State v. Marcos Banuelos

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.
November 30, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP741-CR Cir. Ct. No. 2016CF1512

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARCOS BANUELOS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: NICHOLAS McNAMARA, Judge. Affirmed.

Before Kloppenburg, P.J., Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP741-CR

¶1 PER CURIAM. Marcos Banuelos, by counsel, appeals his
judgment of conviction and an order denying his motion for postconviction relief.
Banuelos argues that the circuit court erred when it denied his postconviction
motion for plea withdrawal under WIS. STAT. § 809.30 (2021-22),1 alleging
ineffective assistance of trial counsel. We reject this argument and affirm the
judgment and order of the circuit court.

BACKGROUND

¶2 Banuelos was charged with one misdemeanor and six felonies. Each
of the felony counts alleged either attempted or completed sexual assault of a
child. A week before his scheduled trial, Banuelos pled guilty to Count 5 of the
criminal complaint, second-degree sexual assault of a child. See WIS. STAT.
§ 948.02(2). Pursuant to the negotiated plea agreement, the other six charges were
dismissed but read in. The circuit court sentenced Banuelos to ten years of initial
confinement and fifteen years of extended supervision.

¶3 Banuelos’s appellate counsel initially filed a no-merit notice of
appeal and no-merit report pursuant to WIS. STAT. RULE 809.32 and Anders v.
California, 386 U.S. 738 (1967). In an opinion and order issued on October 29,
2020, in appeal number 2019AP1031-CRNM, this court rejected the no-merit
report after being informed by counsel that he had concluded there would be
arguable merit to a claim of ineffective assistance of trial counsel.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP741-CR

¶4 Banuelos then filed a postconviction motion, alleging that his trial
counsel rendered constitutionally ineffective assistance by failing to move for plea
withdrawal prior to sentencing. The circuit court held an evidentiary hearing on
the postconviction motion over the course of two days, and both trial counsel and
Banuelos testified. The court denied the postconviction motion, and Banuelos
filed a notice of appeal.

DISCUSSION

¶5 The single issue presented on appeal is whether the circuit court
erred in denying Banuelos’s claim that his trial counsel was ineffective for not
seeking plea withdrawal before sentencing. A defendant claiming ineffective
assistance of counsel must prove both that the defendant’s counsel’s representation
was deficient and that the defendant suffered prejudice as a result of that deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶6 In order to examine the question of whether Banuelos’s counsel was
constitutionally ineffective for failing to file a motion for plea withdrawal, it is
necessary to review the standard for allowing a defendant to withdraw a plea prior
to sentencing. A circuit court should freely allow a defendant to withdraw a plea
prior to sentencing if the court finds any fair and just reason for withdrawal, unless
the prosecution has been substantially prejudiced by reliance on the defendant’s
plea. State v. Garcia, 192 Wis. 2d 845, 861, 532 N.W.2d 111 (1995). “But
‘freely’ doesn’t mean automatically.” State v. Canedy, 161 Wis. 2d 565, 582, 469
N.W.2d 163 (1991). A fair and just reason is “some adequate reason for [the]
defendant’s change of heart ... other than the desire to have a trial.” Id. at 583.
We will sustain a circuit court’s ruling denying a motion to withdraw a plea unless
the circuit court erroneously exercised its discretion. Id. at 579.

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No. 2022AP741-CR

¶7 Banuelos argues, as he argued in the circuit court, that he maintained
his innocence, he felt coerced into entering his plea, he was given little time to
decide whether to enter his plea, and he learned about new evidence relevant to his
defense after he entered the plea. According to Banuelos, each of these reasons
constituted a fair and just reason to withdraw his plea, such that his trial counsel
was deficient in failing to file a presentencing motion to do so. We disagree, and
conclude that the circuit court properly determined that the reasons offered by
Banuelos, which we will examine in further detail below, would not have satisfied
the “fair and just reason” standard for plea withdrawal even if counsel had filed
such a motion. See Garcia, 192 Wis. 2d 845, 861.

