State v. Keana S.J. Cousin

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.
September 4, 2019
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2018AP1705-CR Cir. Ct. No. 2017CF88

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEANA S.J. COUSIN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and order of the circuit court for Fond du
Lac County: RICHARD J. NUSS, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

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. 2018AP1705-CR

¶1 PER CURIAM. Keana S.J. Cousin appeals from a judgment
convicting her of conspiracy to commit the manufacture or delivery of more than
fifty grams of heroin and from an order denying her postconviction motion to
withdraw her guilty plea. We reject her arguments and affirm.

¶2 Fond du Lac police arrested Cousin after a heroin-trafficking
investigation based on information from confidential informants and others to
whom she sold heroin for further distribution. The heroin had an estimated street
value of over $315,000. Cousin was charged in a thirteen-count indictment. Eight
related to possession or intent to deliver heroin or cocaine; one alleged that she
maintained a drug-trafficking place; the others alleged felony bail jumping.

¶3 An amended information alleged a single count of conspiracy to
manufacture or deliver more than fifty grams of heroin, which carried a maximum
penalty of up to forty years’ imprisonment and/or a $100,000 fine. The
information and amended information accurately reflected the potential penalties.

¶4 Cousin also faced four drug charges in an earlier case.1 In exchange
for Cousin’s guilty plea to the one count in the case before us on appeal, the State
agreed to dismiss and read in the four counts in the earlier case. The court ordered
a sentence of thirteen years’ initial confinement followed by ten years’ extended
supervision. It imposed no fine.

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The four charges stemmed from a traffic stop of Cousin and a companion during which
police found drugs and drug paraphernalia in the car. When Cousin later was searched at the jail,
police found heroin in a quantity “similar to the size and shape of a 12-ounce can of soda” that
Cousin had secreted in a body cavity. She was charged with conspiracy to commit:
(1) possession with intent to manufacture, distribute, or deliver heroin (>50g); (2) possession with
intent to manufacture, distribute, or deliver cocaine (>1-5g); (3) possession with intent to
manufacture, distribute, or deliver THC (<=200g); and (4) possession of drug paraphernalia.

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No. 2018AP1705-CR

¶5 After sentencing, Cousin moved to withdraw her guilty plea. She
claimed it was not knowing, intelligent, and voluntary because the court told her
during the plea colloquy that she faced a fine of up to $20,000 when the maximum
actually was $100,000; did not define “conspiracy,” an element of the crime to
which she pled; and did not inform her of the consequences of dismissed and read-
in charges. Her motion was denied without a hearing. Cousin appeals.

¶6 A defendant seeking to withdraw his or her plea after sentencing
must show by clear and convincing evidence that a “manifest injustice” requires
withdrawal. State v. Taylor, 2013 WI 34, ¶24, 347 Wis. 2d 30, 829 N.W.2d 482.
One way to establish a manifest injustice is to show that the plea was not entered
knowingly, intelligently, and voluntarily. Id.

¶7 That is because “[a] plea not entered knowingly, voluntarily, and
intelligently violates fundamental due process, and a defendant therefore may
withdraw the plea as a matter of right.” State v. Cross, 2010 WI 70, ¶14, 326
Wis. 2d 492, 786 N.W.2d 64. “Whether a plea was entered knowingly,
voluntarily, and intelligently presents a question of constitutional fact that is
reviewed independently.” Id. This court accepts the circuit court’s findings of
historical or evidentiary facts unless they are clearly erroneous. Id. If the
defendant cannot show that plea withdrawal is necessary to correct a manifest
injustice, he or she is not entitled to an evidentiary hearing, and plea withdrawal
remains in the discretion of the circuit court. Id., ¶4.

¶8 Before accepting a plea of guilty or no contest, the circuit court must
conduct a colloquy with the defendant to ascertain that he or she understands the
elements of the crime to which the defendant is pleading guilty, the constitutional
rights being waived by entering the plea, and the maximum potential penalty that

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No. 2018AP1705-CR

can be imposed. WIS. STAT. § 971.08 (2017-18)2; State v. Bangert, 131 Wis. 2d
246, 260, 389 N.W.2d 12 (1986). The colloquy helps to ensure that the defendant
is knowingly, intelligently, and voluntarily waiving the rights he or she is giving
up by entering a plea. See State v. Brown, 2006 WI 100, ¶23, 293 Wis. 2d 594,
716 N.W.2d 906.

¶9 Cousin alleges a Bangert violation because, she asserts, the court did
not satisfy all of its mandatory duties, rendering the plea colloquy defective on its
face. See Bangert, 131 Wis. 2d at 274. She claims she was entitled to a hearing
on her plea-withdrawal motion because she did not know or understand all of the
information the court should have provided. See Brown, 293 Wis. 2d 594, ¶39.

¶10 Whether a defendant is entitled to an evidentiary hearing on a plea
withdrawal motion under Bangert is a question of law we review independently.
State v. Howell, 2007 WI 75, ¶30, 301 Wis. 2d 350, 734 N.W.2d 48. We review
de novo whether the defendant “has pointed to deficiencies in the plea colloquy
that establish a violation of WIS. STAT. § 971.08 or other mandatory duties at a
plea hearing”; and “sufficiently alleged that he [or she] did not know or
understand information that should have been provided at the plea hearing.”
Brown, 293 Wis. 2d 594, ¶21.

