GUILTY PLEAS Updated 6/25/08

Trial Court Discretion to Reject

Procedure: Read-Ins "Remote" Appearance Required Knowledge Collateral & Direct Consequences Deportation Elements Plea Bargain Read-Ins Factual Basis Relationship to Understanding Elements (also go here) Alford Plea Use of Complaint Disputed Facts not Reviewable Defendant's Assent Unnecessary Particular Instances: Battery Particular Instances: Competing Inferences Particular Instances: Kidnapping Intent to Enter Plea Interpreter

Plea Agreements Plea Bargain Breach Deferred Acceptance/Prosecution Prosecutorial Vindictiveness Partial Withdrawal Judicial Participation Validity

Issues and Rights Waived by Plea

Plea Withdrawal Sua Sponte Plea Withdrawal by Court Post-Sentencing Deferred Prosecution Agreement, Following Revocation of Grounds Coercion Exculpatory Evidence Foreign-Language Defendant Newly Discovered Evidence: NGI Pleading Requirements Procedure (see also "Required Knowledge") Pre-sentencing "Fair and Just Reason" Coercion by Counsel Misunderstanding Potential Sentencing Consequence Desire to Avoid Prison Ignorance of Sex Offender Registration-Commitment / Prejudice to State Applicable Test when Original sentence Vacated "Substantial Prejudice" to State Newly Discovered Evidence: Recantation of Witness Potential Alibi Witness PSI Bias Trial Court Anticipates Not Following Plea Bargain

Appeals Harmless Error

Trial Court Discretion to Reject

"Alford" Plea -- Challenge to Trial Court's Refusal to Accept

State v. William F. Williams, 2000 WI App 123, 237 Wis.2d 591, 614 N.W.2d 11

For Williams: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the trial court erroneously refused to accept an "Alford" plea under its express policy of never accepting one.

Holding: ¶8  Even if we were to determine that the trial court erred in rejecting the tendered Alford plea, the error would not justify setting aside the results of Williams's jury trial. This is because any error stemming from a trial court's refusal to accept an Alford plea, like error in binding over a defendant following a preliminary hearing, is cured when a defendant receives a fair and error-free trial. See State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (1991). ... ¶12  (A) defendant's opportunity to obtain the benefit of a plea bargain can be adequately protected by requiring a defendant who believes his tendered plea has been improperly rejected to seek leave for an interlocutory appeal.

Go To Brief Isn't this result at least arguably inconsistent with State v. Ludwig, 124 Wis.2d 600, 369 N.W.2d 722, 725-728 (1985) and State v. Fritz, 212 Wis.2d 284, 569 N.W.2d 48 (Ct. App. 1997)? -- i.e., counsel's deficiency in failing to convey to or properly advise a defendant with respect to a plea offer isn't rendered non-prejudicial by a resultant fair trial. Also see U.S. v. Rea-Beltran, 7th Cir No. 04-2305, 8/10/06: The Government’s other harmless error argument is equally meritless. By contending that Mr. Rea-Beltran suffered no prejudice because he received a fair trial, the Government ignores the fact that Mr. Rea-Beltran is not complaining that his trial was unfair. Rather, his complaint is that he should not have received a trial at all and instead been permitted to plead guilty. Having incurred an additional conviction because his plea attempts were frustrated, the verdict resulting from the jury trial cannot stand, regardless of how fairly the proceedings were conducted. Note that, notwithstanding trial court authority to reject a guilty plea, "Nevertheless, a court cannot arbitrarily reject a plea, and must articulate on the record a “sound reason” for the rejection," U.S. v. Hernandez-Rivas, 7th Cir No. 06-2647, 1/23/08. On the related problem of whether a judge can a reject a plea bargain because of disagreement with the prosecutorial decision to dismiss charge(s), see In re United States of America ("Shabazz"), 345 F. 3d 450 (7th Cir. 2003) ("The government wants to dismiss the civil rights count with prejudice, and that is what Bitsky wants as well. The district judge simply disagrees with the Justice Department’s exercise of prosecutorial discretion. ... The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person."); see also discussion by Professor Frank Turkheimer, 77 Wis. Lawyer No. 2, Feb. 2004. Contrary Wisconsin authority, State v. Kenyon, 85 Wis.2d 36, 45, 270 N.W.2d 160 (1978), might be worth revisiting in light of Shabazz. Some support for this separation-of-powers argument may be found in Ellis v. U.S. District Court, 9th Cir. 01-70724, 2/4/04, though it isn't on point (trial court "intruded into the charging decision" when it sua sponte vacated plea to lesser offense and reinstated chrage on greater offense -- "The decision to dismiss an indictment implicates concerns that the Executive is uniquely suited to evaluate, and a district court should be reluctant to deny its request. ... By requiring the reinstatement of the first degree murder charge, the district court overstepped its judicial bounds"). And though the following quote is from an otherwise inapposite case, the court's comments do strike a chord: Judges often are tempted to seek a larger role in the conduct of litigants that appear frequently before them. See also, e.g., In re United States, 345 F.3d 450 (7th Cir. 2003). Temptation may be especially strong for a judge who spent many years as a prosecutor before donning the robe. (Judge Holderman served for six years as an Assistant United States Attorney in the Northern District of Illinois.) But temptation must be resisted in order to maintain separation between executive and judicial roles, and between the formulation and evaluation of positions in litigation. In the rare situations when a prima facie case of criminal contempt has been made out, and the contempt is not committed in the judge’s presence (and thus amenable to summary disposition), the judge must turn the matter over to a prosecutor rather than assume an inquisitorial role inappropriate to the Judicial Branch. In the Matter of United States of America, 7th Cir No 05-1114, 2/15/05.

Procedure

"Read-Ins"

Procedure – Read-In -- Defendant’s Awareness of Implications re: Admission

State v. David G. Straszkowski, 2008 WI 65, affirming summary order

For Straszkowski Philip J. Brehm

Issue: Whether, for a guilty plea to be “knowing and intelligent,” the defendant must be aware that a read-in is deemed an admission for sentencing purposes.

Holding: ¶3   We conclude that the record clearly demonstrates that neither the State, nor trial defense counsel, nor the circuit court referred to the read-in charges as admitted or deemed admitted for sentencing purposes or for any other purpose.  Nowhere in the plea questionnaire, in the transcript of the plea hearing, or in the transcript of the sentencing hearing did the State, trial defense counsel, or the circuit court refer to the read-in charges as admitted or deemed admitted.  Rather, the circuit court explicitly advised the defendant at sentencing (and repeated this explanation at the postconviction motion hearing) that it understood that the defendant was not admitting the read-in charge and that the circuit court would consider the read-in charge for purposes of sentencing the defendant on the charge to which the defendant pled guilty.  Because the circuit court did not consider the read-in charge to be admitted for sentencing purposes, we conclude that the defendant has failed to show that his guilty plea was not entered knowingly, intelligently, and voluntarily when he asserts that he was unaware that his agreement to have a sexual assault charge read in was an admission of the read-in charge for purposes of sentencing. Though S. “limits his argument to the claim that he did not understand that the read-in charge was to be deemed admitted for sentencing purposes,” ¶27, the implications are potentially broad, as hinted at in this discussion: ¶33  The circuit court never deemed the read-in sexual assault charge to be admitted. ...  ¶34  The circuit court acknowledged that "[t]here is [sic] some denials with regard to the read-in" and that "there seems to be considerable dispute" over the charges pending in another county.  The circuit court explicitly advised the defendant at sentencing (and repeated this explanation at the postconviction hearing) that it understood that the defendant was not admitting the read-in charge.  ¶35  The circuit court treated the read-in charge properly, not as an admitted crime but as an offense that may properly be considered for sentencing purposes. ¶36  The circuit court treated the read-in charge in the same way as it treated the sexual assault charges pending against the defendant in another county and did not give the read-in charge more weight than it gave the pending charges in the other county.  It is well established that "[a] sentencing court may consider uncharged and unproven offenses" whether or not the defendant consents to having the charge read in.[20]   ¶37  The circuit court's consideration of the read-in charge when sentencing the defendant did not flow only from the parties' agreement to read in the sexual assault charge for sentencing purposes.  The circuit court treated the read-in in the same manner as it treated other pending charges or unproven offenses. In other words, a judge may assign sentencing weight to a read-in without an underlying admission. In some given case, to be sure, the factual support for the read-in might be so thin that, without an express admission of guilt, the “offense” can’t reliably be taken into sentencing account. But that is a matter of sentencing due process, and is almost certain to occur rarely if ever. In this particular instance, the read-ins related to dismissed charges -- and, as the court plainly held, the sentencing judge could simply weigh them against the defendant precisely because they had been formally charged. What would be the outcome be, though, if they had been deemed admitted? The court doesn’t say, nor could it, given that that would require a different factual record. But it isn’t difficult to imagine the following line of thought: a sentencing “data point” need not be proven to any great extent, but need only be, for due process purposes, “minimally reliable”; there is, under this lax standard, sufficient indication of the defendant’s guilt on the read-in, independent of the (illusory) “admission”; therefore, the sentencing judge’s reliance on the admission was at worst harmless error. See ¶52 n. 31 (stressing “sentencing judge's role, which is to assess the defendant's character using all available information, unconstrained by the rules of evidence that govern the guilt-phase of a criminal proceeding”). In brief, there seem to be few if any procedural obstacles to consideration of read-ins, at least under some or another guise. That’s not necessarily a bad thing, in that the defendant does, after all, derive a distinct benefit (absolute bar on prosecution of the offense). It does, however, highlight counsel’s duty to make sure the defendant knows the sentencing implications -- a point stressed by the concurrence, ¶113 n. 72.