¶8 Banuelos asserts that he maintained his innocence consistently
throughout the case, and that an assertion of innocence weighs in favor of a
finding that there was a fair and just reason for plea withdrawal. “An assertion of
innocence is an important factor, though not in itself dispositive.” State v.
Shanks, 152 Wis. 2d 284, 290, 448 N.W.2d 264 (Ct. App. 1989). Here, the circuit
court found that, although Banuelos consistently asserted innocence as to the
charges that were dismissed and read in, he did not maintain innocence with
respect to Count 5, the single count for which he was convicted. In the decision
and order denying Banuelos’s postconviction motion, the circuit court stated,
“When he says now that he always maintained his innocence of the accusations in
Count 5, he is not credible—I don’t believe him.” The circuit court, as fact finder,
is the ultimate arbiter of witness credibility, and we must uphold its factual
findings unless they are clearly erroneous. See State v. Peppertree Resort Villas,
Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345.

¶9 The circuit court’s credibility finding is supported by the record,
which shows that, in a few specific but well-documented instances, Banuelos

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No. 2022AP741-CR

made admissions of guilt with respect to Count 5. At the plea hearing, as to
Count 5, the circuit court conducted a colloquy with Banuelos in which the court
identified the elements of the crime of second-degree sexual assault of a child,
explained the definition of sexual contact, and obtained Banuelos’s confirmation
that he understood. Banuelos stated on the record, “Your Honor, I admit to
touching the buttocks of [A.B.], which is a sexual assault by touching of an
intimate part.”2 Banuelos further admitted that the touching was intentional and
done with intent to become sexually aroused or gratified. Banuelos also signed a
plea questionnaire, which stated, “Banuelos admits that he touched by hitting the
buttocks” of the victim A.B. “for the purpose of his sexual gratification.” Because
the record demonstrates that Banuelos did not at all times maintain his innocence
as to Count 5, we leave undisturbed the circuit court’s determination as to that
issue.

¶10 We turn next to Banuelos’s argument that he felt coerced into
entering his plea. Coercion by trial counsel to accept a plea agreement can support
a determination that there is a fair and just reason for plea withdrawal. Shanks,
152 Wis. 2d at 290. Here, the circuit court found that there was no coercion in
Banuelos’s entry of the plea, and that the plea was “knowing, intelligent, and fully
voluntary.” The record supports the court’s findings. Banuelos confirmed at the
plea hearing that no one had threatened or coerced him to plead. Near the end of
the plea hearing, the court confirmed for Banuelos that his trial was still scheduled
for the following week, and that he could go to trial if he chose to do so. Banuelos
responded that he understood. At the postconviction motion hearing, Banuelos

2
To protect the dignity and privacy of the victim, we refer to her as A.B., using initials
that do not correspond to her real name. See WIS. STAT. RULES 809.19(1)(g) and 809.86.

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No. 2022AP741-CR

again confirmed that he had not been threatened or forced to enter his plea. In
addition, Banuelos’s trial counsel testified repeatedly at the postconviction motion
hearing that the decision of whether to go to trial or plead is the client’s decision.

¶11 We agree with the State that, in the postconviction motion
proceedings, the circuit court made well-supported findings and credibility
determinations on the issue of whether Banuelos was coerced into entering his
plea. A presentencing motion for plea withdrawal on the basis of coercion would
have been meritless and without support in the record. Thus, the circuit court
properly rejected Banuelos’s argument that his trial counsel was ineffective for
failing to file such a motion.

¶12 Banuelos next argues that he was given little time to decide whether
to enter his plea, and that the time factor constitutes a fair and just reason for plea
withdrawal. The circuit court rejected this argument, stating, “His ultimate
decision to enter the plea to Count 5 was probably difficult and a cause of much
anxiety and worry for the defendant; but there is no evidence that it was rushed.”
The record supports the circuit court’s determination on this point.

¶13 Plea negotiations commenced on March 1, 2017, twenty days before
the plea hearing. On March 20, 2017, the prosecutor and Banuelos’s trial counsel
engaged in further negotiations. The prosecutor offered to cap her
recommendation for initial confinement at five years, and not to charge Banuelos
for newly discovered conduct, if Banuelos would plead to Count 5. Trial counsel
met with Banuelos for several hours on March 20, 2017, and emailed the
prosecutor late that night with a counteroffer that involved, among other terms,
Banuelos pleading to attempted sexual assault of A.B. The prosecutor declined
Banuelos’s counteroffer by email the following morning, stating that if Banuelos

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No. 2022AP741-CR

wanted to resolve the case, he would need to plead to a completed act of sexual
assault of a child, as opposed to attempted.