¶11 Taylor and Cross teach that a circuit court’s failure to advise a
defendant in the plea colloquy of the correct potential punishment does not
automatically warrant plea withdrawal. State v. Finley, 2016 WI 63, ¶81, 370
Wis. 2d 402, 882 N.W.2d 761. The amended information and plea questionnaire

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP1705-CR

expressly stated that the maximum penalty Cousin faced for the charged offense
was forty years’ imprisonment or a $100,000 fine, or both. The fact that she was
orally misinformed of the maximum fine is of no consequence, as she was not
fined at all.

¶12 We also are not moved by Cousin’s claim that she did not
understand the element of “conspiracy” because the circuit court did not define it.
Several times, the court satisfied its duty under Bangert to ascertain her
understanding of the nature of the charge. It stated that the amended information
contained a single count of conspiracy to commit the manufacture and delivery of
a controlled substance, specifically, heroin; verified that she understood “the
charge, the single count in the amended information that [she was] about to enter a
plea to”; confirmed that she read, understood, and discussed her plea questionnaire
with her attorney before signing it and was making her plea freely, voluntarily,
and knowingly; and ascertained that she understood that by pleading she was
relieving the State of its burden of proving the elements of the crime, which
included conspiring to deliver heroin in an amount over fifty grams. The court
found in particular:

[The complaint] was very specific, very directive, and it
very clearly demonstrated in this Court’s independent
analysis of the criminal complaint a factual basis to support
the plea that Ms. Cousin is now offering to the Court that
she, in fact, conspired to commit the manufacture and
delivery of heroin in that quantity during the time period in
question ….

¶13 For her part, Cousin told the court that she had no questions about
her plea. Also, she did not contradict her counsel when he told the court that they
had had adequate time to discuss the case, and believed that Cousin understood the

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No. 2018AP1705-CR

nature and elements of the offense and effects of her plea and was entering it
freely, voluntarily, and intelligently. She did not ask for clarification on anything.

¶14 In addition, the plea questionnaire, which Cousin assured the court
she had reviewed, discussed with her counsel, and understood, stated that the
charge was conspiracy to manufacture or deliver more than fifty grams of heroin.
It contained the standard language reflecting that Cousin understood the “elements
that the State would have to prove beyond a reasonable doubt if I had a trial.
These elements have been explained to me by my attorney or are as follows.”

¶15 Although the box next to “See Attached sheet” was checked, an
attachment does not appear with the scanned plea questionnaire. The court later
found, however, that a printout of the elements had been attached to the plea
agreement and that its absence from the electronic record was “an apparent
unfortunate clerical error and casualty of the e-filing system.” The plea transcript
shows no concern or objection raised by the prosecutor, defense counsel, the court,
or, importantly, Cousin, that the elements printout was not attached or that Cousin
did not understand the elements. The court’s finding is not clearly erroneous.

¶16 Finally, Cousin complains that her plea was not knowing, intelligent,
and voluntary because the court did not inform her about the significance of
dismissed and read-in charges. Under WIS. STAT. § 973.20(1g)(b):

“Read-in crime” means any crime that is uncharged or
that is dismissed as part of a plea agreement, that the
defendant agrees to be considered by the court at the time
of sentencing and that the court considers at the time of
sentencing the defendant for the crime for which the
defendant was convicted.

¶17 The standard plea questionnaire, which, again, Cousin read and
signed, explains to criminal defendants the effects of read-in charges. It provides:

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No. 2018AP1705-CR

• I understand that if any charges are read[]in as part of a
plea agreement they have the following effects:

• Sentencing—although the judge may consider read-
in charges when imposing sentence, the maximum
penalty will not be increased;

• Restitution—I may be required to pay restitution on
any read-in charges; and

• Future prosecution—the State may not prosecute
me for any read-in charges.

¶18 After finding that her plea was freely, voluntarily, and intelligently
made, the court once more addressed Cousin directly about her understanding of
the plea and the proceeding:

Before I proceed any further, Ms. Cousin, I just once
again want to be satisfied that you understand very clearly
the import of this proceeding and what is being transpired;
that you’ve had a chance to talk to [your attorney]; that
you’re satisfied with his representation of you; and that
your decision in entering this plea, once again, today on
that amended information, single count, is being made by
you reflecting on all of that freely, voluntarily, and
knowingly. Is that all correct?

Cousin responded, “Yes,” and the court accepted her guilty plea.

¶19 Before adjourning, the court addressed Cousin yet again:

THE COURT: Ms. Cousin, you understand everything
that’s happening here?

MS. COUSIN: Yes.

THE COURT: Do you have any questions whatsoever?

MS. COUSIN: No.

THE COURT: Any reason you want to withdraw your
plea right now?

MS. COUSIN: No.

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No. 2018AP1705-CR

¶20 Cousin offers nothing more than a conclusory statement that she did
not comprehend the consequences of read-in charges simply because the court did
not recite to her the effects that she already had told the court she understood.

¶21 Cousin has not established a prima facie violation based on the plea
colloquy and has not sufficiently alleged that she did not know or understand
information that she claims should have been provided at the plea hearing. Any
defects with regard to the court’s mandatory duties were insubstantial and could
not support plea withdrawal under the manifest injustice standard. The court did
not erroneously exercise its discretion in denying Cousin an evidentiary hearing.

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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