GUILTY PLEAS Updated 8/26/09

Trial Court Discretion to Reject

Procedure: Read-Ins "Remote" Appearance Required Knowledge Collateral & Direct Consequences Deportation Elements Plea Bargain Read-Ins Factual Basis Consider "Whole" Record 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: Computer / Sex Crime Particular Instances: Kidnapping Intent to Enter Plea Interpreter Plea Questionnaire

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 Plea Bargain Terms, Misapprehension 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. Trial court authority to reject a guilty plea appears to be a non-controversial proposition, e.g., U.S. v. Skerret-Ortega, 1st Cir No. 06-1126, 6/13/08. "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 – Collateral Consequence: Firearm Possession Prohibition, Disorderly Conduct as “Crime of Domestic Violence”

State v. Joseph E. Koll, Jr., 2009 WI App 74, PFR filed 4/29/09

For Koll: Alexander L. Ullenberg

Issue: Whether Koll’s conviction of so-called “non-domestic” disorderly conduct was for a misdemeanor crime of domestic violence as defined 18 U.S.C. §921(a)(33)(A), so as to preclude him from obtaining a handgun.

Holding: The federal Gun Control Act bars gun possession to anyone convicted of a “misdemeanor crime of domestic violence,” 18 U.S.C. § 922(g)(33), and because the charging documents describe a “domestic” relationship between Koll and the victim the gun disqualification is established.

A disqualifying misdemeanor conviction has two separate components, 1) violence in 2) a “domestic” relationship. Koll indisputably lived with his DC victim; his argument was simply that the Gun Control Act requires “convictions for misdemeanor crimes that include, as an element, a domestic relationship,” ¶7. The court easily dispatched that argument: “The U.S. Supreme Court has unambiguously spoken, and the facts can lead to but one conclusion. Because Koll had a domestic relationship with the victim of his misdemeanor crime of disorderly conduct, he may not possess a gun,” ¶12. In light of the referenced case, U.S. v. Hayes, 555 U.S. __, No. 07-608 (“Congress defined ‘misdemeanor crime of domestic violence’ to include an offense ‘committed by’ a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime”), this conclusion seems beyond challenge. Difficult questions—ignored by the court—remain, however. Given that “domestic” relationship isn’t a formal element, how exactly is it to be established? (The definition is recited in ¶8 of the opinion and more or less comes down to spousal, parental, or guardianship “relationship between aggressor and victim.” You’ll find more in Hayes, and here, from the BATF website.) Koll did not, apparently, challenge the fact that he “cohabited” with the victim, so the matter of proving the connection didn’t have to be sharpened. The concurrence, though, elaborates a bit: “the DOJ properly went behind the judgment of conviction and based its decision to deny Koll a permit on the contents of the complaint and police report,”¶21. The concurrence cites only an ATF document for the proposition you can look at police reports to ascertain a domestic relationship, but that document doesn’t mention police reports at all. The majority, by contrast, indicates only that the domestic relationship was established by the complaint, e.g., ¶¶4, 7. Despite the concurrence, then, the opinion is not authority for going beyond the complaint. Indeed, a federal Armed Career Criminal Act case, Shepard v. United States, 544 U.S. 13 (2005), specifically holds that in determining the nature of qualifying priors, extrajudicial documents such as police reports are very much off-limits. The inquiry instead “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” (Not controlling, but arguably applicable to this context.) Thus, there’s a decent argument we’re limited to judicial documents in establishing a “domestic” relationship. But if Koll means nothing else, it means that labeling the complaint “non-domestic” does no good at all. It’s a nullity, as the concurrence accurately points out. So much for the “domestic” relationship requirement. Recall the second requirement, “violence,” which Koll does not appear to have challenged. Perhaps he should have. The complaint, though, plainly “indicated that Koll had slapped the hand and twisted the arm of his live-in girlfriend, and that when she tried to leave, Koll broke the side mirror off of the vehicle”: why isn’t that conduct “violent”? Well, that isn’t necessarily the right question, which is, rather, whether the predicate offense necessarily involves violent conduct; whether, that is, and very much unlike the domestic relationship inquiry, force must be a formal element. Shepard (again: not controlling but arguably applicable) holds that the offense must be “categorically” violent. The same point is made more recently by Chambers v. U.S., No. 06-11206 (“This categorical approach requires courts to choose the right category. And sometimes the choice is not obvious. The nature of the behavior that likely underlies a statutory phrase matters in this respect.”). DC, of course, is sort of an omnibus provision (“or otherwise disorderly conduct”), but only one elemental alternative unequivocally relates to “violent” conduct. The Koll opinion isn’t clear, indeed is totally silent, about whether “violent” conduct was formally alleged against Koll. Maybe it was, maybe it wasn’t. Does “violent” conduct have to be specifically alleged, or is the court saying that DC is necessarily a crime of violence? Well, that question appears to be answered by the Instruction Committee, JI 1900: “Conduct is disorderly although it may not be violent ….” Perhaps, then, Koll’s complaint specifically alleged “violent” conduct. But even if it didn't, the fact that Koll didn't raise the argument means that the opinion didn't precedentially resolve it. Assuming you’ve read this far, why on earth should you care about any of this? For one thing, the gun ban is a collateral (as opposed to direct) consequence of a conviction, e.g., State v. Frank J. Kosina, 226 Wis.2d 482, 595 N.W.2d 464 (Ct. App. 1999), so that a) the burden of informing the defendant of the disqualifying effect falls on counsel (rather than the court should the defendant enter a guilty plea); b) the defendant’s belated discovery of this information after conviction will not be a ground to withdraw a guilty plea; c) maybe (it remains to be seen) in some instances some sort of insulation may follow by amending the complaint’s factual allegations and/or stipulating to a different set of facts, or even amending the specific formal element alleged. Perhaps attention ought to be given, as part of any plea-bargaining, to amending the formally charged alternative to something other than “violent” conduct. Thought should be given, as well, to making the contemporaneous record clear that the guilty plea is premised on avoidance of the gun ban—see, in this regard, the self-same Koll’s companion case, State v. Koll, 08-AP1403, 4/8/09) (Koll allowed to withdraw plea to the very DC conviction at issue, on the theory he “was actively misinformed as to a collateral consequence of his plea agreement,” namely the gun ban). Undoubtedly, other implications will occur to you, but the larger point seems pretty clear: this is going to be a recurrent problem. One last observation. The court of appeals mentions, literally in passing (¶6), that it “must determine whether Koll’s conviction for disorderly conduct prohibits him, under 18 U.S.C. § 921(a)(33)(A), from exercising his constitutional right to bear arms.” Also, ¶12 (“The question before us is whether Koll’s conviction for disorderly conduct prohibits him, under the Gun Control Act, from exercising his Second Amendment right to bear arms.” We’ll put aside for now whether the 2nd A applies—very much up in the air—rather than Art. I, § 25 which clearly does apply.) These glancing references mark the only times the constitutional right is mentioned. It’s therefore probably fair to assume that while the court may deem the right’s very existence to be non-controversial, the court equally thinks the right completely irrelevant to the analysis. Nothing, then, like a constitutional right observed only with such apparent disdain. Does a fundamental right trigger a requirement that its impairment be accomplished as reasonably narrowly as possible? Someone will have to make the argument before we find out.

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"). And, cases that continue to bind the defendant to counsel's failure to advise relative to collateral consequences nonetheless recognize counsel's ineffectiveness in the face of "positive misadvice," State v. Ey, FL SCt No. SC03-2161, 2/28/08.

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.)

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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 guilty plea defendant personally on the record that the court isn’t bound by a plea agreement, and ascertain whether the defendant understands this information. Holding1: ¶27 In Wisconsin, circuit judges do not involve themselves in plea bargaining. State v. Erickson, 53 Wis. 2d 474, 481, 192 N.W.2d 872 (1972); Rahhal v. State, 52 Wis. 2d 144, 150, 187 N.W.2d 800 (1971); State v. Wolfe, 46 Wis. 2d 478, 487, 175 N.W.2d 216 (1970). In Farrar v. State, 52 Wis. 2d 651, 657, 191 N.W.2d 214 (1971), this court declared that "any advance understanding between a prosecutor and defendant must not involve the trial judge." ¶28 In White, the court embraced the corollary to the Farrer principle, namely: "If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court." 57 Wis. 2d at 24 (quoting American Bar Association, Standards Relating to Pleas of Guilty, Approved Draft, § 1.5 at 29 (1968)) (emphasis added). … ¶37 Perhaps even more telling is the case of State v. Williams, 2000 WI 78, 236 Wis. 2d 293, 613 N.W.2d 132. In Williams, this court was asked to adopt a new rule of procedure requiring a trial judge who anticipated exceeding the state's sentencing recommendation under a plea agreement, to inform the defendant of the judge's anticipated action and to allow the defendant to withdraw his plea. … Abandoning the White/McQuay/Comstock mandate in this case would destroy the foundation of our Williams decision. ¶38 Consequently, we reaffirm the rule that a circuit court must advise the defendant personally that the terms of a plea agreement, including a prosecutor's recommendations, are not binding on the court and, concomitantly, ascertain whether the defendant understands this information. Issue/Holding2: ¶42 The essence of the mandate is that the court must engage in a colloquy with the defendant on the record at the plea hearing to ascertain whether the defendant understands that the court is not bound by a sentencing recommendation from the prosecutor or any other term of the defendant's plea agreement. The plea colloquy is defective if it fails to produce an exchange on the record that indicates that the defendant understands the court is free to disregard recommendations based on a plea agreement for sentencing. ¶43 The court's duty is to assure that the defendant has enough information and understanding of the court's independent role in sentencing, notwithstanding any plea agreement, that the defendant is able to enter a knowing, voluntary, and intelligent plea. This duty does not require that the court provide all the essential information personally, although personal explanation by the court strikes us as the most logical, consistent, and efficient way of delivering information. Nor does it require magic words or an inflexible script. In every case, however, the court must make personal inquiry of the defendant to determine whether the defendant understands that the court is not bound by the terms of the plea agreement. ¶44 In a legal sense, the purpose of the colloquy is to assure a voluntary and intelligent plea, as well as fundamental fairness in the taking of pleas. In a practical sense, the purpose of the colloquy is to promote finality by eliminating one of the grounds for plea withdrawal. As we have done in the past, we strongly encourage courts to follow the approved plea acceptance procedures as set forth in Wis JI-Criminal SM-32 (1995). See Bangert, 131 Wis. 2d at 272; State v. Minniecheske, 127 Wis. 2d 234, 245-46, 378 N.W.2d 283 (1985); State v. Bartelt, 112 Wis. 2d 467, 483-84 n.3, 334 N.W.2d 91 (1983). We also encourage that these procedures be updated periodically to reflect recent developments in case law. Though unrelated to Hampton, for discussion of impact of plea bargain unfulfillable as to collateral consequence of plea, see State v. Charles Brown, above.

Requisites: Factual Basis

Procedure – Factual Basis – Consideration of "Whole" Record

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08

For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue/Holding: ¶26 As our supreme court explained in White, “[i]n applying the manifest injustice test on review, this court may consider the whole record since the issue is no longer whether the guilty plea should have been accepted, but rather whether there was an [erroneous exercise] of discretion in the trial court’s denial of the motion to withdraw.” Id. Later, in Thomas, our supreme court held that “[o]n a motion to withdraw, a court may look at the totality of the circumstances to determine whether a defendant has accepted the factual basis presented underlying the guilty plea…. Moreover, we have previously permitted a court reviewing the voluntariness requirement to … review the record of the postconviction hearing.” Id., 232 Wis. 2d 714, ¶23. Further, the record reviewed may include the record of the sentencing hearing and defense counsel’s statements concerning the factual basis. Id., ¶24.

Procedure – Factual Basis, Relation to Knowing and Intelligent Plea – Sufficiency of Plea Colloquy

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

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

Issue/Holding1: ¶35      Specifically, the obligation that the circuit court establish a sufficient factual basis helps ensure that the defendant's plea is knowing and intelligent. [10] The factual basis requirement "protects a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge." State v. Thomas, 2000 WI 13, ¶14, 232 Wis. 2d 714, 605 N.W.2d 836. Likewise in Morones v. State, this court noted that "[t]he purpose of the statutory requirement for a court inquiry as to basic facts is to protect the defendant who pleads guilty voluntarily and understanding the charge brought but not realizing that his conduct does not" constitute the charged crime. 61 Wis. 2d 544, 552, 213 N.W.2d 31 (1973); see also Broadie v. State, 68 Wis. 2d 420, 423, 228 N.W.2d 687 (1975). A defendant's failure to realize that the conduct to which she pleads guilty does not fall within the offense charged is incompatible with that plea being "knowing" and "intelligent."

Issue/Holding2: ¶38      In the present case, the circuit court's inquiry into the factual basis for the plea (that is, its inquiry into whether Lackershire "in fact committed the crime charged") was likewise insufficient. After the colloquy there remained a substantial question as to whether the facts that formed the basis of Lackershire's plea constituted the offense charged. Because of this substantial question, the plea colloquy failed to demonstrate that Lackershire realized that if the underlying conduct was a sexual assault upon her, that conduct could not constitute the offense charged. Like the defendant in White, Lackershire was potentially in the position of pleading guilty without realizing that her conduct did not constitute the offense charged. ¶39      At the plea hearing, the court noted that the criminal complaint and the testimony from the preliminary hearing provided the factual basis for the offense charged. However, neither of these documents unequivocally supports the conclusion that Lackershire admitted to conduct that "constitutes the offense charged." … … ¶41      … Thus, there is a substantial question as to whether these facts, which form the basis of Lackershire's plea, constitute the offense charged. That substantial question obligated the circuit court to make additional inquiry, pursuant to § 971.08(1)(b), to ensure that Lackershire in fact committed the crime charged. The court stresses “the unique circumstances of this case,” ¶43, which at least suggests that it will take unusual facts before a faulty factual basis is found. And what are these unique facts? Start with Lackershire’s characteristics, ¶7: “Lackershire is a mentally and physically challenged person. She suffers from learning and cognitive disorders, has a tenth-grade education, and has a history of psychological problems. She is legally blind, and lives on Social Security Disability and Supplemental Security Income payments.” Now, couple her limitations with the idea that the only conduct that she admitted to on this record [sex with a child who raped her] didn’t establish her guilt of a crime, and you get a good idea of why the case is “unique.” The dissent, by turns sarcastic and hyperbolic, is unmoved by either Lackershire’s intellectual deficits or her possible victimization; more to the point: simply fails to meet the majority’s analysis. Instead, the dissent dogmatically asserts: “Lackershire's admission that she had sexual intercourse (i.e., affirmatively acted or directed action) means that her admitted conduct did not amount to a rape defense,” ¶108. Her admission of sexual intercourse means no such thing, unless it is clear on the record that she, cognitive problems and all, actually knew that she was admitting that she “directed,” or whatever, the sex. Clearly, she had sex; clearly, the other person was underage. And that’s all she admitted, at least on this record. Indeed, the dissent points to no contrary evidence in the record, probably because there is none. But that only goes to show how strong the factual-basis defect must be, and even then it may prevail only by the thinnest of margins.

Procedure – Factual Basis, Generally

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

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

Issue/Holding: ¶33      Wisconsin Stat. § 971.08(1)(b) provides that before a circuit court accepts a defendant's guilty plea, it must "make such inquiry as satisfies it that the defendant in fact committed the crime charged." This court has determined that establishing a sufficient factual basis requires a showing that "the conduct which the defendant admits constitutes the offense charged . . . ." White v. State, 85 Wis. 2d 485, 488, 271 N.W.2d 97 (1978) (quoting Ernst v. State, 43 Wis. 2d 661, 674, 170 N.W.2d 713 (1969)); State v. Black, 2001 WI 31, ¶21 n. 8, 242 Wis. 2d 126, 624 N.W.2d 363. ¶34      The duties established in Wis. Stat. § 971.08 are "designed to ensure that a defendant's plea is knowing, intelligent, and voluntary." Brown, 293 Wis. 2d 594, ¶23. In our recent decision in State v. Kelty, for example, we allowed that a plea may not be "knowing, intelligent, and voluntary because the plea colloquy was defective in discussing the elements of the crime or the factual basis" for the charges. 2006 WI 101, ¶44, 294 Wis. 2d 62, 716 N.W.2d 886. Thus, establishing a factual basis under § 971.08(1)(b) is necessary for a valid plea. [9]

Factual Basis – Alford Plea – Generally

State v. Anna Annina, 2006 WI App 202

For Van Hout: Robert R. Henak

Issue/Holding: ¶9        Annina seeks to withdraw her Alford plea on the grounds that a manifest injustice has occurred. “Withdrawal of a plea following sentencing is not allowed unless it is necessary to correct a manifest injustice.”  State v. Smith, 202 Wis.  2d 21, 25, 549 N.W.2d 232 (1996). Specifically, Annina argues that the trial court failed to establish a sufficient factual basis for her plea. A circuit court’s failure “to establish a sufficient factual basis that the defendant committed the offense to which he or she [pled]” is an example of a manifest injustice. Id. With respect to an Alford plea, “the basis requirement is only satisfied if there is strong proof of guilt as to each element of the crime.” Id. at 28. [3] Determining the existence of a sufficient factual basis lies within the discretion of the trial court and this determination will not be overturned unless it is clearly erroneous. See id. at 25.   [3] “ Alford pleas are treated differently from guilty pleas in regard to the factual basis requirement because Alford pleas allow a defendant to be convicted of a crime even though the defendant continues to assert his [or her] innocence.” State v. Smith, 202 Wis.  2d 21, 27, 549 N.W.2d 232 (1996).

Factual Basis – Use of Complaint, Generally

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

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

Issue/Holding: ¶16      Sutton next argues that the circuit court erred in accepting his plea on the charge of first-degree recklessly endangering safety because there was not a sufficient factual basis for that charge. When we review a circuit court’s determination that a sufficient factual basis exists to support a plea, we look at the totality of the circumstances surrounding the plea to determine whether the court’s findings were clearly erroneous. See State v. Thomas, 2000 WI 13, ¶18, 232 Wis. 2d 714, 605 N.W.2d 836. We approach this issue recognizing that where, as here, the plea is pursuant to a negotiated agreement between the State and the defendant, “the court need not go to the same length to determine whether the facts would sustain the charge as it would where there is no negotiated plea.” See Broadie v. State, 68 Wis. 2d 420, 423-24, 228 N.W.2d 687 (1975). ¶17      Generally, the factual basis for a guilty plea may be established by reference to the allegations set forth in the criminal complaint. See, e.g., State v. Harrington, 118 Wis. 2d 985, 988, 512 N.W.2d 261 (Ct. App. 1994) (complaint provided factual basis for burglary plea). Here, that approach is somewhat hindered because the charged offense was battery, but Sutton pled to reckless endangerment. Other facts may be gleaned from the plea hearing record, the sentencing hearing record, as well as defense counsel’s statements concerning the factual basis presented by the State. See Thomas, 232 Wis. 2d 714, ¶18.

Factual Basis -- Generally

State v. Steven A. Harvey, 2006 WI App 26

For Harvey: Christopher William Rose

Issue/Holding: ¶10      … Before accepting a guilty plea the trial court must make such inquiry as satisfies it that the defendant in fact committed the crime charged. Wis. Stat. § 971.08(1)(b). The remedy for failure to establish a factual basis is plea withdrawal. State v. Harrington, 181 Wis. 2d 985, 989, 512 N.W.2d 261 (Ct. App. 1994).  Unless it was clearly erroneous, we will uphold the trial court’s determination that there existed a sufficient basis to accept the plea. Id.

Factual Basis – Particular Instances: Obstructing (“Lawful Authority” of Police Officer)

State v. Anna Annina, 2006 WI App 202

For Van Hout: Robert R. Henak

Issue/Holding: Although police entry into the defendant’s house was pursuant to a search warrant later declared to be invalid, the defendant’s acts in response to that entry amounted to disorderly conduct which did allow for an arrest under lawful police authority; defendant could therefore be convicted for resisting a lawful arrest for disorderly conduct, an event separate and apart from any resistance to the invalid warrant.

The court says, ¶18, that it will leave for another day the question of reconciling State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998) (“a private citizen may not use force to resist peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties, regardless of whether the arrest is illegal”) with § 946.41(1). See also U.S. v. Sledge, 8th Cir No. 06-1480, 9/7/06 (“resistance to an illegal arrest can furnish grounds for a second, legitimate arrest”). Though it didn’t come up in Annina, it follows from its result (and other authority such as Sledge) that the lawful arrest severs any connection between seizure of evidence and the underlying illegal police conduct, so that suppression isn’t available.

Factual Basis -- Particular Instances: Sexual Assault (Intercourse/Cunnilingus)

State v. Steven A. Harvey, 2006 WI App 26

For Harvey: Christopher William Rose

Issue/Holding: Rejecting the JI Committee definition of “cunnilingus,” the court “ conclude(s) that the statutory scheme of the sexual assault law does not require proof of ‘stimulation of the clitoris or vulva,’” ¶¶11-21. ¶21      The complaint and the undisputed evidence presented at the preliminary hearing demonstrated that Harvey performed an act of nonconsensual cunnilingus by placing his mouth on the victim’s genital area. The sexual assault law does not require that the victim’s clitoris or vulva be stimulated as the result of such contact or that the victim experience stimulation in any other manner. We reject Harvey’s argument to the contrary as an offensive and perverse notion under current sexual assault law, and we refuse to endorse it. The trial court correctly found that the criminal complaint and the preliminary hearing evidence established a factual basis in support of the element of sexual intercourse by cunnilingus pursuant to Wis. Stat. § 940.255(3).

Factual Basis -- Use of Complaint

State v. Tyren E. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363, reversing unpublished court of appeals decision

For Black: Michael S. Holzman.

Issue: Whether the trial court properly found a factual basis for the guilty plea, by relying solely on the criminal complaint, where extraneous information put one of the elements in doubt.

Holding: ¶14. In essence, Black urges us to overturn this rule and find that a circuit court cannot find a factual basis for a plea in the complaint alone. We find no law in support of Black's position. To be sure, a circuit court may look beyond the complaint to the record in a Wis. Stat. § 971.08(1)(b) factual basis inquiry, but Black does not cite any authority that requires a circuit court to do so. We decline to hamstring circuit courts by overturning our precedent and ruling that they may not find a factual basis for a plea in the complaint. Moreover, we decline to rewrite § 971.08(1)(b) as requiring the circuit judge to conduct a mini-trial at every plea hearing to establish that the defendant committed the crime charged beyond a reasonable doubt. If the facts as set forth in the complaint meet the elements of the crime charged, they may form the factual basis for a plea. ¶16. ... (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. See, e.g., State v. Spears, 147 Wis. 2d 429, 435, 433 N.W.2d 595 (Ct. App. 1988); In re Guilty Plea Cases, 235 N.W.2d 132, 145 (Mich. 1975). This is the essence of what a defendant waives when he or she enters a guilty or no contest plea. Therefore, the circuit judge properly utilized the complaint as a factual basis for the plea, thereby making 'such inquiry as satisfies [the court] that the defendant in fact committed the crime charged.' Wis. Stat. § 971.08(1)(b).

