Wisconsin Court of Appeals Docket No. 03-1706

2004 WI App 20

PUBLISHED OPINION

COURT OF APPEALS

DECISION

DATED AND FILED

December 9, 2003

Cornelia G. Clark

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.


Appeal No.	03-1706-CR	Cir. Ct. No. 99-CF-000080
STATE OF WISCONSIN			IN COURT OF APPEALS
			DISTRICT III


State of Wisconsin, Plaintiff-Respondent, v. Rex E. Wollenberg, Defendant-Appellant.

APPEAL from a judgment and an order of the circuit court for Price County: DOUGLAS T. FOX, Judge. Affirmed.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶1. HOOVER,P.J.Rex Wollenberg appeals a judgment of conviction entered on his no contest plea to four counts of burglary as party to a crime and four counts of theft as party to a crime, as well as an order denying his postconviction motion to withdraw his plea. Wollenberg argues that he pled pursuant to a deferred prosecution agreement (DPA) that was defective because it failed to conform to the statutory requirements of Wis. Stat. §971.39.¹ However, Wollenberg actually entered his plea pursuant to a plea agreement containing a condition of deferred entry of judgment on the burglary counts. A DPA and deferred entry of judgment are different procedures and therefore the statutory DPA mandates were immaterial. We therefore affirm the judgment and order.

Background

¶2. In 1999, Wollenberg was originally charged with four counts of burglary, one count of felony theft, and one count of misdemeanor theft. Pursuant to a plea agreement, Wollenberg pled no contest to the four burglary counts and four misdemeanor theft counts, all as party to a crime, plus two unrelated counts in another case. Under the agreement, Wollenberg's sentence on the theft counts was withheld and he was placed on four years' probation for each count, running concurrently, and with 180 days' total jail time as a condition of probation. Entry of judgment on the burglary counts was to be deferred for six years, provided Wollenberg committed no additional crimes and abided by the terms of his probation.

¶3. When Wollenberg's probation was revoked, the State moved for entry of the deferred judgments. The court granted the motion, entering judgments of conviction on the four burglary charges and sentencing Wollenberg to concurrent eight-year prison terms on each count. Wollenberg filed a postconviction motion to withdraw his plea, claiming that he pled to a DPA that was void because it was not in writing. The court denied the motion by letter without a hearing stating there was no DPA, only a plea agreement. Wollenberg appeals.

Discussion

¶4. To withdraw a plea after sentencing, a defendant must establish by clear and convincing evidence that failure to allow the withdrawal would result in manifest injustice. See State v. Trochinski, 2002 WI 56, ¶15, 253 Wis.2d 38, 644 N.W.2d 891. To withdraw a plea, the defendant must first establish a prima facie case that the court violated Wis. Stat. §971.08, the plea procedure statute, and allege that he or she did not understand the information the court should have provided at the plea hearing. Id., ¶17.

¶5. Wollenberg alleges none of those errors and even if he did, the record reveals an extensive plea colloquy. Wollenberg's argument is instead premised on two concepts: first, that he had a DPA with the State and, second, that the DPA was invalid because it was not in writing. Thus, he claims, the invalid DPA voids his judgment of conviction. Implicitly, therefore, he claims if his conviction is allowed to stand, it leads to a manifest injustice.

I. There Was No DPA, Only a Plea Agreement.

¶6. Wollenberg presents no evidence, other than his own arguments, that there was a DPA under Wis. Stat. §971.39.³ Rather, the record establishes that he entered a plea agreement with the State that contemplated a deferred entry of judgment on the more serious burglary charges.⁴

¶7. At the plea hearing, the court conducted a plea colloquy. Of particular import here, the court informed Wollenberg that it was not bound by the district attorney's recommendation. Specifically, the court informed Wollenberg: "In other words, I don't have to defer the entry of judgment. I could sentence you today ...."

¶8. Additionally, the court asked whether Wollenberg agreed to the proposed order for deferred entry of judgment. Wollenberg indicated he had reviewed the order the State prepared and approved its terms. The order states "that judgment of conviction be deferred for six (6) years" subject to certain conditions.

¶9. In short, the court as well as the State always spoke in terms of deferred entry of judgment, not deferred prosecution. At no point did Wollenberg object or claim the agreement was for deferred prosecution. Wollenberg agreed to the order for deferred entry of judgment. Moreover, the court informed Wollenberg that it did not have to accept the deferral but could instead sentence Wollenberg immediately on the burglaries-something not contemplated as part of a DPA. A successful DPA results in dismissal of charges, not sentencing. See Wis. Stat. §971.39(1)(f).

¶10. While Wollenberg argues that there is no legal difference between a deferred prosecution and a deferred entry of judgment, we disagree. The only statutorily mandated parties to a DPA are the State, the defendant, and the Department of Corrections. See Wis. Stat. §971.39(1)(a). The department monitors compliance with the DPA, and in this case Wollenberg would be placed on probation for four years for the theft charges. That means, however, that because the entry of judgment on the burglaries would be deferred for six years, Wollenberg would be "on his own" for two years. This lack of supervision is also something not contemplated by the DPA rules.

¶11. Moreover, as the State observes, unlike a plea agreement that requires the court's acceptance, Wis. Stat. §971.39 does not require court approval of the DPA.⁵ The statute does not require the DPA be filed with the court or placed in the record, and does not even require that the court be notified that there is a DPA. Nothing in this record indicates the existence of any DPA, and Wollenberg's mere insistence that there was one does not make it true.

