June 13, 2023 – A criminal defendant is not entitled to withdraw his plea solely because multiple penalty enhancers were improperly applied to the charges against him, the Wisconsin Court of Appeals District I has ruled in State v. Hailes, 2021AP1339 (May 9, 2023).

Three Apartments

In September 2015, the Milwaukee County District Attorney charged Tracy Hailes with nine counts related to a narcotics operation that Hailes ran in Milwaukee.

The charges came after the police executed search warrants at three apartments: one located at 520 N. 29th St. and two located in an apartment building on North 30th Street—apartments 102 and 208.

The nine charges filed against Hailes involved evidence seized from the two apartments in the building on North 30th Street.

Each of the charges included a penalty enhancer for a repeat offender under Wis. Stat. section 939.62(1), and seven of the charges carried a penalty enhancer for a second or subsequent offense under section 961.48(1).

Motion to Suppress Denied

Hailes moved to suppress the evidence seized from the apartments on North 30th Street, claiming that: 1) the affidavit filed in support of the search warrant established probable cause only as to the apartment on North 29th Street; and 2) there was no nexus between the activity at the apartment on North 29th Street and the activity at North 30th Street.

The Milwaukee County Circuit Court denied Hailes’ motion. Hailes then pled guilty to five of the nine charges:

• two counts of possession of a firearm by a felon, as a repeater;

• one count of possession with intent to deliver heroin, as a repeater and as a second or subsequent offense; and

• two counts of possession with intent to deliver cocaine, as a repeater and as a second or subsequent offense.

The circuit court sentenced Hailes to 23 years of imprisonment: 14 years of initial confinement and nine years of extended supervision.

Post-conviction Relief Denied

Hailes filed for post-conviction relief. He argued that he was entitled to withdraw his plea because under section 973.01(2)(c), either the repeater enhancer or the second/subsequent offender could apply to the charges against him, but not both.

The circuit court denied the motions. Hailes appealed.

Motion to Suppress Properly Denied

Writing for a three-judge panel, Judge Timothy Dugan concluded that the circuit court did not err by denying Hailes’ motion to suppress.

Dugan reasoned that it was reasonable to infer that evidence of drug-related activity would be found at the apartments on North 30th Street. He pointed to the following facts listed by police officer who filed the search warrant affidavits:

• he has recovered drugs, drug paraphernalia, guns and ammo in hidden compartments inside the residences of drug dealers;

• a confidential information told him that Hailes kept the drugs in shoebox atop a refrigerator at the North 29th Street apartment;

• Hailes, who was on probation and subject to monitoring, stayed at an apartment located on North 30th Street during monitoring hours;

• the informant had seen Hailes driving two vehicles known to be owned by Hailes at both the North 29th Street and North 30th Street apartments;

• the informant and Hailes’ probation officer saw extension cords running from apartment 307 at the building on North 30th Street into apartment 208 in that building; and

• in his experience, drug dealers on probation often maintain more than one residence to avoid detection.

“As clearly set forth in the affidavits to search the apartments at 30th Street, Hailes’ probation agent observed what he believed to be suspicious activity at the two apartments, including the presence of lookouts monitoring the premises … while there may be innocent explanations for some of these activities, as Hailes acknowledges, ‘[t]he test is not whether the inference drawn is the only reasonable inference,’ but rather ‘whether the inference drawn is a reasonable one,’” Dugan wrote.

Additionally, Judge Dugan reasoned that the apartments at North 30th Street were clearly linked to the apartment at North 29th Street.

The Importance of ‘Or’

Dugan agreed that under section 937.01(2)(c), either the repeat penalty enhancer under section 939.62(1) or the subsequent offender enhancer under section 961.48 could apply to Hailes’ charges but not both, because the relevant subsection specifies “Section 939.62(1) or 961.48.”

Under Wisconsin Supreme Court case law, Judge Dugan wrote, the use of different words joined by “or” broadens the coverage of the statute “‘to reach distinct, although potentially overlapping sets.’”

The state argued that in State v. Maxey, 264 Wis. 2d 878,  663 N.W.2d 811 (Wis. Ct. App. 2003), the court of appeals had ruled that sections 939.62(1) and 961.48 could apply to the same charges.

But Dugan concluded that that case must be distinguished because it was handed down before the legislature enacted section 937.01(2)(c).

No Manifest Injustice

Regardless of whether it was illegal to apply both the penalty enhancers to Hailes’ charges, Judge Dugan concluded that Hailes was not entitled to withdraw his plea on that basis, because Hailes had failed to show by clear and convincing evidence that holding him to the plea deal would work a manifest injustice.

Hailes argued that the illegal application of both penalty enhancers to the charges against him rendered his plea uninformed and less than voluntary.

But Dugan explained that a defendant is not entitled to withdraw his or her plea merely because he or she was given misinformation about the law.

Judge Dugan pointed out that the cases cited by Hailes in support of his argument either: 1) involved errors of law that pervaded the plea bargaining; or 2) involved defendants who agreed to the plea bargain specifically because of the misinformation about the law.

That wasn’t the case with Hailes, Dugan reasoned.

“Rather, the record here demonstrates that Hailes was induced to enter a plea as a result of the circuit court’s denial of his motion to suppress and the strength of the state’s case, instead of induced by an ‘affirmative misinformation’ provided to him about the penalty enhancers,” Judge Dugan wrote.