Procedure – Read-In -- Admission Unnecessary

State v. David G. Straszkowski, 2008 WI 65, affirming summary order

For Straszkowski Philip J. Brehm

Issue: Whether a guilty plea colloquy must include an explicit warning that the defendant's agreement to read in a dismissed charge will be deemed an admission of that charge for sentencing purposes.

Holding: ¶5   Although the case law on read-in charges is neither consistent nor clear, a proper reading of the history of Wisconsin's read-in procedure demonstrates that it is not a critical component of a read-in charge that the defendant admit guilt of the charge (or that the defendant's agreement to read in the charge be deemed an admission of guilt) for purposes of sentencing.  In sum, no admission of guilt from a defendant for sentencing purposes is required (or should be deemed) for a read-in charge to be considered for sentencing purposes and to be dismissed.  To avoid confusion, prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid (as they did in the instant case) the terminology "admit" or "deemed admitted" in referring to or explaining a defendant's agreement to read in a dismissed charge.  A circuit court should advise a defendant that it may consider read-in charges when imposing sentence but that the maximum penalty of the charged offense will not be increased; that a circuit court may require a defendant to pay restitution on any read-in charges; and that the State is prohibited from future prosecution of the read-in charge. ¶6   Although we hold that no admission of guilt from a defendant is required for a read-in offense to be dismissed and considered for sentencing purposes, this decision does not bar a circuit court from accepting a defendant's admission of guilt of a read-in charge.  This decision does not address what plea colloquy duties a circuit court might have with respect to such an admission, the issue the defendant raises.[5]  Our narrow holding is that an admission of guilt is not required by our read-in procedure and that the circuit court should avoid the terminology "admit" or "deemed admitted" in referring to or explaining a read-in charge for sentencing purposes except when a defendant does admit the read-in charge. … ¶93  Except when a defendant does in fact admit guilt of a read-in charge, stating that a defendant "admits guilt" of a read-in charge for purposes of sentencing is more likely to confuse than to guide the decisions made by a defendant or a sentencing court.  It is a better practice for prosecuting and defense counsel and circuit courts to omit any reference to a defendant admitting a read-in crime, except when the defendant does admit guilt, and simply to recognize that a defendant's agreement to read in a charge affects sentencing in the following manner: a circuit court may consider the read-in charge when imposing sentence but the maximum penalty of the charged offense will not be increased;[66] a circuit court may require a defendant to pay restitution on the read-in charges;[67] and a read-in has a preclusive effect in that the State is prohibited from future prosecution of the read-in charge.[68] ¶94  To avoid any confusion, prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid (as they did in the instant case) the terminology "admit" or "deemed admitted" in referring to or explaining a defendant's agreement to read in charges. ¶95  We withdraw language in the case law that may be read as intimating that when a charge is read in a defendant must admit or is deemed to admit the read-in charge for sentencing purposes.

Procedure – Read-In, Generally

State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265

For Lackershire: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: ¶27 n. 7:  This court explained the procedure for read-in charges in Austin v. State, 49 Wis. 2d 727, 183 N.W.2d 56 (1971). When charges are read in during sentencing, the defendant admits to having committed the underlying crimes, but does not plead guilty to the charges, and therefore is not sentenced for those charges. However, such admitted, uncharged offenses are considered in the sentencing for the offenses charged. “Thus under the read-in procedure, the defendant does not run the risk of consecutive sentences or even concurrent sentences. His only risk is a longer sentence for the crime charged but this sentence cannot exceed the maximum.” Id. at 732. Read-in charges do not constitute prior convictions and cannot be used under the state’s repeater statute, Wis. Stat. § 973.12. Id. Read-ins also serve a role in setting restitution. Robinson v. City of W. Allis, 2000 WI 126, ¶42, 239 Wis. 2d 595; 619 N.W.2d 692; State v. Szarkowitz, 157 Wis. 2d 740, 753-54, 460 N.W.2d 819 (1990).

Procedure – Read-In, Existence of

State v. Monika S. Lackershire<, 2007 WI 74, reversing 2005 WI App 265

For Lackershire: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: In order to trigger read-in procedure there must be a sufficient showing of an agreement to read in the offense at issue: ¶28      Nowhere in the transcript of the plea hearing, the transcript of the sentencing hearing, the transcript of the adjourned sentencing hearing, or the plea questionnaire do either the parties or the court refer to the dismissed charges as being read in for the purpose of sentencing. The only place in the record where the charges are characterized as read-ins is the caption reference in the PSI. Without anything in the record establishing that the State and Lackershire agreed to read-in charges, or that the circuit court treated the dismissed charges as read-ins, we cannot treat this as a read-in case. Accordingly, we determine that the court of appeals erred in concluding that the dismissed charges were read-in offenses, and whether Lackershire understood the nature of read-ins is not at issue. [8]

"Remote" Appearance

"Remote" Appearance -- Defendant's Inability to Confer with Counsel during Colloquy

Wright v. Joseph L. Van Patten, USSC No. 07-212, 1/7/08 Prior history: Joseph Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), reinstated, No. 04-1276, 6/29/07, on remand from the Supreme Court "for further consideration in light of Carey v. Musladin, 549 U. S. ___ (2006)"; on habeas review of, unpublished opinion of Wis COA

For Van Patten: Linda T. Coberly

Issue/Holding: Our precedents do not clearly hold that counsel’s participation by speaker phone should be treated as a ‘complete denial of counsel,’ on par with total absence. … Because our cases give no clear answer to the question presented, let alone one in Van Patten’s favor, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’ ” Musladin, 549 U. S.,at ___ (slip op., at 6) (quoting 28 U. S. C. §2254(d)(1)). Under the explicit terms of §2254(d)(1), therefore, relief is unauthorized. The 7th Circuit had held that counsel's appearance by speaker phone at a plea proceeding was tantamount to denial of counsel, hence was tantamount to denial of counsel altogether. ("Physical presence is necessary not only so that counsel can keep an eye on the client and the prosecutor, but so the court can keep an eye on counsel. ... Because the physical absence of counsel from a hearing where a defendant gives up his most valuable constitutional rights and admits his guilt to a serious charge is a structural defect, the district court erred in finding that the error could be analyzed under a harmless standard.") The Supreme Court reversal of this holding was not on the merits but, rather, on the procedural ground that in the absence of controlling authority by the Court on this precise issue a habeas court lacks authority to review it. Van Patten, then, and anyone else who has litigated and lost a state court appeal on this issue is simply out of luck. Future litigants, though, are something else, though plainly the thrust must now be on state litigation rather than federal review. Van Patten's state court appellate opinion held that remote appearance by counsel at a guilty plea proceeding violated § 967.08, but was harmless error. However, the decision wasn't published, and therefore isn't binding. Net outcome: the issue will have to be raised in state court (on direct appeal, most likely) and if relief is denied the remedy will be limited to certiorari to the Supreme Court. You're starting out, then, with an audience presumably receptive to condemning this process as erroneous. Perhaps in the individual case there may be some basis for assigning fact-specific harm. And, if nothing else, the purely legal question of whether counsel's "remote" appearance isn't susceptible to harmless error analysis because it is a "structural" defect will always be present. Again: the state court opinion isn't binding on this point. The argument might be a tough sell, to be sure, although the 7th Circuit opinion - reversed only on the procedural ground discussed above - can be cited for at least persuasive effect. At a minimum, given the court of appeals' apparent inclination (albeit in non-precedential form) to regard counsel's remote appearance as error, counsel might be well-advised to avoid making a "remote" appearance.

Required Knowledge -- Collateral & Direct Consequences

Required Knowledge – Maximum Punishment: Possible Consecutive Sentences

State v. James E. Brown, 2006 WI 100, reversing summary order

For Brown: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: A plea colloquy is not required to caution the defendant that punishment for each of multiple charges could be imposed consecutively, ¶78.

Required Knowledge – Potential Punishment: Kidnapping Mitigation

State v. Reinier A. Ravesteijn, 2006 WI App 250

For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding: Although kidnapping for ransom, § 940.31(2)(a), is susceptible to possible mitigation of penalty from 60 to 40 years if the victim is released without permanent physical injury, testimony from counsel at a postconviction hearing that the defendant was well aware of this possibility when he pleaded guilty dooms his claim that he was unaware of the potential penalty when he entered his guilty plea, ¶¶13-15.

Required Knowledge – Direct and Collateral Consequences – Maximum TIS Initial Confinement

State v. Wayne A. Sutton, 2006 WI App 118, PFR filed 6/18/06

For Sutton: William E. Schmaal, SPD, Madison Appellate

Issue: Whether the requirement that a court advise a guilty plea defendant of “the potential punishment” includes advising of the maximum term of initial confinement under TIS.