II. Even if There is a DPA, Any Error Was Invited.

¶12. Second, assuming this was a DPA, Wollenberg claims the judgment is void because the agreement was never in writing. Wollenberg, however, invited the error he alleges, and we normally will not review invited error. See Atkinson v. Mentzel, 211 Wis.2d 628, 642-43, 566 N.W.2d 158 (Ct. App. 1997).

¶13. As noted, Wollenberg failed to timely raise this issue in the trial court. That alone fails to preserve the issue for review. See In re Eugene W., 2002 WI App 54, ¶13, 251 Wis.2d 259, 641 N.W.2d 467. Instead, he expressly urged the court to adopt the terms of the plea agreement as recited by the prosecutor. He also agreed to the order deferring entry of judgment. The court followed the parties' joint recommendations, and under such circumstances we do not allow a defendant to cry foul on appeal. See In re Shawn B.N., 173 Wis.2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992) (if error occurred, defense counsel invited it); Zindell v. Central Mut. Ins. Co., 222 Wis.575, 582, 269 N.W. 327 (1936) (appellant cannot complain of errors induced by appellant).

¶14. Wollenberg cites State v. Jankowski, 173 Wis.2d 522, 528, 496 N.W.2d 215 (Ct. App. 1992), to support his claim that he cannot be convicted on the basis of a legal nullity. Jankowski, however, dealt with a different scenario. Jankowski was convicted of violating an injunction. However, the court had extended the injunction beyond the time period allowed by statute and the injunction was therefore invalid. Because the injunction was void, it could not serve as a basis for a criminal conviction and we reversed.

¶15. Wollenberg fails to explain why the DPA, if there was one, should be declared void. His only justification is that the DPA was not in writing. This argument, however, focuses merely on a procedural deficit. Wollenberg makes no argument that he was unaware of any of the contemplated terms of his plea, and he makes no claim that he has been prejudiced by the failure to put the DPA in writing. Thus, there can be no manifest injustice. See Trochinski, 253 Wis. 2d 38, ¶15. His challenge is to form, not to substance, and there is no parallel to Jankowski in this situation. Unlike Jankowski's conviction, Wollenberg's burglary and theft charges are not invalid by operation of any statute of limitations.

III. If the Trial Court Erred, the Error was Remedied

¶16. Finally, to the extent Wollenberg claims the court has no authority to defer an entry of judgment of conviction,⁶ we agree with the trial court's conclusion. Although there is no specific statutory procedure for deferred entries of judgment, we know of no reason to prohibit a trial court from doing so if, in the appropriate exercise of discretion and upon agreement of the parties, a court determines such a deferral is proper. However, if there was error when the court failed to enter the judgment immediately following Wollenberg's plea, the defect was remedied when it revoked the deferment and entered the judgment on the burglary charges.

By the Court.-Judgment and order affirmed.

Recommended for publication in the official reports.

1 All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

2 In his reply brief, Wollenberg argues that pleading to a legally void agreement renders his plea unknowing. However, this is premised on the belief that there was a DPA and that it was faulty. Because we conclude there was no DPA, this argument lacks merit.

3 Wisconsin Stat. §971.39 reads:

(1)Except as provided in s. 967.055 (3), in counties having a population of less than 100,000, if a defendant is charged with a crime, the district attorney, the department and a defendant may all enter into a deferred prosecution agreement which includes, but is not limited to, the following conditions:

(a) The agreement shall be in writing, signed by the district attorney or his or her designee, a representative of the department and the defendant.

(b)The defendant admits, in writing, all of the elements of the crime charged.

(c)The defendant agrees to participate in therapy or in community programs and to abide by any conditions imposed under the therapy or programs.

(d)The department monitors compliance with the deferred prosecution agreement.

(e)The district attorney may resume prosecution upon the defendant's failure to meet or comply with any condition of a deferred prosecution agreement.

(f)The circuit court shall dismiss, with prejudice, any charge which is subject to the agreement upon the completion of the period of the agreement, unless prosecution has been resumed under par. (e).

(2)Any written admission under sub. (1)(b) and any statement relating to the crime under sub. (1) (intro.), made by the person in connection with any discussions concerning deferred prosecution or to any person involved in a program in which the person must participate as a condition of the agreement, are not admissible in a trial for the crime.

4 For example, the district attorney informed the court at the plea hearing that Wollenberg

would be pleading no contest to each of the eight counts in the Information ....

Our agreement with regard to sentencing is that on each of the... burglary counts we would ask that ... entry of a judgment of conviction be deferred for a period of six years. I have an order deferring the entry of judgment of conviction.

5 We note that in practice, however, the court is sometimes asked to approve the agreement. The key, however, is that such involvement is not required.

6 Wollenberg claims the trial court lacks the authority to defer judgments of conviction because (1) Wis. Stat. §972.13(1) states that a "judgment of convictions shall be entered" upon a defendant's no contest plea; (2) Wis. Stat. §961.47, the Uniform Controlled Substances Act, authorizes a trial court to defer a judgment and this explicit grant of power is unnecessary if the trial court has inherent authority to defer the entry of judgment; and (3) Wis. Stat. §973.15(8) only allows the court to stay a sentence in three instances. We disagree for reasons given by the State, but even if the trial court erred, its entry of judgment cured any defect.