three  years’  imprisonment,  we  do  not  believe  counsel
ineffectively failed to endorse the plea agreement.3
Fleming argues that counsel ineffectively failed to counter negative
and inaccurate statements in the presentence report.   Again, the record does not
support this argument.   Counsel objected to the PSI’s characterization of Fleming
as                                                                                                     “dishonest,”  and  offered  a  different  explanation  for  Fleming’s  apparent
inconsistencies.   Counsel also attempted to show that the PSI was incomplete and
possibly misleading because it failed to consider Fleming’s background.
C.  New Factors
Fleming argues that his cognitive and social background are “new
factors” which entitle him to resentencing.   Specifically, he contends that:                          (1) the
full extent of his limitations were not brought before the court prior to sentencing;
(2) that  before  sentencing,  the  court  was  unaware  that  he  was  amenable  to
treatment; and (3) that alternative explanations to various unfavorable factors were
not offered to the court prior to sentencing.
In order to prevail on a motion to modify sentence, defendant must
demonstrate by “clear and convincing evidence” that a “new factor” exists unknown
to any party at the time of sentencing, and the circuit court must agree that the new
factor warrants sentence modification.   State v. Franklin, 148 Wis.2d 1, 8-9, 434
N.W.2d 609, 611-12 (1989).   The new factor must not only be previously unknown,
3  As discussed below, Fleming argues on appeal that his need for treatment is a “new
factor”  which  justifies  a                                                                           “shorter  sentence  designed  to  provide  intensive  psychological
rehabilitation.”   Given his explicit desire for “intensive ... treatment,” we fail to see how trial
counsel was ineffective by arguing at sentencing that Fleming should have the intensive treatment
he desired.
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No(s). 96-1547-CR
but must strike at the very purpose for the sentence selected by the trial court.   State
v. Michels 150 Wis.2d 94, 99, 441 N.W.2d 278, 280 (Ct. App. 1989). Whether facts
constitute a “new factor” is a question of law, which we review de novo.   Id., 150
Wis.2d at 97, 441 N.W.2d at 279.
As is evident from its remarks on the record, at sentencing the court
knew that Fleming had mental and physical problems and had limited intellectual
capacity.4   We therefore agree with the State that none of the matters Fleming has
brought to the court’s attention post-sentencing meets the “new factor” criterion of
being  “previously unknown.”    Michels,  150 Wis.2d at  99,  441 N.W.2d at  280.
Rather, it is supplemental information, consistent with the information the court had
before  it  at  sentencing.    As  Fleming  concedes,  where  postconviction  hearing
testimony is consistent with information already presented at sentencing, no new
factor exists.   State v. Harris, 174 Wis.2d 367, 378-80, 497 N.W.2d 742, 747 (Ct.
App. 1993).
Fleming’s argument that he is amenable to treatment is not a “new
factor,” as it does not strike to the very purpose of the sentence.   Michels, 150
Wis.2d at 97, 441 N.W.2d at 279.   At sentencing, the court noted that Fleming had a
twenty-five year history of substance abuse, and noted his need for rehabilitative
control in a closed setting for the protection of society.   Post-sentencing evidence
that Fleming might benefit from a lesser degree of control during his treatment does
4  For example, the court noted that Fleming had a very serious and long-standing drug
and alcohol problem, and that he received SSI for drug and alcohol-related disability; that he was
learning disabled; had only a third-grade education; could neither read nor write; had physical
limitations; suffered auditory hallucinations; had been suicidal in the past; and had flashbacks to a
stressful childhood incident where some cousins were killed in a fire.
8




No(s). 96-1547-CR
not vitiate the purpose of protecting society enunciated by the circuit court as a
sentencing factor.
We  also  reject  Fleming’s  argument  that  at  sentencing,  the  court
wrongly relied upon unfavorable conclusions for which alternative explanations can
now be offered.    The record of the sentencing hearing shows that trial counsel
offered  alternative  explanations  for  unfavorable  conclusions  about  Fleming
contained  in  the  PSI.    Counsel  argued,  for  example,  that  Fleming was  neither
dishonest nor manipulative, but that these apparent characteristics were attributable
to  low  functioning  or  social  background.    The  fact  that  even  more  alternative
explanations could be offered, post-sentencing does not mean that the court was
unaware that alternative explanations existed.
D.  Sentencing
Fleming argues that the ten-year term imposed was unduly harsh or
unconscionable.5  Sentencing lies within the trial court’s discretion, and our review
is limited to whether the trial court misused that discretion.  State v. Larsen, 141
Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987).   The primary factors
which the trial court must consider are the gravity of the offense, the character of
the offender, and the need for public protection.   Id. at 426-27, 415 N.W.2d at 541.
The weight to be given to each of these factors is within the trial court’s discretion.
Cunningham v. State, 76 Wis.2d 277, 282, 251 N.W.2d 65, 67-68 (1977).
5  He also argues that “manifest injustice” resulted because his plea was involuntary.   We
do not consider this contention further because we have previously determined that the plea was
proper.
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No(s). 96-1547-CR
The court may also consider, among other things, the defendant’s
criminal record; any history of undesirable behavior patterns; the defendant’s
personality, character and social traits; the results of a presentence investigation;
the vicious or aggravated nature of the crime; the degree of culpability; the
defendant’s demeanor at trial; the defendant’s age, educational record and
employment record; the defendant’s remorse, repentance and cooperativeness; the
need for close rehabilitative control; the rights of the public; and the length of
pretrial detention.   State v. Iglesias, 185 Wis.2d 117, 128, 517 N.W.2d 175, 178
(1994).
Specifically,  Fleming  argues that his rehabilitative needs will go
unmet while  he  is incarcerated.    This argument focuses on the  consequences
Fleming will suffer due to the ten-year term imposed.   However, effect on the
defendant is only one of a variety of factors a sentencing court may properly
consider.    Here,  the  court  specifically  considered  Fleming’s  long  history  of
undesirable behavior, and concluded that society would benefit by the sentence
imposed.   The court also noted Fleming’s unsuccessful attempts at community-
based rehabilitation and determined that a  closed environment was necessary.
Because these are proper sentencing factors under Iglesias, Fleming has not shown
any misuse of discretion in sentencing.
By the Court.—Judgment and orders affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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