Holding: ¶10      Sutton asserts that when a defendant, who is subject to a bifurcated sentence under TIS, is advised of a maximum term of imprisonment without being advised of the maximum term of initial confinement, the result is coercive because the term “imprisonment” connotes confinement. … … ¶14      Perhaps most persuasively, the State points out that Sutton’s range of punishment, that is the maximum term of imprisonment, does not change regardless of whether his conduct results in more confinement. The maximum term of imprisonment is the immediate and inflexible consequence of the plea and therefore, the State argues, the only direct consequence. See, e.g., State v. Plank, 2005 WI App 109, ¶16, 282 Wis. 2d 522, 699 N.W.2d 235, review denied, 2005 WI 136, 285 Wis. 2d 630, 703 N.W.2d 379 (“The lack of parole under truth-in-sentencing does not mean [a defendant] will serve more time than the maximum penalty of which the court informed him [or her]. Thus, truth-in-sentencing does not affect his [or her] range of punishment.”). ¶15      Bangert requires the circuit court to advise the accused of the “range of punishments” associated with the crime. See Bangert, 131 Wis. 2d at 261-62. The court here personally informed Sutton of the maximum term of imprisonment under TIS, even though the maximum term of confinement was not made explicit by the court. We hold that the circuit court has met the standard articulated by our supreme court in Bangert and no additional dissection of the potential punishment is required. Clever argument. Plank says that a guilty plea defendant need not be told that that he or she will be ineligible for parole under TIS confinement time set by judge. (That result isn’t really compatible with State v. Jeremy J. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477 (under since-repealed statute, intentional homicide defendant must be informed that judge can set parole eligibility date) but it’s binding nonetheless.) Sutton attempts to avoid the thrust of Plank by arguing that quite apart from parolability the defendant must know just how much time in prison he or she faces. But as you can see, his argument fares no better than Plank’s. Of course, this doesn’t mean that better practice wouldn’t require an attorney to give such advice, from which two possible implications flow. First, if the advice is inaccurate, then the client may well be entitled to withdraw the plea, even though the misinformation relates to a collateral rather than direct consequence, State v. Charles Brown, 2004 WI App 179, ¶8; second, counsel may indeed have an obligation to impart advice even as to a collateral consequence of a plea, State v. Paredez, 2004 NMSC 36, 101 P.3d 799 (“We refuse to draw a distinction between misadvice and non-advice”; counsel thus had affirmative duty to advice of collateral consequence of deportation), though that is a decidedly minority view. Well, a third point, perhaps: the collateral consequences of conviction (from likelihood of deportation to use of the conviction as a “strike” in future cases to restitution to (now) maximum confinement time, etc., etc.) ramify in such profusion that it’s increasingly difficult to keep up, not just for counsel but any given judge. Hard to avoid the conclusion, then, that the courts want all the fun of meting out “collateral” consequences some point down the road without ever assuming responsibility for warning about that dangerous curve up yonder.

Required Knowledge – Direct and Collateral Consequences – Maximum Punishment

State v. Kenneth V. Harden, 2005 WI App 252

For Harden: Ralph Sczygelski

Issue/Holding: Misinformation with respect to the maximum punishment (defendant was told the maximum was 19 years, 6 months when the correct maximum was 16 years) necessarily renders the guilty plea invalid, without regard to whether the misinformation affected the decision to plead guilty, ¶¶5-6, effectively overruling State v. Paul Delao Quiroz, 2002 WI App 52, on this point: ¶5        In this case, the State must prove that Harden knew the correct maximum sentence despite being given erroneous information at every stage of this proceeding. The State presented no evidence that Harden knew the maximum sentences the court could impose. Instead, it persuaded the trial court that Harden was required to show that his plea decisions were affected by the misinformation. That argument was specifically rejected in State v. Bartelt, 112 Wis. 2d 467, 484, 334 N.W.2d 91 (1983). While some language in Bartelt was subsequently withdrawn in Bangert, [1] the holding that a defendant need not show that the misinformation “caused” the plea has never been withdrawn. The precedent is binding on this court. See Nommensen v. American Continental Ins. Co., 2000 WI App 230, ¶16, 239 Wis. 2d 129, 619 N.W.2d 137.

Required Knowledge -- Collateral & Direct Consequences – TIS Confinement Time, Set by Court

State v. Richard C. Plank, 2005 WI App 109

For Plank: Jamy Richard Johansen

Issue: Whether a voluntary guilty plea to a TIS offense requires knowledge of ineligibility for parole or good-time credit. Holding: ¶15      Plank contends that because Byrge holds that parole eligibility is a direct consequence, the lack of parole eligibility under truth-in-sentencing is also a direct consequence. We disagree. First, the Byrge holding was expressly limited to “the narrow circumstance in which a circuit court has statutory authority under Wis. Stat. § 973.014(2) to fix the parole eligibility date ….”  Id. Because Plank did not face life imprisonment, Wis. Stat. § 973.014(2) did not apply. ¶16      Second, in Byrge, the court’s ability to set a parole eligibility date affected the range of punishment. The court informed Byrge he faced life imprisonment. The court did not inform Byrge it had the authority to set a parole eligibility date that exceeded his lifetime. That authority changed the applicable range of Byrge’s punishment from life with parole to life without parole. Therefore, in that “discrete situation” parole eligibility was a direct consequence because it increased the maximum penalty.  Id., ¶¶67-68. The lack of parole under truth-in-sentencing does not mean Plank will serve more time than the maximum penalty of which the court informed him. Thus, truth-in-sentencing does not affect his range of punishment. First, a bit of history. In State v. Jeremy J. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, the supreme court held (as the court of appeals indicates) that under the (old) life-means-life homicide statute, the circuit court’s authority to set a parole-eligibility date was a direct consequence of a guilty plea; the defendant’s knowledge of this authority was therefore required for a valid guilty plea. (Is there really any need to rehearse the ground-rules? A guilty plea defendant is entitled to know anything that has a direct and automatic effect on the range of punishment, but not of those matters that are contingent in nature.) The question is whether Byrge applies to a judge’s TIS authority to determine the amount of confinement. We’re more than 5 years into the TIS regime, and if you thought that ample time to address this problem you’d be right—though you’d never know it from this opinion. In point of fact, the court of appeals initially ruled that TIS authority to set confinement time was a direct consequence, in State v. Douglas K. Uhde, 02-3135-CR, Dist. IV, 1/29/04. That decision is unfortunately not available on the court or State Bar Web sites, having been withdrawn on 2/23/04; but it hasn’t quite disappeared down the memory hole—you can access it commercially via Lexis, cite: 2004Wisc. App. LEXIS 76. The point isn’t that the court was “right” then, and is therefore “wrong” now. Rather, it is that this initial grant of relief, shows, if nothing else, that the issue is just a bit weightier than a dismissive 2-¶ fillip would suggest. In any event, this is what the court said initially, in Uhde: ¶13. We cannot meaningfully distinguish Byrge from the sentencing process provided by Wis. Stat. § 973.01. Truth in Sentencing imposes a maximum or fixed penalty and requires the trial court to exercise discretion in allocating the sentence between the confinement and supervision terms in a bifurcated sentence. This exercise of discretion is indistinguishable from Byrge because in both cases the trial court fixed the defendant's release from confinement. Thus, Truth in Sentencing, like a parole eligibility determination, has "a definite, immediate, and largely automatic effect on the range" of punishment. Id., ¶60. “Initial grant of relief,” because as noted the opinion was withdrawn, only to be certified on 3/25/04 to the supreme court, which after granting review and entertaining argument vacated and remanded the grant, in light of a State confession of error on a separate point; and eventually, the court of appeals granted relief to Uhde, albeit not on the samizdat-Uhde issue. That opinion is publicly accessible, http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=5918. The certification (nowhere to be found on any non-commercial electronic site) expressed the issue in the following terms: “In Truth-in-Sentencing cases, must circuit courts, as part of the plea colloquy, personally inform defendants that initial confinement will not be reduced by good time or parole?” The certification went on to allow that “ Byrge seems to require that trial courts inform a defendant of the good time and parole information at issue in this case,” something that discomforted the court—but at least it recognized that the only source of relief was the supreme court. But that was then. Now, with the court’s iron broom having swept its site clean of most of Uhde’s traces, there is no need to take into account his litigation history—for if you did, you’d virtually be compelled to re-certify the issue; or at a minimum to take the argument much more seriously. It would be one thing if the court were writing on a blank slate—but it isn’t, though it might as well have: it’s turned Byrge into a palimpsest. With that admittedly tedious history in mind, let’s go back to the court of appeals’ analysis. The first of its two points is that Byrge isn’t controlling (¶15), which is both true and irrelevant: that case discusses a different statute; the question is whether the logic extends to TIS. In fairness, the court may simply be dispatching Plank’s argument (the briefs aren’t on-line, so it’s not known just what he argued), but that only means that the court’s entire analysis reduces to a single paragraph (16). And there, the court’s remarks only beg the question. Specifically: the court of appeals has Byrge saying that judicial authority to set PED had the effect of exceeding Byrge’s lifetime; and that such “authority changed the applicable range of Byrge’s punishment from life with parole to life without parole.” ¶16, citing Byrge, ¶¶67-68. The best that can be said is that this is a very sloppy reading of the case. It is true that Byrge mentions, by way of aside, that Byrge’s PED turned out to exceed his anticipated life span—but that fact was not crucial to the holding. (Nor, seemingly, under any fair reading of the passage; read it yourself and draw your own conclusion.) If the court of appeals’ construction were correct, then Byrge would be limited to instances where the judge set the PED beyond the anticipated life span. Instead, that court broadly held (¶68) without qualification that judicial authority “to fix the parole eligibility date … implicates punishment and constitutes a direct consequence of the plea.” Indeed so, which is why the court of appeals in Uhde expressed regret about the reach of the decision and certified it so the supreme court could do something about that reach. Besides, consider the implications, which Plank’s terse decision fails to do: why wouldn’t a TIS defendant facing confinement time exceeding his or her life span come within this rule? How is that situation meaningfully distinguishable? Consider, too, the court of appeals’ blithe assessment that life-without-parole “was a direct consequence because it increased the maximum penalty,” ¶16. But this is clearly not true: Byrge’s maximum penalty was static, fixed at “life,” period. What was potentially dynamic under the statute was the PED – just as confinement time is under TIS.    A defendant is entitled to know the “range of punishment.” Why isn’t, say, a Class E felony defendant entitled to know that the range of his her punishment is up to 10 years in prison with no entitlement to release followed by up to 5 years’ supervision? Indeed, our appellate courts unhesitatingly identify “the goal of TIS legislation” as being “to create certainty of confinement at the time a sentence is imposed,” State v. Dawn M. Champion, 2002 WI App 267, ¶13, cited approvingly in Trujillo, ¶26. And those courts, tellingly, have no problem invoking this goal to reject the claim that subsequent legislative reduction in the maximum penalty is a new factor justifying sentence reduction, id. If the Class E confinement maximum is reduced at some point to, say, five years, no one serving over 5 years’ confinement can invoke that development in support of sentence modification. In short, certainty of confinement is a) the goal of TIS such that b) it trumps the possibility of sentence reduction. And yet, according to Plank, that very same certainty of confinement is merely an incidental consequence of a guilty plea, is not to be mentioned in the same breath as punishment. We will have to assign, then, some meaning to Plank’s Constant, but in the world of jurisprudential physics unlike the natural world, “constant” has more to do with the desired result and less the matter observed. That is, the value is determined contextually: for, say, sentence-reduction purposes, confinement has a value of 1; for plea purposes, 0. The “constant,” then, is denial of relief.