Factual Basis -- Questions of Disputed Fact Not Reviewable

State v. Harold Merryfield, 229 Wis.2d 52, 598 N.W.2d 251 (Ct. App. 1999).

For Merryfield: Edward J. Hunt.

Holding: Merryfield was originally charged with one felony and one misdemeanor. Pursuant to a plea bargain, he pleaded guilty to the misdemeanor, and the state agreed to drop the felony (but critically, as it turns out, didn't formally move to dismiss; nor did the trial court formally dismiss it). The case was adjourned for sentencing, during which time Merryfield was out on bond. He picked up new charges in the meanwhile, including two felony bail jumpings, to which he eventually pleaded guilty. He filed a postconviction motion arguing that the bail jumpings should have been misdemeanors (because his release was on a misdemeanor, not a felony). The court of appeals rejects his arguments that there was no factual basis and that the felony charges violated the original plea bargain. A guilty plea admits all factual assertions pleaded in the information. Merryfield's pleas therefore admitted that he had been released on a felony, and he can't now argue otherwise. To consider the merits of Merryfield's no factual-basis argument, the court would have "to go behind the allegations" of the charging documents "to determine the intent of the parties and the court" at the original plea proceeding. This, the court holds, "would be well beyond the purpose of the statutory 'factual basis' inquiry[.]" In other words, because the original felony wasn't formally dismissed, it became a matter of disputed fact as to whether Merryfield's release on bond was just on the misdemeanor, or on the felony as well - and, a factual basis inquiry may not resolve a question of disputed fact.

Factual Basis -- Personal Assent by Defendant not Necessary

State v. Terry Thomas, 2000 WI 13, 232 Wis. 2d 714, 605 N.W.2d 836, affirming unpublished decision.

For Thomas: Jeffrey W. Jensen.

Issue: Whether a guilty plea defendant must personally assent to the plea's factual basis.

Holding: ¶18: We hold that a defendant does not need to admit to the factual basis in his or her own words; the defense counsel's statements suffice. We also hold that a court may look at the totality of the circumstances when reviewing a defendant's motion to withdraw a guilty plea to determine whether a defendant has agreed to the factual basis underlying the guilty plea. The totality of the circumstances includes the plea hearing record, the sentencing hearing record, as well the defense counsel's statements concerning the factual basis presented by the state, among other portions of the record.

Factual Basis – Particular Instances: Causing Child Prostitution

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08

For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue/Holding: Allegations in the complaint of repeated “dope dating” (giving a minor cocaine on multiple occasions in exchange for sex) established a factual basis for guilty plea to causing the child to practice prostitution within the meaning of § 948.08, ¶¶25-35.

Factual Basis -- Battery

State v. Charles Dante Higgs, 230 Wis.2d 1, 601 N.W.2d 653 (Ct. App. 1999).

For Higgs: Joseph E. Redding.

Issue: Whether a sufficient factual basis was established on the element of bodily harm (where the defendant splashed the victim's face with urine) to support a guilty plea to battery.

Holding: The mere fact that urine struck the victim's face isn't enough to establish bodily harm, but the victim's preliminary hearing testimony that he felt stinging and burning satisfied the element. (Appellate court reviews factual basis issue deferentially; complaint itself was insufficient to establish bodily harm element -- mere allegation that struck victim's face isn't enough -- but review of entire record, including preliminary hearing testimony that urine caused burning and stinging shows that element satisfied.)

Factual Basis – Particular Examples: Reckless Endangering -- Competing Inferences

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 guilty plea to first-degree reckless endangering, amended from battery, was supported by a factual basis.

Holding: ¶21      At the plea hearing, the State presented the basis for the amended charge of first-degree reckless endangerment, relying in part on statements Sutton made to a West Bend police officer. In his statement, Sutton said that the victim lunged or tried to strike him while the two of them were in a small restroom at a bar. Sutton responded by pushing the victim. Defense counsel acknowledged that the victim may have hit the wall, toilet, urinal or sink after Sutton pushed him. Sutton then left the restroom without checking on the victim. … ¶22      Sutton argues on appeal that his defensive action in pushing the victim cannot form the basis for criminally reckless conduct. That argument would have been available to him at trial. However, Sutton exhorted the court to accept the version of facts that were presented in support of the reckless endangerment charge. “[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. “The essence of what a defendant waives when he or she enters a guilty or no contest plea” is the opportunity to defend against the inculpatory inferences and advocate those that are exculpatory. See id. ¶23      Here, the circuit court properly scrutinized the information presented by both parties and questioned the attorneys extensively before determining that a sufficient factual basis existed for the plea. A circuit court fulfills its duty when it makes “such inquiry as satisfies [the court] that the defendant in fact committed the crime charged.” Wis. Stat. § 971.08(1)(b). Based upon the foregoing, we hold that the circuit court applied the proper legal standard and its decision is supported by the totality of the circumstances.

Factual Basis – Particular Instances: Using Computer to Facilitate Child Sex-Crime

State v. Eric T. Olson, 2008 WI App 171

For Olson: Byron C. Lichstein

Issue/Holding: The “act other than element” of § 948.075(3) isn’t satisfied by either transmission of live video of the shirtless defendant, or by his prior sexual encounters with others he met on-line: ¶11      Accordingly, we read the statute to require that, before the State may obtain a conviction under WIS. STAT. § 948.075, the defendant must have done an act to accomplish, execute, or carry out the defendant’s intent to have sexual contact with the individual with whom the defendant communicated. [6] More significant for purposes of this decision, the statute requires that the act be something other than “us[ing] a computerized communication system to communicate with the individual.” With this understanding of the statute in mind, we turn to address Olson’s conduct. ¶12      Olson argues that his use of the webcam to transmit live video of himself shirtless from the top of the chest up does not fit the “act” requirement because it was not an act other than “us[ing] a computerized communication system to communicate with” nora13queen. Wis. Stat. § 948.075(3). We agree. … ¶16      We conclude that Olson’s use of his webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of his computer to communicate with nora13queen. Consequently, we disagree with the circuit court and the State that Olson engaged in the type of act required under Wis. Stat. § 948.075(3) by transmitting that video. At the same time, we stress here and below in this opinion that it may be possible to use a communication function of a computer to engage in an “act” within the meaning of the statute. (State v. Dennis Charles Schulpius, 2006 WI App 263, distinguished, ¶¶22-23: Schulpius drove through a neighborhood looking for the supposed girl.) ¶24      Olson next argues that the circuit court erred when it concluded that his previous sexual encounters with other women he met chatting on-line satisfied the “act” requirement. The State does not defend the circuit court’s decision on this ground. Rather, the State notes the circuit court’s conclusion and says only that “it is unclear whether that evidence is sufficient to constitute an act to ‘effect’ [Olson’s] intent to have sex with ‘nora13queen.’” We agree with Olson that the circuit court’s conclusion on this topic is in error. ¶25      Olson’s admission of previous sexual encounters arising from internet chats might be relevant evidence. For example, it might, depending on other evidence, be used as admissible other acts evidence. But Olson’s admission does not involve an act to accomplish, execute, or carry out his intent in this case. Accordingly, those encounters could not constitute the required act with respect to nora13queen under Wis. Stat. § 948.075(3). Because the given facts don’t establish a factual basis for the crime, Olson is entitled to withdraw his plea, ¶¶6, 26.

Factual Basis – Particular Instances: Kidnapping

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

For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding: Kidnapping is mitigated from a Class B to Class C felony if the victim is released without permanent physical injury prior to the first witness’s testimony, ¶17. When accepting a guilty plea to Class B kidnapping the court must ascertain a factual basis for excluding the Class C offense, at least where there is some evidence in the record to support it, ¶18. However, the error in such an omission goes to the sentence rather than the plea, ¶¶19-20.

Requisites: Manifest Intent to Enter Plea

Entry of Plea by Defendant -- Express, Personal Entry is "Preferred" but Unnecessary So Long As Intent to Enter Plea Is Only Inference Possible

State v. Darrin D. Burns, 226 Wis.2d 762, 594 N.W.2d 799 (1999), affirming unpublished decision

For Burns: Glenn L. Cushing, SPD, Madison Appellate.

Issue/Holding: ¶3 We affirm the judgment of conviction in this case, even though the defendant did not expressly and personally articulate a plea of no contest on the record in open court, because the only inference possible from the totality of the facts and circumstances in the record is that the defendant intended to plead no contest. Indeed in this case the defendant acknowledges, as he must, that the record amply and clearly demonstrates that he intended to enter a plea of no contest when he came to court on January 16, 1996. The supreme court "urges circuit courts to follow the usual and strongly preferred practice of asking defendants directly and personally in open court and on the record how they plead to the charged offenses and of entering the pleas on the record." This caution is directory, not mandatory, but it underscores the holding's relatively narrow reach: ¶27 In sum, although the strongly preferred practice is that circuit courts elicit from defendants a response of 'guilty' or 'no contest' to the question 'how do you plead?,' when a circuit court has failed to do so, a reviewing court may hold that a defendant made such a plea when the only inference possible from the totality of the facts and circumstances in the record is that the defendant intended to plead no contest (or guilty, as the case may be)." (Note the use of "may," rather than "shall," and even then, when only the one inference is possible.)

Go To Brief

Interpreter

Procedure – Need for, and Waiver of, Interpreter

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

For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding: ¶6        Ravesteijn, a citizen of the Netherlands, argues that the trial court was obligated to consider whether he needed an interpreter and to obtain his personal waiver of the right to an interpreter. See State v. Neave, 117 Wis. 2d 359, 375, 344 N.W.2d 181 (1984), overruled on other grounds by State v. Koch, 175 Wis. 2d 684, 499 N.W.2d 152 (1993); Wis. Stat. § 885.38 (2003-04). [1] His argument fails, however, because the circuit court’s obligation to make a factual determination is triggered only when the court is put on notice that the defendant has a language difficulty. Neave, 117 Wis. 2d at 375. The court has notice of a language difficulty “when it becomes aware that a criminal defendant’s difficulty with English may impair his or her ability to communicate with counsel, to understand testimony in English, or to make himself or herself understood in English.” State v. Yang, 201 Wis. 2d 725, 734, 549 N.W.2d 769 (Ct. App. 1996). … ¶9        The circuit court did not have an obligation to inquire about whether an interpreter was needed or personally waived by Ravesteijn. There was nothing to suggest that Ravesteijn had a difficulty with English that might impair his ability to communicate with counsel, understand proceedings in English, or make himself understood in English. See id. at 734. It follows that there is no manifest injustice supporting plea withdrawal. See State v. Booth, 142 Wis. 2d 232, 235, 237, 418 N.W.2d 20 (Ct. App. 1987) (to withdraw a guilty plea after sentencing, a defendant bears the burden to show by clear and convincing evidence that a manifest injustice would result if the withdrawal were not permitted).

Plea Questionnaire

Procedure – Plea Questionnaire, Generally

State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89

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

Issue/Holding: A court may incorporate a plea questionnaire form into the guilty plea colloquy, but only up to a point:  ¶32     The Plea Questionnaire/Waiver of Rights Form provides a defendant and counsel the opportunity to review together a written statement of the information a defendant should know before entering a guilty plea. A completed Form can therefore be a very useful instrument to help ensure a knowing, intelligent, and voluntary plea. The plea colloquy cannot, however, be reduced to determining whether the defendant has read and filled out the Form. Although we do not require a circuit court to follow inflexible guidelines when conducting a plea hearing, [18] the Form cannot substitute for a personal, in-court, on-the-record plea colloquy between the circuit court and a defendant. Also see discussion on plea-withdrawal, below.

Plea Agreements

Plea Agreements -- Plea Bargains

Plea Bargains - Construction of Terms

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09

For Wesley: Alvin Ugent

Issue/Holding: ¶12      The interpretation of plea agreements is rooted in contract law. See State v. Deilke, 2004 WI 104, ¶12, 274 Wis. 2d 595, 682 N.W.2d 945. Contractual language is ambiguous only when it is “reasonably or fairly susceptible of more than one construction.” State v. Windom, 169 Wis. 2d 341, 348-49, 485 N.W.2d 832 (Ct. App. 1992) (citation omitted). Whether an ambiguity exists in a plea agreement is a question of law we decide de novo. See id. at 349. Wesley, as the party seeking to show a breach of the agreement, “bears the burden of convincing us the agreement is not ambiguous and his interpretation is correct,” ¶16. Separate but related: What do you do with ambiguous terms? Every federal circuit court as well as a substantial number of state courts hold “ that ambiguities in plea agreements must be construed against the government and in accordance with the defendant’s reasonable understanding of the agreement,” ¶18 n. 5. But the court is bound by its prior holding, State v. Jorgensen, 137 Wis. 2d 163, 169-70, 404 N.W.2d 66 (Ct. App. 1987), “that construction which would safeguard the public interests, substantially, must be given preference,” ¶18. The court adds: “Were we writing on a clean slate, and were the issue properly before us, we would join the unanimous agreement of the federal circuits. But … Jorgensen … is the law in this state unless or until our supreme court determines otherwise,” ¶18 n.5.

Plea Bargains – Charge “Dismissed Outright”: Ambiguous as to Whether State Can Argue Facts Underlying Charge

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09

For Wesley: Alvin Ugent

Issue/Holding: A plea agreement under which the State dismissed one count “outright” and “(b)oth sides are free to argue” was ambiguous as to whether to State could argue the facts underlying the dismissed charge at sentencing: ¶17      We thus conclude that the plea bargain was ambiguous because the agreement could have meant the State would either (1) dismiss the charges outright, with prejudice, and not refer to the facts underlying the charge in any form at sentencing; or (2) dismiss the charges so that Wesley would not face exposure to a sentence for that charge, but both sides would be free to comment on the underlying facts of the dismissed charge and argue their significance for sentencing purposes. The agreement is just plain silent about what the term was to mean. It could have reasonably meant either of the above. What, then, is the implication? What precise relief is available against an ambiguous provision? Can Wesley obtain specific performance of an ambiguous provision? The court doesn’t explicitly answer the question, leaving the outcome a bit, well, ambiguous itself.

Plea Bargains - Breach: By Defendant – Attack on Plea-Based Conviction Contrary to Express Terms of Agreement – Remedy: Dismissal of Defendant’s Appeal

State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06

For Bembenek: Joseph F. Owens, Woehrer, Mary L.

Issue/Holding: Bembenek breached her plea agreement (which contained a no-attack or appeal clause) by filing a motion for DNA testing to establish her innocence; the remedy for this breach is dismissal of her appeal of the denial of the motion: ¶17      By filing motions to reexamine the evidence in 2002, Bembenek breached her plea agreement. “A material and substantial breach of a plea agreement is one that violates the terms of the agreement and defeats a benefit for the non-breaching party.” State v. Deilke, 2004 WI 104, ¶14, 274 Wis. 2d 595, 682 N.W.2d 945 (citations omitted). Collateral attacks on convictions may be substantial and material breaches of a plea agreement.  Id., ¶¶22-24 …. ¶18      In evaluating the appropriate remedy for a material and substantial breach of a plea agreement by a defendant, “[a] court must examine all of the circumstances of a case to determine an appropriate remedy for that case, considering both the defendant’s and State’s interests.” Id., ¶25 (citation omitted). “One remedy is to vacate the negotiated plea agreement and reinstate the original charges against the defendant.” Id. Were we to order that remedy and reinstate the first murder conviction, it might well result in reincarceration of Bembenek to serve the remainder of her life sentence. We decline to impose so harsh a sanction in view of the State’s concession in the plea agreement. Alternatively, if the State were required to re-try Bembenek twenty years after the crime was committed, it would likely be seriously disadvantaged in locating witnesses and producing evidence no longer retained. ¶19      In the ten years following her original first-degree murder conviction, Bembenek filed numerous collateral attacks on her conviction. The State, in an attempt to bring closure for all involved, agreed to enter into this plea agreement with Bembenek. For the State to now be required to continue to litigate with Bembenek, or perhaps to re-try a case more than twenty years after the fact, is exactly the result that the State sought to avoid by its plea agreement. The State is entitled to the benefit of that agreement, just as Bembenek has already enjoyed its benefits. Under the circumstances of this case, in light of the significant passage of time—over twenty years since Bembenek’s original conviction and fourteen years since her plea agreement and no contest plea—we conclude that the most appropriate remedy for Bembenek’s breach is dismissal of this appeal.

Plea Bargains -- Breach: By Defendant – Failure to Appear at Sentencing -- Renegotiation: Defendant's Assent Required, but Not KNowledge of Right to Specific Performance

State v. Brad S. Miller, 2005 WI App 114

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

Issue/Holding: ¶8        In State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522, we explained that when a prosecutor breaches a plea agreement by arguing for a harsher sentence than the one the prosecutor agreed to recommend and defense counsel fails to object, the agreement has “morphed” into a new agreement.  See id., ¶27; see also State v. Liukonen, 2004 WI App 157, ¶21, 276 Wis. 2d 64, 686 N.W.2d 689 (reaffirming the principles articulated in Sprang).  Thus, defense counsel must consult with the defendant and receive verification that the defendant wishes to proceed with the “new” plea agreement. See Sprang, 274 Wis. 2d 784, ¶28; see also Liukonen, 276 Wis. 2d 64, ¶21. The Sprang decision teaches that even a strategically sound decision by defense counsel to forego an objection to a prosecutor’s breach without consulting with the defendant constitutes deficient performance because it is “tantamount to entering a renegotiated plea agreement without [the defendant’s] knowledge or consent.” Sprang, 274 Wis. 2d 784, ¶29; see also Liukonen, 276 Wis. 2d 64, ¶21.   ¶9        The transcript from the postconviction motion hearing indicates that Miller’s counsel had a strategically sound reason for not objecting to the State’s alleged breach. He had essentially concluded that Miller would not be able to prevail on a breach of plea agreement claim because of Miller’s criminal conduct in Iowa prior to sentencing. See State v. Windom, 169 Wis. 2d 341, 351-52, 485 N.W.2d 832 (Ct. App. 1992) (the fact that the defendant violated the terms of his probation was a “new and additional” factor that the State was entitled to consider in the subsequent and separate sentence hearing); State v. Giebler, 591 P.2d 465, 467 (Wash. Ct. App. 1979) (defendant cannot rely upon an agreement when he commits another offense while awaiting sentencing); United States v. Read, 778 F.2d 1437, 1441-42 (9th Cir. 1985) (promise to “take no position on what sentence should be imposed” does not cover defendant’s postplea criminality). The transcript further reveals that, during the sentencing hearing, Miller’s counsel consulted with him about whether he wished to withdraw his plea or proceed with the sentencing hearing based on the “new” plea agreement. The transcript establishes that Miller consented to continuing with the sentencing hearing. Because Miller’s counsel had a sufficient strategic reason for not objecting to the “new” agreement and he consulted with Miller and secured his consent to proceed, his performance was not deficient. See Sprang, 274 Wis. 2d 784, ¶¶27-30; Liukonen, 276 Wis. 2d 64, ¶¶20-22. Accordingly, Miller’s ineffective assistance of counsel challenge must fail. It’s almost as if ¶¶ 8 and 9 are from two different opinions. Nothing at all wrong with the statement of principles in ¶8: even a strategically sound basis can’t justify not objecting to prosecutorial recommendation not ratified by the agreement (for the simple reason that a plea agreement affects voluntariness of a plea, something personal to the defendant and therefore outside the realm of strategy); but then the court proceeds to say, in ¶9, “that Miller’s counsel had a strategically sound reason for not objecting to the State’s alleged breach.” What gives? Significantly, Miller’s trial attorney consulted with him about his right to withdraw the plea, once it became apparent that the prosecutor was changing its terms, ¶5. What counsel did not do was inform Miller that he had a right of specific performance, and it was that omission that was “strategic,” at least in the sense that counsel perceived no such right existed because Miller himself had breached the agreement by absconding before the schedule sentencing. Id. More particularly, what the court may have meant was simply that counsel reasonably discerned that, given Windom, Miller didn’t have a specific performance leg to stand on, and therefore didn’t need to be told about a right he couldn’t invoke. The holding, then, might not be so bad with that in mind (though the mention of “strategy” in this context is probably misleading). It’s worth remembering, though, that a plea agreement can’t be unilaterally terminated; defendant’s breach must be proven by the State and found by the court after proper hearing, State v. Rivest, 106 Wis.2d 406, 316 N.W.2d 395 (1982).

Plea Bargains -- Breach: By Defendant – Challenging Prior Enhancer-Conviction

State v. Robert C. Deilke, 2004 WI 104, reversing 2003 WI App 151, 266 Wis. 2d 274, 667 N.W.2d 867

For Deilke: Kelly J. McKnight

Issue: Whether a defendant’s successful challenge to a prior plea-bargain based conviction that is being used as an enhancer in a current proceeding amounts to a breach of that prior plea bargain so as to allow reinstatement of charges dismissed under it.

