Criminal Procedure – postconviction motion – disorderly conduct – plea withdrawal

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Wisconsin Court of Appeals

Criminal

Criminal Procedure – postconviction motion – disorderly conduct – plea withdrawal

Ryan P. O’Boyle appeals the judgment convicting him of disorderly conduct, as an act of domestic abuse. He also appeals the order denying his postconviction motion. On appeal, O’Boyle argues that he should be allowed to withdraw his plea because his attorney was ineffective for: (1) failing to file a motion to strike any reference to domestic abuse in the complaint; and (2) inadequately explaining to him the charge to which he pled guilty. O’Boyle also argues that he should be allowed to withdraw his plea because it was not knowingly, voluntarily, and intelligently made. Alternatively, he argues that the charge of disorderly conduct as a result of domestic abuse is not a chargeable offense and domestic abuse modifiers are unlawful.

This court concludes that trial counsel was not ineffective because the specific motion to strike that O’Boyle claims his attorney should have made — a motion seeking removal of any reference to domestic abuse based on a theory that Wis. Stat. § 968.075 is “not a separate and distinguishable prohibited conduct that can be punished” — would not have been granted. This court also concludes that trial counsel was not ineffective because, despite some minor omissions in the guilty plea questionnaire, the record supports the fact that O’Boyle was well aware of the charge to which he was pleading guilty. For this reason, O’Boyle’s plea was knowingly, voluntarily, and intelligently made. Additionally, O’Boyle’s argument that the charge of disorderly conduct as a result of domestic abuse is not a chargeable offense and domestic abuse modifiers are unlawful fails because it is insufficiently developed. Finally, this court concludes that the only evidence in this record concerning O’Boyle’s disorderly conduct fails to fulfill the statutory definition of domestic abuse found in Wis. Stat. §§ 968.075(1) and 973.055. As a consequence, the reference to domestic abuse in the judgment roll should be stricken, and the $100 domestic abuse surcharge, found in § 973.055, should be vacated. Cf. State v. Cherry, 2008 WI App 80, ¶11, 312 Wis. 2d 203, 752 N.W.2d 393 (where Court of Appeals remanded for revision of surcharge). This opinion will not be published.

2013AP1004-CR State v. O’Boyle

Dist I, Milwaukee County, Triggiano, J., Curley, P.J.

Attorneys: For Appellant: Kay, Timothy T., Brookfield; For Respondent: DeCarvalho, Phyllis M., Milwaukee; Loebel, Karen A., Milwaukee; Weber, Gregory M., Madison