State v. Randall A. Hungerford

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 10, 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 Nos. 2017AP1791-CR Cir. Ct. Nos. 2011CF673
2012CF518
2017AP1792-CR 2012CF587
2017AP1793-CR

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RANDALL A. HUNGERFORD,

DEFENDANT-APPELLANT.

APPEALS from judgments of the circuit court for Outagamie
County: JOHN A. DES JARDINS, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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).
Nos. 2017AP1791-CR
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¶1 PER CURIAM. In these consolidated appeals, Randall Hungerford
claims his attorney’s deficient performance prevented him from moving to
withdraw his pleas prior to sentencing. He seeks to return this case to a
presentence status so that he may file a motion for plea withdrawal under the “fair
and just reason” standard. In the alternative, he argues plea withdrawal is
necessary to correct a manifest injustice. We conclude Hungerford’s postplea
expressions of confusion regarding the charges to which he had pled do not, under
the circumstances here, support either a claim for ineffective assistance of counsel
or a claim for postsentence plea withdrawal under a manifest injustice standard.
Accordingly, we affirm.

BACKGROUND

¶2 These appeals involve three consolidated cases. In Outagamie
County Circuit Court case No. 2011CF673, Hungerford was charged with five
counts, all as a repeater: (1) forgery; (2) identity theft; (3) uttering a forgery;
(4) felony bail jumping; and (5) credit fraud. In Outagamie County Circuit Court
case No. 2012CF518, Hungerford was charged with two counts of felony bail
jumping and one count of misdemeanor theft. In Outagamie County Circuit Court
case No. 2012CF587, the State charged Hungerford with concealing stolen
property as party to a crime and three counts of felony bail jumping.

¶3 Hungerford reached a global plea deal resolving those cases and a
fourth criminal case, Outagamie County Circuit Court case No. 2009CF995.
Pursuant to the agreement, Hungerford would plead to one of the charges in case
No. 2011CF673 other than the bail jumping charge, without the repeater enhancer.
He also would plead to two counts of felony bail jumping, one each from case
Nos. 2012CF518 and 2012CF587, as well as to a receiving stolen property charge

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in case No. 2012CF587.1 The State agreed to dismiss the forgery charge in case
No. 2011CF673 and one of the bail jumping charges in case No. 2012CF587 with
prejudice. The remaining charges, including all those in case No. 2009CF995,
were to be dismissed and read in.

¶4 The four cases were consolidated and transferred to Branch VII of
the Outagamie County Circuit Court. Shortly thereafter, the circuit court
conducted a plea hearing. At the hearing, Hungerford’s defense counsel, attorney
Michael Petersen, represented to the court that he had completed a plea
questionnaire and waiver of rights form with Hungerford and that the
questionnaire had attached the offer letter from the State that set forth the parties’
agreement.2 Hungerford, through Petersen, waived reading of each of the charges
and pled no contest to one count of credit fraud, two counts of bail jumping, and
one count of receiving stolen property. Before Hungerford did so, the court
discussed the maximum penalties for each of the offenses.

¶5 The circuit court then conducted a sworn plea colloquy with
Hungerford. Hungerford stated he had answered and signed the plea colloquy

1
Under WIS. STAT. § 943.34(1) (2017-18), a person can be guilty of receiving stolen
property either by receiving or concealing stolen property. Although the offense was charged as
concealing stolen property, the parties referred to it up until the date of the plea hearing as a
charge for receiving stolen property. The matter was corrected at the plea hearing when defense
counsel pointed out that the initial charge was for concealing stolen property.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
The State’s offer letter is not attached to the plea questionnaire in the appellate record.
During postconviction proceedings, Petersen testified the letter was entered “on top” of the plea
questionnaire, not as an attachment. The jury instructions containing the elements for each of the
crimes to which Hungerford pled are attached to the plea questionnaire.