Required Knowledge -- Collateral & Direct Consequences -- As Affected by Misstatements in Plea Bargain

State v. Charles Brown, 2004 WI App 179

For Brown: John J. Grau

Issue: Whether a plea bargain that cannot be fulfilled results in an unknowing and involuntary plea, notwithstanding that the terms incapable of fulfillment are collateral consequences of the plea (sex offender registration and SVP eligibility). Holding: ¶6 … (S)ince Brown’s misunderstanding involved the collateral consequences of his pleas,2 the State contends that Brown cannot prove that his pleas were not knowing and voluntary. ¶7 … If the court fails to disclose a direct consequence of a plea, a defendant may withdraw the plea as a matter of right. State v. Merten, 2003 WI App 171, ¶7, 266 Wis. 2d 588, 668 N.W.2d 750. However, if the court does not disclose a collateral consequence of a plea, a defendant may not withdraw his plea on the basis of that lack of information.3 Id. ¶8 The State correctly asserts that the distinction between direct and collateral consequences determines whether a defendant may withdraw a plea due to a lack of information. However, Brown seeks to withdraw his pleas not because he lacked information of the pleas’ consequences, but rather because he was misinformed of those consequences by both his attorney and the prosecutor, with acquiescence by the judge.4 Wisconsin courts have permitted defendants to withdraw pleas that were based on a misunderstanding of the consequences, even when those consequences were collateral. See, e.g., State v. Riekkoff, 112 Wis. 2d 119, 128, 332 N.W.2d 744 (1983); State v. Wood, 173 Wis. 2d 129, 140, 496 N.W.2d 144 (Ct. App. 1992). … ¶11 Not every misunderstanding of the law by a defendant negates the knowing and voluntary nature of a plea. For example, in Rodriguez, the circuit court informed the defendant that pleading guilty could result in deportation. … ¶12 … We distinguished Rodriguez’s situation from other cases where withdrawal was permitted because the defendant’s misunderstanding was the result of statements the prosecution or defense counsel made. Id. at 498-99. ¶13 Here, Brown’s misunderstanding of the consequences of his pleas undermines the knowing and voluntary nature of his pleas. Brown’s plea agreement was purposefully crafted to only include pleas to charges that would not require him to register as a sex offender or be subject to post-incarceration commitment under WIS. STAT. ch. 980. Brown entered his pleas believing he would not be subject to those collateral consequences. Brown’s belief was not the product of “his own inaccurate interpretation,” but was based on affirmative, incorrect statements on the record by Brown’s counsel and the prosecutor. The court did not correct the statements. ¶14 Under these circumstances, we conclude that Brown’s pleas, as a matter of law, were not knowingly and voluntarily entered and he must, therefore, be permitted to withdraw his pleas. On remand, the case shall resume with a new arraignment on all the original charges in the information. 2 Brown agrees that he misapprehended collateral, not direct, consequences of his plea. See State v. Bollig, 2000 WI 6, ¶27, 232 Wis. 2d 561, 605 N.W.2d 199 (registration as sex offender is collateral consequence); State v. Myers, 199 Wis. 2d 391, 394, 544 N.W.2d 609 (1996) (potential for commitment under WIS. STAT. ch. 980 is collateral consequence). 3 Similarly, defense counsel’s failure to advise a defendant of collateral consequences is not a sufficient basis for an ineffective assistance of counsel claim. State v. Santos, 136 Wis. 2d 528, 533, 401 N.W.2d 856 (Ct. App. 1987). 4 The State argues that Brown has failed to expressly make a claim or to support a claim for ineffective assistance of counsel. We conclude that the actions of Brown’s trial counsel can be considered as part of our manifest injustice analysis. The organizing principle of the case is clear enough from the quotes: misunderstanding of a collateral consequence is grounds for plea withdrawal if based on “affirmative incorrect statements.” Mere ignorance isn’t enough, as Rodriguez illustrates. ("Wisconsin case law does not support, under the circumstances of this case, a distinction between the lack of awareness of a collateral consequence and an affirmative misunderstanding about the possibility that a collateral consequence will occur.") But at the same time, Rodriguez very carefully distinguishes the defendant's "own inaccurate interpretation of experiences and information from other sources" from misinformation supplied by counsel or prosecutor. Thus, Brown should not be seen as narrowly limited to its facts (misunderstanding based on illusory agreement). Rather, it is representative of a broader category of misinformation supplied by the system, as opposed to internally generated. For example, irrespective of an illusory plea bargain, counsel’s incorrect advice as to the following collateral consequences may support plea withdrawal, on a theory of ineffective assistance: good-time credits, Moore v. Bryant, 348 F.3d 238 (7th Cir. 2003); deportation, U.S. v. Kwan, 407 F.3d 1005 (9th Cir. 2005) and People v. McDonald, 1 N.Y.3d 109, 802 N.E.2d 131 (2003); parole, McAdoo v. Elo, 365 F.3d 487 (6th Cir. 2004). Indeed, the source of misinformation may be the judge or prosecutor: People v. Goodwillie, Cal App No. D046757, 2/9/07 (misadvice by both judge and DA, in court, as to sentence credit caused defendant to reject favorable plea offer and go to trial -- thus requiring relief -- with the court stressing that such affirmative misadvice is distinguishable from simple failure to advise). Two other collateral points might be worth mentioning: even if a defendant’s mere misunderstanding of a collateral consequence can’t support post-sentencing withdrawal, it may support pre-sentencing withdrawal, Bollig, ¶ 31; and, it isn’t always easy to determine when a consequence is collateral as opposed to direct. Note, though, that there may be increasing sensitivity to the idea that even though the guilty plea court may not be required to caution the defendant about a collateral consequence, counsel is. See, e.g., State v. Paredez, 2004 NMSC 36, 101 P.3d 799 ("We refuse to draw a distinction between misadvice and non-advice"; counsel thus had affirmative duty to advise of consequence of deportation, even though court didn't have to make that part of plea colloquy). Contrast, though, such cases as Gonzalez v. State, 340 Or 452, 458, 134 P3d 955 (2006) (counsel generally not required to advise of "collateral consequences of a conviction as a matter of providing constitutionally adequate assistance").

Required Knowledge -- Collateral & Direct Consequences -- Alford plea -- probation condition requiring admission of guilt.