Holding1: Substantial and material breach: ¶16 The State asserts that due to Deilke's breach, it did not receive the full benefit of the plea bargains because his successful attack eliminated a portion of the punishment for each conviction——the effect of the convictions on the statutory penalties available for subsequent OMVWI convictions. Deilke makes three arguments to counter the State's argument and to support the court of appeals decision: … ¶17 In regard to his first argument, Deilke argues to us, as he did in the circuit court, that since he did not move to withdraw his pleas, but merely attacked the convictions due to the lack of a valid waiver of counsel, the convictions were not invalidated; they simply cannot be used for purposes of sentence enhancement. … We conclude that the result of Deilke's successful collateral attack on the convictions was to invalidate the convictions. Accordingly, we address the remainder of our discussion to Deilke's two other arguments. ¶18 Deilke asserts that none of his plea agreements contained the express condition that the convictions would be used for penalty enhancing purposes or that he could not collaterally challenge those convictions. In the absence of such express provisions, Deilke contends he cannot have breached the plea agreements. … Without the penalty-enhancing feature, the State claims the convictions are virtually useless in trying to keep impaired drivers off the road. ¶19 Additionally, in decisions that have reviewed the contention that a plea agreement has been breached, the conduct that was held to be a breach never was explicitly mentioned as an act a party to the agreement was constrained from taking. … Accordingly, we conclude that the lack of a specific instruction to Deilke in regard to a subsequent attack of the convictions, is not dispositive of any issue before us. … ¶22 We note that analyzing the parties' contentions under contract principles also causes us to conclude that Deilke materially and substantially breached the plea agreement. … Accordingly, we conclude that Deilke's collateral attack here also prevented the State from receiving all it bargained for when it dismissed multiple charges in exchange for one OMVWI conviction which has, at its core, repeater consequences designed to remove drunk drivers from Wisconsin highways. Two points. First, the effect of a collateral attack on a repeater allegation is to vacate the prior conviction – something that was at least arguable but now is explicit. (“We conclude that the result of Deilke's successful collateral attack on the convictions was to invalidate the convictions.”) Second, it isn’t entirely clear whether this notion of defendant’s breach for attacking the prior conviction is limited to OWIs. Though the majority’s language is broad in some respects, it does focus narrowly on the peculiar characteristics of OWI, e.g., ¶20 (“part of Deilke's punishment was the effect of the statutory scheme regarding drunken driving penalties under Wis. Stat. § 346.65, which envisions progressive punishment as a central component of convictions”) and ¶21 (“In addition, the prosecutor is without the authority or power to bargain away the penalty-enhancing character of an OMVWI or PAC conviction”). With those comments in mind, it’s possible to see the organizing principle of the case in this light: a successful attack on an OWI / PAC plea-bargained repeater is a substantial and material breach of that plea as a matter of law.   What about other contexts? It’s hard to imagine that this issue will come up much if at all outside the traffic context: attack on a repeater allegation is limited to denial of right to counsel, State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, ¶4, clarified on reconsideration, 2001 WI 6; State v. Peters, 2001 WI 74, 244 Wis. 2d 470, 628 N.W.2d 797, and as a practical matter that’s something unlikely to be at issue outside of criminal traffic cases such as OWI and OAR. But that doesn’t mean you can’t have a sort of spill over effect – when, for example, OWI and non-OWI(s) are the subject of a common plea bargain, and then you raise a successful postconviction challenge to a plea-bargained OWI repeater; have you, in such an instance, breached that plea bargain as well as the prior one? That, I think, is a fact-specific question. Dielke does, as suggested, support the idea that the attack breaches the prior agreement, but it doesn’t suggest that the present agreement would necessarily be breached. I suppose all you can do is keep in mind the overarching principle: “¶14 A material and substantial breach of a plea agreement is one that violates the terms of the agreement and defeats a benefit for the non-breaching party.”

Holding2: Remedy for breach ¶26 In this case, the State requested reinstatement of the PAC charges against Deilke. The circuit court granted the motion and Deilke, with advice of counsel, pled to the PAC counts. The State did not request any additional jail time, fines or term of license revocation for these convictions, other than that which had been imposed at the time of the OMVWI convictions. However, the PAC convictions then served as the basis for the OMVWI-5th and PAC-5th charges that occurred in 2001. We conclude that the circuit court appropriately exercised its discretion when it rescinded the plea agreements and returned the parties to the positions they occupied at the time they believed they had entered into valid plea agreements. Deilke does not, under the circumstances, have a statute of limitations defense to the reinstated charges, because “Deilke’s pleas induced the State to refrain from prosecuting the PAC charges when they were originally filed,” ¶30. This seems to be an estoppel type of analysis, though the court doesn’t use that term. Instead, the court simply suggests that the SoL was tolled by Deilke’s plea agreement.

Plea Bargains - Breach: By Defendant State v. Scott G. Zuniga, 2002 WI App 233, PFR filed 9/13/02 For Zuniga: Chad G. Kerkman Issue/Holding: Because the defendant was warned by the judge at a bond-release hearing that if he engaged in misconduct the state would seek a longer sentence, "the parties effectively modified the plea agreement by making the State's obligation conditional upon Zuniga's good behavior while in the community. In proceeding under these circumstances, Zuniga 'opted to take his chances under the terms of the modified plea agreement.'" ¶15. ¶17. In sum, we reject the State's argument that because Zuniga engaged in misconduct between entry of the plea and sentencing, the State was excused as a matter of law from fulfilling its promises under the agreement. Instead, we determine that under the particular facts of this case the plea agreement was amended by the parties during the bond hearing. The circumstances surrounding this amendment of the plea agreement violate no standards of fairness or decency nor any factors bearing upon due process. See Paske, 121 Wis. 2d at 475. Zuniga was fully cognizant of the risks inherent in his request for release and the terms under which his request was granted. Zuniga's participation in the amended plea agreement was freely and voluntarily made and was not the product of any violation of due process, and while the sentence meted out by the trial court did not comport with the terms of the original plea agreement, it fully comported with the agreement as amended. The facts simply don't seem to support the court's characterization. At the release hearing the judge (not the prosecutor) suggested that the state might "change their minds by screwing up while you're out on bond." ¶4. Is this really clear enough to support a change in a "constitutional contract"? For starters, what is meant by "screwing up"? And just what were the new terms supposed to be? Why, for that matter, wasn't the defendant entitled to withdraw his plea if the court found a breach? Too many questions, not enough answers.

Guilty Pleas - Plea Bargains - Breach: By Prosecutor: State Recommendation for Lengthy Terms of Extended Supervision and Probation – Non-Material Where Defendant’s Main Concern was Confinement Time

State v. David C. Quarzenski, 2007 WI APP 212, PFR filed 9/21/07

For Quarzenski: Martin E. Kohler, Christopher M. Eippert

Issue: Whether counsel was ineffective for failing to object to the State’s sentencing recommendation where: under the plea bargain the State agreed to and in fact “capped” its recommendation on several counts to a total of “7 years in prison” but “additionally asked for an extensive period of extended supervision and consecutive long-term probation.”

Holding: The State did not materially and substantially breach the agreement, and counsel therefore wasn’t ineffective, because “the parties’ plea agreement regarding the State’s sentencing recommendation was targeted at the period of Quarzenski’s confinement, not other potential components of the sentences,” ¶2. ¶23 The circuit court held that the State abided by the plea agreement and therefore trial counsel were not ineffective for failing to object. We agree. The substantial period of confinement that Quarzenski faced lends credence to Glasbrenner’s testimony that Quarzenski was concerned only with the confinement portions of the sentences he would receive. Thus, the plea negotiations were conducted from that perspective and the ultimate agreement spoke only to that concern. Therefore, trial counsel had no basis to object when the State made its sentencing recommendation . As noted, we afford trial counsel’s performance great deference, and examine the case from counsel’s perspective at the time, and avoid determinations based on hindsight. Johnson, 153 Wis. 2d at 127. Also as noted, when a circuit court ’s conclusions are based on the court’s credibility findings, we accept those determinations. Jacobson, 222 Wis. 2d at 390. Here, although not expressly addressing the credibility of Glasbrenner’s and Cafferty’s testimony, it is obvious that the court found both credible since the court ruled in favor of the State, which relied on their testimony. If the court does not make express findings on credibility, we assume it made implicit findings to that effect when analyzing the evidence. Id. We see no basis for disturbing the circuit court’s determinations. The State did not breach the plea agreement, and therefore trial counsel were not ineffective for failing to object to the State’s sentencing recommendation. Much mischief-making potential in this seemingly mundane, fact-specific little case. There’s discussion about how Quarzenski’s “primary goal was to limit” prison time, that he didn’t care a whit about extended supervision or probation (¶11). But there’s not a single word that he knew, let alone agreed, that the State could and would recommend substantial periods of time on extended supervision and probation. Not a word. As a practical matter, then, what the court of appeals has done is delegate to counsel the authority to determine key provisions of the plea bargain. We can debate whether that approach is correct as a matter of law, but that it’s not especially wise practice should be incontestable. This leads to another, related concern. Used to be that failure to object to a plea bargain breach could be saved by typical IAC analysis such as inability to show “prejudice,” State v. Smith, 198 Wis. 2d 820 (Ct. App. 1995); but the court of appeals’ approach in that case was roundly rejected on review, State v. Smith, 207 Wis.2d 259, 558 N.W.2d 379 (1997): ¶25 Here, however, Smith's claim is based on a failure to object to adversary counsel's breach of a negotiated agreement. No further information or investigation was required to enable defense counsel to offer an objection at the sentencing hearing. Moreover, the failure to object flew in the face of the "informed strategic choice" made by Smith earlier when he entered into the plea agreement. The failure to object constituted a breakdown in the adversarial system. Post-Smith, then, counsel can’t posit “tactical” reasons to justify failure to object to a breach—the issue, instead, is whether the defendant knowingly signed off on the agreement, not whether counsel thought it was in the client’s best interests, a point made clear in State v. Brian W. Sprang, 2004 WI App 121: ¶27 We agree with the State that defense counsel had valid strategic reasons for choosing not to object to the prosecutor’s remarks. However, we have already concluded that those remarks constituted a breach of the negotiated plea agreement. When defense counsel made the decision to forego an objection, he did not consult with Sprang regarding this new development or seek Sprang’s opinion in the matter. Thus, Sprang had no input into a situation where the original plea agreement, which limited the State to arguing for conditions of probation, had morphed into one in which the State could suggest that the court impose a prison sentence without probation. As such, the plea agreement to which Sprang pled no longer existed. The danger, then, is that this new case represents a bit of “push-back” by the court of appeals, an effort to restore as much of its prior, rejected approach as possible. Recall that there is nothing in this opinion to suggest that Quarzenski himself agreed to the challenged terms of the State’s allocution. In effect, the court appears to be saying that counsel is authorized to agree to certain critical terms of the agreement, whether or not the client agrees to them, so long as the client’s “primary goal” is satisfied. Sounds an awful lot like a return to an analysis of plea bargain breach that revolves around “tactical” considerations. If this is indeed a trend, it ought to be resisted, but the best expedient is the obvious one: just make sure all the terms are spelled out.

Guilty Pleas - Plea Bargains - Breach: By Prosecutor: State’s Allocutionary Presentation of Victim and Others

State v. Steven A. Harvey, 2006 WI App 26

For Harvey: Christopher William Rose

Issue/Holding: Issue/Holding: Plea bargain, which permitted State to comment on facts but not to make specific sentencing recommendation was not violated by State’s presentation of victim and others who themselves asked for maximum penalty: ¶40      We first disagree that the State breached the plea agreement by going beyond factual argument with its comments about evidence it would have introduced had there been a trial. Harvey’s sole defense was that the sex was consensual. The State simply brought to the trial court’s attention evidence that would refute that claim. … ¶41      We also disagree with Harvey that Skinner’s role at the sentencing was as a “state’s witness” and that her statement amounted to an “end-run” or in any way rose to the level of a material and substantial breach of the plea agreement. … The State underscored that it in no way was encouraging Skinner, or others, to make any sort of penalty recommendation. In our view, both the trial court and the State demonstrated an exemplary effort to honor the plea agreement. ¶42      We reject Harvey’s argument on another basis as well. As the trial court aptly noted, Harvey’s objections to statements by the victim’s witnesses in essence asked the trial court to silence the victim and/or her family. The victim and her family members merely were afforded the same opportunity to speak as was offered, and accepted, by Harvey’s family. Moreover, a victim of a crime has an absolute right to make a statement at sentencing, and it is within the trial court’s discretion to “allow any other person to make or submit a statement” as long as the statement is relevant to the sentence. Wis. Stat. § 972.14(3)(a). Similarly, the “Basic bill of rights for victims and witnesses” statute guarantees a victim the right “[t]o provide statements concerning sentencing” and the right “[t]o have the court provided with information pertaining to the economic, physical and psychological effect of the crime upon the victim and have the information considered by the court.” Wis. Stat. § 950.04(1v)(m) and (pm). Finally, we observe that Wis. Stat. § 950.11 provides for a forfeiture penalty against a public official who intentionally fails to provide a right specified under § 950.04(1v). ¶43      Skinner’s statement offered the very kind of sentencing information contemplated by Wis. Stat. § 950.04(1v)(m) and (pm). [9] Skinner related that her sister had to move from a house she loved because of the memories associated with the assault and that her sister now is fearful, sometimes telephoning Skinner because she “thinks she hears things, and she’s afraid that someone is in her apartment.” Skinner stated that because the actions of Harvey, their stepbrother, “really had serious repercussions on the family as a whole,” such that “my sister and I have basically lost our family,” she was asking the court to consider giving the maximum penalty. Courts are encouraged to consider the rights and interests of the public when imposing sentence. State v. Johnson, 158 Wis.  2d 458, 465, 463 N.W.2d 352 (Ct. App. 1990). There’s been surprisingly little litigation on victim’s allocution. Note the court’s observation that “a victim of a crime has an absolute right to make a statement at sentencing.” If you want to see just how “absolute” that right can be construed, take a look at Kenna v. U.S. District Court (II), 9th Cir. No. 05-73467, 1/20/06 (under the very similar Crime Victims’ Rights Act, 18 U.S.C. § 3771: defendant’s sentence vacated and resentencing ordered to allow victim right to allocution, even though he had had that opportunity at an earlier sentencing of the codefendant; yikes!); subsequent history, Kenna II, No. 06-73352, 7/5/06 (crime victim not entitled to general right of disclosure of entire PSR, but court seems to say that "specific portions" are subject to dislcosure). As the court suggests, such statements must be relevant to sentence (§ 972.14(3)(a)), but given how broad the concept of sentencing relevance, that limitation is cold comfort at best. Victims’ right to allocution does, though, strengthen the argument that the defendant’s right to allocution is constitutional and not merely statutory, State v. Thomas A. Greve, 2004 WI 69, ¶43 (Crooks, J., conc.). And, of course, the exercise of this right heightens the defendant’s right to be sentenced only on accurate information, e.g., State v. Yolanda M. Spears, 227 Wis.2d 495, 596 N.W.2d 375 (1999).

Guilty Pleas - Plea Bargains - Breach: By Prosecutor: Immediate Correction of Breach

State v. Richard L. Bowers, 2005 WI App 72

For Bowers: George Tauscheck

Issue/Holding: The State’s immediate correction of recommended disposition in excess of the plea bargain’s limit rendered the breach insubstantial and therefore not actionable; State v. Knox, 213 Wis. 2d 318, 321, 570 N.W.2d 599 (Ct. App. 1997), followed: ¶12. We reach the same conclusion here. While the State did not correct itself with tremendous enthusiasm and zeal and while the trial court did not reflect upon the State's "earnest" advocacy of the proper sentence, such is not required for us to find a perceived breach immaterial and insubstantial. There is no requirement that the state correct a misstated sentence recommendation forcefully or enthusiastically. Knox teaches us that it is sufficient for the State to promptly acknowledge the mistake of fact and to rectify the error without impairing the integrity of the sentencing process. See id.; s ee also State v. Williams, 2002 WI 1, ¶51 n.47, 249 Wis. 2d 492, 637 N.W.2d 733 ("In Knox, the breach was not actionable because the prosecutor misstated a term of the plea agreement but promptly acknowledged the mistake of fact and rectified the error without impairing the integrity of the sentencing process."). ¶13. In the present case, when the mistake was brought to its attention, the State promptly and matter-of-factly corrected its recommendation to the agreed upon bifurcated sentence and in its sentencing remarks, the trial court recognized that the State was recommending "two years" of initial incarceration as part of the plea agreement. The perceived breach was not an attempt to qualify or undercut the substance of the plea agreement; rather, it was simply an inadvertent misstatement that was acknowledged and rectified shortly thereafter. We therefore hold that the State did not materially and substantially breach the plea agreement when it misspoke as to the length of initial incarceration. There being no material and substantial breach of the agreement, counsel could not be said to have performed deficiently. In this instance, the defense didn’t object to the potential breach, and the issue is therefore raised in the context of ineffective assistance of counsel. That procedural background shouldn’t matter: the court plainly goes to the merits of the issue and finds no substantial and material breach. Whether this sort of indulgent treatment of what was, after all a clear breach, will encourage fast-and-loose play remains to be seen. Keep in mind, too, that objection may result in the error being “cured,” State v. Michael A. Grindemann, 2002 WI App 106, surely a legal fiction if there ever was one. Indeed, in the present case there was for all practical purposes an objection, except that it was, interestingly, made by the defendant himself – to his attorney, with the prosecutor happening to overhear and then make his mid-course correction, ¶3. Terrible to say, but from the defendant’s point of view it may be better that counsel not object to a plea bargain breach. Counsel, of course, has a divergent point of view, namely the requirement of zealous advocacy not to say avoiding a Machner hearing. But the real problem is that the court appears more inclined to encourage rather than deter sloppy and even malicious advocacy. Hard to imagine a better way to induce transparent communication of the prosecutor’s real allocution than this. Compare, State v. Bearse, Iowa SCt No. 116/06-9016, 4/18/08 (prosecutor sought to remedy breach by informing court state would "abide by the agreement": inadequate, where plea bargain required prosecutor to "recommend" disposition, meaning a degree of advocacy).

Guilty Pleas - Plea Bargains - Breach: By Prosecutor: Terms of Agreement – Absent Express Limitation, Prosecutor Has Free Hand to Argue Consecutive or Concurrent Sentence

State v. Richard L. Bowers, 2005 WI App 72

For Bowers: George Tauscheck

Issue/Holding: Where the agreement is silent as to whether the State may recommend concurrent or consecutive time to an independent sentence, the State has a free hand to argue in favor of consecutive time: ¶16. We recognize that the issue of concurrent and consecutive sentences is "extremely important" to a guilty plea. See Howard, 246 Wis. 2d 475, ¶18. However, in the absence of any indication that the parties expected the State to either remain silent or recommend concurrent sentences, we are reluctant to engraft these conditions into a fully integrated plea agreement. The interpretation of plea agreements is rooted in contract law, see Deilke, 274 Wis. 2d 595, ¶12, and basic contract law dictates that we recognize the parties' limitation of their assent. Contract law demands that each party should receive the benefit of its bargain; no party is obligated to provide more than is specified in the agreement itself. See United States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994); United States v. Fentress, 792 F.2d 461, 464 (4th Cir. 1986) (citing Restatement (Second) of Contracts §§ 210, 216 (1981) for the proposition that "[a]s a fully integrated [plea] agreement, the described exchange may not be supplemented with unmentioned terms"). Accordingly, the State should be held only to those promises it actually made to the defendant. As the Fourth Circuit explained in Fentress, "While the government must be held to the promises it made, it will not be bound to those it did not make. To do otherwise is to strip the bargaining process itself of meaning and content." Fentress, 792 F.2d at 464-65. … ¶20. Given that the plea agreement contained no provision for the OWI sentence to be imposed so as to be served concurrently with the sentence in the revocation case, the State's recommendation on the matter during the sentencing hearing was not a breach of the agreement. Because the State did not breach the agreement, Bowers' counsel did not perform deficiently by failing to object to the State's recommendation. Howard distinguished on basis that agreement in that instance expressly called for recommendation of concurrent sentences, ¶17 n. 3; and Deilke read to mean that there is no broad license “to read into a plea bargain any unarticulated and unnegotiated term, id. Where to start? At the beginning, with the undisputed notion (recognized by the court, ¶9), that a plea agreement is like a contract. Well, yes, but the court then fails to add the crucial qualifier that the “application [of contract principles] to plea agreements must be tempered by recognition of limits that the Constitution places on the criminal process, limits that have no direct counterparts in the sphere of private contracting,” U.S. v. Bownes, 7th Cir. No. 03-3016, 4/26/05. Indeed, with minimal effort you'll find Wisconsin caselaw nods to this principle; e.g., State v. Antonio A. Scott, 230 Wis.2d 643, 602 N.W.2d 296 (Ct. App. 1999) ("We are mindful, however, that the analogy of plea agreements to private contracts is not precise. The constitutional concerns undergirding a defendant’s “contract rights” in a plea agreement demand broader and more vigorous protection than that accorded private contractual commitments.") What this translates to is a sort of rule of lenity in construing ambiguous plea bargain terms, in which the State is held to a greater standard of precision because it is the party with the greater leverage: e.,g., U.S. v. Palladino, 347 F.3d 29 (2nd Cir. 2003) (“At the very least, the plea agreement was ambiguous as to whether the Government could justifiably pursue the enhancement sought in this case. We have consistently held that any such ambiguity in a plea agreement must be construed against the Government.”). In Bowers’ instance, the court either takes silence about sentence structure advocacy to mean explicit assent to recommend consecutive terms; or, possibly, to mean ambiguity that must be resolved against Bowers. The first is obviously wrong as a matter of fact, and the second as a matter of law. An interesting and persuasive dissent by Judge Brown gets right to the point of a somewhat different tack: “If we allow the State to bargain for a recommendation of a specific sentence and then let the State unilaterally recommend a consecutive sentence over and above the sentence recommendation mutually assented to, we are permitting the State to change the rules of the game,” ¶26. Judge Brown also notes that the near dearth of pertinent caselaw suggests that “what the State has done here is not a regular recurring event either in Wisconsin or elsewhere,” ¶26 n. 5. Perhaps that was because prosecutors up to now reasonably concluded that they couldn’t do what the State has done here. And this means, in the first instance, that defense counsel must be much more fastidious about hammering out plea bargain terms. Apart from potential pragmatic implications, Judge Brown also highlights the doctrinal tension which flows from fashioning the result based on who’s seeking redress: “The majority dismisses Deilke and the cases it cites as relevant only where the State has violated an undisputed term of the contract or the defendant undermines ‘a benefit the State had bargained for by challenging one of the convictions underlying the agreed upon sentence.’ Majority op., ¶17 n.3 (emphasis added). I do not understand why there can be a breach when the defendant undermines an unexpressed benefit the State expected but not vice versa.” But oddly this may all be merely tangential. The huge, unanswered problem looming over this case is that it simply isn’t clear what the plea bargain terms were; or, therefore, whether there was in fact a breach. Bowers either did, or did not, negotiate for a limit on prosecutorial recommendation to concurrent terms – if he did, then the majority’s discussion is but so much temporizing; if he didn’t, then what’s the fuss? The only clue we are given is this very elliptical footnoted aside, ¶15 n. 2: “Bowers does not argue that he had negotiated with the State for a recommendation of concurrent sentences.” If Bowers had in fact negotiated for such a recommendation, that fact would almost certainly have been asserted in support of the motion. But the absence of such negotiation-in-fact would not be fatal: if Bowers thought that such a restriction was part of his plea bargain, and if that belief were reasonable, then he should have been able to raise the breach and seek enforcement of the agreement under some variant of the lenity principle noted above. Still another possibility exists, namely that no negotiation was made on this basis, but Bowers was misled by his attorney into thinking there was – which would support a potential ineffective-assistance claim that the plea was involuntary, see, e.g., Teubert v. Gagnon, 478 F. Supp. 474 (E.D. Wis. 1979). Yet, no such claim seems to have been made (either that, the court swept it under the rug). What this suggests is a useful way of distinguishing Bowers, on the fact-specific basis that the particular defendant did negotiate for the breached term, or reasonably thought s/he did (or was misled into thinking so).

