State v. Jose Luis Zuniga

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 25, 2025
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. 2024AP1533-CR Cir. Ct. No. 2020CF392

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSE LUIS ZUNIGA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: KARL HANSON, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Taylor, 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).

¶1 PER CURIAM. Jose Zuniga appeals a judgment of conviction and
an order denying his postconviction motion to withdraw his guilty plea. Zuniga
No. 2024AP1533-CR

argues that his plea was not knowing, intelligent, and voluntary because the circuit
court did not inform him during the plea colloquy of the presumptive minimum
sentence for one of the charges to which he pled guilty—which was to be imposed
unless the court found a compelling reason not to do so and placed that reason on
the record—and because Zuniga was not aware of the presumptive minimum
when he entered his plea. The court denied Zuniga’s motion based on its
determination that the State proved by clear and convincing evidence that Zuniga
was in fact aware of the presumptive minimum when he entered his plea. Because
we conclude that Zuniga fails to show that this factual finding was clearly
erroneous, we affirm.

¶2 The criminal complaint alleged that Zuniga, after using drugs and
drinking alcohol on May 15, 2020, drove a Cadillac Escalade at approximately
80 miles per hour on a city street. Zuniga fled from police who tried to conduct a
traffic stop, then collided with a smaller vehicle, pinning it to a building. One of
the three people in the smaller vehicle died as a result of the crash, and the other
two suffered significant injuries. The State charged Zuniga with offenses that
included, as pertinent here, homicide by intoxicated use of a vehicle.

¶3 Zuniga reached a plea agreement with the State. Pursuant to the
agreement, Zuniga pled guilty to charges that included homicide by intoxicated
use of a vehicle, and the prosecution dismissed and read in for sentencing purposes
the various other charges. The parties further agreed that each side could
recommend any sentence, so long as the State’s recommendation did not exceed
ten years of initial confinement and ten years of extended supervision. At the plea
hearing in April 2021, the circuit court asked Zuniga whether he had read the
criminal complaint, and Zuniga responded that he had. The court said that Zuniga
“could face … 25 years of incarceration” if convicted, but it did not explicitly

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mention during the plea hearing the presumptive minimum penalty that follows a
conviction for homicide by intoxicated use of a vehicle.1 The court sentenced
Zuniga to fifteen years of initial confinement followed by ten years of extended
supervision.

¶4 Zuniga filed a postconviction motion seeking to withdraw his guilty
plea. He alleged that neither his trial counsel in advance of the plea hearing, nor
the circuit court at the time of the plea hearing, had informed him of the five-year
presumptive minimum penalty for homicide by intoxicated use of a vehicle and
that at the time of the plea he was “entirely clueless about any such presumptive
minimum.” Zuniga further asserted that he “would not have entered into the plea
agreement with the State had he understood the presumptive minimum existed.”

¶5 The circuit court conducted a hearing on Zuniga’s motion at which
both trial counsel and Zuniga testified.

¶6 Trial counsel testified that, “at some point” before the plea hearing,
counsel “mentioned the mandatory minimum” to Zuniga, although counsel did not
“have any independent recollection of a date, time, [or] location of that actually
occurring.” Trial counsel also testified that, in advance of the plea, he provided a

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WISCONSIN STAT. § 940.09(1c)(a) (2023-24) provides that a person convicted of
homicide by intoxicated use of a vehicle “shall” be sentenced to a term of confinement in prison
of “at least 5 years except that a court may impose a term of confinement that is less than 5 years
if the court finds a compelling reason and places its reason on the record.” This is more
appropriately characterized as a “presumptive minimum” than a “mandatory minimum,” although
the parties used the terms interchangeably at the hearing on Zuniga’s postconviction motion.

All references to the Wisconsin Statutes are to the 2023-24 version.

The criminal complaint, information, and amended information in this case all accurately
quoted the statutory language regarding the presumptive minimum.

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No. 2024AP1533-CR

copy of the criminal complaint, information, and amended information to Zuniga,
each of which stated that a person convicted of homicide by intoxicated use of a
vehicle “shall” be sentenced to a “term of confinement in prison … [of] at least 5
years,” absent a compelling reason found by the sentencing court and placed on
the record. In addition, trial counsel agreed that at an August 2020 status
conference conducted by videoconference in advance of the plea hearing, the
circuit court advised Zuniga of the “mandatory minimum” associated with a
conviction for homicide by intoxicated use of a vehicle. Trial counsel recalled that
the court displayed the amended information on the shared screen during that
conference, scrolling through the document while reviewing it.

¶7 In his testimony, Zuniga denied that trial counsel ever gave him
copies of any documents or told him that he was facing at least the presumptive
minimum initial confinement period. Zuniga acknowledged that he was present
for his May 2020 initial appearance, approximately eleven months before his plea
hearing, but testified that he did not remember the circuit court telling him that, if
convicted, he would receive a sentence of “at least five years.” Zuniga also
acknowledged that the criminal complaint included information about the
presumptive minimum penalty. He initially testified that he did not see the
complaint until after he entered his plea. On further questioning, however, he
confirmed that he had responded “Yes, sir” to the court’s question at the plea
hearing about whether he had read the criminal complaint. Zuniga then testified,
“If it was in the report, then I [read] it.” On redirect, Zuniga testified that he “must
have missed” the information about the presumptive minimum.