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form and understood everything on the form. The court discussed with
Hungerford the constitutional rights he was giving up by entering pleas, including
his rights to a unanimous jury, to confront witnesses against him, and to present
his own evidence. The court then recited the elements of each of the offenses to
which Hungerford was pleading. Hungerford stated he understood each of those
elements, as well as the charges themselves. The court then found Hungerford had
entered his pleas freely, voluntarily and intelligently with a full understanding of
his constitutional rights and the elements of the offenses.

¶6 Pursuant to the plea agreement, both parties requested a presentence
investigation report (PSI) and were free to argue at sentencing. The sentencing
hearing was scheduled for February 15, 2013. On February 4, 2013, the agent
assigned to complete the PSI notified the circuit court that during his conversation
with Hungerford on January 25, 2013, Hungerford appeared to be confused
regarding his convictions. According to the letter, Hungerford was to speak with
attorney Petersen, who would then file a memorandum advising the court of the
situation and request additional time to complete the PSI. The agent noted no
memorandum had been filed as of the date of his letter, and the court set a new
date for the sentencing hearing.

¶7 At the inception of the sentencing hearing, Petersen requested an
adjournment for several reasons. First, he stated Hungerford “seems to have some
confusion regarding what the nature of the plea agreement was as well as what the
charges were that he was pleading to.” Petersen stated the confusion issue had
been brought to his attention that morning. Petersen additionally noted that
Hungerford had a reconfinement hearing scheduled soon at the Dodge
Correctional Institution, and he would need additional time to discuss that

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proceeding with Hungerford. Petersen also had not had an opportunity to review
the PSI with Hungerford before the morning of the hearing due to Petersen’s
schedule as well as Hungerford’s custody in Dodge County, which Petersen stated
made visitation extremely difficult. The court adjourned the sentencing hearing
for approximately three weeks.

¶8 The adjourned sentencing hearing was held on March 21, 2013. No
mention was made of Hungerford’s previously documented confusion regarding
the charges or his pleas. The State recommended consecutive sentences totaling
eleven and one-half years’ initial confinement and ten and one-half years’
extended supervision. Petersen stated Hungerford had wanted to take some of the
charges to trial, but “because of the procedures and the fact of the additional bail
jumpings that kept piling up on my client,” Hungerford felt the best course was to
“ultimately enter pleas to many cases and resolve all the files.” The defense
recommended a probationary sentence. Emphasizing the deceptive nature of
Hungerford’s crimes and the need to protect the public, the circuit court sentenced
Hungerford to consecutive sentences totaling eight years’ initial confinement and
six years’ extended supervision.

¶9 Hungerford, represented by new counsel, filed a motion to vacate his
sentence. Hungerford’s new attorney subsequently withdrew, and Hungerford
filed a pro se motion seeking an order requiring Dodge Correctional Institution to
release recordings of Hungerford’s phone conversations with Petersen while he
was in custody. The circuit court signed the order and, with the help of another
attorney, Hungerford filed an amended postconviction motion seeking plea
withdrawal in addition to resentencing. As relevant here, he argued that his pleas
were not knowing, intelligent and voluntary; that they were the result of Petersen’s

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misstatements regarding the charges to which Hungerford would plead guilty; and
that they resulted in a manifest injustice.

¶10 The circuit court held a Machner hearing at which attorney Petersen
testified.3 Petersen explained that Hungerford’s case was a “complex matter that
had several working parts to it,” and as new charges were filed against
Hungerford, Petersen discussed with him the possibility of a plea deal. According
to Petersen, the negotiations with the State in this case were “more extensive” than
in other cases because of the large number of charges and because one of the cases
almost proceeded to trial. During the negotiations, Petersen was continually in
contact with Hungerford regarding the State’s various offers and his
counterproposals. After engaging with the State in negotiations, he and
Hungerford discussed the State’s final offer “a handful of times,” and they
completed the plea questionnaire and waiver of rights form on the morning of the
plea hearing. Petersen testified he had no doubts as to Hungerford’s
understanding of the plea agreement on the morning of the plea hearing.