Guilty Pleas - Plea Bargains - Breach: By Prosecutor - Sentencing Recommendation by Police Officer Exceeding Bargained Length State v. Leonard C. Matson, 2003 WI App 253 For Matson: Michael Yovovich, SPD, Madison Appellate Issue/Holding: ¶13. Matson argues his due process rights were violated when Alstadt, the investigating detective in this case, gave a sentencing recommendation that undermined the State's recommendation, in effect, breaching the plea agreement. The State counters that Alstadt was not a party to the plea agreement and thus his letter did not violate Matson's due process rights. We agree with Matson that Alstadt's letter constituted a breach of the plea agreement. ... ¶23. Because an investigative officer is the investigating arm of the prosecutor's office, principles of fairness and agency require us to bind the investigating officer to the prosecutor's bargain. When a defendant pleads guilty to a crime, he waives significant rights, including the right to a jury trial, the right to confront his accusers, the right to present witnesses in his defense, the right to remain silent and the right to have the charges against him proved beyond a reasonable doubt. If the guilty plea is part of a plea bargain, the State is obligated to comply with any promises it makes. When a plea rests in any significant degree on a promise or agreement of the prosecutor so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. ¶24. The cases cited by the State, both from within and outside of Wisconsin, generally deal with probation or parole officers providing statements or sentencing recommendations in the context of a presentence report and are easily distinguishable.... ¶25. Investigating officers are so integral to the prosecutorial effort that to permit one to undercut a plea agreement would, in effect, permit the State to breach its promise. If the prosecutor is obligated to comply with plea bargain promises, then the prosecutor's investigating officers may not undercut those promises by making inconsistent recommendations. We conclude that statements of the investigating officer for purposes of the sentencing hearing are the statements of the prosecutor. A prosecutor may not undercut a plea agreement directly or by words or conduct. Nor may he do so by proxy. "The State may not accomplish by indirect means what it promised not to do directly ...." State v. Williams, 2002 WI 1, ¶42, 249 Wis. 2d 492, 637 N.W.2d 733 (citation omitted). ... ¶27. We acknowledge that circuit courts are not rubber stamps and do not blindly accept or adopt sentencing recommendations from any particular source. State v. Johnson, 158 Wis. 2d 458, 465, 463 N.W.2d 352 (Ct. App. 1990). However, it matters not what sentence the circuit court would have imposed in the absence of Alstadt's letter; the letter constituted a material and substantial breach of the plea agreement. Prejudice is presumed and always results from such a manifest injustice. State v. Smith, 207 Wis. 2d 258, 281, 558 N.W.2d 379 (1997). Our conclusion precludes any need to consider what the sentencing judge would have done had the breach not occurred. Id. Guilty Pleas - Plea Bargains - Breach: By Prosecutor -- Remedy State v. Leonard C. Matson, 2003 WI App 253 For Matson: Michael Yovovich, SPD, Madison Appellate Issue/Holding: ¶33. Here, as he did before the circuit court, Matson seeks not to withdraw his plea, which is one remedy for a breach of a plea agreement. Santobello v. New York, 404 U.S. 257, 263 (1971). Matson instead seeks specific performance, a new sentencing by a different judge with a new presentence report. While the choice of remedy is not up to the defendant, if a defendant seeks only specific performance, we can simply order resentencing by a different judge. State v. Howard, 2001 WI App 137, ¶37, 246 Wis. 2d 475, 630 N.W.2d 244. The less extreme remedy of specific performance is always preferred. Id. ¶34. A new circuit court judge should conduct Matson's resentencing. Furthermore, to avoid any further taint in the case, we also conclude that a new presentence investigation should be conducted, without consideration of detective Alstadt's letter, and a new report completed by an agent from another county. See Howland, 2003 WI App 104 at ¶38.

Plea Bargains -- Breach: By Prosecutor -- Pressuring PSI Agent to Change Favorable Recommendation Where State Had Agreed to Make No Recommendation

State v. Joshua L. Howland, 2003 WI App 104 For Howland: Paul G. LaZotte, SPD, Madison Appellate Issue/Holding: ¶37. We conclude that the district attorney's contacts with the Department of Probation and Parole, complaining about the PSI author's sentence recommendation, when the plea agreement required the State to make no sentence recommendation, resulted in a material and substantial breach of the plea agreement. Consequently, we reverse the order denying Howland's postconviction motion and we remand the cause to the circuit court for resentencing. ¶38. We further conclude that because of the nature of the past proceedings, Howland's resentencing would be best conducted by a new circuit court judge. Furthermore, to avoid any further taint in this case, we also conclude that a new presentence investigation should be conducted and a new report completed by a department from another county. (The court stresses that the agreement was for no recommendation, but does that make a difference? Maybe not: the majority equally stresses the ex parte nature of the prosecutor’s contacts with the Department, which impaired the PSI’s neutrality. ¶¶32-38. The propriety of these contacts had nothing to do with the plea bargain, but related to a separate value. This is indeed the point of the concurrence: the prosecutor wasn’t barred from seeking “to protest” the way the PSI was prepared, but chose an improper avenue, namely, “the ex parte communications ruined the independent nature of this PSI.” ¶43. Hard to see why this logic would not extend to all PSI’s, regardless of the precise plea bargain terms or even the existence of a plea bargain. And, what about sauce for the goose, sauce for the gander? If prosecutorial ex parte contact is improper, so is ex parte defense contact: “¶33. The preparer of the PSI is to be a neutral and independent participant in this sentencing process. State v. McQuay, 154 Wis. 2d 116, 131, 452 N.W.2d 377 (1990). … ¶36. Because of the requirement that the report be objective, it is of vital importance that the author of the report be neutral and independent from either the prosecution or the defense.")

Guilty Pleas – Plea Bargains – Breach: By Prosecutor – End-Run ("Negative Allocution")

State v. Rudolph L. Jackson, 2004 WI App 132, PFR filed 6/15/04

For Jackson: Andrea Cornwall, SPD, Milwaukee Appellate

Issue: Whether the prosecutor violated an agreement not to make a specific sentencing recommendation by expressing outrage at recommendations proffered on Jackson’s behalf and by urging the court to take into account the deterrent effect of its sentence.

Holding: ¶14. Jackson contends that the prosecutor breached the plea negotiation as his statements constituted an "end-run" around the prosecutor's agreement not to recommend a specific sentence. He claims that the prosecutor's comments were designed to influence the severity of the sentence. A similar complaint was made in State v. Ferguson, 166 Wis. 2d 317, 479 N.W.2d 241 (Ct. App. 1991). There, the prosecutor agreed to recommend imposed and stayed sentences, the length of which was to be determined by the trial court, followed by twenty years' probation. Id. at 319. The trial court declined to follow the State's recommendation and, instead, sentenced Ferguson to six years' imprisonment on one charge and stayed a ten-year prison sentence on the other, and placed Ferguson on probation for fifteen years. Id. at 320. Ferguson claimed that the prosecutor's comments "amounted to an `explicit and outrageous character assault.'" Id. at 324. In concluding that the prosecutor's comments were appropriate, we observed: "At sentencing, pertinent factors relating to the defendant's character and behavioral pattern cannot be `immunized by a plea agreement between the defendant and the [S]tate.'" Id. at 324 (citation omitted). "A plea agreement which does not allow the sentencing court to be apprised of relevant information is void as against public policy." Id. ¶15. That is exactly what occurred here. The prosecutor wanted the trial court to know all of the relevant information concerning Jackson and to consider the impact of the sentence before it sentenced Jackson. The plea agreement permitted the prosecutor to supply this information. The fact that the prosecutor's comments were compelling and delivered by "strong words" did not transform the commentary into a plea bargain violation. Increasing number of Wisconsin cases on this point make it less necessary to consult foreign authority. Nonetheless, there's a good discussion worth reviewing, in U.S. v. Hodge, 3rd Cir No. 02-1817, 6/27/05 (government's comments implied that defendant should not be released and therefore amounted to request for life sentence, thus violating agreement not to recommend specific sentence); State v. Foster, KS App No. 97,407, 4/11/08 ("Foster's prosecutor said that she recommended probation, but the words she used do not meet the minimum requirements for a recommendation. Recommend means 'to praise or commend (one) to another as being worthy or desirable,' or 'to make (the possessor, as of an attribute) attractive or acceptable.' American Heritage Dictionary 1460 (4th ed. 2000). The prosecutor here did not state anything that would cause an objective person to conclude that probation was worthy, desirable, attractive, or even acceptable.") Some good language, too, albeit with unfavorable result, in U.S. v. Salazar, 7th Cir No. 05-1673, 7/13/06.

Plea Bargains -- Breach: By Prosecutor -- Negative Allocution

State v. Jesse Liukonen, 2004 WI App 157

For Liukonen: Russell L. Hanson

Issue:Whether the State breached the plea agreement to cap its sentencing recommendation at a total of 17 years’ incarceration, by asserting: “the more I looked at this case, the more I heard from the victims, the more I argue today, I realize that Mr. Liukonen I think got an extreme break by the system here”; that Liukonen was facing “a phenomenal amount” of time, but “even if the Court goes along with the proposed sentence recommendation, I think he will be getting a tremendous break from the system, but it has been agreed to,” ¶4. Holding: ¶10. The plea agreement breach topic we address today involves a "fine line." Plea agreements in which a prosecutor agrees to cap his or her sentencing recommendation and hopes the court will impose the full recommendation "represent a fine line for the State to walk." … ¶11. Prosecutors may provide relevant negative information and, in particular, may provide negative information that has come to light after a plea agreement has been reached. However, prosecutors may not make comments that suggest the prosecutor now believes the disposition he or she is recommending pursuant to the agreement is insufficient. … … ¶13. We acknowledge the challenge faced by prosecutors, but conclude that the prosecutor in this case crossed the "fine line." … ¶14. For the most part, the prosecutor's remarks constituted fair comment on the seriousness of Liukonen's conduct, criminal history, and character, even when the prosecutor employed strong language. However, the prosecutor also talked about information he had learned and testimony he had heard after he entered into the plea agreement, and then used language suggesting he now thought the agreement was too lenient. … ¶15 … These comments communicated to the circuit court that the prosecutor was making the plea agreement recommendation because he was bound to do so, not because he thought it constituted an appropriate prison term. …

Plea Bargains -- Breach: By Prosecutor -- Negative Allocution

State v. Brian W. Sprang, 2004 WI App 121

For Sprang: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether the prosecutor breached the plea agreement, which called for recommendation of probation but left a free hand to argue terms and conditions, by expressly referring to the possibility of treatment in a prison setting and by implicitly endorsing PSI and sex offender report recommendations for prison. Holding: ¶21 Turning back to Sprang’s claim, we conclude that this case is more akin to Williams than Naydihor. We begin our analysis by acknowledging, under Naydihor, that the terms of the plea agreement, which permitted the prosecutor to argue the length and terms of probation, provided the prosecutor with substantial latitude in his presentation of negative information about Sprang in an effort to persuade the sentencing court to impose a stayed sentence and to further impose a substantial period of confinement as a condition of probation. However, unlike the prosecutor in Naydihor who never mentioned prison time, the prosecutor in this case expressly referred to the possibility of a prison setting, even going so far as suggesting the term of confinement necessary to meet Sprang’s treatment needs. See Naydihor, 678 N.W.2d 220, ¶16. ¶22 Further distinguishing this case from Naydihor and likening it to Williams are the prosecutor’s observations that (1) both the PSI and sex offender assessment reports disagreed with the probation recommendation set out in the plea agreement; and (2) Sprang was “high risk” and had not previously done well on probation. ¶23 “[W]hat the prosecutor may not do is personalize the information, adopt the same negative impressions as [the author of the presentence investigation report] and then remind the court that the [author] had recommended a harsher sentence than recommended.” Williams, 249 Wis. 2d 492, ¶48 (citation and footnote omitted). While not expressly stating that he had changed his impression of Sprang, see id., ¶47, the prosecutor observed that he found it “troubling” that Sprang’s version of the offense in the PSI report contradicted his guilty plea, that he found it clear from the PSI report and sex offender evaluation that Sprang was “high risk,” and finally, that he was “concerned” that the PSI report and sex offender assessment did not agree with the plea agreement and made a recommendation of initial confinement in the three- to five-year range. ¶24 We conclude that the prosecutor’s comments, including a recitation of the PSI recommendation for confinement, constituted a breach of the plea agreement by “insinuat[ing] that [the State] was distancing itself from its recommendation,” see Naydihor, 678 N.W.2d 220, ¶28, and “cast[ing] doubt on … its own sentence recommendation.” See Williams, 249 Wis. 2d 492, ¶50. In doing so, we acknowledge the State’s contention that the prosecutor’s remarks were merely informative in nature. Such an argument begs the question. No doubt the prosecutor’s remarks were informative; however, the core inquiry is whether such “information” breached the terms of the plea agreement. Our inquiry does not turn on whether the prosecutor intended to breach the agreement, 6 see State v. Howland, 2003 WI App 104, ¶31, 264 Wis. 2d 279, 663 N.W.2d 340, but rather we look to the practical effect of the prosecutor’s statements. Here, that effect was to deprive Sprang of his constitutional right to the enforcement of the negotiated terms of his plea agreement. See Williams, 249 Wis. 2d 492, ¶37. 6 Nor does our inquiry turn on whether the sentencing court was influenced by the State’s breach. State v. Poole, 131 Wis. 2d 359, 363, 394 N.W.2d 909 (Ct. App. 1986). Therefore, we do not consider the trial court’s statement that it did not base its sentencing decision in this case on the State’s remarks.

Plea Bargains -- Breach: By Prosecutor -- Negative Allocution State v. Victor Naydihor, 2004 WI 43, affirming 2002 WI App 272, 258 Wis. 2d 746, 654 N.W.2d 479 For Naydihor: Philip J. Brehm Issue: Whether the State’s allocution amounted to an end-run violation of its obligation to recommend probation at sentencing by stressing Naydihor’s “lengthy history of polysubstance abuse,” his presentation of danger to the community, harm he caused the victim, and the need to send a “message [that] this type of behavior will not be tolerated.” Holding: Because the State remained free under the plea agreement to argue the length and terms of probation, its comments offered fair support for its request of 10 years’ probation, including a year in the county jail: ¶24 … Hanson stands for the proposition that the State may discuss negative facts about the defendant in order to justify a recommended sentence within the parameters of the plea agreement. Hanson, 232 Wis. 2d 291, ¶¶27-28. ¶25. Likewise, Ferguson permits the State to discuss aggravating sentencing factors and relevant behavioral characteristics of the defendant in order to justify an unusual sentence recommendation within the constraints of the plea agreement. Ferguson, 166 Wis. 2d at 324-25. Ferguson specifically concluded that a prosecutor could discuss "pertinent factors relating to the defendant's character and behavioral pattern." Id. at 324. Indeed, the court in Ferguson stated that a prosecutor has the duty to discuss such information in order to justify a harsh and unusual sentence recommendation. Id. at 325. Further, no plea bargain can prevent a prosecutor from bringing to the court's attention relevant sentencing information. Id. at 234. See also Jorgensen, 137 Wis. 2d 169-70 (accord). Finally, under Williams, the State may "recite the unfavorable facts about the defendant to inform the circuit court fully." Williams, 249 Wis. 2d 492, ¶50. … ¶28. Also, the State here, unlike Williams, did not agree to recommend the minimum sentence; it agreed only to recommend some type of probation and dismiss one of the charges. Further, the negative information about Naydihor that the prosecutor conveyed to the court in no way insinuated that the prosecutor was distancing itself from its recommendation. Quite the contrary, the prosecutor's comments can be characterized as an enthusiastic argument supporting the "rather unusual" recommended sentence. See Ferguson, 166 Wis. 2d at 325. ¶29. While the prosecutor did direct the court to certain facts contained in the victim impact statement, this is not prohibited under Williams. … ¶30. Thus, while a defendant is entitled to a neutral recitation of the terms of the plea agreement, Poole, 131 Wis. 2d at 364, and the prosecutor may not overtly or covertly convey to the court that a sentence harsher than that recommended is warranted, Hanson, 232 Wis. 2d 291, ¶24, we have found no case that holds that the State is obligated to say something nice or positive about the defendant in order to avoid breaching a plea agreement. Naydihor bargained only for the State to drop one of the counts in the information and to recommend probation. Naydihor did not bargain for the prosecutor to extol his virtues at sentencing.

Plea Bargains - Breach: By Prosecutor -- Less Than Neutral Recitation of Recommendation

State v. Rodney K. Stenseth, 2003 WI App 198, PFR filed 9/2/03 For Stenseth: Robert A. Ferg Issue/Holding: The state did not violate the plea bargain, which limited its recommended disposition to two years' confinement plus extended supervision, by expressing agreement with some portions of the PSI (which recommended 8 years' confinement plus supervision): ¶12. Here, the State's reference to the plea agreement was not less than neutral. It simply agreed with the report that Stenseth needed to be incarcerated, without commenting on the sentence recommendation in the report. Testimony given by Stenseth's witnesses could have supported a request for probation only. The State referred to information in the presentence investigation report only to support the recommendation that Stenseth be sentenced to prison rather than straight probation. In fact, when Stenseth objected to the State's use of the presentence report in its argument, the court noted: [T]he District attorney could well have inferred from the tenor and tone of your [Stenseth's attorney's] presentation of the witnesses that you were going to recommend a straight probationary term. And it is consistent with her plea agreement and with her commitment to you and to the defendant to say that's not a good idea, Judge. There really has to be, in the state's view, actual confinement. There actually has to be a sentence. There actually has to be extended supervision. Straight probation should not be the order of the Court. And that interpretation of counsel's remarks is consistent with her plea agreement to you. Although Stenseth's attorney stated he was not going to argue for probation, the court was free to impose any sentence it thought appropriate, including probation. There was nothing improper in the State arguing facts in opposition to probation. ¶13. At no time did the State argue for anything other than the agreed-upon sentence. Nor did it mention that the presentence report recommended a longer sentence. The State properly used the presentence report in support of the plea agreement's sentence recommendation. Consequently, the State did not violate the terms of the plea agreement, and thus there was no breach. (This analysis is skimpy. Then again, so is the recitation of facts. If all the prosecutor did was argue against probation then this is a limited holding, given that the prosecutor was entitled to ask for a prison term. Nothing in the opinion says otherwise.)

Plea Bargains - Breach: By Prosecutor -- Less Than Neutral Recitation of Recommendation

State v. Robert D. Hanson, 2000 WI App 10, 232 Wis.2d 291, 606 N.W.2d 278.

For Hanson: Suzanne L. Hagopian, SPD, Madison Appellate.

Issue: Whether the prosecutor undermined a 10-year sentencing cap by emphasizing that "this is an extremely violent case," along with other aggravating factors.

Holding: By stressing to the trial court that she was standing by the plea agreement, "the prosecutor strongly affirmed the plea agreement and did not make any statements that expressly, covertly or otherwise suggested that the State no longer adhered to the agreement." ¶¶28-30. Go To Brief But see, e.g., U.S. v. Gonczy, 1st Cir. No. 02-2399, 2/2/04 (government's "initial recommendation," which was as nominally required by the agreement, nonetheless "was undercut, if not eviscerated, by the AUSA's substantive argument to the district court"); and U.S. v. Rivera, 3rd Cir. No. 02-3067, 2/9/04 (government breached agreement to recommend offense level of 35 when it stated, "we stand by the probation officer's conclusion," which included recommendation of level 39 -- government thereby "in efect" endorsed level 39), rehearing denied, 4/15/04.

Plea Bargains -- Breach: Limiting Defense Presentation at Sentencing

State v. Shomari L. Robinson, 2001 WI App 127, PFR filed 5/7/01

For Robinson: Joseph L. Sommers

Issue: Whether the plea bargain was breached when the defendant wasn’t allowed to present certain evidence at sentencing.

Holding: ¶16 ... (T)he trial court did not clearly err in finding that the plea agreement called for argument by the parties, and at most, a very limited presentation of evidence at sentencing regarding the nature of the sexual assault. ¶17. Given that the parties' agreement called for the right to argue and to present limited evidence at sentencing regarding the nature of the sexual assault, we conclude, as did the trial court, that the agreement was not breached. Robinson gave his version of what occurred on the night in question, and his counsel argued at length as to why his client's statement was more credible than the victim's preliminary hearing testimony. Although the court specifically declined to view the car proffered at sentencing, it did not deny Robinson the opportunity to present evidence other than that relating to the condition of the proffered car. In fact, the court specifically offered to consider testimony from any persons who were present in the schoolyard at the time of the assault. (Note: Court stresses, ¶18, that agreement didn’t allow defendant to introduce "any and all evidence he wished at sentencing, regardless of its relevance and probative value"; and, in any event, "an agreement could not supplant the court’s exercise of discretion in setting the permissible bounds of the sentencing hearing[.]")

Plea Bargains -- Breach: Materiality -- Promise Must Induce Plea

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

Issue: Whether transfer to an out-of-state prison breached the plea bargain.

Holding: ¶7 ... (I)n order to prevail on a claim of breach of a plea agreement, Parker cannot rely on whatever his 'reasonable expectations' might have been at sentencing. Instead, he must show the violation of a specific prosecutorial promise that induced his plea. See State v. Bond, 139 Wis. 2d 179, 187-88, 407 N.W.2d 277 (Ct. App. 1987). In this case, Parker must show that during plea negotiations the prosecutor promised Parker he would serve his sentence in Wisconsin. Here, there is no proof whatsoever that the prosecutor or court promised Parker he would serve his sentence in Wisconsin. Therefore, we conclude that Parker has failed to prove by clear and convincing evidence that a material and substantial breach of the agreement occurred. State ex rel. Warren, 219 Wis. 2d at 643.

Plea Bargains - Breach: By Prosecutor -- Failure to Comply with Express Terms of Sentencing Recommendation

State v. Robert D. Hanson, 2000 WI App 10, 232 Wis.2d 291, 606 N.W.2d 278.

For Hanson: Suzanne L. Hagopian, SPD, Madison Appellate.

Issue: Whether the prosecutor breached the plea bargain by failing to expressly recommend the agreed 10 year sentencing cap, on a 15-year exposure.

Holding: Even though the prosecutor did not expressly recite the 10-year cap, the parties had "referred generally to the sentencing recommendation provision of the plea agreement a number of times," so that "there could be no misunderstanding as to what the parties were referring to, or what the State's sentencing recommendation was, despite the absence of the precise words." ¶23.

Go To Brief

Plea Bargains -- Breach: By Prosecutor -- Recommendation of Consecutive Terms Where Agreements Required Recommendation of Concurrent Terms

State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244

Issue: Whether the prosecutor breached a plea bargain calling for a maximum recommendation on multiple counts of concurrent terms of 25 years in prison, when the actual recommendation was for a total of 25 years but included consecutive terms.