State ex rel. Phillip I. Warren v. Schwarz, 219 Wis.2d 615, 579 N.W.2d 698 (1998), affirming State ex rel. Warren v. Schwarz 211 Wis. 2d 708, 566 N.W.2d 173 (Ct. App. 1997). State v. Phillip I. Warren, 219 Wis.2d 615, 579 N.W.2d 698 (1998), on certification.

For Warren: Ralph A. Kalal.

Issue: "(W)hether the circuit court's failure to inform Warren at the time of his Alford plea that he would be required to admit his guilt during a sex offender treatment program rendered that plea unknowing and involuntary in violation of his right to due process." ¶31.

Holding: Because the consequence for failure to admit the offense during treatment -- revocation of probation -- was a collateral consequence of the plea, the trial court wasn't obligated to make it part of the plea colloquy. (However, court also cautions; "Because of the unique nature of Alford pleas, circuit courts accepting such pleas should take extra care to ensure that defendants understand that in order to successfully complete the treatment program, they will be required to admit guilt." ¶75.)

Note: A plea of no contest is similarly treated as a guilty plea such that a prisoner in a sex offender treatment program may be compelled to admit guilt else risk denial of parole. Sontag v. Ward, PA Comm. Ct. No. 2689C.D.2000, 4/12/01. On SOTP and 5th amendment, see discussion here.

Required Knowledge -- Collateral & Direct Consequences -- Federal Health Care Ineligibility, 42 U.S.C., § 1320a-7(a)(4) State v. Hank J. Merten, 2003 WI App 171 For Merten: Dana W. Duncan Issue/Holding: ¶8. Accordingly, the resolution of this appeal requires us to determine whether the effect of 42 U.S.C. § 1320a-7(a)(4), which excludes individuals convicted of a felony related to a controlled substance from participating in federal health care programs, is a direct or a collateral consequence of Merten's no contest plea. A direct consequence of a plea has a definite, immediate and largely automatic effect on the range of a defendant's punishment. James, 176 Wis. 2d at 238, 500 N.W.2d at 348. A collateral consequence, in contrast, does not automatically flow from the plea. Under this standard, collateral consequences have been held to include sex offender registration, Bollig, 232 Wis. 2d 561, 27; the effect of a presumptive mandatory release date, State v. Yates, 2000 WI App 224, ¶11, 239 Wis. 2d 17, 619 N.W.2d 132; permanent prohibition on possession of firearms under federal law, Kosina, 226 Wis. 2d at 488, 595 N.W.2d at 468; and probation revocation for failure to admit guilt during sex offender treatment, Warren, 219 Wis. 2d at 638, 579 N.W.2d at 709. The distinction between "direct" and "collateral" consequences of a plea is affected by whether the complained of consequence has an "effect on the range of the defendant's punishment." Warren, 219 Wis. 2d at 636, 579 N.W.2d at 708 (citation omitted) (emphasis added). And an additional factor affecting whether the consequence of a plea is collateral or direct is whether the consequence rests in the hands of another government agency or different tribunal. Kosina, 226 Wis. 2d at 486, 595 N.W.2d at 467; Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988). ¶9. Merten argues that 42 U.S.C. § 1320a-7(a)(4) takes effect at the moment the felony conviction is entered and therefore is a direct and automatic consequence of his plea. We disagree, in part because any potential effect of § 1320(a)(4) is in the hands of another tribunal. This difference is significant, as we explained in Kosina, where we held that the effect of 18 U.S.C. § 922(g)(9) (West Supp. 1999), which prohibits those convicted of a misdemeanor crime of domestic violence from possessing a firearm or ammunition, was a collateral consequence of a plea. Kosina, 226 Wis. 2d at 488, 595 N.W.2d at 468…. ¶10. 42 U.S.C. § 1320a-7(a)(4) authorizes the Secretary to exclude certain individuals and entities from participation in federal health care programs, including Medicare and Medicaid. The Secretary has delegated enforcement of the regulations implementing the exclusion statute to the Inspector General. Pennington v. Thompson, 249 F. Supp. 2d 931, 934 n.3 (W.D. Tenn. 2003). An individual that is excluded under § 1320a-7 is entitled to reasonable notice, an opportunity for a hearing by the Secretary and to judicial review of the Secretary's final decision. Section 1320a-7(f)….

Required Knowledge -- Collateral & Direct Consequences -- Maximum Penalty

State v. Paul Delao Quiroz, 2002 WI App 52

For Quiroz: Chad G. Kerkman

(NOTE: The language quoted belowwas subsequently withdrawn, in State v. Kenneth V. Harden, 2005 WI App 252; see summary above.)

Issue:Whether defendant was misadvised about the maximum possible sentence and therefore entitled to withdraw his guilty plea.

Holding: Defendant was correctly advised as to the maximum. ¶16 Furthermore, even if the maximum penalty had been overcalculated, which we have determined it was not, Quiroz fails to establish that a plea withdrawal would correct a manifest injustice. Quiroz was sentenced to twelve years in prison, less than the fourteen-year maximum correctly calculated by the court and less than the thirteen-year maximum incorrectly calculated by Quiroz. No matter which way the maximum sentence is calculated, Quiroz received less than the maximum. Furthermore, Quiroz willingly pled guilty to a crime with a fourteen-year maximum penalty; he cannot credibly argue that he would not have so pled had he been informed that the maximum was thirteen years."

Required Knowledge -- Collateral & Direct Consequences -- Presumptive Minimum Penalty

State v. Paul Delao Quiroz, 2002 WI App 52

For Quiroz: Chad G. Kerkman

Issue:Whether defendant was entitled to withdraw his plea on the basis that he was unaware of the three-year presumptive minimum sentence on the weapon enhancer.

Holding: ¶25 Both the complaint and the information contained the dangerous weapon enhancer and set forth the presumptive three-year minimum penalty. Quiroz admitted that he was familiar with both the complaint and the information and was aware that the dangerous weapon enhancer applied when he pled guilty. At sentencing, the prosecutor noted that there was a three-year presumptive minimum penalty and Quiroz agreed with the prosecutor’s recitation of the plea and penalty. Both Quiroz and his attorney requested three years’ imprisonment. We conclude that the record as a whole demonstrates that Quiroz was aware of the three-year presumptive minimum penalty, and thus Quiroz entered his plea knowingly, voluntarily and intelligently.

Required Knowledge -- Collateral & Direct Consequences -- Firearm Possession Prohibition.

State v. Frank J. Kosina, 226 Wis.2d 482, 595 N.W.2d 464 (Ct. App. 1999).

For Kosina: Daniel F. Snyder.

Holding: Guilty plea defendant need not be advised of permanent prohibition on firearms possession flowing from 18 USCA §§ 921 & 921, for conviction "of a misdemeanor crime of domestic violence" because it is a collateral consequence of the plea.

Required Knowledge -- Collateral & Direct Consequences -- Out-of-State Prison Transfer.

State v. Anthony A. Parker, 2001 WI App 111

Issue: Whether transfer to an out-of-state prison is a collateral consequence of a guilty plea.

Holding: ¶8. In addition, we agree with the State that transfer to an out-of-state prison is a collateral consequence of Parker's plea of no contest.... ¶9. We have held that collateral consequences include deportation, restitution, subsequent filing of a sexually violent person petition, habitual offender penalties and the consequences of revocation of probation. James, 176 Wis. 2d at 238-39; Myers, 199 Wis. 2d at 394-95. We now determine that transfer to an out-of-state prison facility, which might or might not occur at the discretion of the Department of Corrections, is a collateral consequence of conviction. Therefore, Parker needed no knowledge of the prison transfer law in order to make his plea knowing and voluntary.

Required Knowledge -- Collateral & Direct Consequences -- Parole Eligibility, When Set by Court

State v. Jeremy J. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, affirming as modified State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388

For Byrge: Steven P. Weiss, SPD, Madison Appellate

Issue: "(W)hether a circuit court, before accepting a plea of guilty or no contest [to a crime punishable by life imprisonment], must inform a defendant that it possesses the authority to fix the parole eligibility date."

Holding: § 971.08(1)(a) requires that the trial court inform the defendant of the "potential punishment," before taking a guilty/no contest plea. ¶58. Moreover, defendants have a due process right to notice of the "direct consequences" of their pleas. ¶60. Where the maximum punishment is life, the trial court has the discretionary authority under § 973.014 to fix the parole eligibility date, beyond the minimum that would otherwise be set by statute. Where a trial court elects to exercise this option, the PED becomes linked to the period of incarceration, and thereby directly impacts the range of punishment. ¶67. ¶68 We therefore hold that in the narrow circumstance in which a circuit court has statutory authority under Wis. Stat. § 973.014(2) to fix the parole eligibility date, the circuit court is obligated to provide the defendant with parole eligibility information before accepting a plea. Parole eligibility in this discrete situation implicates punishment and constitutes a direct consequence of the plea. (The court goes on to hold that, although the trial court failed to provide this information, evidence in the record establishes that Byrge in fact knew about this option and was therefore not entitled to withdraw his plea.) A concurrence by Justice Bradley expresses concern about both retroactive impact and implications for Truth in Sentencing procedure. ¶81.)