¶11 According to Petersen, he and Hungerford had two phone
conversations prior to sentencing in March 2013. Transcripts of the phone calls
are included in the appellate record. In the first phone call, which occurred on
March 12th, Petersen told Hungerford his call was unexpected and that he did not
have Hungerford’s file in front of him. They referred to a letter that Hungerford
had sent the week prior, apparently concerning the plea agreement.4 During that
3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
4
Petersen testified that the letter discussed two issues, one of them being the “nature of
the plea agreement.” Petersen could not recall anything more specific about the letter’s contents
on that issue, however.

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call, Petersen told Hungerford he had requested a transcript of the plea hearing in
an effort to “clear up any issue regarding what the nature of the plea agreement
was regarding those other charges … and the fact that those are all to be dismissed
with the exception of a bail jumping.” After some additional conversation,
Hungerford said, “Okay. So you’re saying that the receiving stolen, and the bail
jumping, and the [credit fraud] one is going to be dismissed and all I’m going to
get is a bail jumping.” Petersen responded, “Correct, yes …. Just the bail
jumping from the retail theft.” They then discussed the possible sentence on that
charge, as well as their sentencing strategy, before Hungerford again asked, “And
then all we’re going to do is worry about the bail jumping, right?” Petersen again
responded, “Correct.” Hungerford asked the same question, and Petersen gave the
same response, during the second phone conversation, which happened on
March 18, 2013.

¶12 At the Machner hearing, Petersen was asked to explain his
statements during the two phone calls. Petersen testified that he had made a
mistake during the first phone call because he did not have Hungerford’s file with
him at the time, and that the second call was primarily about other issues.
Petersen stated he “got the notion” about the single bail jumping charge from
Hungerford’s letter, and he then requested a transcript of the plea hearing to clarify
the issue.

¶13 Regardless, Petersen stated he did not believe at the time of the
phone conferences that Hungerford genuinely misunderstood the charges to which
he had pled. Petersen testified Hungerford had “misled” him on several occasions
during the representation, including by denying involvement in crimes that he
could clearly be seen on video committing. Petersen stated that, from that point

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forward, Hungerford’s “credibility with me was damaged as to what exactly was
true or not.”

¶14 Petersen was also asked about his statement at the adjourned
sentencing hearing that he had learned of Hungerford’s claimed confusion on the
morning of the hearing. Petersen testified that he believed, based on the PSI
author’s letter, that any such confusion was “potentially a stall tactic on the part of
Mr. Hungerford and an effort to not accept responsibility for his offenses.” It was
not until Petersen spoke with Hungerford in person to review the PSI that
Hungerford “expressed significant confusion” regarding the offenses to which he
had pled. Petersen testified that he was “not going to make an excuse” for his
mistaken statements in the phone calls regarding the charges for which
Hungerford was to be sentenced.

¶15 Petersen also testified that prior to the sentencing hearing on
March 21, 2013, he met with Hungerford in person and they discussed
Hungerford’s apparent confusion regarding the pleas. Petersen explained to
Hungerford that the offenses for which he was to be sentenced were the ones to
which he had entered pleas. Petersen testified “[e]ither Mr. Hungerford
legitimately didn’t understand the plea, or, second, … he was essentially trying to
change the course of what his case was about. So at that point it was decided to
proceed to sentencing.” Petersen never considered filing a presentence motion to
withdraw Hungerford’s pleas because he took “every statement of Randy’s with a
grain of salt.”

¶16 At a subsequent decision hearing on Hungerford’s postconviction
motion, Hungerford expressed his desire to fire his postconviction counsel.
Hungerford directly addressed the circuit court regarding issues surrounding his

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representation and the legal challenges to his convictions, but he did not testify
and did not directly argue plea withdrawal was required on the basis that he did
not understand the nature of the charges at the time he pled no contest.5
Hungerford’s postconviction counsel, who was permitted to make arguments,
conceded there was no direct evidence that Hungerford misunderstood the nature
of the plea agreement at the time of the plea hearing. He instead argued that
Hungerford’s postplea expressions of confusion and Petersen’s misstatements to
Hungerford during their phone calls both indicated that Hungerford did not
understand his pleas at the time they were entered, constituting a manifest
injustice. Counsel also asserted Petersen performed ineffectively by not seeking
plea withdrawal prior to sentencing, at which point a more permissive legal
standard would have applied to the motion.