Holding: ¶18 Undoubtedly, one of the most crucial issues in a plea agreement is the recommendation concerning length of time to be served on each count. However, whether sentences are to be concurrent or consecutive is also extremely important. The designation of concurrent or consecutive time can affect the actual amount of time served, the application of pre-sentence credit, parole eligibility dates, the date a defendant is allowed access to rehabilitative services, and other factors. See, e.g., State v. Tuescher, 226 Wis. 2d 465, 469, 595 N.W.2d 443 (Ct. App. 1999) (If the sentences are concurrent, time spent in pre-sentence custody is credited toward each sentence, but if the sentences are consecutive, time in pre-sentence custody is credited toward only one sentence.). A recommendation of concurrent sentences can also send a signal to the trial court that the agreement contemplates a lesser sentence than one where consecutive sentences are recommended. ¶19 Thus, there are a variety of important reasons why a defendant may choose to negotiate for a promise to recommend concurrent time. We conclude that where a plea agreement undisputedly indicates that a recommendation is to be for concurrent sentences, an undisputed recommendation of consecutive sentences that is not corrected at the sentencing hearing constitutes a material and substantial breach of the plea agreement as a matter of law.

Plea Bargains -- Breach: By Prosecutor -- Revocation of Probation for Failure to Admit Offense After Alford Plea

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: Whether "the State breached the Alford plea agreement and thereby violated his right to due process when it revoked his probation solely on his continued assertion of innocence." ¶49.

Holding: ¶55 Because the State never promised or assured Warren that he would be able to maintain his innocence for purposes other than the plea itself, we conclude that the State did not breach its Alford plea agreement with Warren when it revoked his probation in this case.

Plea Bargains -- Renegotiation of Original Bargain After Unilateral Prosecutorial Withdrawal

State v. Antonio A. Scott, 230 Wis.2d 643, 602 N.W.2d 296 (Ct. App. 1999)

For Scott: Jennifer L. Weston.

Issue: Whether Scott was denied effective assistance of counsel when his attorney allowed him to renegotiate an already-consummated plea bargain without advising that the original agreement was enforceable.

Holding: Counsel's failure to inform Scott that he had a fully enforceable right to performance of the original plea bargain, prior to renegotiating the agreement, was both deficient and prejudicial.

Analysis: Scott entered no contest pleas pursuant to plea bargain. Certain restrictions were thereby placed on prosecutorial allocution. At sentencing, a different prosecutor appeared and withdrew the state from the agreement, claiming that it was entered without authority. Scott then renegotiated a less favorable agreement (which allowed the prosecutor to request greater punishment), without being informed that the original agreement was enforceable. The court of appeals holds that counsel's failure to provide this advice was ineffective assistance. Once a plea is entered pursuant to a plea bargain, substantive due process obligates prosecutorial compliance, without any need to show detrimental reliance. Thus, the state was obligated to adhere to the original limit on allocution. Counsel assumed, upon the state's withdrawal from the original agreement, that Scott's choices were limited to plea-withdrawal or assent to the new offer. Counsel's failure to seek or advise Scott of the third option - specific performance of the first agreement - was both deficient and prejudicial ("a fortiori ... a failure to seek enforcement of this constitutional right is unfair and constitutes prejudice to the defendant"). State v. Paske, 121 Wis. 2d 471, 360 N.W.2d 695 (Ct. App. 1984) distinguished.

Plea Bargains -- Breach: Procedural Issues -- Preservation by Objection State v. Leonard C. Matson, 2003 WI App 253 For Matson: Michael Yovovich, SPD, Madison Appellate Issue/Holding: Where counsel had raised a pre-sentencing objection on ground of plea bargain breach to the use of a detective's letter to the court asking for a sentence exceeding the bargained length, failure to raise further objection at sentencing did not constitute waiver: ¶32. Matson sufficiently preserved his objections to the letter for appeal.1 His counsel made numerous unsuccessful objections to the circuit court's decision to consider the letter. Counsel need not object when the point at issue is one on which the court has just ruled adversely. Schueler v. Madison, 49 Wis. 2d 695, 707, 183 N.W.2d 116 (1971). Matson had already objected to the circuit court's use of the police officer's letter and his objections were unequivocally denied. Further objections would most certainly have proved futile. Submitting the sentencing memorandum was merely a tactical way to contend with the circuit court's decision and cannot be considered waiver of the issue. 1 The dissent characterizes Matson's appeal on this issue as "sandbagging" the circuit court judge. Reasonable people can disagree reviewing the same information. We are not persuaded that Matson is trying to pull a fast one on the circuit court judge. We are satisfied that Matson made every reasonable effort to preserve his objection to the court's consideration of the detective's letter. In any event, waiver is "a rule of judicial administration which we may, in the proper exercise of our discretion, choose not to employ in a given case". Department of Revenue v. Mark, 168 Wis. 2d 288, 293 n.3, 483 N.W.2d 302, 304 (Ct. App. 1992). (The dissent, as suggested by the footnote, asserts sandbagging by Matson. ¶¶35-43. Matson clearly raised a pre-sentencing objection, which the trial court clearly denied. At sentencing, Matson presented his own memorandum, which led to an ambiguous exchange during which Matson affirmed that his "remedies are sufficiently served" by that memorandum. If anyone would have been sandbagged by that exchange, it would have been Matson, who could not realistically have perceived that it would amount to a withdrawal of his repetitively raised objection. And, the result favored by the dissent is counter to the idea that a definitive pretrial ruling preserves the objection without requiring further objection at trial. State v. Kutz, 2003 WI App 205, ¶27. It also violates the idea that in limine rulings serve the same function as contemporaneous objections, which is to put "the court on notice of the disputed issue, thereby providing a fair opportunity to prepare and address the issue in a way that most efficiently uses judicial resources." State v. English-Lancaster, 2002 WI App 74, ¶¶15-16. How submission of a defense memorandum could possibly be thought to rectify the plea bargain violation is anyone's guess and certainly unexplained by the dissent. Still, this a cautionary tale (waiver was avoided by a razor-thin 2-1 margin) whose moral is, repeat the objection. Especially when you sense that the trial court is seeding your path with mines.)

Plea Bargains -- Breach: Procedural Issues -- Preservation by Objection

State v. John D. Williams, 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164, affirmed without discussing this issue, 2002 WI 1

For Williams: John A. Pray, LAIP

Issue: Whether the defendant properly preserved objection to a prosecutorial breach of plea bargain.

Holding: ¶13: (T)he trial court recognized it as an objection and initially agreed with Williams's attorney. The objection was sufficient. That Williams's counsel did not repeat his objection when the prosecutor replied that she was in fact abiding by the agreement is of no moment. The objection was out there, the court understood it to be so and that is all that is necessary. Objections need not be made with technical precision. They need to relay the proper information to the court. This objection passed muster. Analysis: The defense objection was sustained by the court (see also cc op, ¶20), eliciting a disavowal from the prosecutor that she was changing her recommendation. The court of appeals' discussion of this point is cursory, but the result might be read as implicitly standing for the idea that once a breach occurs, it can't be cured simply by sustaining an objection.

Plea Bargains -- Breach: Procedural Issues -- Burden of Proof and Standard of Review

State v. John D. Williams, 2002 WI 1, affirming 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164

For Williams: John A. Pray, Remington Center

Issue/Holding1: The terms of the plea agreement and the relevant state’s conduct are questions of fact, reviewed deferentially; whether that conduct amounts to a material and substantial breach is a question of law, reviewed independently. ¶4. The court clarifies, in the face of prior conflicting lower court opinions, the viability of this approach, ¶9, rejecting in the process two "tangential[]" claims. First, the state argues that, because the defendant must show a breach by clear and convincing evidence, he or she must similarly persuade the appellate court. ¶13. The court doesn’t buy it: the burden of persuasion is directed to the fact-finder, not the appellate court. ¶12; "we do not graft the clear and convincing evidence burden of persuasion to the standard of review applied to questions of law in breach of plea agreement cases." ¶15. Second, the defendant invokes the "close case" rule -- where it is difficult to discern whether the state undermined the plea agreement, the operative principle is that plea agreements are construed in favor of the defendant; thus, in the event of uncertainty as to a breach, the defendant nonetheless prevails. ¶17. The court rejects this argument, for much the same reasons as it rejected the state’s mirror-image claim. ¶19. In sum: ¶20. For the reasons set forth, we review the circuit court's determination of historical facts, such as the terms of the plea agreement and the State's conduct that allegedly constitutes a breach, under the clearly erroneous standard of review and then determine whether the State's conduct constitutes a substantial and material breach of the plea agreement as a question of law. Consequently, we reject the clear and convincing evidence rule and the close case rule. Issue/Holding2: ¶34. The circuit court in the present case did not, however, base its interpretation of the prosecutor's comments on its recollection of the sentencing hearing, which would have included memories of voice inflections, observed facial expressions, and pauses in the testimony. The post- conviction hearing was held seven months after the sentencing proceeding, and it is obvious from the record that the circuit court did not recollect the sentencing proceedings. Rather, the circuit court interpreted the prosecutor's comments by reading the written record of the plea and sentencing hearings. ¶35. The meaning of words in a document that is not dependent on a fact-finder's appraisal of the demeanor or credibility of a witness is a question of law to be determined independently by the reviewing court. Thus, the interpretation of the written transcript of the prosecutor's comments in the present case is a question of law to be determined independently by this court, not a question of fact to be given deference as the State asserts.

Plea Bargains -- Breach: By Prosecutor -- Negative Allocution

State v. John D. Williams, 2002 WI 1, affirming 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164

For Williams: John A. Pray, Remington Center

Issue/Holding: ¶46. We must examine the entire sentencing proceeding to evaluate the prosecutor's remarks. Upon reviewing the State's comments in the context of the sentencing hearing, we conclude, as a matter of law, that the State stepped over the fine line between relaying information to the circuit court on the one hand and undercutting the plea agreement on the other hand. The State substantially and materially breached the plea agreement because it undercut the essence of the plea agreement. ¶47. In this case the State's recitation of the plea agreement was less than neutral. In her statements to the sentencing court, the prosecutor implied that had the State known more about the defendant, it would not have entered into the plea agreement. For example, the prosecutor stated, ‘After reading through the presentence, it appears that I think I can best describe my impression of this defendant as manipulative and unwilling to take any responsibility. I have had an occasion to speak with [the defendant's ex- wife]. And she has indicated things that she will be presenting to the Court. But it was quite a contrast, speaking with her and reading and learning about [the defendant].’ (Emphasis added.) ¶48. The State adopted the information acquired from the presentence investigation report after the plea agreement had been reached as its own opinion of the defendant. The prosecutor's declaration of her personal opinion created the impression that the prosecutor was arguing against the negotiated terms of the plea agreement. We agree with the court of appeals that ‘what the prosecutor may not do is personalize the information, adopt the same negative impressions as [the author of the presentence investigation report] and then remind the court that the [author] had recommended a harsher sentence than recommended. That is what happened here.’" ¶49. The impression that the State was backing away from the plea agreement was furthered by the fact that the prosecutor began her comments to the sentencing court by stating, ‘When Mr. Williams entered his plea . . . we had told the Court that we would be recommending . . . that he be placed on probation, that he pay arrearages and pay current child support.’ (Emphasis added.) The words ‘would be’ intimate that a change of the State's plans would be revealed. And: The fact that the prosecutor reiterated an intent to abide by the agreement was overshadowed by having "adopted as its own opinion the negative information regarding the defendant that was otherwise available to the court." ¶51. (Court reviews and discusses various other "end-run" cases. ¶¶54-58.) See also U.S. v. Gonczy, 1st Cir. No. 02-2399, 2/2/04 (government's "initial recommendation," which was as nominally required by the agreement, nonetheless "was undercut, if not eviscerated, by the AUSA's substantive argument to the district court"); U.S. v. Rivera, 3rd Cir. No. 02-3067, 2/9/04 (government breached agreement to recommend offense level of 35 when it stated, "we stand by the probation officer's conclusion," which included recommendation of level 39 -- government thereby "in efect" endorsed level 39), rehearing denied, 4/15/04; U.S. v. Vaval, 2nd Cir No. 04-0121-cr, 4/12/05 (government's statement that it was not seeking upward departure -- which the agreement prohibited -- didn't insulate against finding of breach if comments indeed amount to such request; and, highly negative characterization of defendnat amounted to such request, hence was breach).

Plea Bargains -- Breach: Procedural Issues -- Objection, Sustained State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02 For Grindemann: Leonard D. Kachinsky Issue/Holding: ¶27 ... Here, Grindemann did object to the prosecutor's mention of uncharged offenses at sentencing, but the objection was based on the lack of evidence 'properly before the court,' not on any claim that the State was violating either the terms or the 'spirit' of the plea agreement. Moreover, the court sustained the objection and admonished the prosecutor to '[b]e more cautious' in his comments, suggesting that the court agreed with Grindemann¹s point that it should not consider any uncharged offenses for which no evidence was presented. Thus, even if prosecutorial silence regarding uncharged offenses was an implied provision of the parties' plea agreement, Grindemann obtained 'specific performance' of that provision when the court sustained its objection.

Plea Bargains -- Breach: By Prosecutor -- "End-run" of Allocution Restrictions

State v. Dalvell Richardson, 2001 WI App 152

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

Issue: Whether the prosecutor breached a plea agreement "to leave the length of the incarceration entirely up to the Court, [without] any specific numerical type of recommendation" with allocution that clearly implied a request for a lengthy term.

Holding: The prosecutor’s comments (to the effect that this was one of the most serious cases the prosecutor had handled) didn’t breach an agreement to recommend incarceration without specifying length: ¶11. Without full context, a review of the prosecutor's introductory sentencing remarks might very well lead one to conclude that the prosecutor was attempting an ‘end-run’ around the intent of the plea agreement. This first blush reaction, however, is not warranted when we consider the remarks in their full context. A complete review of the sentencing transcript reveals that Richardson's defensive ploy was to divert attention to his unknown accomplice, and to deflect responsibility onto the accomplice as the mastermind because the accomplice knew the home was a drug house used by individuals with prior drug convictions and an easy mark. Viewed in this light, it is not unreasonable to conclude that the prosecutor's comments were intended only to keep the factors for sentencing in their proper perspective. A fundamental element of due process is the right of each party to present evidence to rebut an opponent. Washington v. Texas, 388 U.S. 14, 19 (1967). When a party opens the door on a subject, he cannot complain if the opposing party offers evidence on the same subject to explain, counteract, or disprove the evidence. United State v. Touloumis, 771 F.2d 235, 241 (7th Cir. 1985). ¶12. Further, the court found that the plea agreement did not prohibit the prosecutor from ‘setting forth its honest opinion of the nature of the offense, i.e. that it was one of the most serious armed robberies it had dealt with.’ The plea agreement indicated the State would not make a specific recommendation. The State did not. The comments that Richardson refers to as attempting an ‘end-run’ around the agreement, taken in context, provided the trial court with relevant information, which cannot be immunized by a plea agreement or bargained away. Elias, 93 Wis. 2d at 285; McQuay, 154 Wis. 2d at 125-26." (Note: Compare with State v. John D. Williams, 2002 WI 1 (breach discerned, because the state "undercut the essence of the plea agreement"), discussed above.)

The principle that the prosecutor can't withhold relevant information from the sentencing court sometimes offers an irresistable temptation -- see, e.g., U.S. v. Vaval, 2nd Cir No. 04-0121-cr, 4/12/05 (government's "highly negative characterizations" of defendant, such as "appalling" and "disingenuous" can't be considered "information reelvant to sentencing"). Go to Brief

Plea Bargains -- Breach: Procedural Issues -- Remedy

State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244

Issue: Whether the remedy for a plea bargain breach should be to vacate the plea or to resentence on the plea.

Holding: ¶36 Our reading of Bangert and Smith leads us to conclude that the remedies and procedures outlined in Santobello are consistent with Wisconsin law. Specifically, the sentencing court has discretion to determine the appropriate remedy for a breach. See Kingsley v. United States, 968 F.2d 109, 113 (1st Cir. 1992). If the trial court determines that resentencing is appropriate, the court should order resentencing by a different judge. See Santobello, 404 U.S. at 262-63. ¶37 The choice of remedy is not up to the defendant; it rests with the court. See Kingsley, 968 F.2d at 113. However, if the defendant seeks only specific performance by resentencing, then the court can simply order resentencing by a different judge. See United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990). When selecting a remedy, sentencing courts should bear in mind that specific performance, the less extreme remedy, is preferred. See Kingsley, 968 F.2d at 113.

Plea Bargains -- Breach: Proecdural Issues -- Waiver of Objection -- Renegotiated Plea

State v. David W. Oakley, 2001 WI 103, 629 N.W.2d 308, affirming unpublished decision of court of appeals

For Oakley: Timothy T. Kay

Issue: Whether a claim of plea bargain error was waived by a subsequent renegotiation of the plea bargain and entry of no contest plea on that new agreement.

Holding: (W)hen a defendant pleads no contest, he or she waives all defenses based on a denial of due process because the prosecutor breached an earlier plea agreement. In the instant case, Oakley pled no contest based on his second plea agreement. By doing so, he waived any claim of error that may have occurred when the circuit court permitted the State to withdraw from the first plea agreement. As the court of appeals noted in State v. Paske, 121 Wis. 2d 471, 474, 360 N.W.2d 695 (Ct. App. 1984), '[i]t is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired.’ There is no indication here that Oakley's plea was nonconsensual. Accordingly, we find that Oakley, by pleading no contest to the second plea agreement, waived his claim of error that the State was impermissibly allowed to withdraw from the earlier plea agreement. ¶23. (Note: It is probably significant that part of Oakley’s second agreement was "that he would not complain on appeal about the State’s withdrawal from the first plea agreement." ¶4. And, for another case illustrating an involuntary plea following a withdrawn agreement, on the basis that the defendant wasn’t advised that the withdrawn agreement was enforceable, see State v. Antonio A. Scott, 230 Wis.2d 643, 602 N.W.2d 296 (Ct. App. 1999).)

Plea Bargains -- Breach: Waiver

State v. Michael F. Howard, 2001 WI App 137

Issue/Holding: Failure to object to plea bargain breach waives the issue, leaving ineffective assistance of counsel the only mechanism for raising it. ¶21.

Plea bargains -- Breach: Waiver.

State v. Harold Merryfield, 229 Wis.2d 52, 598 N.W.2d 251 (Ct. App. 1999).

For Merryfield: Edward J. Hunt.

Holding: An asserted plea bargain is held waived, under State v. Smith, 153 Wis. 2d 739, 451 N.W.2d 794 (Ct. App. 1989). Merryfield knew about - and raised - the potential plea bargain violation but abandoned it when he entered the later pleas.

Plea Bargains -- Remedy for Multiplicitous Counts -- Felony-Murder State v. Theodore J. Krawczyk, 2003 WI App 6, PFR filed 1/21/03 For Krawczyk: John T. Wasielewski

Issue/Holding: ¶29. We conclude that Krawczyk's plea to both felony murder and the underlying armed robbery, the latter conviction having been set aside, does not provide a basis for withdrawal of his plea to felony murder. First and foremost, the record is devoid of any evidence establishing that Krawczyk would not have pled guilty to felony murder (and to the other two offenses of which he remains convicted) had he known of the multiplicity of the felony murder and armed robbery charges. Krawczyk's failure to testify that he would not have pled guilty to felony murder had he known of the multiplicity is not a minor omission. Had he so testified, he would have been subject to cross-examination on the point, and the State might have seen fit to present rebuttal testimony from Krawczyk's trial counsel. Moreover, the failure to testify in this regard deprives us of the trial court's assessment of the credibility of a claim by Krawczyk that he would not have pled guilty to felony murder had he known of the double jeopardy violation.

Plea Bargains -- Remedy for Multiplicitous Counts State v. Robert S. Robinson, 2002 WI 9, on certification For Robinson: Leonard D. Kachinsky Issue/Holding: ¶2. The question of law raised on appeal is what is the appropriate remedy when an accused is convicted on the basis of a negotiated plea agreement and the counts later are determined to be multiplicitous, violating the accused's state and federal constitutional guarantees against double jeopardy? .... ¶3. We conclude that when an accused successfully challenges a plea to and conviction on one count of a two-count information on grounds of double jeopardy and the information has been amended pursuant to a negotiated plea agreement by which the State made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information so that the parties are restored to their positions prior to the negotiated plea agreement. We further conclude, however, that under some circumstances this remedy might not be appropriate. A court should, therefore, examine the remedies available and adopt one that fits the circumstances of the case after considering both the defendant's and the State's interests. Under the circumstances of the present case, we reverse the judgment of conviction and the order of the circuit court and remand the cause to the circuit court with directions to reinstate the original information against the defendant and to conduct further proceedings not inconsistent with this decision. (Note: The parties agree that the plea bargained charges were identical in law and fact -- i.e., multiplicitous, ¶5; they further agree that absent express waiver a guilty plea doesn’t waive a double jeopardy violation, ¶6 and id. nn. 5-6. Remedy for the conceded violation is the singular dispute. Robinson wants one of the counts vacated, with the other (and its sentence) left untouched. In the course of rejecting that argument -- one of the points being that otherwise the sentence might be increased after successful litigation -- the court cautions: "the cases also recognize that when one conviction and sentence is vacated on double jeopardy grounds, the validity of the sentence on the other conviction is implicated, resentencing on the valid conviction is permissible, and the circuit court may increase the sentence on the valid conviction. Thus, although the defendant correctly reminds us that he ought not to be punished for exercising his constitutional rights, the cases do not proscribe every increase in a sentence when a defendant challenges his conviction on constitutional grounds." ¶38. The court agrees with the state that a challenge of this nature repudiates the plea bargain, and the parties should be restored to the pre-plea position, based on contract principles. ¶47-51. An exception might be made where "the State's ability to prosecute or the defendant's ability to defend against the counts set forth in the original information" would be "adversely affected." ¶49.)

Plea Agreements -- Deferred Acceptance / Deferred Prosecution Agreement

Deferred Prosecution Agreement – Enforceability – Forfeiture of Argument by Failure to Raise

State v. Chase E. Kaczmarski, 2009 WI App 117

For Kaczmarski: Harold L. Harlowe, David M. Gorwitz

Issue/Holding: ¶8        We conclude that Kaczmarski has forfeited his argument that the deferred prosecution agreement is subject to Wis. Stat. § 971.37. At the hearing on Kaczmarski’s motion to compel enforcement of the agreement, defense counsel expressly stated that no statute applied to the agreement, although he expressed his belief that Wis. Stat. § 971.39 provided some guidance. Kaczmarski failed to argue to the circuit court that § 971.37 applied to the agreement. In his reply brief, Kaczmarski essentially concedes that he did not raise this issue before the circuit court.