¶14 The plea hearing was scheduled for 11:00 a.m. on March 21, 2017.
Trial counsel testified at the postconviction motion hearing that he and Banuelos
met in the morning hours on March 21, 2017, and went over the prosecutor’s
email from earlier that day. Trial counsel also testified that Banuelos ultimately
decided to accept the prosecutor’s last offer, and that he and Banuelos went over
the plea questionnaire form together. The transcript of the plea hearing held on
March 21, 2017, reflects that the circuit court informed Banuelos that he had the
right to “call a time-out to the hearing” to privately talk with his attorney outside
of the courtroom if he wished to do so, and Banuelos confirmed that he
understood. In denying Banuelos’s postconviction motion, the circuit court stated
that “it is clear from the testimony of his trial counsel on this motion that
Mr. Banuelos spoke with his attorney for many hours before finally entering his
plea.” We agree with the circuit court’s ultimate determination that Banuelos had
sufficient time to decide whether to plead, such that any motion for plea
withdrawal that argued to the contrary would have been without merit.

¶15 Banuelos also argues that his discovery of new evidence after the
plea constitutes a fair and just reason for plea withdrawal. Specifically, Banuelos
asserts that, in May 2017, he informed the circuit court by letter that one of his
daughter’s friends could testify that she was with A.B. all night at a school dance
on the date that Banuelos allegedly assaulted A.B., and that A.B. did not act like
she had been sexually assaulted. Banuelos argues that this information would
have offered a defense to Count 5, both directly and in terms of challenging A.B.’s
general credibility.

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No. 2022AP741-CR

¶16 The circuit court concluded that, to the extent the friend’s purported
testimony was directly relevant, the testimony would have been relevant to
Count 7, not Count 5. Count 5 of the criminal complaint alleged that Banuelos
had sexual contact with A.B. “on or about January 2013.” The facts alleged in the
complaint in support of Count 5 include A.B.’s statements that, while she was at
Banuelos’s house, Banuelos touched her bottom numerous times and also kissed
her and touched her breasts. To contrast, Count 7 of the complaint alleges that, on
or about February 9, 2013, Banuelos attempted to have sexual contact with A.B.
The facts in support of Count 7 include A.B.’s statements that Banuelos put his
hand on her thigh and tried to slide his fingers under her shorts toward her vagina
before a dance that she believed was held on February 9, 2013. Banuelos asserts
that a follow-up investigation showed that the dance actually took place on
January 21, 2013. Banuelos argues that, in light of this new discovery about the
date of the dance, the friend’s testimony would have been relevant to Count 5. We
are not persuaded.

¶17 A discovery that the dance took place in January instead of February
of 2013 does not change the fact that A.B. reported that Banuelos touched her
thigh, not her bottom, on the night of the dance. Additionally, the record reflects
that Banuelos told the circuit court at sentencing that the purported testimony
referenced in his letter to the court was not intended to be a denial of the conduct
to which he pleaded (Count 5), but rather a defense to the read-in charges. We
conclude, as did the circuit court, that the evidence referenced in Banuelos’s May
2017 letter to the court does not give rise to a fair and just reason for plea
withdrawal.

¶18 Finally, we address Banuelos’s overarching argument that his trial
counsel was deficient in not moving for plea withdrawal because there were fair

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No. 2022AP741-CR

and just reasons for plea withdrawal, counsel was aware of those reasons, and
Banuelos repeatedly asked counsel to move for plea withdrawal. We already have
discussed in detail why all of Banuelos’s arguments in favor of plea withdrawal do
not qualify as fair and just reasons warranting such relief. If counsel had moved
for plea withdrawal on those grounds, the motion would have been without merit.
“It is well [] established that an attorney’s failure to pursue a meritless motion
does not constitute deficient performance.” State v. Cummings, 199 Wis. 2d 721,
747 n.10, 546 N.W.2d 406 (1996).

¶19 On the record before us, we conclude that the circuit court did not
erroneously exercise its discretion when it denied Banuelos’s postconviction
motion for plea withdrawal based on ineffective assistance of counsel.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

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