¶17 The circuit court, addressing Hungerford directly, concluded “you
knew precisely what you were doing when you entered your pleas here.” The
court remarked that the transcript of the plea hearing was “the best evidence as to
what you understood at the time.” The court did not find the phone calls
compelling because Hungerford had made “cold call[s]” and had been told that
Petersen did not have Hungerford’s file in front of him. The court determined the
plea agreement had been “carefully explained” in open court and, therefore, there
was no deficient performance or prejudice arising from Petersen’s representation.
The court also denied Hungerford’s motion to have his postconviction attorney

5
Instead, Hungerford raised a litany of issues regarding alleged ineffectiveness on the
part of his various attorneys and regarding the PSI, which he claimed never to have seen.

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removed, finding it was a “continuing tactic that has been used by you in this
courtroom to frustrate the administration of justice.”6 Hungerford now appeals.

DISCUSSION

I. Ineffective Assistance of Counsel

¶18 Hungerford first argues Petersen was constitutionally ineffective
when he failed to seek or discuss with Hungerford plea withdrawal prior to
sentencing. Hungerford charges that he had a “viable claim” to withdraw his pleas
based upon his expressions of confusion after the plea hearing. He also asserts
Petersen was “deficient when he made a unilateral decision to proceed with
sentencing without moving to withdraw Hungerford’s pleas or at least informing
Hungerford of his plea withdrawal options.”

¶19 Under Strickland v. Washington, 466 U.S. 668 (1984), to prevail on
an ineffective assistance of counsel claim, a defendant must show both that
counsel performed deficiently and that the deficient performance caused prejudice.
Id. at 687. Our review of counsel’s performance is highly deferential. State v.
Jenkins, 2014 WI 59, ¶36, 355 Wis. 2d 180, 848 N.W.2d 786. The defendant
must show that the attorney’s representation fell below an objective standard of

6
The circuit court later granted a motion for resentencing based upon inaccurate
information regarding the nature of other sentences Hungerford was or would be serving at the
time of the original sentencing hearing. Those issues are not before this court.

Hungerford also brought another postconviction motion alleging the same bases for plea
withdrawal but asserting that Petersen “could not have been telling the truth” at the Machner
hearing based upon Outagamie County jail visitation logs. The court denied the motion,
concluding “Hungerford’s new evidence does not address Hungerford’s failure to state his
confusion when asked to enter pleas to more than one count of bail jumping.”

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reasonableness under all the circumstances. Id. “This requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
We will attempt to reconstruct the circumstances under which defense counsel
made his or her decisions when evaluating the reasonableness of his or her
conduct. Jenkins, 355 Wis. 2d 180, ¶36.

¶20 A defendant proves prejudice by demonstrating there is a reasonable
probability that, but for counsel’s unprofessional conduct, the result of the
proceeding would have been different. Id., ¶37. A “reasonable probability” is a
probability sufficient to undermine our confidence in the outcome. Id. “It is not
enough for the defendant to show that the errors had some conceivable effect on
the outcome of the proceeding.” Strickland, 466 U.S. at 693. To obtain plea
withdrawal based on ineffective assistance of counsel, the defendant must show
that there is a reasonable probability that the defendant would not have pleaded
guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985). After sentencing, the defendant bears the burden of proving both prongs
by clear and convincing evidence, State v. Dillard, 2014 WI 123, ¶¶83-84, 358
Wis. 2d 543, 859 N.W.2d 44, and the claim will be denied if he or she fails to
prove either prong, State v. Morales-Pedrosa, 2016 WI App 38, ¶15, 369 Wis. 2d
75, 879 N.W.2d 772.