¶8 The circuit court denied Zuniga’s motion in an oral ruling. The
court found that trial counsel credibly testified that he had provided Zuniga with
the criminal complaint, information, and amended information in advance of the

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No. 2024AP1533-CR

plea hearing, each of which accurately reflected the presumptive minimum, and
that trial counsel had reviewed the maximum and minimum penalties of the
charges with Zuniga. In contrast, the court did not find credible Zuniga’s
testimony that he “somehow overlooked or missed” the information regarding the
presumptive minimum penalty, noting the inconsistency in Zuniga’s testimony
about whether he had read the criminal complaint before entering his plea. In
addition to this testimony, the court relied on the transcripts of Zuniga’s May 2020
initial hearing and August 2020 status conference, which reflect that the court
orally informed Zuniga of the presumptive minimum on both occasions. Zuniga
appeals.

¶9 In order to satisfy due process, a guilty plea must be entered
knowingly, voluntarily, and intelligently. State v. Bangert, 131 Wis. 2d 246, 257,
389 N.W.2d 12 (1986). Among the duties of the circuit court in ensuring that a
plea is knowing and intelligent is to confirm during the plea hearing that a
defendant understands if he is subject to a presumptive minimum sentence. State
v. Mohr, 201 Wis. 2d 693, 700, 549 N.W.2d 497 (Ct. App. 1996). If a defendant
meets the burden of showing that the circuit court did not do so at the plea hearing,
we must determine whether the State has nevertheless shown through clear and
convincing evidence that “in spite of the error, [the defendant] nonetheless knew
enough about the presumptive minimum prison sentence to support a conclusion
that [he] knowingly entered the plea.” Id. at 697, 701.

¶10 “[T]he issue of whether a plea was knowingly and intelligently
entered presents a question of constitutional fact.” State v. Bollig, 2000 WI 6,
¶13, 232 Wis. 2d 561, 605 N.W.2d 199. We review independently the question of
whether the plea satisfies the constitutional standard, but we will not disturb the
circuit court’s factual findings unless they are clearly erroneous. Id. The circuit

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No. 2024AP1533-CR

court’s decision on a plea withdrawal motion is discretionary; it will be sustained
unless the court erroneously exercised its discretion, and we are to look for
evidence in the record to support its ruling. Mohr, 201 Wis. 2d at 701-02.

¶11 Here, the State acknowledges, as it must, that the circuit court did
not confirm Zuniga’s knowledge of the presumptive minimum penalty for
homicide by intoxicated use of a vehicle at the plea hearing. The State argues,
however, that it met its burden to show that Zuniga’s plea was knowingly and
intelligently entered because it showed by clear and convincing evidence that
Zuniga was aware of the five-year presumptive minimum. We conclude that the
State met its burden.

¶12 First, the circuit court credited Zuniga’s trial counsel testimony that
he discussed the presumptive minimum with Zuniga and that he provided Zuniga
with the criminal complaint, information, and amended information, all of which
included the presumptive minimum. While counsel’s testimony lacked some
detail about the time and manner of these communications, the circuit court
expressly found that trial counsel was “clear and candid” about what he
remembered and that the court “would have been surprised if he did remember all
of the details” given the “scope of his practice … and the passage of time.” In the
court’s view, the fact that trial counsel “didn’t try to embellish here [or] make
something up” regarding the details of his communication and delivery of the
relevant documents made counsel all the more credible that he discussed the
presumptive minimum with Zuniga and gave Zuniga all three documents. We
generally do not question the credibility determinations of the circuit court, which,
unlike this court, has the opportunity to observe the demeanor of witnesses and to
gauge the persuasiveness of all of the evidence in light of a witness’s testimony.
Jacobson v. American Tool Cos., Inc., 222 Wis. 2d 384, 390, 588 N.W.2d 67 (Ct.

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App. 1998); see also State v. Echols, 175 Wis. 2d 653, 671, 499 N.W.2d 631
(1993) (this court will not substitute its judgment for that of the circuit court “as to
the credibility of disputed testimony in relation to historical or evidentiary facts”).

¶13 Further support for the circuit court’s determination is found in the
transcript of Zuniga’s May 2020 initial appearance, which reflects that the circuit
court informed Zuniga that “[t]he term of confinement in prison portion of the
bifurcated sentence shall be at least five years.” Likewise, the transcript of the
August 2020 status conference reflects that the court said that the “confinement
period should not be less than five years, unless the Court finds a compelling
reason on the record,” and that the court also displayed the amended information
describing this presumptive minimum at that hearing.

¶14 Beyond all that, the circuit court explained that it did not find
Zuniga’s testimony persuasive given the evidence to the contrary, including “that
on two separate dates court officials went over that information with [him],” trial
counsel “testified that he went over that information with [him],” and the
information was given to him in “three court documents, the complaint, the
information, and the amended information that were provided to [him].”

¶15 In sum, the record supports the circuit court’s factual finding that
Zuniga was aware of the presumptive minimum sentence he was facing before he
entered his plea. Therefore, the court’s factual finding is not clearly erroneous,
supporting the court’s decision to deny Zuniga’s postconviction motion.

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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