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Virsnieks v. Smith

April 2, 2008

ALBERT M. VIRSNIEKS, PETITIONER-APPELLANT,
v.
JUDY P. SMITH, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 03 C 670-Aaron E. Goodstein, Magistrate Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED NOVEMBER 2, 2007

Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE, Circuit Judges.

Albert M. Virsnieks pleaded nolo contendere to one count of burglary with intent to commit a felony, in violation of section 943.10(1)(a) of the Wisconsin Statutes, in exchange for the dismissal of one count of second-degree sexual assault, see Wis. Stat. § 940.225(2)(a). A Wisconsin trial court sentenced Mr. Virsnieks to the statutory maximum of 10 years' imprisonment and also ordered him to register under Wisconsin's sexual offender statute. See id. § 973.048(1m). After exhausting his state remedies and while serving his sentence of imprisonment, Mr. Virsnieks filed in the district court a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied his petition. Mr. Virsnieks timely filed a notice of appeal and obtained a certificate of appealability.

For the reasons set forth in this opinion, we affirm the judgment of the district court.

I. BACKGROUND

A.

On February 19, 1999, Mr. Virsnieks entered the home of Joanne M. Buechel, with whom he previously had been involved romantically. After Buechel discovered Mr. Virsnieks in her home, an argument ensued; he allegedly engaged in forcible sexual intercourse with her. The criminal complaint filed against Mr. Virsnieks alleged both burglary and second-degree sexual assault. The burglary count stated that Mr. Virsnieks had entered Buechel's home with intent to commit a felony, but it did not identify explicitly the felony as second-degree sexual assault. After a preliminary hearing, the Wisconsin trial court determined that probable cause existed to prosecute Mr. Virsnieks for both charges. The State then filed an information charging burglary and second-degree sexual assault; the information did not state explicitly that the burglary charge was predicated on the sexual assault.

Mr. Virsnieks and the State subsequently reached a plea agreement. In exchange for a no contest plea on the burglary charge, the State agreed to drop the second-degree sexual assault charge. The plea agreement provided that "[n]o promises have been made regarding sentencing recommendations to be made in this case. Both sides are free to argue as to the sentence. Both parties agree that a pre-sentence investigation should be ordered." R.8, Ex. I.

The Wisconsin trial court held a plea hearing. The court explained the burglary charge to which Mr. Virsnieks had agreed to plead guilty: "What the State would have to prove at a trial is that you intentionally entered a dwelling, that the dwelling belonged to someone else, that you did not have the person's consent to enter into that residence, that you were aware that you did not have permission to enter into that residence, and that you intended to commit a felony when you entered into that residence." R.8, Ex. Q at 7-8. Mr. Virsnieks indicated to the court that he understood the elements of burglary and that he had discussed the case with counsel. During the plea colloquy, the trial court did not make explicit that the predicate felony for the burglary charge was sexual assault. The parties agreed to use the criminal complaint and Buechel's preliminary hearing testimony as the factual basis for Mr. Virsnieks' plea. The sexual assault featured prominently in Buechel's preliminary hearing testimony.

Prior to the sentencing hearing, Mr. Virsnieks submitted to acourt-ordered psychosexual evaluation that concluded that he was sexually assaultive. Mr. Virsnieks also obtained an expert, Dr. Michael Nelson, to conduct a psychological evaluation. Dr. Nelson opined that, in terms of dangerousness and risk of recidivism, Mr. Virsnieks was at the mean of the incarcerated population and just outside the range for sexual predators. The pre-sentence report ("PSR") contained numerous references to Mr. Virsnieks' sexual assault of Buechel during the burglary, and it recommended that the court order him to register as a sexual offender.

At the sentencing hearing, Mr. Virsnieks presented the testimony of Dr. Nelson. After both parties had examined the expert, the trial court posed several questions. The trial court asked: "You do understand, that as far as the instant offense here, the burglary is connected, and there was a sexual assault charge connected with it, and the nature of this charge is burglary with intent to commit a felony, i.e., a sexual assault; correct?" R.8, Ex. R at 25-26. In addition, the trial court noted: "[T]he charge he pled to was burglary with intent to commit a felony, which was a rape, a sexual assault. I think that is my understanding. Counsel, correct me if I am wrong." Id. There is no indication in the record that Mr. Virsnieks or his attorney objected to the trial judge's understanding of the case. In his statement to the trial court, Mr. Virsnieks apologized for entering Buechel's home, but he did not address the sexual assault allegations.

In light of the alleged sexual assault on Buechel during the burglary, the PSR recommended, and the State urged, that the trial court exercise its discretion under Wisconsin law*fn1 to order Mr. Virsnieks to register as a sex offender.*fn2

Both Mr. Virsnieks and his counsel stated that they had read the PSR. The Wisconsin trial court gave Mr. Virsnieks' counsel an opportunity to address any factual inaccuracies in the PSR; counsel declined. After hearing the testimony and both parties' arguments, the court sentenced Mr. Virsnieks to 10 years' imprisonment and ordered him to register as a sex offender.

B.

After sentencing, Mr. Virsnieks, with the assistance of his appellate counsel, filed a post-conviction motion in the trial court.*fn3 He submitted that, under Wisconsin law, his plea was not knowing or voluntary because he had not understood that the sexual assault was the felony underlying the burglary charge and thus had not realized that he could be ordered to register as a sex offender. Mr. Virsnieks claimed that his trial counsel had told him that the predicate felony was "use of the facilities."*fn4 Notably, during this hearing, his new counsel explicitly stated that Mr. Virsnieks' claim was not based on ineffective assistance of trial counsel.

After listening to Mr. Virsnieks' testimony and the arguments presented by both parties, the trial court denied the motion for post-conviction relief. It found Mr. Virsnieks' testimony "incredible." R.8, Ex. S at 24. In the court's view, the fact that Mr. Virsnieks underwent a court-ordered psychosexual evaluation prior to sentencing should have raised a "red flag" about the significance of the sexual assault. Id., Ex. S at 22. The court determined that Mr. Virsnieks' plea had been knowing based on the information contained in the complaint and the PSR, which both Mr. Virsnieks and his trial counsel had stated that they had read. The court also noted that Mr. Virsnieks had failed to object during the sentencing hearing at which the sexual assault was mentioned repeatedly and that he had declined the opportunity to refute the facts corresponding to the underlying sexual assault, despite having agreed that the criminal complaint and Buechel's preliminary hearing testimony would be used as the factual basis for the plea.

After the trial court's denial of the post-conviction motion, Mr. Virsnieks, with the assistance of counsel, appealed to the Court of Appeals of Wisconsin. He raised two arguments; both centered on his claim of ignorance that the predicate felony for the burglary charge was sexual assault. None of his arguments were based on federal law, and he did not claim ineffective assistance of trial counsel. The court of appeals affirmed the conviction on state law grounds. The Supreme Court of Wisconsin later denied Mr. Virsnieks' petition, which also raised only state law arguments.

Having exhausted his direct appeals, Mr. Virsnieks turned to his state habeas remedies. He filed a pro se motion for post-conviction relief and raised the following claims: (1) his plea was not knowing and voluntary because he was not apprised that the predicate felony was sexual assault; (2) the factual basis for his plea was insufficient because the sexual assault count had been dismissed; (3) based on the factual predicate for his guilty plea, the trial court could not impose the sentence that he received; (4) the State violated its plea agreement and the trial court erred by receiving arguments based on the dismissed sexual assault count; (5) his trial counsel was ineffective because he did not object to the prosecutor's or the victim's statements at sentencing about the sexual assault, because he did not inform Mr. Virsnieks of the predicate felony and because he did not allow Mr. Virsnieks to speak on his own behalf; (6) his appellate counsel was ineffective for not raising the ineffectiveness of trial counsel. The state trial court denied the motion; it explained that these issues already had been addressed adequately in Mr. Virsnieks' previous post-conviction motions and appeals.

Mr. Virsnieks then raised the same issues in an appeal to the Court of Appeals of Wisconsin. The appellate court determined that all of the issues, except for the ineffective assistance of trial and appellate counsel claims, were procedurally barred. As to the ineffective assistance of trial counsel claim, the court determined that, on direct appeal, Mr. Virsnieks, through his own testimony and through his appellate counsel's representations to the court, explicitly had disclaimed that his trial counsel was ineffective. The appellate court also rejected his ineffective assistance of appellate counsel claim because it was premised on an argument that the court already had rejected-namely, that he had not been apprised of the underlying felony. The Supreme Court of Wisconsin denied Mr. Virsnieks' petition for review, which raised the same arguments.

Mr. Virsnieks subsequently filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. Mr. Virsnieks raised three arguments: (1) that his plea was not voluntary and intelligent because he had not known that the sexual assault was the predicate felony; (2) that his trial counsel was ineffective for having failed to inform him that the State was relying on the sexual assault as the predicate felony; and ...


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