State v. Etter L. Hughes, 2021AP1834-CR, District 1, 11/1/22 (not recommended for publication); case activity (including briefs)

The court of appeals rejects Hughes’s claim that she should be allowed to withdraw her pleas to four counts of child abuse on the grounds that the state improperly amended the information to add more charges against her because there was no independent factual basis for those charges and because two of the counts were multiplicitous under § 948.03(5)(c).

Hughes and another woman, Martinez, were charged as party to the crimes of child  neglect resulting in death and child neglect resulting in great bodily harm. Martinez was also charged with repeated acts of child abuse resulting in bodily harm, and Hughes was charged with failing to act to prevent that bodily harm. After they were bound over and an information was filed, further investigation of the case led the prosecutor to add two new charges of repeated acts of physical abuse of a child and to amend the charge of child neglect resulting in death to first degree reckless homicide. Hughes thereafter agreed to enter a plea to the charges in the original complaint and information. (¶¶3-19).

Hughes first argues the original complaint didn’t contain sufficient facts to support the new and amended charges in the amended information. (She waived a preliminary hearing, so the complaint establishes the basis for factual sufficiency. (¶26).) The court of appeals disagrees:

¶27     A charge is properly brought in the information if it is “related to the same events set out in the complaint regardless of the level of the charge.” [State v. Michels, 141 Wis. 2d 81,] 89[, 414 N.W.2d 311 (Ct. App. 1987)]. Charges are considered “transactionally related” if they “ar[i]se from a common nucleus of facts,” or, put another way, if they are “related in terms of parties involved, witnesses involved, geographical proximity, time, physical evidence, motive and intent[.]” State v. Williams, 198 Wis. 2d 516, 535, 544 N.W.2d 406 (1996) (citation omitted).

¶28     In the amended information, the State changed the charge against Hughes with regard to T.W. from child neglect resulting in death, as a party to a crime, to first-degree reckless homicide, as a party to a crime. It also added two counts of repeated physical abuse of a child—one for each child—as a party to a crime. The facts set forth in the complaint attributed T.W.’s death to the numerous injuries he had sustained from physical abuse, as well as from being severely malnourished. While the facts in the complaint primarily point to Martinez as the abuser, it also contained Gonzalez’s statement that he had witnessed Hughes striking the children. Gonzalez further stated that he had seen the children tied up at one point, and that Martinez had told him that Hughes did it. Based on these allegations, we conclude that the charges in the amended information were transactionally related to those in the complaint. See id.

Hughes next argues that the two counts of repeated physical abuse were multiplicitous because § 948.03(5)(c) prohibits charging a defendant with repeated acts of abuse and with failure to prevent abuse if the charges cover the same time frame, and the state concedes that is correct. The issue, then, is whether the improper addition of those charges affected her decision to plead because she believed she was facing more prison time due to the charges, as Hughes argues, citing State v. Dillard, 2014 WI 123, 358 Wis.2d 543, 859 N.W.2d 44, and State v. Douglas, 2018 WI App 12, 380 Wis. 2d 159, 908 N.W.2d 466. Again, the court of appeals disagrees:

¶39     We are not persuaded that the conceded error here … affected Hughes’ ability to reasonably evaluate the benefit of the plea offer presented by the State. In comparing the penalties for the charges, we note that for the original charges set forth in the complaint, Hughes was facing 49.5 years of imprisonment. …. If the lesser charges of failure to prevent abuse had been dropped due to the multiplicity issue, the charges in the amended information would have allowed for a maximum prison exposure of 102.5 years. …. The inclusion of the multiplicitous charges added an additional twelve years, raising the purported maximum exposure to 114.5 years. …. This twelve-year difference in the maximum sentence presented to Hughes is significantly dissimilar from the forty-to-sixty year differential in Douglas, 380 Wis. 2d 159, ¶¶11-12, and the disparity between a mandatory life sentence and a fifty year maximum sentence in Dillard, 358 Wis. 2d 543, ¶6.

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¶41     As a result, we do not find the circumstances here to be similar to those in Douglas and Dillard, where this court and our supreme court found the misinformation at issue in each case to be errors of law so pervasive that they affected those defendants’ abilities to “evaluate the benefit of the offered bargain.” See Douglas, 380 Wis. 2d 159, ¶17; Dillard, 358 Wis. 2d 543, ¶¶78-79. In other words, we do not deem this to be “‘a serious flaw in the fundamental integrity of the plea.’” [State v.] Johnson, [2012 WI App 21,] 339 Wis. 2d 421, ¶12[, 811 N.W.2d 441] (citations omitted). Therefore, based on the undisputed facts in the record relevant to this issue, we conclude that Hughes has not met her burden of demonstrating that the withdrawal of her pleas is necessary to correct a manifest injustice. ….

In the alternative, Hughes argued her trial attorney was ineffective for failing to object to the addition of multiplicitous charges, but for the same reason that error doesn’t create a manifest injustice, it wasn’t prejudicial for trial counsel to have missed the issue. (¶¶20, 42-44).