Deferred Prosecution Agreement – Standard of Review

State v. Chase E. Kaczmarski, 2009 WI App 117

For Kaczmarski: Harold L. Harlowe, David M. Gorwitz

Issue/Holding: ¶10      Both the State and Kaczmarski agree that the deferred prosecution agreement is analogous to a contract and therefore we draw upon principles of contract law in determining the respective rights of the parties to the agreement. See State v. Roou, 2007 WI App 193, ¶25, 305 Wis. 2d 164, 738 N.W.2d 173 (applying contract-law principles in the context of a plea agreement). The interpretation of a written contract is a question of law subject to de novo review. State v. Toliver, 187 Wis. 2d 346, 355, 523 N.W.2d 113 (Ct. App. 1994). “[W]hen terms of a contract are plain and unambiguous, we will construe the contract as it stands.” Id. A contract is ambiguous only when it is “‘reasonably or fairly susceptible of more than one construction.’” State v. Windom, 169 Wis. 2d 341, 349, 485 N.W.2d 832 (Ct. App. 1992) (quoting Borchardt v. Wilk, 156 Wis.  2d 420, 427, 456 N.W.2d 653 (Ct. App. 1990)). Whether a contract is ambiguous is a question of law we decide de novo. Id. We may not construe a contract “to revise an unambiguous contract in order to relieve a party to a contract ‘from any disadvantageous terms’ to which he or she has agreed.” Id. (quoting Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 38, 284 N.W.2d 692 (Ct. App. 1979)). We construe ambiguous language in a contract against the drafter. Walters v. National Props., LLC, 2005 WI 87, ¶14, 282 Wis. 2d 176, 699 N.W.2d 71.

Deferred Prosecution Agreement – Resumption of Prosecution after Agreement Has Expired

State v. Chase E. Kaczmarski, 2009 WI App 117

For Kaczmarski: Harold L. Harlowe, David M. Gorwitz

Issue: Whether commission of an offense during the period of the deferred prosecution agreement permitted resumption of the prosecution after that period expired, under the wording of the agreement.

Holding: ¶13      We conclude that the deferred prosecution agreement unambiguously provides that, in the event that Kaczmarski breaches the agreement, the district attorney may resume prosecuting Kaczmarski only during the deferral period. The agreement plainly states that, if Kaczmarski violates the agreement, “the District Attorney may, during the period of deferred prosecution … prosecute you for this offense.” (Emphasis added.) As Kaczmarski argues, resumption of the prosecution after the deferred prosecution period expired is not a remedy provided by the agreement. The agreement provides the State with two potential remedies in the event of a breach: revocation/modification of the agreement or prosecution on the charged offense, neither of which is permitted after the deferred prosecution period has expired. We conclude that the only reasonable construction of the deferred prosecution agreement is that the district attorney may resume prosecuting Kaczmarski for breach of the agreement only before the agreement expires. Deferred prosecution agreements are regulated by statute, § 971.37; K. argues that the statute compels relief, but the court holds that argument forfeited, ¶8. In theory, then, the opinion only interprets the language of this particular agreement, and observes by way of dicta: ¶19      It may be that the prosecutor here should have included a provision that permitted a resumption of prosecution for a breach after the deferral period. But we may no more write such a term into this agreement than we may write such a term into the statute. But is that right? It is not so easy, after all, to ignore the statutory scheme, notwithstanding K.’s failed invocation of it. For starters, § 971.37(2) clearly seems to condition termination of the agreement (and thus resumption of the prosecution) on written notice “prior to completion of the period of the agreement.” On top of that, subs. (3) clearly seems to mandate dismissal with prejudice “(u)pon completion of the period of the agreement, if the agreement has not been terminated under sub. (2).” And compare § 971.39(1)(f) (at once broader, in that it applies to almost all crimes, and narrower, in that it applies only to smaller counties—dismiss with prejudice “upon the completion of the period of the agreement”). Can an agreement provide, in seeming contravention of the statutory scheme, for resumed prosecution after the period of the agreement? Maybe, according to ¶19, but the possibility is far from self-evident, as the court itself suggests: ¶18      Moreover, the State’s policy argument is undercut by the plain language of the deferred prosecution agreement statute, Wis. Stat. § 971.37(1m)(b). [6] As the prosecutor did here, the legislature plainly limits the time period in which prosecutions may be resumed. Section 971.37(2) provides that the “written [deferred prosecution] agreement shall be terminated and the prosecution may resume upon written notice by either the person or the district attorney to the other prior to completion of the period of the agreement.” (Emphasis added.) It is unreasonable to argue that an individual deferred prosecution agreement is against public policy when the legislature has adopted by statute the very provision being objected to. It is hardly unreasonable to argue that an agreement is against public policy when it contravenes the very legislation that authorizes it.

Deferred Prosecution Agreement (Domestic Abuse), § 971.37 – Validity

State v. Sean M. Daley, 2006 WI App 81, on remand, PFR filed 5/10/06; prior history: 2005 WI App 260, decision vacated and remanded, 2006 WI 25

For Daley: Kirk B. Obear

Issue/Holding: A deferred prosecution agreement, whereby the defendant enters no contest pleas but entry of judgment of conviction is stayed, conditioned on compliance with terms of the agreement, satisfies § 971.37: ¶9        Daley implies that requiring a plea is not allowed because it is not specifically authorized in Wis. Stat. § 971.37. However, the legislature plainly contemplated that parties would negotiate appropriate conditions in a deferred prosecution agreement commensurate with the individual facts of each case. While § 971.37(1m)(b) specifies certain components that shall be in a deferred prosecution agreement, there is no indication these are to be the sole components. Indeed, § 971.37(1m)(c)1. indicates that the agreement may require payment of the domestic abuse surcharge. This indicates the legislature never intended § 971.37(1m)(b) to be exclusive. [2] [2] This case is not similar to State v. Dawson, 2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12. There, as part of a plea agreement, the State agreed to reopen Dawson ’s judgment of conviction and amend a charge of first-degree sexual assault of a child if Dawson successfully completed probation. Id., ¶2. We allowed Dawson to withdraw his plea as unknowing because he had agreed to a legal impossibility. Id., ¶14. The State has no authority to reopen a judgment and the only legal reward for completing probation is discharge. Id., ¶¶9, 14. Here, Daley’s deferred prosecution agreement is permissible under the statute and the agreement’s completion does not present a legal impossibility. The supreme court vacated the court of appeals’ decision and remanded for reconsideration of a separate issue (whether the motion to withdraw plea should be treated as pre- or post-sentencing; the issue summarized above is simply a reissuance of the original text; nothing has changed except the cite.

Plea Agreements – Deferred Entry of Judgment, Contrasted with Deferred Prosecution Agreement (§ 971.39)

State v. Rex E. Wollenberg, 2004 WI App 20, PFR filed 1/8/04

For Wollenberg: Susan E. Alesia, SPD, Madison Appellate

Issue: Whether Wollenberg is entitled to withdraw his plea because the procedure for a deferred prosecution agreement (DPA), § 971.39, wasn’t followed. Holding: ¶6. Wollenberg presents no evidence, other than his own arguments, that there was a DPA under Wis. Stat. § 971.39. Rather, the record establishes that he entered a plea agreement with the State that contemplated a deferred entry of judgment on the more serious burglary charges. … ¶9. In short, the court as well as the State always spoke in terms of deferred entry of judgment, not deferred prosecution. At no point did Wollenberg object or claim the agreement was for deferred prosecution. Wollenberg agreed to the order for deferred entry of judgment. Moreover, the court informed Wollenberg that it did not have to accept the deferral but could instead sentence Wollenberg immediately on the burglaries-something not contemplated as part of a DPA. A successful DPA results in dismissal of charges, not sentencing. See Wis. Stat. § 971.39(1)(f). ¶10. While Wollenberg argues that there is no legal difference between a deferred prosecution and a deferred entry of judgment, we disagree. The only statutorily mandated parties to a DPA are the State, the defendant, and the Department of Corrections. See Wis. Stat. § 971.39(1)(a). The department monitors compliance with the DPA, and in this case Wollenberg would be placed on probation for four years for the theft charges. That means, however, that because the entry of judgment on the burglaries would be deferred for six years, Wollenberg would be "on his own" for two years. This lack of supervision is also something not contemplated by the DPA rules. ¶11. Moreover, as the State observes, unlike a plea agreement that requires the court's acceptance, Wis. Stat. § 971.39 does not require court approval of the DPA. The statute does not require the DPA be filed with the court or placed in the record, and does not even require that the court be notified that there is a DPA. Nothing in this record indicates the existence of any DPA, and Wollenberg's mere insistence that there was one does not make it true. … ¶16. Finally, to the extent Wollenberg claims the court has no authority to defer an entry of judgment of conviction,6 we agree with the trial court's conclusion. Although there is no specific statutory procedure for deferred entries of judgment, we know of no reason to prohibit a trial court from doing so if, in the appropriate exercise of discretion and upon agreement of the parties, a court determines such a deferral is proper. However, if there was error when the court failed to enter the judgment immediately following Wollenberg's plea, the defect was remedied when it revoked the deferment and entered the judgment on the burglary charges. 6 Wollenberg claims the trial court lacks the authority to defer judgments of conviction because (1) Wis. Stat. § 972.13(1) states that a "judgment of convictions shall be entered" upon a defendant's no contest plea; (2) Wis. Stat. § 961.47, the Uniform Controlled Substances Act, authorizes a trial court to defer a judgment and this explicit grant of power is unnecessary if the trial court has inherent authority to defer the entry of judgment; and (3) Wis. Stat. § 973.15(8) only allows the court to stay a sentence in three instances. We disagree for reasons given by the State, but even if the trial court erred, its entry of judgment cured any defect. (For a variation on the theme of deferred action under a plea bargain, see State v. Barney, 213 Wis. 2d 344, 570 N.W.2d 731 (Ct. App. 1997), and State v. Terrill, 2001 WI App 70, 242 Wis. 2d 415, 625 N.W.2d 353, with respect to enforceability and procedural protections attaching to deferring acceptance of the plea itself.) Note: There is a practical reason to prefer the deferred prosecution over deferred judgment procedure -- other states may treat a diversion program based on a guilty plea in a foreign state as a "conviction" for strike purposes, notwithstanding the lack of formal judgment of conviction. E.g., People v. Laino, Cal. S. Ct. No. S103324, 4/8/04 (full-faith-and-credit clause doesn't require that Calfornia give full effect to Arizona judgment of dismissal; California instead may treat guilty plea as prior "conviction" for purpose of three strikes law). Compare: U.S. v. Jones, 7th Cir No. 05-4272, 5/23/06 ("whatever the semantics of the terms 'conviction' and 'sentence,' court-ordered dispositions of supervision are properly counted in the computation of criminal history under" US Sentencing Guidelines); U.S. v. Miller, 6th Cir No. 04-5834, 1/11/06 (though Georgia law provided discharge without adjudication of guilt upon successful completion of first-offender probation, the event would nonethless be considered as a prior conviction under federal statutes). The deferred prosecution procedure may require written admission of the elements, but it does not appear to be in the nature of a guilty plea, and therefore should not be counted as a strike in a foreign jurisdiction, U.S. v. Jones ("Such diversionary dispositions by a state court are distinguished from deferred prosecutions").

Plea Agreements – Deferred Prosecution Agreement (§ 971.39) -- Procedural Requirements

State v. Rex E. Wollenberg, 2004 WI App 20, PFR filed 1/8/04

For Wollenberg: Susan E. Alesia, SPD, Madison Appellate

Issue/Holding: ¶14. Wollenberg cites State v. Jankowski, 173 Wis. 2d 522, 528, 496 N.W.2d 215 (Ct. App. 1992), to support his claim that he cannot be convicted on the basis of a legal nullity. Jankowski, however, dealt with a different scenario. Jankowski was convicted of violating an injunction. However, the court had extended the injunction beyond the time period allowed by statute and the injunction was therefore invalid. Because the injunction was void, it could not serve as a basis for a criminal conviction and we reversed. ¶15. Wollenberg fails to explain why the DPA, if there was one, should be declared void. His only justification is that the DPA was not in writing. This argument, however, focuses merely on a procedural deficit. Wollenberg makes no argument that he was unaware of any of the contemplated terms of his plea, and he makes no claim that he has been prejudiced by the failure to put the DPA in writing. Thus, there can be no manifest injustice. See Trochinski, 253 Wis. 2d 38, ¶15. His challenge is to form, not to substance, and there is no parallel to Jankowski in this situation. Unlike Jankowski's conviction, Wollenberg's burglary and theft charges are not invalid by operation of any statute of limitations. (Wollenberg, as the quote suggests, argues that his deferred prosecution agreement was defective – because not in writing, as required by § 971.30 – hence the judgment of conviction was void. The court says that any defect is one merely of form; but this is clearly dicta: the court just got done saying that the agreement was not in fact a deferred prosecution agreement. It’s rather obvious, isn’t it, that once the court concludes that no deferred prosecution agreement existed that the court has no business discussing the requisites of that (non-existent) agreement?)

Plea Agreements -- Deferred-acceptance Agreement -- Enforceability

State v. Brady T. Terrill, 2001 WI App 70, 242 Wis. 2d 415, 625 N.W.2d 353

For Terrill: Eileen Hirsch, SPD, Madison Appellate.

Issue: Whether the trial court properly reconsidered a deferred-acceptance agreement (which would have allowed the defendant to avoid conviction upon successful completion of supervision), entering judgement of conviction after deeming the offense more serious than origiinally thought.

Holding: ¶24. If the State had asked the circuit court to enter judgment on the felony after viewing the videotape, the State's action would have violated Terrill's right to fundamental due process. Whether that action took place minutes, hours, or days after Terrill entered his pleas, would be legally irrelevant. ¶25. The circuit court's action violates the same fundamental due process rights as would the State's withdrawal from a plea agreement. The timing of the circuit court's action is equally irrelevant. ¶26. Because the circuit court was bound by the plea agreement, we conclude it did not have the discretion to revoke the agreement and accept Terrill's plea to the felony. Therefore, we reverse and remand with directions to reinstate the agreement. Plea Agreements -- Prosecutorial Vindictiveness

Plea Agreements -- Prosecutorial Vindictiveness: More Onerous Plea Offer After Defendant Obtains Relief State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02 For Tkacz: Mark S. Rosen Issue/Holding: Even assuming that the law of vindictive prosecution (presumption of vindictiveness attaches to less favorable prosecutorial action following successful appeal) applies to failure to re-offer same plea bargain following reversal of conviction, the facts would not support vindictiveness. The prosecutor offered a less favorable resolution because he had additional evidence and a stronger case, therefore no presumption of vindictiveness was established. ¶¶26-30. Nor, for similar reasons, was actual vindictiveness shown. ¶¶31-32.

Plea Agreements -- Partial Withdrawal

Plea Agreements -- Partial Withdrawal Doesn't Necessarily Work Repudiation of Entire Bargain

State v. Mark J. Roou, 2007 WI App 193

For Roou: John P. Tedesco, SPD, Madison Appellate

Issue1: Whether the defendant was entitled to plea-withdrawal on both plea-based counts or only the one count as to which the plea was defective (given that the State promised not to re-prosecute the latter count).

Holding1: ¶16 Roou contends that under Wisconsin law the trial court should have permitted him to withdraw from the entire plea agreement. … … ¶18 The State contends State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77, is more apt, and we agree. Krawczyk pled guilty to felony murder, armed robbery and armed burglary, all as party to a crime. All carried repeater enhancements. Id., ¶5. The trial court sentenced Krawczyk to sixty years on the felony murder and forty years on the armed robbery and armed burglary, to run concurrently. Id., ¶6. Krawczyk moved to withdraw his plea as not knowingly, intelligently and voluntarily entered because the trial court misinformed him of the elements of felony murder and failed to tell him he could not be convicted of both felony murder and the lesser-included offense of armed robbery. Id., ¶7. Agreeing that Krawczyk should not have been convicted of both, the trial court vacated the armed robbery conviction and its concurrent sentence, but declined to resentence him on the remaining counts. Id. The State did not object to vacating the charge related to the double jeopardy violation, and agreed to leave intact the total sentence on the remaining charges. Id., ¶¶34-35. … ¶21 Roou also says Krawczyk can be distinguished because Krawczyk “ended up with one fewer conviction and a shorter sentence,” while the partial withdrawal in this case leaves his sentence unchanged, and he “may yet face reinstatement of the [vacated] charge, a trial, and a possibly consecutive ten-year prison sentence.” Roou is incorrect. The State opposed Roou’s plea withdrawal motion only as to the armed robbery charge and agreed that, if the trial court granted the motion only as to the reckless endangerment charge, it would accept the conviction and sentence on the armed robbery charge and not reinstate any of the original charges, including the reckless endangerment charge. This is a promise to which the State is clearly bound and which functionally constitutes a dismissal of the charge with prejudice. As for Roou’s sentence, he got precisely what he bargained for on the armed robbery charge and he gives no reason why it should change.

Issue/Holding2: ¶24 Roou next contends that vacating only part of the plea agreement is unconstitutional because it forces him into a deal he did not negotiate. Casting his argument in terms of contract law, Roou implies that partially vacating the agreement amounts to a breach of it. … ¶26 The ultimate bargain here entailed a plea of no contest to the armed robbery charge. Roou’s twenty-five-year sentence on that charge is unchanged by a partial plea withdrawal. Were the entire agreement jettisoned, all charges could be refiled, exposing Roou to over a century in prison. The trial court’s error of misinforming Roou of the elements of the reckless endangerment charge was not material or substantial as to the armed robbery charge. While a return of the parties to their pre-plea positions might, in the words of Robinson, “ordinarily” be the proper remedy, such is not the mandated remedy as a matter of law when convictions are based on a negotiated plea agreement and an error later surfaces as to one count. If another available remedy better addresses both the circumstances of the case and the interests of the parties, we do not see why pulling one thread must unravel the whole sweater. This determination lies within the trial court’s sound discretion. We see no misuse of discretion. Where does this leave State v. Jarmal Nelson, 2005 WI App 113? Nelson obtained the right to withdraw two, concurrent-sentence counts without a State promise not to re-prosecute and yet the court of appeals [exercising its own discretion, by the way], refused to declare the entire plea bargain abrogated and left convictions on the remaining three counts intact. Can that result be squared with this one? We’re left with no more than a wink and nod toward boilerplate that partial plea-withdrawal “ordinarily” leads to global plea-withdrawal. Roou, to be sure, stresses that partial withdrawal under the particular facts leaves that defendant no worse off; yet, it is abundantly clear that partial withdrawal did leave Nelson worse off. “Ordinarily,” seemingly, means something less than that. In any event, it now seems fairly obvious that in such situations thought will have to be given to establishing a direct connection between the vacated count(s) and the decision to enter into the entire plea bargain. There’s a separate problem, not raised by this specific case but at least implied by this sort of situation: there may be an argument that relief against one of multiple counts entitles the defendant to resentencing on the unchallenged counts, see generally, State v. William J. Church (II), 2003 WI 74, and discussion here; of course, there may well be attendant risks, see e.g., State v. Victor Naydihor, 2004 WI 43.

Plea Agreements -- Partial Withdrawal Doesn't Necessarily Work Repudiation of Entire Bargain

State v. Jarmal Nelson, 2005 WI App 113

For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue: Whether Nelson’s successful attempt to withdraw three of five bargain-based guilty pleas had the effect of abrogating the entire agreement so as to require withdrawal of the other two pleas.

Holding: ¶23      Finally, Nelson asserts that if he is successful in withdrawing some of his pleas, he is entitled to withdraw all of his guilty pleas, relying on Robinson, 249 Wis. 2d 553, ¶47. … … ¶25      We conclude that this case more closely resembles the situation found in State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77 … Just as a defendant should not be vindictively penalized for successfully challenging one of several convictions on appeal, neither should a defendant obtain a windfall from what is, in essence, a breach of his plea agreement with the State. That is, Krawczyk is entitled to be relieved of the consequences flowing from the wrongful conviction, but nothing more. Id.,¶37 (citation omitted). Here, Nelson has not explained why the proper remedy is a reversal of all the charges, or how his legitimate interests are harmed. He bargained for a reduction of charges from seven to five. He currently remains convicted of two. The State never agreed to recommend a specific prison term, only to ask the trial court at sentencing for “substantial prison.” Nelson got the benefit of his bargain. There is certainly room for disagreement as to the result. State v. Robinson, 2002 WI 9, ¶ 47, held that a defendant’s partial attack on a plea bargain “constitutes a repudiation of the plea agreement,” such “that the appropriate remedy in such circumstances ordinarily is to reverse the conviction, vacate the negotiated plea agreement upon which the conviction was based, set aside the amended information, and reinstate the original charges against the accused.” Abrogation of the entire agreement is thus ordinarily the remedy. The reason’s not hard to see (indeed, as the court of appeals has itself expressed): any significant change in the agreement requires the defendant’s personal assent, because by changing the result you’ve “morphed” the agreement; that is, imposed on the defendant an entirely different “agreement.” Nelson most decidedly did not get the benefit of the bargain he negotiated. Rather, the court essentially forced upon him an “agreement” whose terms it unilaterally derived. So, to recap, here are the operative principles: the decision to plead guilty is the defendant’s personal right, Boykin v. Alabama, 395 U.S. 238 (1969); thus, once struck so that it is enforceable, a plea bargain cannot be renegotiated without the defendant’s knowledge and consent, else the guilty plea is “neither knowing nor voluntary.” State v. Woods, 173 Wis. 2d 129, 141, 496 N.W.2d 144 (Ct. App. 1992). And what about Krawczyk? Well, it’s critically distinguishable, because it dismissed a count, as multiplicitous; therefore, Krawczyk ended up with one fewer conviction and sentence, a beneficial result that could not conceivably have impacted his plea bargain. Nelson’s partial withdrawal of pleas, on the other hand, left the corresponding charges intact. He stands for trial on some counts and stands convicted of the remaining counts. Whatever else might be said, it’s not an indisputably beneficial result, it’s instead an entirely new plea “agreement,” one he did not in fact agree to. See also State v. Bisson, WA SCt No. 75771-2, 3/16/06 (where agreement is "package deal," there is "bright-line rule" that partial rescission impermissible; "the remedy is restricted to the withdrawal of his plea in its entirety").