¶21 Whether a circuit court properly granted or denied relief on an
ineffective assistance of counsel claim presents a mixed question of fact and law.
Jenkins, 355 Wis. 2d 180, ¶38. We review a circuit court’s findings of historical
fact—including its findings of the circumstances of the case and defense counsel’s
conduct—using the “clearly erroneous” standard. Id. However, whether

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counsel’s conduct constitutes ineffective assistance is a question of law, which we
review de novo. Id.

¶22 Hungerford’s ineffective assistance of counsel claim vis-à-vis plea
withdrawal does not allege Petersen’s representation was deficient at any point
prior to or at the plea hearing. Rather, Hungerford’s arguments rest upon the
different standards applicable to a motion for plea withdrawal made before
sentencing as opposed to motions made after sentencing. Before sentencing, a
defendant is freely allowed to withdraw his or her plea for any fair and just reason,
unless the prosecution would be substantially prejudiced. State v. Lopez, 2014 WI
11, ¶61, 353 Wis. 2d 1, 843 N.W.2d 390. The burden initially rests with the
defendant to demonstrate by a preponderance of the evidence a “fair and just
reason” warranting plea withdrawal, and upon such a showing the burden shifts to
the State to prove substantial prejudice. Id. When a motion for plea withdrawal is
brought after sentencing, the defendant carries the heavy burden of establishing,
by clear and convincing evidence, that plea withdrawal is necessary to correct a
manifest injustice. State v. Daley, 2006 WI App 81, ¶14, 292 Wis. 2d 517, 716
N.W.2d 146. “[T]he ‘fair and just reason’ standard for plea withdrawal is a more
lenient standard than ‘manifest injustice.’” Id., ¶19.

¶23 The remedy for a defendant who is deprived of the effective
assistance of counsel should be tailored to the injury suffered as a result of the
constitutional violation. Lafler v. Cooper, 566 U.S. 156, 170 (2012).
Consequently, Hungerford clarifies that he is not seeking plea withdrawal as a
remedy—at least, not directly. Instead, he asserts “the proper remedy is to restore
the case to a post-plea, pre-sentencing posture, so Hungerford can bring a pre-
sentence motion for plea withdrawal.”

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¶24 To demonstrate prejudice arising from Petersen’s failure to raise the
issue of presentence plea withdrawal, Hungerford must demonstrate that he could
have presented a fair and just reason that would have permitted the circuit court to
grant such a motion. The “fair and just reason” standard lacks scientific exactness.
State v. Jenkins, 2007 WI 96, ¶31, 303 Wis. 2d 157, 736 N.W.2d 24.
Accordingly, whether a defendant’s reason adequately explains his or her change
of heart is a matter left to the circuit court’s discretion. Id. “The reason must be
something other than the desire to have a trial, or belated misgivings about the
plea.” Id., ¶32 (citations omitted). Conversely, a defendant’s “genuine
misunderstanding of the consequences of a plea is a fair and just reason to
withdraw his [or her] plea,” but “whether such a misunderstanding actually exists
is a question of fact, and the circuit court’s determination depends heavily on
whether the court finds the defendant’s testimony or other evidence credible and
persuasive.” Id., ¶34.

¶25 Notably, Hungerford has never testified that his pleas, at the time
they were entered, failed to comply with the constitutional dictates that they be
made knowingly, intelligently and voluntarily. In his reply brief, in fact,
Hungerford states he “does not dispute he knowingly entered pleas to four charges
at the plea hearing.” And while it is true that a fair and just reason to withdraw a
plea before sentencing does not depend upon either a deficient plea colloquy or a
constitutionally invalid plea, the circuit court nonetheless must make a
determination of whether the proffered fair and just reason outweighs the efficient
administration of justice. Id., ¶63.

¶26 Ultimately, Hungerford’s only proffered “fair and just reason” for
plea withdrawal is that he expressed confusion about his pleas after the plea

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hearing. Setting aside the credibility issue for a moment, if his pleas were made
knowingly, intelligently and voluntarily—as Hungerford concedes they were—
such postplea expressions of uncertainty merely amount to a change of heart,
which cannot form the basis for presentence plea withdrawal. See Jenkins, 303
Wis. 2d 157, ¶31. Hungerford presents no basis upon which a circuit court could
reasonably conclude that his newfound desire for a trial on some of the charges
warranted plea withdrawal. He thus fails to show he was prejudiced by his trial
counsel’s claimed deficient performance.

¶27 The additional problem Hungerford faces is the considerable
testimony by Petersen, subsequently accepted by the circuit court, that Hungerford
was engaging in tactics designed to “frustrate the administration of justice.” The
court implicitly found that Hungerford’s expressions of confusion to the PSI
author and to Petersen were intended to manufacture an issue that would delay the
resolution of his cases. Again, Hungerford did not testify at the Machner hearing
regarding his understanding of the charges or how that understanding was formed,
and his letter to Petersen mentioned during their telephone conversations was not
made part of the appellate record. Given that Hungerford expressed uncertainty
regarding the nature of his convictions to the PSI author in early February 2013,
his “confusion” regarding his pleas must have occurred at some point prior to that
time, and prior to the phone conversations with Petersen in March. Yet,
Hungerford has presented nothing to explain how he came to believe, contrary to
his statements at the plea hearing, that he would only be sentenced for a single bail
jumping charge. Given the court’s findings of fact, we cannot conclude on this
record that the circuit court would have found credible or persuasive Hungerford’s
claimed confusion. See Jenkins, 303 Wis. 2d 157, ¶34. As a result, Hungerford
fails to show he was prejudiced by his counsel’s failure to move for plea

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withdrawal prior to sentencing. Further, an attorney is not deficient for declining
to file a motion that would have failed. State v. Wheat, 2002 WI App 153, ¶23,
256 Wis. 2d 270, 647 N.W.2d 441.

¶28 Given the foregoing, we conclude Hungerford has not demonstrated
that Petersen was constitutionally ineffective or that he suffered prejudice as a
result of Petersen’s conduct. Accordingly, we reject his request to return this case
to a presentence status.

II. Manifest Injustice

¶29 After sentencing, a defendant may obtain plea withdrawal upon
showing that it is necessary to correct a manifest injustice. State v. Cain, 2012 WI
68, ¶¶24-25, 342 Wis. 2d 1, 816 N.W.2d 177. This showing, in turn, requires the
defendant to establish a “serious flaw in the fundamental integrity of the plea.”
Id., ¶25 (citation omitted). A manifest injustice occurs, for example, when the
defendant has received constitutionally ineffective representation related to the
plea, the plea was involuntary, or the defendant did not personally ratify the plea.
Id., ¶26. Additionally, instances of affirmative misinformation about the law by
the prosecutor and defense counsel can support plea withdrawal. State v. Dillard,
358 Wis. 2d 543, ¶39.

¶30 Hungerford contends the “undisputed evidence shows [he] did not
understand he would be convicted and sentenced on four felonies when he entered
his pleas.” This claim does not square with his concession in his reply brief that
his pleas were knowing, intelligent and voluntary. Hungerford raises no issue
regarding the adequacy of the plea colloquy or the constitutional validity of his
pleas at the time they were entered. Instead, he again focuses on his postplea

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expressions of confusion, asserting that he “expressed his disagreement at the first
opportunity.”

¶31 Contrary to Hungerford’s argument, the “first opportunity” to
express disagreement with the nature of the plea agreement and the charges to
which he would be pleading was, in fact, the plea hearing. Absent a challenge to
the plea colloquy, to his attorney’s effectiveness at the time of the plea hearing, or
to the knowing, intelligent and voluntary nature of his pleas, we conclude
Hungerford has not demonstrated a manifest injustice.

By the Court.—Judgments affirmed.

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

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