Go To Brief

Note: The court of appeals subsequently certified, in State v. Douglas K. Uhde, 02-3135-CR, Dist. II, 3/25/04, the following question: “In Truth-in-Sentencing cases, must circuit courts, as part of the plea colloquy, personally inform defendants that initial confinement will not be reduced by good time or parole?” The supreme court granted review, on April 20, 2004, but subseuqently (9/16/04) dismissed the grant in light of the State's concession that Uhde was for other reasons entitled to plea-withdrawal. (The court of appeals in an unpublished decision on remand indeed ordered plea-withdrawal, because Uhde didn't understand all the elements.) Application of Byrge to TIS thus remains very much unresolved. It is worth keeping in mind the settled principle that a defendant's mere misunderstanding of likelihood of parole doesn't affect validity of the plea (though wrongful advice with respect to parole may establish ineffective assistance of counsel), McAdoo v. Elo, 365 F.3d 487 (6th Cir. 2004): After an evidentiary hearing about whether McAdoo’s plea was entered knowingly, the state court found that his alleged misunderstanding did not invalidate the plea. The state court accepted as true McAdoo’s evidence (in the form of Carrico’s testimony) that he believed he would be paroled in seventeen years. This evidence, however, does not show that his plea was unknowingly entered, as the state court correctly found. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (“We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary.”); James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (“The United States Constitution does not require the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary.”).

Required Knowledge -- Collateral & Direct Consequences -- Presumptive MR

State v. Stuart D. Yates, 2000 WI App 224, 239 Wis.2d 17, 619 N.W.2d 132

For Yates: Martha K. Askins, SPD, Madison Appellate

Issue: Whether the presumptive MR date of § 302.11(1g)(am) 1997-98 is a direct or collateral consequence of a guilty plea.

Holding: A court is required to advise a defendant only of direct consequences -- which have definite, immediate, and largely automatic impact on range of punishment -- of a plea, ¶¶6-7. Because the presumptive MR statute involves contingent events (defendant's rehabilitation and discretionary parole commission determinations), it merely exposed Yates to possible, not automatic, further incarceration and is a collateral rather than direct consequence of his plea; the presumptive MR therefore didn't have to be part of the plea colloquy. ¶¶13-17.

Go To Brief

Required Knowledge -- Collateral & Direct Consequences -- Sex Offender Registration Requirement.

State v. George R. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, affirming State v. Bollig, 224 Wis.2d 621, 593 N.W.2d 67 (Ct. App. 1999).

For Bollig: Thomas E. Knothe, Collins, Quillin & Knothe, Ltd..

Issue: Whether a guilty plea colloquy involving a crime that would require sex offender registration under Wis. Stat. § 301.45 must inform the defendant of that requirement for the plea to be voluntary.

Holding: Sex offender registration is a collateral not direct consequence of a plea, and therefore need not be included in the plea colloquy.

Analysis: Bollig pleaded guilty to attempted sexual assault, an offense subjecting him to the sex offender registration requirement of § 301.45. He moved to withdraw the plea before sentencing on several grounds, including lack of knowledge of this registration requirement. The overarching principle is well-settled: a guilty plea court is constitutionally required to advise the defendant of any "direct consequence" of the plea, meaning "one that has a definite, immediate, and largely automatic effect on the range of defendant's punishment." ¶16. The question is whether the registration requirement is a direct or collateral consequence; the court answers, "collateral." Our sex offender registration is similar to New Jersey's "Megan's Law," a version of which has passed in all 50 states. The purpose is to protect the public and assist police, not punish sex offenders. ¶¶19-21. Bollig cleverly argues that the requirement is akin to shaming, but the court rebuffs this argument by construing the statutory scheme to allow only selective, not indiscriminate, release of information to the public. ¶¶23-24. The potential for vigilante acts doesn't make the scheme punitive: "Simply because registration can work a punitive effect, we are not convinced that such an effect overrides the primary and remedial goal underlying Wis. Stat. § 301.45 to protect the public." ¶26.

Required Knowledge -- Collateral & Direct Consequences -- Sexually Violent Persons Commitment

State v. Robert L. Myers, Jr., 199 Wis. 2d 391, 544 N.W.2d 609 (Ct. App. 1996)

Issue/Holding: We agree with the State that the potential for a future ch. 980, Stats., commitment was a collateral consequence of Myers' guilty plea. Trial courts may not accept a guilty plea unless they are satisfied that the plea is knowing and voluntary. State v. James, 176 Wis.2d 230, 238, 500 N.W.2d 345, 348 (Ct. App. 1993). Those entering guilty pleas must have sufficient awareness of the relevant circumstances and likely consequences that could follow. Id. Although trial courts must inform defendants of the direct consequences of their pleas, trial courts have no obligation to inform defendants of their convictions' collateral consequences. Id. Collateral consequences are those that have no definite, immediate or largely automatic effect on the range of the pleader's punishment. Id. A future ch. 980, Stats., commitment will not automatically flow from Myers' conviction for first-degree sexual assault of a child. Although such a commitment will require a prior predicate offense, Myers' offense, by itself, will nottrigger a commitment. Rather, a commitment will depend on Myers' condition at the time of the ch. 980 proceeding and the evidence that the State will then present on his condition. If the State were to initiate such commitment proceedings, Myers will have the full benefit of the ch. 980 procedures, due process, and an independent trial, including the right to offer evidence to refute the State's charges. Other courts have held that such potential future commitments will depend on future trials and evidence, not on prior guilty pleas, and therefore constitute collateral consequences of those guilty pleas, not immediate, direct consequences. See Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366-67 (4th Cir. 1973). We agree with the Cuthrell court's analysis. In sum, Myers needed no knowledge of the potential for a future chapter 980 commitment in order to make his plea knowing and voluntary. See also Steele v. Murphy, 1st Cir. No. 02-2213, 4/12/04 ("We believe that the possibility of commitment for life as a sexually dangerous person is a collateral consequence of pleading guilty"). But see, State v. Bellamy, N.J. SCt No. A-32-02, 12/11/03: This Court has also recognized that commitment pursuant to the Act, like any civil commitment proceeding, demands a balancing between an individual’s liberty interests and well-recognized state interests, including the police power to protect the community and parens patriae power to care for citizens who are unable to care for themselves. In re Commitment of W.Z., supra, 173 N.J. at 125. Thus, “because of the significant restraint on the liberty of a committee, the commitment process is bounded by constitutional procedural guarantees . . . .” Id. at 125-26 (citations omitted). We continue to stress the necessity of determining whether a consequence is direct or penal when analyzing whether a defendant must be informed of a particular consequence. However, when the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence. The failure of either the court or defense counsel to inform defendant that a possible consequence of a plea to a predicate offense under the Act is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea. R. 3:9-2. In the future, prior to accepting a plea to a predicate offense under the Act, the trial court should ensure that a defendant understands that, as a result of his or her plea, there is a possibility of future commitment and that such commitment may be for an indefinite period, up to and including lifetime commitment. Note, however, that ignorance of SVP commitment is a basis for pre-sentencing plea withdrawal -- see State v. Jarmal Nelson, 2005 WI App 113, below.

Required Knowledge -- Deportation

Required Knowledge -- Deportation -- Detainer Filed in Another Case

State v. Javier Bedolla, 2006 WI App 154, (AG’s) PFR filed 7/26/06

For Bedolla: Susan E. Alesia

Issue: Whether the defendant failed to show likelihood of deportation, so as to entitle him to plea withdrawal under § 971.08(1)(c), where a detainer had already been filed against him in another case which would also subject him to deportation.

Holding: ¶10      What is relevant is that Bedolla, a non-citizen, has entered a no contest plea to a deportable offense, the required statutory warnings were not given, and the federal government has filed a detainer against him for his possible deportation. The detainer filed against Bedolla simply states, “Investigation has been initiated to determine whether this person is subject to removal from the United States.” ¶11      Wisconsin Stat. § 971.08(2) uses the term “likely” and not “shall,” meaning a defendant need not prove he definitely will be deported on this case. Even though the earlier conviction sparked the investigation and immigration detainer, this additional sexual assault conviction obviously will now be included as part of the Immigration and Naturalization Service’s information when determining whether to deport him. Because the sexual assault offense will be considered as a basis, in full or part, for his possible deportation, Bedolla has shown his plea to this offense is likely to result in his deportation. Consequently, Bedolla must be permitted to withdraw his plea.

>Required Knowledge - Deportation - Retroactivity of Douangmala

State v. Olayinka Kazeem Lagundoye, 2004 WI 4, affirming 2003 WI App 63

For Lagundoye: Geoffrey Y. Muwonge

Issue/Holding: Holding of State v. Sisakhone S. Douangmala , 2002 WI 62 (non-citizen's guilty plea invalid if colloquy omits deportation consequences, regardless of whether defendant in fact knows those consequences) does not apply retroactively to defendants who have already exhausted their direct appeals. ¶¶41-42.

Required Knowledge -- Deportation

State v. Sisakhone S. Douangmala , 2002 WI 62 For Douangmala: Robert R. Flatley

Issue/Holding: ¶3 This case presents the following question: If a circuit court fails to give the deportation warning required by § 971.08(1)(c), when accepting a guilty or no-contest plea, is a defendant entitled to withdraw the plea later upon a showing that the plea is likely to result in the defendant's deportation, regardless of whether the defendant was aware of the deportation consequences of the plea at the time the defendant entered the plea? ¶4 We answer the question presented in the affirmative. We conclude that Wis. Stat. § 971.08(2) expressly sets forth the remedy to be granted upon a defendant's motion if a circuit court fails to advise a defendant about deportation consequences as required by § 971.08(1)(c) and if the defendant shows that the plea is likely to result in deportation. Section 971.08(2) states that under these circumstances the circuit court  "shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea." The defendant in the present case fulfilled the conditions set forth in § 971.08(2), and accordingly we reverse the decision of the court of appeals affirming the order of the circuit court that >denied the defendant's motion to withdraw his no-contest plea. We remand the cause to the circuit court to vacate the judgment of conviction and permit the defendant to withdraw his plea and enter another plea. Note: The court thus overrules the following series of "harmless error" cases in the area, namely holdings that affirm a guilty plea, despite omitted judicial advice on deportation, if the defendant actually knew of the potential for deportation: State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993); State v. Issa, 186 Wis. 2d 199, 209, 519 N.W.2d 741 (Ct. App. 1994); State v. Lopez, 196 Wis. 2d 725, 732, 539 N.W.2d 700 (Ct. App. 1995); and State v. Garcia, 2000 WI App 81, ¶1, 234 Wis. 2d 304, 610 N.W.2d 180. Note, too, that the court stresses the requirement that non-English speaking defendants require interpreters at public expense, ¶¶44-45. What, though, if the defendant knows s/he could be deported but is inaccurately told by counsel that s/he won't be? The issue might then become one of ineffective assistance of counsel, see generally People v. McDonald, 2003 NYSlip Op 18777, 11/24/03, and cases cited [and note, too, the explicit requirement exemplified by that case that there must be an unequivocal "factual allegation that, but for counsel's error, defendant would not have pleaded guilty"]. But see State v. Gonzales (advising defendant that he might be deported was IAC, where deportation was near-certainty upon guilty plea; neither counsel nor court required "to specify the likelihood that a particular defendant will be deported"), reversing 191 Or App 587, 83 P.3d 921. The idea seems to be that saying nothing about a collateral consequence doesn't affect validity of the plea, see, e.g., Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L Rev 697, 699 (2002) (no court rejects the principle "that lawyers need not explain collateral consequences"); but misinforming the defendant of a collateral consequence may undermine a guilty plea -- though as Gonzales illustrates, fine questions may be raised by the extent of the misinformation required to invalidate the plea. For the example of parole eligibility, see above. The deportation door swings both ways: clients get deported into as well as out of the U.S., and it pays to makes sure that former isn't returned with strings attached, see, e.g., Benitez v. Garcia, 9th Cir. No. 04-56231, 5/23/06 (Venezuela conditioned Benitez's extradition to face a murder charge on a sentence not longer than 30 years; therefore, his life sentence had to be reduced to 30 years). State v. Rodolpho Garcia, 2000 WI App 81, 234 Wis. 2d 304, 610 N.W.2d 180 overruled by State v. Sisakhone S. Douangmala , 2002 WI 62

For Garcia: Godfey Y. Muwonge

Issue: Whether failure to comply with Wis. Stat. § 971.08(1)(c), which requires a guilty plea court to personally address the defendant with respect to the risk of deportation, is subject to harmless error analysis.

Holding: Failure to comply with this mandate is subject to harmless error, namely, that the defendant in fact knew of the risk of deportation.

Required Knowledge -- Elements

Required Knowledge -- Understanding Nature of Charge – Intersection with Factual Basis

State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182

For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: Failure to establish a factual basis for the guilty plea triggers Bangert procedure, ¶¶56-59, citing State v. Monika Lackershire, 2007 WI 74. In this instance (because of a last-minute inclusion of a ptac theory the complaint didn’t assert any accomplice- or vicarious-liability facts; nor did the trial court inquire into ptac liability) the record is inadequate; and, because the postconviction asserted lack of knowledge (that he didn’t know his mere presence at the crime scene wasn’t enough for ptac), a Bangert hearing is mandated, ¶¶60-71.

Required Knowledge -- Elements (Understanding Nature of Charge) – Party-to-a-Crime Liability

State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182

For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: The court must address the defendant personally and establish his or her understanding of the nature of the charge, and if ptac liability is alleged then that theory must be included in the plea colloquy, ¶¶36-37, citing State v. James E. Brown, 2006 WI 100, ¶55. In this instance the colloquy fell short: ¶40      In permitting the amendment to the charge to include the party-to-a-crime modifier at the beginning of the plea hearing, the circuit court characterized party-to-a-crime liability in the instant case as assisting people in putting the victim in a place where he could be shot. … … ¶47      The circuit court's curt explanation of aiding and abetting falls far short of this jury instruction and of any other means of informing Howell about the nature of his criminal liability. ¶48      Simply stating that the State would have to prove that Howell "assisted" or "intentionally assisted" the shooter was not sufficient to explain to Howell aider and abettor party-to-a-crime liability, either generally or in the context of first degree reckless injury. The circuit court did not explain how Howell had been a party to a crime if he "would have approached the victim" or if he had "assisted people in putting the victim in a place where he could be shot." In short, the circuit court's descriptions of the aiding and abetting aspect of party-to-a-crime liability do not amount to a clear explanation of the charge. This court cannot and should not speculate about what information Howell, counsel, and the circuit court may have shared off the record before the plea hearing. ¶49      Accordingly, we conclude that nothing in the plea colloquy demonstrates that Howell received correct information about this charge from other sources. ¶50      To satisfy Bangert, the circuit court should have established not only that Howell had the proper information but also that he understood that information. The plea colloquy in the instant case quoted above failed to establish that Howell understood the nature of the charge. A bit odd that the court may be casting a sharper eye on the uses of PTAC liability. Odd, because the court has so consistently over the years denigrated PTAC expansion of guilt as a mere theory as opposed to elemental act, one which needn’t be subject to unanimous agreement nor for matter even pleaded in the information before it may be submitted to the jury. As a result, PTAC liability is often thrown lazily thrown into the mix as a catch-all, as apparently was the case here. And yet the court properly recognizes that a PTAC theory of liability does critically impact an understanding of the nature of the crime. There was, as the court notes, mention of the problem in Brown (“These statements and omissions raise questions of whether Brown understood the concept of party to a crime, an essential element of the charges to which he pleaded guilty”), but it was no more than a mention. Howell seems to be the most explicit acknowledgement of the importance of ensuring the defendant’s understanding of PTAC liability. Further discussion, in context of factual basis, ¶¶62-66. Also take a look at Nash v. Israel, 707 F.3d 298, 303 (7th Cir. 1983): … the trial judge's proffered explanation of the charge was inadequate. The charge of party to the crime of first degree murder is exceedingly complex. To make an obvious point, causing, with others, the death of the victim is not an adequate explanation of either intentionally aiding and abetting or conspiring to commit an intentional murder. See Wis. Stats. § 939.05(2). At a minimum, the trial judge should have explained how Nash could be charged with and convicted of first degree murder when he did not directly commit the crime. He should have included adequate explanation of the elements of aiding and abetting and conspiring to commit the crime, and of how Nash's conduct fell within the purview of one or both of these definitions.

Required Knowledge -- Understanding Nature of Charge – Colloquy, Generally

State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182

For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: A perfunctory procedure doesn’t satisfy the requirement of detailing the defendant’s understanding of the charge on the record: ¶52      The circuit court did not establish Howell's understanding of the information it relayed to Howell by personally questioning him. Rather than asking Howell to summarize his understanding, the circuit court asked him questions that required simple "yes" or "no" responses.  ¶53      As we explained in Bangert, "[a] defendant's mere affirmative response that he understands the nature of the charge, without establishing his knowledge of the nature of the charge, submits more to a perfunctory procedure rather than to the constitutional standard that a plea be affirmatively shown to be voluntarily and intelligently made." [30] By referring simply to Howell's "assistance" in the crime and asking Howell for only a single word response, the circuit court did not appropriately ascertain Howell's understanding. A defendant must "at some point [have] expressed his knowledge of the nature of the charge" to satisfy the requirement of Wis. Stat. § 971.08. [31] ¶54      The circuit court did not establish that Howell was properly advised of the nature of the charge by his trial counsel. The circuit court asked Howell's trial counsel only whether he was satisfied that Howell was entering the guilty plea knowingly and voluntarily, to which counsel answered "yes." This question by the circuit court and Howell's trial counsel's response were not adequate. "A statement from defense counsel that he has reviewed the elements of the charge, without some summary of the elements or detailed description of the conversation, cannot constitute an 'affirmative showing that the nature of the crime has been communicated.'" [32] ¶55      We thus agree with Howell that, as demonstrated by the record, the plea colloquy was defective in that the circuit court failed to inform Howell of the nature of the charge and failed to ascertain Howell's understanding of the nature of the party-to-a-crime charge.

Required Knowledge -- Elements -- 2nd-Degree Sexual Assault (by Contact), § 948.02(2) -- “Knowing Contact" Insufficient State v. John A. Jipson, 2003 WI App 222 For Jipson: Martha K. Askins, SPD, Madison Appellate Issue/Holding: On a charge of 2nd-degree sexual assault, § 948.02(2), the guilty plea court must ascertain the defendant’s knowledge of the element of intent, namely that the defendant had sexual contact for the purpose of sexual degradation, humiliation, arousal, or gratification. It is insufficient to advise the defendant merely that “knowing contact” was necessary, the failure to inform that intent to commit the act with a specifically proscribed purpose being tantamount to “a total failure to inform … of an essential element.” And, because the State failed to prove by clear and convincing evidence at the postconviction hearing that Jipson was aware of the nature of this element, plea–withdrawal is required. ¶¶10-17; State v. Trochinski, 2002 WI 56, ¶16, 253 Wis. 2d 38, 644 N.W.2d 891 (circuit court need not ensure that defendant know how the State must prove each element) distinguished.

Required Knowledge -- Elements -- Referenced Document not Attached to Plea Questionnaire

State v. Richard A. Lange, 2003 WI App 2 For Lange: Daniel F. Snyder

Issue/Holding: Where the plea form made reference to an "attached sheet" which was not in fact attached, and the trial court did not go over the elements with the defendant, "the record is barren as to any explanation or detailing to Lange of the elements of the offense," and Lange has established a prima facie case for plea-withdrawal. ¶¶19-22. Remedy is remand for a hearing where state will have opportunity to prove that Lange in fact understood the elements. ¶¶28-30.

Required Knowledge -- Elements -- Incomplete Advice in Plea Questionnaire Irrelevant Where Plea Court Relies Exclusively on Oral Colloquy

State v. Michael Brandt, 226 Wis.2d 610, 594 N.W.2d 759 (1999), affirming State v. Brandt, 220 Wis.2d 121, 582 N.W.2d 433 (Ct. App. 1998).

For Brandt: Michael J. Fitzgerald & Dean A. Strang.

Holding: ¶24 Where, as here, a circuit court ignores the plea questionnaire in its colloquy concerning the elements of the crimes, the adequacy of that colloquy rises or falls on the circuit court's discussion at the plea hearing. In such cases, the adequacy or deficiency of the plea questionnaire is not at issue because it does not constitute the basis on which the plea is accepted. ... ¶27 In sum, Brandt has failed to make a prima facie showing that the circuit court violated the Wis. Stat. § 971.08 requirement that a defendant's plea be made voluntarily with an understanding of the nature of the crimes. Because the circuit court did not rely on the incorrect information in the questionnaire, it did not have an obligation to verify the accuracy of that information. ..."

Required Knowledge -- Elements -- Burglary with Intent to Commit Felony -- Specific Felony.

State v. Earl Steele, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595

For Steele: Timothy J. Gaskell.

Issue: Whether the colloquy on a guilty plea to burglary/intent-to-commit-felony must apprise the defendant of the specific felony.

Holding: ¶9: The nature of the particular underlying felony is not an esential element of a burglary charge and therefore need not be explained during colloquy in order to fulfill Wis. Stat. § 971.08(1)(a) requirements.

Required Knowledge -- Elements -- Court Need Not Explain How State Must Prove each Element State v. John T. Trochinski, 2002 WI 56, affirming unpublished decision For Trochinski: James L. Fullin, SPD, Madison Appellate On-line Brief (COA): http://www.wisspd.org/html/appellate/briefbank/briefs/002545.pdf

Issue: Whether the defendant met his burden of showing a prima facie case that he didn't understand an element of the offense to which he pleaded guilty. Holding: ¶22. Wisconsin's courts have been relying on Bangert since it was written in 1986, and nothing in that case suggests that a circuit court is required to do as Trochinski suggests here--describe the elements of the offense and ensure the defendant specifically understands how the State must prove each element. Trochinski alleges that he did not understand that every nude photo of him is not necessarily harmful to children. However, this is not required. Wisconsin Stat. § 971.08 and Bangert require that Trochinski knew and understood the elements of the offense. ¶23. Applying the Bangert standard and procedure to the facts presented here, and upon review of the record, we conclude that Trochinski has failed to meet his burden to establish a prima facie case. Trochinski's knowledge of the elements of the offense is clearly established by both the signed plea questionnaire and the plea colloquy. The elements of § 948.11(2) are clearly laid out on the plea questionnaire, including '[y]ou exhibited harmful material to a child' and '[y]ou had knowledge of the nature of the material.' Furthermore, during the plea colloquy Trochinski acknowledged he understood the plea form, the information in the form was truthful, and again the court summarized the elements of the crime as applied to the offense to which Trochinski was pleading no contest. Moreover, at the postconviction hearing, Trochinski testified that he understood the elements of the offense, and that he knew the photos were harmful and were 'totally inappropriate' for children." (Court stresses that defendant need know "only knowledge of the elements of the offense, not a knowledge of the nuances and descriptions of the elements." ¶29.)

Required Knowledge -- Elements -- Written Questionnaire Supplying Missing Information

State v. George R. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, affirming State v. Bollig, 224 Wis.2d 621, 593 N.W.2d 67 (Ct. App. 1999).

For Bollig: Thomas E. Knothe, Collins, Quillin & Knothe, Ltd.

Issue: Whether the trial court's failure to advise the defendant of an element during the plea colloquy entitled him to withdraw the plea.

Holding: The plea colloquy was deficient, because an element was omitted, but the written questionnaire's inclusion of this element, along with Bollig's express acknowledgement of the elements contained in the questionnaire, cured this defect.

Required Knowledge -- Rights

State v. Richard A. Lange, 2003 WI App 2 For Lange: Daniel F. Snyder

Issue/Holding: Trial court's colloquy sufficiently established defendant's understanding of rights waived by guilty plea. ¶¶23-27.

Required Knowledge -- Read-Ins

Required Knowledge -- Read-Ins: Defendant's Understanding of

State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265

For Lackershire: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: ¶28 n. 8: We do not adopt the court of appeals' determinations that read-in charges are merely "collateral consequences" of a plea, and that therefore information about read-ins "is not a prerequisite to entering a knowing and intelligent plea." Lackershire, 288 Wis. 2d 609, ¶15 (citing State v. Byrge, 2000 WI 101, ¶61, 237 Wis. 2d 197, 614 N.W.2d 477). Those determinations appear to extend existing law. See Austin v. State, 49 Wis. 2d 727, 734, 183 N.W.2d 56 (1971) (stating that "[a] plea agreement should always be made a matter of record whether it involves a recommendation of sentencing, a reduced charge, a nolle prosequi of charges or read ins with an agreement of immunity."); Garski v. State, 75 Wis. 2d 62, 77, 248 N.W.2d 425 (1977) (providing that "[t]he defendant should be advised by the trial court, on the record, of the effect of the read-ins . . . ."). We decline to engage in further analysis regarding the circuit court's obligation to explain the nature of read-in offenses in a case where the record demonstrates that the dismissed charges were not treated as read-ins at either the plea or sentencing. The court of appeals lacks power to withdraw any language, including mere dicta, from its own published decisions—that authority is reserved by the supreme court. E.g., American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18, 257 Wis. 2d 771, 783, 652 N.W.2d 123, 129 ("This court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so."), reversed on other grds., 2004 WI 2; and State v. Andre Bolden, 2003 WI App 155, ¶¶9-10 (same). The court of appeals, as indicated in fn. 8 quoted above, held that a read-in is only a collateral consequence of a plea. Though the supreme court’s resolution of the issue isn’t explicit on the following point, the only fair reading is that this language in the court of appeals’ decision in fact has been withdrawn. Where does that leave you? With the pattern instruction, for starters, which the court of appeals simply ignored: WIS JI-CRIMINAL SM-32 ACCEPTING A PLEA OF GUILTY, Comment, p. 17 fn. 10 (1995): If there is a plea agreement, it is recommended that it be put in writing and that the written description made part of the record. If there is not a written agreement, it is essential that the agreement be carefully and completely described on the record. State ex rel. White v. Gray, 57 Wis.2d 17, 203 N.W.2d 638 (1973); State v. Lee, 88 Wis.2d 239, 26 N.W.2d 268 (1979). If the plea agreement includes "read-ins," the description of the agreement must include them. Austin v. State, 49 Wis.2d 727, 183 N.W.2d 56 (1971). The offenses which are "read in" should be identified as accurately as possible to avoid later questions about the scope of the prosecutor's promise not to charge the other offenses. Sounds an awful lot like an obligation not a mere afterthought, doesn’t it?)

Required Knowledge -- Plea Bargain

Required Knowledge -- Plea Bargain not Binding  State v. Corey J. Hampton, 2004 WI 107, affirming 2002 WI App 293, 259 Wis. 2d. 455, 655 N.W.2d 131 For Hampton: Melinda A. Swartz, SPD, Milwaukee Appellate On-line Brief Issue1: Whether the trial court must advise a