Plea Agreements -- Partial Withdrawal: Repudiation of Entire Bargain State v. Corey D. Williams, 2003 WI App 116 For Williams: Michael J. Edmonds Issue/Holding: ¶21. As a final matter, we address the effect of Williams's plea withdrawal on further proceedings in the circuit court. It is well-settled that "repudiation of a portion of the plea agreement constitutes a repudiation of the entire plea agreement." State v. Lange, 2003 WI App 2, ¶32, ___ Wis. 2d ___, 656 N.W.2d 480; State v. Briggs, 218 Wis. 2d 61, 72-73, 579 N.W.2d 783, 788 (Ct. App. 1998). The remedy for such repudiation is the reinstatement of the original charges against the accused, restoring the parties to their positions prior to the negotiated agreement. Lange, 656 N.W.2d 480, ¶32; Briggs, 218 Wis. 2d at 73-74, 579 N.W.2d at 789. Here, consistent with the plea agreement, the State amended the information to reduce the original count of possession of 57.4 grams of cocaine to 15-40 grams of cocaine and dismissed the delivery of cocaine charge. In exchange, Williams pled guilty to possession of THC with intent to deliver and possession of cocaine with intent to deliver. Because Williams has been successful in his motion to withdraw his pleas, he has repudiated the plea agreement. Therefore, we vacate it and direct the circuit court to reinstate all of the original charges against Williams.

Plea Agreements -- Partial Withdrawal: Repudiation of Entire Bargain State v. Richard A. Lange, 2003 WI App 2 For Lange: Daniel F. Snyder

Issue/Holding: Partial relief against a plea bargain-based guilty plea "constitutes a repudiation of the entire plea agreement," ¶32, a principle which is now extended to instances where there are multiple judgments of conviction not all of which are under appeal, under the rationale of State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998): ¶36 We see no reason why the same logic should not apply to the instant case where the convictions covered by a plea agreement are recited in multiple judgments of convictions as opposed to a single judgment of conviction. All of the convictions stemmed from a singular, global plea agreement and thus were "interconnected" within the meaning of Briggs. The multiple convictions could have been entered in a single judgment of conviction, which would clearly allow us to apply Briggs. Commonsense dictates that jurisdictional bars should rest on substantive and meaningful principles, not on the ministerial and artificial choice as to how the judgments of conviction were clerically entered. ¶37 Therefore, if the State fails to satisfy its shifted burden under Bangert at the remand proceedings, the trial court is authorized to vacate both judgments of conviction and to reinstate the original charges alleged against Lange in both cases. (Note: One of the major landmines for appellate counsel, see, e.g., State v. William J. Church (II), 2002 WI App 212, PFR granted 10/21/02 . This isn’t an especially startling development, see, e.g., United States v. Binford, 108 F.3d 723 (7th Cir. 1997) (in federal system, partial relief on appeal causes "sentencing package" to become "unbundled"). But sauce for the goose ought to be sauce for the gander, so that in some instances the defendant might want to argue entitlement to resentencing after grant of partial relief. The issue here is broader than mere resentencing, namely vacating a plea-based judgment altogether at the state's behest, but that might be a difference of degree rather than kind. Note, though, that vacating the judgment is discretionary, not mandatory. ¶47 n. 14.)

Plea Agreements -- Judicial Participation Plea Bargains -- Judicial Participation – Discretion to Inform Will Not Follow Sentencing Recommendation State v. Miguel E. Marinez, Jr., 2008 WI App 105, (AG’s) PFR filed 7/15/08; prior history: certification, denied 4/3/08 For Marinez: Eileen A. Hirsch, SPD, Madison Appellate Issue/Holding: ¶1        At issue here is whether a trial judge is prohibited from informing a defendant that the judge intends to exceed a sentencing recommendation in a plea agreement and offering the opportunity of plea withdrawal. In State v. Williams, 2000 WI 78, 236 Wis. 2d 293, 613 N.W.2d 132, the supreme court declined to adopt a new rule mandating that judges follow this practice. Here, the State argues that the reasoning employed in Williams dictates that a judge may not tell a defendant that the judge intends to exceed a sentencing recommendation. We disagree, and conclude that trial judges may employ this practice. Accordingly, we affirm. [1] This is one of the very few court of appeals’ decisions you can unhesitatingly say has the potential to affect day to day practice throughout the state. A judge is not required to announce his or her intent to refuse to follow a plea-bargained sentencing recommendation (as the supreme court has repeatedly said, not just in Williams but in State v. Betts, 129 Wis. 2d 1, 2 (1986) and In re Amendment of Rules of Civil & Criminal Procedure: Sections 971.07 & 971.08, Stats., 128 Wis. 2d 422, 425 (1986). Now, for the first time (in this state anyway), an appellate court says that a judge can follow exactly that practice. As the court noted in its certification request, “we believe this is a widespread practice”; widespread already, and probably bound to proliferate even more after this green light.   Marinez’s judge accepted his plea, turned to sentencing and then said after hearing some of the background that she wasn’t going to follow the recommendation but that Marinez could withdraw the plea. The state objected, appealed, and the court now authorizes plea-withdrawal. Does it matter that all this occurred in a post-plea setting? Not according to a tantalizingly vague footnote dropped by the court, ¶8 n. 2: “whatever is permissible or required in the post-plea context should seemingly apply in the pre-plea context.” Undertaking this is in a pre-plea setting will require that one eye be fixed simultaneously on the well-settled rule against judicial participation in plea bargaining, State v. Antoine T. Hunter, 2005 WI App 5, a rule that remains in place. The net effect may very be to bring, via caselaw, Wisconsin practice under the same procedure followed in federal court under FRCrP 11(c) (very roughly, and subject to certain exceptions: district court may reject plea agreement but then must allow defendant opportunity to withdraw plea; nonetheless, the district is absolutely barred from participating in plea bargaining). In other words, Rule 11 caselaw may very well become relevant to Wisconsin practice. Compare, for example, United States v. Bradley, 455 F.3d 453, 460 (4th Cir. 2006)  (judge’s encouragement to accept government’s plea offer amounted to proscribed judicial participation in process) with, United States v. Frank, 36 F.2d 898 (9th Cir. 1994) (parties revealed just-concluded negotiation to judge in his chambers during recess in on-going jury trial; held non-coercive: judge had to know if he was going to follow agreement so he’d know whether to discharge jury).   Note that although the supreme court denied certification, three Justices (Abrahamson, Bradley and Roggensack) dissented from that denial. Unlike certification, which requires a majority vote of 4 for a grant, a petition for review requires only 3. Draw your own conclusions as to whether we’ve heard the last of this case. Plea Agreements -- Judicial Participation State v. Antoine T. Hunter, 2005 WI App 5 For Hunter: James R. Lucius Issue: Whether the trial court’s observation to defendant, following denial of an assertedly “dispositive” suppression motion, that acquittal was “unlikely,” but that “coming forward and admitting your guilt” would provide “the opportunity to get some credit,” amounted to judicial participation in plea bargaining as banned by State v. Corey D. Williams, 2003 WI App 116. Holding: ¶8. Hunter would have us interpret our statement in Williams that " any form of judicial participation in plea negotiations," id., ¶1 (emphasis added), mandates the automatic withdrawal upon request of a plea tendered after a judge has made comments like those quoted above. We decline to expand the Williams rule to encompass all comments a judge might make regarding the strength of the State's case or the advisability of a defendant giving consideration to a disposition short of trial. To do so would undermine the effectiveness of the rule because the line whose crossing triggers a conclusive presumption that a plea was involuntary would be far less bright. Trial court judges would not know when the line had been crossed or how to avoid crossing it short of avoiding any discussion with a defendant whatsoever regarding the likely future course of the criminal proceedings. ¶9. In order to discharge a trial court's case-management responsibilities and prevent the needless clogging of trial calendars with cases that will almost certainly not be tried, a trial court needs to know as early as reasonably possible whether a case appears headed for trial or a plea. The court must therefore be free to inquire of the parties whether they have discussed a resolution or intend to do so, without fear that their comments or inquiries will later be deemed to have constituted "judicial participation in plea negotiations." We share the dissent's concern regarding the inappropriateness of the trial court's comments in this case. (See ¶13.) We conclude, however, that the Williams rule does not require automatic plea withdrawal whenever a court expresses its view of the strength of the State's case or advises a defendant to consider the advisability of pursuing a disposition short of trial. Instead, when a court's comments to a defendant are arguably coercive of a plea, it remains the defendant's burden to show that the plea that followed was involuntary. The court seems to limit Williams “to direct judicial participation ‘in the plea bargaining process itself,” ¶12; in Hunter’s instance, “there is no suggestion … that the trial court was party or even privy to plea negotiations,” ¶11 – hence, no conclusive presumption of judicial coercion in this case, unlike Williams’. The court does, however, strongly caution against “(c)omments on the strength of a party’s case, or suggestions that a defendant should strongly consider entering a plea,” ¶13. For fact-specific reasons, turning largely on a 6-month lag between comments and plea, and on the thoroughness of the plea colloquy itself, the court finds that the plea was indeed voluntary, ¶¶17-19. The dissent, it should be noted, says that the majority essentially eviscerates Williams (“What the majority has really done is to overrule Williams in all but the case that reoccurs but once in ten years,” ¶30). The constant tension between rules and standards, writ small. If judges know that a bright-line, enforceable rule lurks behind every attempt to insinuate themselves into the defendant’s decisional process then they will necessarily be deterred from making the attempt. But if only a squishy, case-by-standard is at play, then the temptation to push the envelope will prove irresistible. That, at least, is one way to view this dynamic: beneath most judicial robes beats the heart of a test pilot. We’ll see. Plea Agreements -- Judicial Participation -- Conclusive Presumption of Involuntariness State v. Corey D. Williams, 2003 WI App 116 For Williams: Michael J. Edmonds Issue/Holding: ¶1.… We conclude that judicial participation in the bargaining process that precedes a defendant's plea raises a conclusive presumption that the plea was involuntary. Therefore, we adopt a bright-line rule barring any form of judicial participation in plea negotiations before a plea agreement has been reached. Because it is undisputed that the trial judge participated in the negotiations that led up to Williams's pleas, Williams is entitled to withdraw his pleas. Accordingly, we reverse the order denying relief; we vacate the judgment of conviction for both offenses; and remand for further proceedings on all charges originally filed against Williams. On remand, we order that the case be assigned to a different judge. State v. Zuniga, 2002 WI App 233, 257 Wis. 2d 625, 652 N.W.2d 423, distinguished, on the theory that judicial suggestion in that case to modify plea bargain came after Zuniga had entered his plea, ¶19. Also see U.S. v. Bradley, 4th Cir No. 02-4390, 7/25/06 (re: policy reasons for bar on judicial participation); U.S. v. Baker, DC Cir No. 06-3115, 6/5/07 (bar on judicial particpation absolute; judge's allusion to disposition imposed in another case held coercive). Plea Agreements -- Validity Plea Bargains – Validity: Illusory Plea Agreement – Applicability to Dismissed Charge State v. Jordan A. Denk, 2008 WI 130, on certification For Denk: Lora B. Cerone, SPD, Madison Appellate Issue/Holding: Where a charge dismissed by the plea bargain arguably lacks factual basis, but the defendant receives the full benefit of the plea agreement as to the counts of conviction, an argument in favor of plea-withdrawal on the basis of an “illusory” plea bargain isn’t supported: ¶69      Denk contends that § 961.573(3) does not criminalize possession of paraphernalia related to personal use. … ¶70      Neither this court nor the court of appeals has previously interpreted the proper scope of Wis. Stat. § 961.573(3) in this context, and we need not do so today. Our analysis instead focuses on whether Denk received the benefit of the bargain even if it is uncertain whether he could have been convicted of felony possession of paraphernalia. … ¶72      When a prosecutor induces a plea based on a promise that is legally unenforceable, a manifest injustice occurs. … ¶73      Additionally, in some situations, a mistaken understanding of the law can result in manifest injustice. … … ¶75      In each of those cases, the dispute involved the charge to which the defendant actually pled. Likewise, in each of those cases, the consequence for which the defendant had bargained when he entered the plea to the charge was a legal impossibility. However, the defendant failed to understand the inevitable consequences of his plea to that charge, thus rendering his plea to the charge unknowing and involuntary. ¶76      In contrast, Denk did not plead to the charge in question, rather, his argument relates to his understanding of the charge that was dismissed. … … ¶78      Unlike the cases upon which Denk relies, this was not a plea based on an illusory promise, but rather it was a plea where the promise was realized. At sentencing, Denk received the benefits of his bargain. He avoided exposure to a substantial period of incarceration. As agreed, the State dismissed the three charges and argued for a withheld sentence, three years probation, and six months in jail. The judge sentenced consistent with the State's argument, except Denk received only five months in jail as a condition of probation. Thus, we determine that Denk failed to meet his burden of showing a manifest injustice, entitling him to a plea withdrawal. Plea Bargains -- Validity: Enforceability of “Internally Inconsistent” Terms State v. Sou W. Her, 2008 WI 39, dismissing as improvidently granted, review of unpublished decision For Her: Donald J. Chewning Issue/Holding: ¶2        This case involves Her's agreement to plead guilty in exchange for an aggregate 15-year sentence recommendation from the State (10-years initial confinement with 5-years extended supervision). The record clearly indicates that the district attorney intended Her's 15-year sentence to match what was believed to be the sentence of Her's co-defendant, Tong Xiong, who was charged two years previously. [1] However, at the time of the plea offer, the district attorney misidentified Xiong's sentence as being only 15, not 25, years and based his offer on that mistake. In response to questions by the court, the district attorney acknowledged that the offer was based upon that mistake. … ¶4        With the contradictory language of the plea offer simultaneously describing both a 15-year sentence and a sentence equal to Xiong's, the agreement's terms appear to be internally inconsistent, calling the plea agreement into doubt. A valid plea agreement requires a meeting of the minds, evidenced through assent to the agreement's terms. State v. Bembenek, 2006 WI App 198, ¶11, 296 Wis. 2d 422, 724 N.W.2d 685. However, neither party has addressed or established whether there was a required meeting of the minds in the formation of the plea agreement. Without the parties addressing this foundational issue, we are unable to determine whether a breach of the plea agreement has occurred. Dismissal raises a couple of potentially interesting questions. First: why did the court take review in the first place? Whatever concern the court perceived remains unresolved in light of the dismissal, which of course means that someone with the same or similar-enough problem can press vigorously for review. Here’s the issue as formulated by the court (and posted on its calendar): Does the state commit an actionable breach of a plea agreement when, in response to the sentencing court’s questioning as to the justification for the plea agreement, it informs the sentencing court that the plea offer was extended in error, although the state also stands by the recommendation agreed to as part of the plea agreement?  If so, what is the appropriate remedy? Though not entirely free from doubt, the court’s interest possibly was piqued by whether the State may, by responding honestly to pointed questioning from the court, undermine the terms of a plea bargain. The other question is raised by the result itself: if, as the court now seems to hold, the plea bargain wasn’t “valid” because its “terms appear to be internally inconsistent,” then why wouldn’t Her be entitled to withdraw the plea? The short answer is that he should be ( if he wanted to)—he entered his plea on an assumption [that he’d get the benefit of an unembellished recommendation] that turned out to be incorrect, and the plea was therefore involuntary—and nothing in this short opinion should be read to the contrary. Indeed, the issue simply wasn’t raised: Her explicitly limited his request for relief to specific performance as opposed to plea-withdrawal. Plea Bargains -- Validity: Waiver of Right to Appeal or Collateral Attack State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06 For Bembenek: Joseph F. Owens, Woehrer, Mary L. Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.” Holding: ¶15      The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder; (2) Bembenek would be eligible, under her new sentence for second-degree murder, for immediate release from prison to parole; (3) the State would no longer need to devote significant resources to Bembenek’s numerous collateral attacks on her convictions; and (4) Bembenek had been punished proportionately to the crime for which she was now convicted. Additionally, the plea agreement provided a final disposition in the murder case of Schultz for both parties and the community at large. There was a mutuality of assent to the terms of the plea agreement which was respected by Bembenek for ten years, until 2002, when she filed her motion for DNA testing and acquittal. ¶16      Bembenek’s no contest plea is equivalent to a guilty plea. “The general rule is that a guilty, no contest, or Alford [6] plea ‘waives all nonjurisdictional defects, including constitutional claims[.]’” State v. Kelty, 2006 WI 101, ¶18, ___ Wis. 2d ___, 716 N.W.2d 886 (citing State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437). This is known as the guilty-plea-waiver rule. Kelty, 716 N.W.2d 886, ¶18. [7] Here Bembenek entered into a legally valid plea agreement. She entered into it knowingly, voluntarily and intelligently. See State v. Bangert, 131 Wis. 2d 246, 267-72, 389 N.W.2d 12 (1986) (holding that guilty and no contest pleas are constitutionally valid if entered knowingly, intelligently and voluntarily). She received substantial benefits from that agreement. In that plea agreement, Bembenek specifically waived her right to claim her innocence, and her right to collaterally attack any evidence which was underlying the conviction. Accordingly, Bembenek waived any right to DNA testing of that evidence or court action to pursue such tests. As the court suggests (fn. 7), plea-bargained waiver of the right to appeal is a relative commonplace in federal practice. One thing sticks out, though: there is no federal constitutional right to appeal—put aside the idea that where the state does grant such a right it can’t as a matter of due process or equal protection impose arbitrary barriers—but there is a state constitutional right. State v. McDonald, 144 Wis.2d 531, 536-37, 424 N.W.2d 411 (1988) (“This court has consistently recognized that a defendant has a constitutional as well as a statutory right to an appeal. Art. I, sec. 21, Wis. Const.; sec. 808.03(1), Stats.”). Does this distinction matter? Hard to say; the court of appeals doesn’t mention it. There are, to be sure, recognized limits on enforceability, but they exist at the margins, see block quote in fn. 7, and the well-developed body of caselaw on bargained appeal-waiver will have to be reviewed for particular examples. The net result of this case seems clear, though: the mere possibility of actual innocence is not a basis to obviate waiver. It’s not a far stretch from that idea to the idea that even a compelling showing of actual innocence isn’t enough, but that suggests another wrinkle. Plea agreements that are clearly against public policy are “illegal” and “cannot be respected by the courts,” Grant v. State, 73 Wis.2d 441, 448, 243 N.W.2d 186 (1976)); distinguished in and further explicated by State v. McQuay, 154 Wis.2d 116, 124, 452 N.W.2d 377 (1990). Is it against public policy to preclude a defendant from establishing actual innocence through DNA testing; and, if so, does that make a no-appeal plea bargain unenforceable? You'll have to decide for yourself. Plea Bargains – Validity: Agreement to Withhold Relevant Information from Court, Unenforceable as Against Public Policy State v. Somkith Neuaone, 2005 WI App 124 For Neuaone: Ralph Sczygelski Issue: Whether a plea agreement which required that the State not reveal to the judge recorded conversation between defendant and his wife in an unrelated criminal case was enforceable. Holding: The issue is controlled by State v. McQuay, 154 Wis.  2d 116, 452 N.W.2d 377 (1990), which “unequivocally condemns [this] kind of plea agreement,” ¶13. The commonly negotiated obligation of the State to stand silent relative to a sentencing recommendation is quite different from declining to correct factual inaccuracies or withhold relevant factual information, something the State has no authority to bargain away, ¶14. And, because such an agreement is not enforceable, even though the State breached it by inadvertently disclosing the barred material, the typical remedy for a breached agreement (resentencing before different judge) is not available for “a proceeding so clearly in violation of public policy as announced by our supreme court in McQuay,” ¶18. Several points. First, the trial court extended to defendant the opportunity to request plea withdrawal when it became apparent that the agreement would not be enforced; this option was expressly declined, ¶12. No one is saying, that is, that a plea bargain deemed unenforceable simply leaves the defendant out in the cold. Second, the precedential value of this opinion is questionable. All the court is saying is that McQuay remains enforceable, even if Neuaone’s plea bargain isn’t – well, we already knew that. This leads to the third point, tangential but interesting nonetheless: are there any restrictions on sentencing inputs? Not too many, at present (which is why McQuay is so easily invoked). This goes back to the idea promulgated by Williams v. New York, 337 U.S. 241 (1947), that the “rehabilitation” model of sentencing requires as much revelation of sentencing information as possible. But as the indefatigable Professor Douglas Berman convincingly shows (you can download his observations here), the fact remains that this model has long since been replaced by a punitive one. The implication, then, is that where the focus is on punishing the offender, the procedural formalities of the process – trial-level protections – should kick in. (For an overview of this argument, see Alan C. Michaels, “Trial Rights at Sentencing,” 81 N.C. L. Rev. 1171 (2003); abstract of article available here.) What’s this got to do with McQuay, though? That case makes it remarkably easy to toss out a plea bargain, because of its ready assumption that virtually nothing falls outside sentencing boundaries; the judge is entitled to know everything, so that if you try to bar anything, you’ve gone too far. But if critical procedural rights do apply, then leverage is shifted from the judiciary to the parties themselves: the State could assay that it couldn’t prove the information beyond a reasonable doubt, or that its proof was dependent on a witness who would not be subject to confrontation – and then it is relatively easy to imagine an enforceable agreement not to reveal the information. If, that is, such protections (as adequate proof and confrontation) attach at this level (which under controlling caselaw they they presently do not). Neuaone, it must be said, wasn’t in any position to raise such provocative arguments; after all, what he sought was exclusion of his own recorded statements. The point of this digression, then, is simply to remind that even though the Blakely-Booker sentencing revolution hasn’t really been felt in Wisconsin, everything about sentencing procedure is up for grabs. Plea Bargains -- Validity: Reopen and Amend to Less Serious Offense Upon Successful Completion of Probation State v. Anthony L. Dawson, 2004 WI App 173 For Dawson: William E. Schmaal, SPD, Madison Appellate Issue: Whether a plea bargain under which the State agrees to subsequently reopen the case and amend it to a lesser charge is legally unenforceable and, thus, renders the plea unknowing and involuntary. Holding: A reopen-and-amend provision in a plea agreement is unauthorized and unenforceable under State v. Hayes, 167 Wis. 2d 423, 425-28, 481 N.W.2d 699 (Ct. App. 1992). ¶¶8-10. Under Hayes, “once a charge becomes a conviction, a prosecutor may not amend it, because amending the charge would also necessarily require amending the judgment of conviction to reflect the reduced charge, which no statute authorizes either a prosecutor or trial court to do,” ¶18. The plea itself is therefore invalid: ¶11 … A plea agreement that leads a defendant to believe that a material advantage or right has been preserved when, in fact, it cannot legally be obtained, produces a plea that is "as a matter of law ... neither knowing nor voluntary." See State v. Riekkoff, 112 Wis. 2d 119, 128, 332 N.W.2d 744 (1983). … ¶13. Here, the record shows that the reopen-and-amend provision was a "primary inducement" for Dawson's no contest plea, that he believed when he entered his plea that a post-probation reopening of his case to reduce the charge was possible and that neither the State nor the trial court disabused him of that notion at any time prior to his plea, conviction and sentencing. … ¶14. Thus, as in Riekkoff, Dawson entered his plea under a misapprehension that he had preserved the possibility of a material benefit to him that was legally impossible for him to obtain, and the State and the trial court acquiesced in this mistaken view. We therefore conclude that Dawson's plea was "neither knowing nor voluntary," and he must be permitted to withdraw it. Id.; also see State v. Woods, 173 Wis. 2d 129, 140, 496 N.W.2d 144 (Ct. App. 1992) (concluding that a plea agreement providing for a "legal impossibility" renders the resulting plea "neither knowing nor voluntary") Nor would sentencing court rejection of the unenforceable provision “have cured the error stemming from the fact that Dawson was induced to enter his plea by a promise that the State could never keep,” ¶15. As a related matter, it’s also unimportant that Dawson’s ultimate attainment of a reduced charge was conditional and uncertain, because he could never get what he bargained for, the possibility of such an outcome. ¶23. Separately, the court rejects a loophole to Hayes, under which the State would move to reopen and amend before successful completion of probation. ¶¶20-21. Plea Bargains -- Validity: Remedy for Invalid Plea Bargain State v. Anthony L. Dawson, 2004 WI App 173 For Dawson: William E. Schmaal, SPD, Madison Appellate Issue/Holding: ¶25. In sum, the State has not presented us with a valid rationale for upholding the denial of Dawson's plea withdrawal motion. Dawson has established that his plea was not knowing and voluntary because it was induced by the promise of a possible future benefit that could never be conferred. We thus conclude that, in order to avoid a manifest injustice, Dawson must be permitted to withdraw his plea. On remand, therefore, the criminal proceedings shall recommence with an arraignment on the charge set forth in the information. Additionally, if the State so requests, the charge of failing to report to jail in Dane County Case No. 00-CF-2310, which was dismissed as part of the plea agreement, shall be ordered reinstated. See State v. Howard, 2001 WI App 137, 38 n.11, 246 Wis. 2d 475, 630 N.W.2d 244 ("A defendant who successfully withdraws his or her pleas no longer has the benefit of any concessions or dismissals initiated by the State pursuant to the plea bargain.") Plea Bargains – Validity: Reopen and Amend to Less Serious Offense if Restitution Made Before Sentencing

State v. Peter R. Cash, 2004 WI App 63

For Cash: Lynn M. Bureta

Issue: Whether a plea agreement, which provided that if Cash returned stolen goods prior to sentencing the State would request that the judgment be reopened and amended from burglary to Class E felony theft, was invalid and the guilty plea therefore invalid as well, under the logic of State v. Hayes, 167 Wis. 2d 423, 425, 481 N.W.2d 699 (Ct. App. 1992) (plea bargain that allows a judgment to be reopened and amended to lesser conviction if the defendant successfully completed probation unenforceable).

