Criminal Procedure — ineffective assistance

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance

Alexander Velazquez-Perez appeals an order by Milwaukee County Circuit Court Judge Jeffrey C. Conen (hereinafter referred to as “the Machner court”) denying his motion to withdraw his guilty pleas on grounds of ineffective assistance of postconviction counsel. Velazquez-Perez entered guilty pleas to felony murder-armed robbery and armed robbery by use of force, as a party to a crime. In the first of two motions to withdraw his pleas, he alleged his pleas were not entered knowingly, understandingly, and voluntarily because he did not understand the maximum penalties he faced by entering his pleas. Specifically, he alleged that trial counsel misinformed him that the maximum time he could serve in prison was fifty-five years, when in fact he could be ordered to serve ninety-five years. He also alleged that Milwaukee County Circuit Court Judge Mary M. Kuhnmuench (hereinafter referred to as “the circuit court”) did not inform him during the plea colloquy of the maximum period of incarceration. An evidentiary hearing was held on Velazquez-Perez’s motion before Milwaukee County Circuit Court Judge Jeffrey A.

Wagner (hereinafter referred to as “the plea withdrawal court”), at the conclusion of which the court denied the motion. Attorney Lew Wasserman (hereinafter referred to as “postconviction counsel”) represented Velazquez-Perez at the plea withdrawal hearing. Appellate counsel filed a second motion to withdraw Velazquez-Perez’s pleas alleging ineffective assistance of postconviction counsel and seeking a Machner hearing. A Machner hearing was held on the second plea withdrawal motion, consisting of one day of testimony and a separate hearing consisting of oral arguments. The Machner court denied the motion.

The issues we address on appeal are: (1) whether this court has jurisdiction over this appeal; (2) whether postconviction counsel provided ineffective assistance of counsel at the plea withdrawal hearing; and (3) whether the Machner court erroneously exercised its discretion in rejecting Velazquez-Perez’s offers of proof, and denying Velazquez-Perez’s request for the opportunity to present additional evidence at an evidentiary hearing, consisting of the continuation of his direct examination of postconviction counsel, his own testimony, and the testimony of other witnesses who would testify on his behalf.

For the reasons that follow, we affirm the Machner court’s order denying Velazquez-Perez’s motion to withdraw his plea. Not recommended for publication in the official reports

2010AP1128-CR State v. Velazquez-Perez

Dist I, Milwaukee County, Kuhnmuench, Wagner, JJ., Higginbotham, J.

Attorneys: For Appellant: Leeper, David, Madison; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison