State v. Peralta
State v. Peralta
Opinion of the Court
¶ 1. Eliseo Peralta appeals the judgment convicting him of conspiracy to deliver cocaine and the order denying his postconviction motions. Peralta argues that the trial court erred in entering the judgment of conviction and denying his postconviction motions because the complaint—which formed the basis for Peralta's guilty plea and conviction—did not allege facts sufficient to constitute conspiracy. Specifically, Peralta argues that the complaint failed to allege an "overt act" committed in furtherance of the conspiracy. Because the complaint does allege an overt act—namely, Peralta's communication to an undercover police detective that a large quantity of cocaine was ready for immediate delivery—we disagree with Peralta's contentions and affirm.
Facts Constituting the Complaint
¶ 2. The facts constituting the basis for the plea derive solely from the complaint, which the parties stipulated to during the plea hearing. According to the complaint, the alleged conspiracy took place in January 2008.
¶ 3. On January 3, 2008, an undercover police detective met with Peralta near the 700 block of West Lapham Boulevard, in Milwaukee. They discussed the sale of three kilograms of cocaine. Peralta was to facilitate the sale from an unknown source. The detective and Peralta exchanged phone numbers and agreed to make contact in the future. Peralta indicated that his supplier was having more cocaine brought to Milwaukee and that he was going to contact the undercover detective when the three kilograms were received.
¶ 4. On January 4, 2008, the undercover detective and Peralta made contact again. Peralta told the detective that his supplier only wanted to give him one kilogram of cocaine, as this was going to be the first time Peralta was dealing with him.
¶ 5. On January 9, 2008, the detective and Peralta spoke again. The detective said that he wanted to know the price and quality of the cocaine. Peralta indicated that he could get the cocaine and bring it to the detective. Peralta and the detective also discussed a purchase price of $23,000.
¶ 6. On January 10, 2008, Peralta told the detective that his supplier was ready if he wanted the cocaine immediately. The detective said that he was not ready, but that he would be ready on the following Tuesday (January 15, 2008). Peralta told the detective that the cocaine was good quality, and consequently, he wanted $24,000 for it now.
¶ 8. On January 16, 2008, Peralta agreed to meet the detective at a restaurant on South 27th Street and West Morgan in Milwaukee. At the meeting, the detective and Peralta discussed the purchase of the cocaine, the change in price of the cocaine, and made general small talk about the cocaine supplier. Peralta was then arrested and taken into custody.
Procedural History
¶ 9. Peralta was charged with one count of conspiracy to deliver more than 40 grams of cocaine, contrary to Wis. Stat. §§ 961.16(2)(b)l., 961.41(1)(cm)4., and 961.41(1x) (2009-10).
¶ 10. Peralta then filed a postconviction motion to withdraw his guilty plea and vacate the judgment of conviction on grounds that there was an insufficient factual basis for the trial court to find him guilty of conspiracy because the complaint did not allege any overt act that went beyond mere planning and agreement. He also argued that he did not know about the "overt act" element prior to pleading guilty.
¶ 11. The trial court partially denied Peralta's postconviction motion regarding the issue of whether there had been an "overt act," but granted an evidentiary hearing to be held to confirm whether Peralta had in fact been aware of the "overt act" element.
¶ 13. Peralta then filed a notice of appeal for case No. 2010AP563-CR. By an order dated April 29, 2010, this court determined that the notice of appeal gave the court jurisdiction over the appeal from the judgment of conviction, but not the postconviction decision regarding whether Peralta was aware of the "overt act" element because that order had not been issued in writing. See State v. Peralta, No. 2010AP563-CR, unpublished slip op. (WI App Apr. 29, 2010).
¶ 14. Consequently, the trial court entered a written order denying Peralta's postconviction motion in full. On May 25, 2010, Peralta filed a second notice of appeal for the trial court's order. This court docketed the appeal as case No. 2010AP1334-CR. See State v. Peralta, Nos. 2010AP563-CR, 2010AP1334-CR, unpublished slip op. at 1-2 (WI App June 8, 2010).
¶ 15. On June 8, 2010, this court issued an order consolidating the appeals in 2010AP563-CR and 2010AP1334-CR. See id. This consolidated appeal is from the judgment of conviction, as well as the denial of Peralta's postconviction motions to withdraw his guilty plea.
II. Analysis.
¶ 16. We begin with the standard of review. Although the State argues that this court can overturn the trial court's ruling regarding the factual basis for
¶ 17. We turn next to Peralta's argument on appeal. Peralta brings only one issue before us: whether the complaint sufficiently alleges facts showing an act undertaken in furtherance of the alleged conspiracy that went beyond mere planning and agreement. See State v. Routon, 2007 WI App 178, ¶ 18, 304 Wis. 2d 480, 736 N.W.2d 530; see also Wis JI—Criminal 570 (2009). Specifically, Peralta argues that the complaint does not allege that he took any step to acquire or distribute the cocaine beyond discussing quality and price. According to Peralta, the complaint simply recounts a negotiation still in progress, as it shows that he
¶ 18. "A conspiracy is an agreement between two or more persons to accomplish a criminal objective." State v. Blalock, 150 Wis. 2d 688, 704, 442 N.W.2d 514 (Ct. App. 1989). Wisconsin Stat. § 939.31 sets forth the elements of the crime of conspiracy applicable under Wis. Stat. § 961.41(1x). See Routon, 304 Wis. 2d 480, ¶ 18.
¶ 20. As a preliminary matter, we note that the overt act element in conspiracy should not be confused with the "substantial step" element required to convict a defendant of attempt. "To convict a person of attempt, the State must prove that he or she did 'acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he or she formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.'" State v. Moffett, 2000 WI App 67, ¶ 13, 233 Wis. 2d 628, 608 N.W.2d 733 (Moffett I), aff'd, 2000 WI 130, 239 Wis. 2d 629, 619 N.W.2d 918 (Moffett II) (brackets omitted). Conspiracy, on the other hand, does not require any such act. Id. It attaches at an earlier stage, requiring only an act to effect the object of the conspiracy. Id. "[T]here is no requirement that that act must demonstrate unequivocally that the defendant formed an intent and would have committed the crime but for an extraneous intervening factor." Id. "The crime is complete when there is an agreement and an initial overt act in furtherance of the agreement." Id.
¶ 22. Because " 'the essence of a conspiracy is the agreement to commit a crime,'" we agree that" '[i]f an overt act is committed in furtherance of the conspiracy, then regardless of the act's importance to the overall
¶ 23. Turning to the instant case, we hold that Peralta's act of communicating to the detective that the cocaine was available for immediate delivery on January 10 was an act "beyond mere planning and agreement," which "was a step toward accomplishing the criminal objective" of delivering a large quantity of cocaine. See Wis JI—Criminal 570. Contrary to what Peralta argues, his telling the detective that the cocaine was "ready" is, in our view, not part of the formation of the agreement itself; it is a step beyond the planning stage which shows an illegal project at work. See id.
¶ 24. Moreover, contrary to what Peralta argues, Peralta's communication that the cocaine was ready for immediate delivery gives rise to an inference that Peralta had already contacted a supplier regarding the drug deal, which would have been an overt act in and of itself. Indeed, as Peralta acknowledges:
a factual basis for a plea exists if an inculpatory inference can be drawn from the complaint or facts admitted to by the defendant even though it may conflict with an exculpatory inference elsewhere in the record and the defendant later maintains that the exculpatory inference is the correct one.
State v. Black, 2001 WI 31, ¶ 16, 242 Wis. 2d 126, 624 N.W.2d 363 (emphasis added). While Peralta argues that such an inference is not possible from the facts, we disagree. Peralta's statement that the cocaine was ready for delivery very strongly suggests that he performed some kind of act in order to procure the cocaine's
By the Court.—Judgment and order affirmed.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
The parties came before us for oral argument on February 16, 2011.
The cross-references in the two statutes pertain to the different penalties that flow from a conspiracy conviction under Wis. Stat. § 961.41(1x) and under Wis. Stat. § 939.31, but the substantive definition of conspiracy is found in § 939.31.
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent v. Eliseo Peralta
- Cited By
- 12 cases
- Status
- Published