Holding:   ¶14. Cash argues that a plea based on a legal impossibility makes the plea an uninformed one, State v. Dibble, 2002 WI App 219, ¶5, 257 Wis. 2d 274, 650 N.W.2d 908, review denied, 2002 WI 121, 257 Wis. 2d 121, 653 N.W.2d 893 (Wis. Oct. 21, 2002) (No. 02-0538-CR), and that a plea must meet legal standards for it to be a valid plea, State v. Woods, 173 Wis. 2d 129, 140, 496 N.W.2d 144 (Ct. App. 1992). ... ¶17. We hold that Hayes does not render the plea agreement invalid in this case. The agreement here provided that following his plea of no contest, Cash would have the opportunity prior to sentencing to procure and return the stolen items. If Cash was able to satisfy this contingency during this interval, the State would amend the charge to a lesser offense and the sentencing would proceed accordingly.7 Unlike the defendant in Hayes, Cash would not have served any portion of a sentence (probation or otherwise) prior to any potential amendment of charge and the imposition of sentence. Thus, the concerns of the Hayes court regarding the limitations of the probation statute and the trial court's lack of authority to amend a judgment after completion of a sentence are not implicated here. ¶18. We hold that the plea agreement was not invalid under Hayes. Therefore, the trial court correctly denied Cash's motion to withdraw his no contest plea. 7   Thus, we accept Cash's contention that he was "convicted" following his plea within the meaning of State v. Wimmer, 152 Wis. 2d 654, 449 N.W.2d 621 (Ct. App. 1989); State v. Trudeau, 157 Wis. 2d 51, 458 N.W.2d 383 (Ct. App. 1989); and State v. Smet, 186 Wis. 2d 24, 519 N.W.2d 697 (Ct. App. 1994). However, both his plea and conviction during this interval were conditional under the terms of the plea agreement.

Issues and Rights Waived by Plea

Guilty Plea Waiver Rule – Generally, Authority to Ignore

State v. Benjamin D. Tarrant, 2009 WI App 121

For Tarrant: Susan E. Alesia, SPD, Madison Appellate

Issue/Holding: ¶6        Waiver. Before addressing the merits, the State argues that Tarrant’s no contest plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437. The guilty plea waiver rule is a rule of judicial administration and not of power. State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983). Therefore, in our discretion we can decline to apply the rule “particularly if the issues are of state-wide importance or resolution will serve the interests of justice and there are no factual issues that need to be resolved.” State v. Grayson, 165 Wis. 2d 557, 561, 478 N.W.2d 390 (Ct. App. 1991), aff’d, 172 Wis. 2d 156, 493 N.W.2d 23 (1992). Whether the State can modify or amend a previously issued detainer to block the application of the IAD has not been addressed in this state and must be resolved. In addition, the issue was rigorously litigated in the circuit court and our resolution will not sandbag the court. Finally, the parties have fully briefed the issue and, as we noted, the historical facts are not in dispute. We therefore turn to the merits of the issue.

Rights Waived - Self-Incrimination - Retention of Privilege - NGI Phase

State v. James G. Langenbach, 2001 WI App 222

For Langenbach: Patrick M. Donnelly, SPD, Madison Appellate

Issue: Whether the state may call a defendant to testify, as an adverse witness, at Phase II of an NGI trial, following Phase I guilty plea.

Holding: A guilty plea doesn’t necessarily result in loss of fifth amendment rights: The privilege continues at least until sentencing, ¶9; moreover, the privilege continues during the direct appeal, ¶¶10-11. Nor does it matter that this is an NGI trial: ¶13. Contrary to the State's arguments, the United States Supreme Court has held that the availability of the Fifth Amendment privilege does not turn upon the type of proceeding in which the protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. Estelle, 451 U.S. at 462. To sustain the Fifth Amendment privilege, 'it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ McConnohie, 121 Wis. 2d at 69 (citation omitted). 'The privilege is not only intended to protect a defendant when his answers would lead to a conviction ... but is intended to protect a defendant when the defendant "apprehends a danger from a direct answer.’" Marks, 194 Wis. 2d at 94 (citation omitted). The United States Supreme Court has recognized that a legitimate danger is that of incarceration or the impending threat of the deprivation of one's liberty. Id. at 94-95. Here, there is a legitimate impending threat of the deprivation of Langenbach's liberty, either through commitment to a mental hospital or imprisonment.

Issues Waived -- "Becker" Issue

State v. Chad D. Schroeder, 224 Wis.2d 706, 593 N.W.2d 76 (Ct. App. 1999).

For Schroeder: Patrick C. Brennan.

Issue/Holding: A guilty plea waives any right to a hearing under State v. Becker, 74 Wis. 2d 675, 247 N.W.2d 495 (1976) (whether state manipulated adult court in not commencing case I juvenile court). A Becker issue, in other words, is one of potential constitutional, not subject-matter jurisdictional, dimension. Subject-matter jurisdiction fails only when the complaint doesn't charge an offense known to law. (This is a bit of an overstatement. For example, double jeopardy objection to a charge "known to law" isn't waivable. State v. Lechner, 217 Wis.2d 392, 404 n. 8, 576 N.W.2d 912 (1998) ["The defendant's plea of no contest, however, did not waive his double jeopardy challenges."] Since the purpose of a Becker hearing is to vindicate due process rights, not to confer jurisdiction, the issue is therefore waived by guilty plea. (The court pauses to yet again distinguish "competency" from "jurisdiction." The former relates to a court's statutory authority to adjudicate the specific case before it; the latter, to constitutional authority to adjudicate a kind of authority.)

Issues Waived -- Plea Bargain Breach, By Renegotiated Plea

State v. David W. Oakley, 2001 WI 103, 629 N.W.2d 308, affirming unpublished decision of court of appeals

For Oakley: Timothy T. Kay

Issue: Whether a claim of plea bargain error was waived by a subsequent renegotiation of the plea bargain and entry of no contest plea on that new agreement.

Holding: (W)hen a defendant pleads no contest, he or she waives all defenses based on a denial of due process because the prosecutor breached an earlier plea agreement. In the instant case, Oakley pled no contest based on his second plea agreement. By doing so, he waived any claim of error that may have occurred when the circuit court permitted the State to withdraw from the first plea agreement. As the court of appeals noted in State v. Paske, 121 Wis. 2d 471, 474, 360 N.W.2d 695 (Ct. App. 1984), '[i]t is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired.' There is no indication here that Oakley's plea was nonconsensual. Accordingly, we find that Oakley, by pleading no contest to the second plea agreement, waived his claim of error that the State was impermissibly allowed to withdraw from the earlier plea agreement. ¶23. (Note: It is probably significant that part of Oakley's second agreement was "that he would not complain on appeal about the State's withdrawal from the first plea agreement." ¶4. And, for another case illustrating an involuntary plea following a withdrawn agreement, on the basis that the defendant wasn't advised that the withdrawn agreement was enforceable, see State v. Antonio A. Scott, 230 Wis.2d 643, 602 N.W.2d 296 (Ct. App. 1999).)

Issues Waived -- Double Jeopardy State v. Jimmie Davison, 2002 WI App 109, overruled on other grounds, 2003 WI 89, ¶111 For Davison: Keith A. Findley, UW Law School Issue/Holding: A guilty plea doesn't waive a facially valid multiplicity claim. ¶13.

Issues Waived -- Ex Post Facto Challenge

State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01

For Ramirez: Elizabeth A. Cavendish-Sosinski

Issue: Whether Ramirez’s guilty plea waived an ex post facto challenge to the charged offense.

Holding:¶4 n. 4: We could invoke the guilty plea/waiver rule against Ramirez since he pled guilty to the charge after the trial court rejected his constitutional challenge. See State v. Schroeder, 224 Wis. 2d 706, 711, 593 N.W.2d 76 (Ct. App. 1999). However, the guilty plea/waiver rule is one of judicial administration, not one of the court's power to act. See State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983). In prior cases, the supreme court has chosen not to invoke waiver where the defendant has entered a guilty plea but presented a constitutional challenge. See Flores v. State, 69 Wis. 2d 509, 510, 230 N.W.2d 637 (1975); Mack v. State, 93 Wis. 2d 287, 296-97, 286 N.W.2d 563 (1980). This is especially so where there are no factual questions presented, the parties have fully briefed the issue and the matter is of statewide importance. Mack, 93 Wis. 2d at 296-97. Those considerations prompt us to not invoke the guilty plea/waiver rule in this case. Not only have the parties fully briefed the issue on appeal, but they also litigated the issue in the trial court. In addition, the question of whether Wis. Stat. § 943.201(2) is a continuing offense is one of first impression and is of statewide importance.

Issues Waived -- Factual Basis -- Questions of Disputed Fact Not Reviewable

State v. Harold Merryfield, 229 Wis.2d 52, 598 N.W.2d 251 (Ct. App. 1999).

For Merryfield: Edward J. Hunt.

Holding: Merryfield was originally charged with one felony and one misdemeanor. Pursuant to a plea bargain, he pleaded guilty to the misdemeanor, and the state agreed to drop the felony (but critically, as it turns out, didn't formally move to dismiss; nor did the trial court formally dismiss it). The case was adjourned for sentencing, during which time Merryfield was out on bond. He picked up new charges in the meanwhile, including two felony bail jumpings, to which he eventually pleaded guilty. He filed a postconviction motion arguing that the bail jumpings should have been misdemeanors (because his release was on a misdemeanor, not a felony). The court of appeals rejects his arguments that there was no factual basis and that the felony charges violated the original plea bargain. A guilty plea admits all factual assertions pleaded in the information. Merryfield's pleas therefore admitted that he had been released on a felony, and he can't now argue otherwise. To consider the merits of Merryfield's no factual-basis argument, the court would have "to go behind the allegations" of the charging documents "to determine the intent of the parties and the court" at the original plea proceeding. This, the court holds, "would be well beyond the purpose of the statutory 'factual basis' inquiry[.]" In other words, because the original felony wasn't formally dismissed, it became a matter of disputed fact as to whether Merryfield's release on bond was just on the misdemeanor, or on the felony as well - and, a factual basis inquiry may not resolve a question of disputed fact.

Issues Waived -- Suppression -- Preserved by § 971.31(10) State v. James S. Riedel, 2003 WI App 18, PFR filed 1/27/03 For Riedel: Ralph A. Kalal

Issue/Holding: ¶8. At the outset, we reject the State's threshold argument that Riedel is precluded from challenging the trial court's suppression ruling based on Riedel's conviction on the OWI charge and the dismissal of the PAC charge. The State reasons that Riedel's appeal lacks a justiciable controversy because he has failed to argue that he would not have pled to the OWI charge if the trial court had granted the suppression motion or that the OWI evidence would have been insufficient absent the blood test results. We reject the State's argument. In pleading to the OWI charge, Riedel undoubtedly considered all incriminating evidence against him, including the blood test results. (Note: Though unmentioned by the holding, § 971.31(10), undoubtedly preserves this suppression motion. Keep in mind, though, that this statutory exception to the guilty-plea waiver rule is limited to criminal cases. County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995). The lower court case # for Riedel bears a "CT" designation -- "Criminal Traffic" -- and therefore seems to fulfill this requirement.)

Issues Waived -- Unauthorized Repeater Sentence

State v. Jeremy J. Hanson, 2001 WI 70, 244 Wis. 2d 405, 628 N.W.2d 759, reversing unpublished decision of court of appeals

For Hanson: James B. Connell

Issue: Whether a guilty or no contest plea waives the right to challenge the defendant’s status as an habitual traffic offender, and the right to challenge the HTO sentencing penalty as unauthorized.

Holding: ¶21. Section 973.13 requires Wisconsin courts to declare a sentence void '[i]n any case where the court imposes a maximum penalty in excess of that authorized by law.' § 973.13 (emphasis added). In an analogous context, our court of appeals concluded that the command of § 973.13 allowed a defendant to challenge a faulty repeater sentence despite the existence of an otherwise effective procedural bar. State v. Flowers, 221 Wis. 2d 20, 22-23, 586 N.W.2d 175 (Ct. App. 1998).... ¶22. As in Flowers, to allow the imposition of a criminal penalty where none is authorized by the legislature, simply on the basis of waiver, would ignore the dictate of § 973.13. We thus reach the merits of Hanson's challenge and determine whether any basis existed for the imposition of a criminal sentence.

Withdrawal of Plea

Withdrawal of Plea -- Sua Sponte, by Court – Unauthorized

State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07

For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: ¶12      As the circuit court recognized after the State brought its motion for reconsideration, circuit courts in Wisconsin may not, absent circumstances not present here, sua sponte vacate guilty pleas validly accepted. State v. Comstock, 168 Wis. 2d 915, 921–922, 953, 485 N.W.2d 354, 356, 369–370 (1992) (“[W]e exercise our superintending authority, and direct each circuit court to refrain from >sua sponte vacating a guilty or no contest plea after the circuit court has validly accepted the plea by assuring itself of the voluntariness of the plea and the factual basis for the charges unless the circuit court finds that there was fraud in procuring the plea or that a party intentionally withheld from the circuit court material information which would have induced the circuit court not to accept the plea.”) (footnote omitted). Although Rushing argues that Comstock is distinguishable because it involved a plea bargain, the breadth of the supreme court’s pronouncement was not so limited. Cf. Malone v. Fons, 217 Wis. 2d 746, 754, 580 N.W.2d 697, 701 (Ct. App. 1998) (“When an appellate court intentionally takes up, discusses and decides a question germane to a controversy, such a decision is not a >dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.”) (citation, internal quotation marks, and brackets omitted). Indeed, Comstock recognized that circuit courts have authority to reject proffered pleas not yet accepted in order to ensure that the public interest is served by a proposed plea bargain. Comstock, 168 Wis. 2d at 927–928 n.11, 485 N.W.2d at 358 n.11 (“A circuit court has the power to accept or reject a plea agreement reducing or amending charges; it should consider the public interest in making its decision about the plea agreement and should make a complete record of the plea agreement. The court must personally advise the defendant that the agreement is in no way binding on the court.”). [2] The crux of Comstock is that circuit courts may not sua sponte vacate fully and fairly entered and accepted pleas.

Finality of Order – Trial Court’s Inherent Authority to Reconsider Non-Final Order

State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07

For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: Trial courts possess inherent authority to reconsider any non-final ruling prior to entry of final order or judgment, ¶13, citing State v. Williams, 2005 WI App 221, ¶17, 287 Wis. 2d 748, 706 N.W.2d 355.

The trial court reconsidered its own prior sua sponte vacatur of a guilty plea. As the court of appeals holds elsewhere (¶12), the trial court lacks that sua sponte power. However, that is a mere detail with respect to reconsideration – for further discussion on authority to reconsider, go here, and scroll down to commentary under summary of Williams, 2005 WI App 221. As for Rushing, the net effect is that the court generally has inherent reconsider a prior exercise of authority, but does not have authority to "reconsider" its acceptance of a valid guilty plea. Plainly, the double jeopardy implications of plea-acceptance inhibit the general authority to reconsider. It follows that when the court has improperly (as it did in Rushing's instance) "reconsidered" acceptance of the plea, it may then rectify that mistake by reconsidering the invalid reconsideration. Got it?

Deferred Prosecution Agreement (Domestic Abuse), § 971.37 – Post-Revocation Withdrawal Comes within Test for Post-Sentencing Motion

State v. Sean M. Daley, 2006 WI App 81, on remand, PFR filed 5/10/06; prior history: 2005 WI App 260, decision vacated and remanded, 2006 WI 25

For Daley: Kirk B. Obear

Issue/Holding: Motion for plea-withdrawal following revocation of a deferred prosecution agreement but before sentencing has been imposed is gauged by the manifest injustice test for post-sentencing plea withdrawal, rather than the fair-and-just reason test applicable to pre-sentencing motions, under the rationale of State v. Barney, 213 Wis. 2d 344, 353, 570 N.W.2d 731 (Ct. App. 1997): ¶16      It is true that sentencing, as it is commonly understood, did not occur until after the trial court denied the motion for plea withdrawal, revoked the deferred prosecution agreement, and entered the judgment of conviction against Daley based on his underlying no contest plea.  However, prior case law compels the conclusion that “sentencing,” when a deferred prosecution agreement is involved, encompasses the initial disposition of the case after the parties enter the agreement and the agreement is ratified by the trial court.  See id. at 354. … ¶18      … The same rationale applies here:  acceptance and ordered implementation of the deferred prosecution agreement constitutes sentencing for purposes of determining which standard to apply. We thus apply the manifest injustice standard in reviewing Daley’s motion for plea withdrawal. No manifest injustice shown, where the principal ground was merely an assertion of innocence; other, conclusory claims of coercion and dissatisfaction with counsel are undermined by the plea colloquy; and, the court is entitled to consider that he delayed the motion “until he faced the possibility of a prison sentence to cry foul,” ¶¶20-24. The original opinion, which denied relief under the test for pre-sentencing plea withdrawal, was “vacated and this matter … remanded to the court of appeals for further proceedings in light of Barney”—apparently a case that wasn’t brought to the court’s attention the first time around, but which the State argued in response to the PFR conflicted with the original opinion. The purpose of the remand was not to reconsider the grant of relief, but rather the basis for its denial (if Daley couldn’t win under the fair-just reason test, he surely couldn’t win under the much harsher manifest-injustice test). It isn’t good enough merely to deny relief, it has to be on just the right ground. The only reason for remand, in other words, was to say that if you attempt plea withdrawal following revocation of a deferred prosecution agreement you’re in a post-sentencing rather than pre-sentencing mode. The court of appeals obliges.

Post-Sentencing Plea Withdrawal: Procedure, Generally

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

Issue: Whether, in moving to withdraw guilty plea on the basis of failure to inform the defendant that the trial court wasn’t bound by the plea agreement, the defendant need only assert lack of such understanding; or whether the defendant must go further and allege sufficient facts which if true would have entitled the defendant to withdraw the plea.

Holding: ¶51 … The State relies on a line of cases highlighted by State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996) …. However, Bangert controls the facts of this case because Bangert-type cases are confined to alleged defects in the record of the plea colloquy. Bentley is inapposite because it applies to allegations less susceptible to objective confirmation in the record. … ¶56 We conclude that Bangert and Bentley, although different, are not inconsistent. They are not inconsistent because they apply to different fact situations. … ¶57 We see several distinctions in the Bangert-type case. First, the defendant must point to a specific defect in the plea hearing which constitutes an error by the court. The defendant will not satisfy this burden merely by alleging that "the plea colloquy was defective" or "the court failed to conform to its mandatory duties during the plea colloquy." The defendant must make specific allegations such as "at no point during the plea colloquy did the court explain that it was not bound by the plea bargain and was free to disregard the prosecutor's sentencing recommendation." In addition, the defendant must allege that he did not in fact understand that the court was not bound by the plea agreement because that information/explanation was not provided. We think a motion of this nature passes the test of Nelson and Bentley: a motion to withdraw a plea that alleges facts which, if true, would entitle the defendant to relief. The allegation that the defendant did not understand is, admittedly, conclusory; but the allegation raises a question of fact and perhaps law that requires resolution. The court goes on to say that Hampton’s plea colloquy was defective: the trial court neither expressly told him that it was not bound by his plea agreement, nor did it ask him if he understood as much. And, because Hampton’s postconviction motion “alleged that he did not understand that the court was not bound by the prosecutor's sentence recommendation, he made the requisite showing and is entitled to an evidentiary hearing.” ¶66. It’s not enough that this information was contained in the guilty plea questionnaire, which, Hampton acknowledged, counsel had read to him. ¶¶68-69.

Post-Sentencing Plea Withdrawal: Suppression of Material Exculpatory Impeachment Evidence – Statutory Basis

State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813

For Harris: Steven A. Koch

Issue/Holding: ¶34 We recognize that in the constitutional context, the Brady requirement of materiality is dependent upon whether the suppressed evidence undermines confidence in the outcome of the trial and that no trial took place here. … The State's argument requires us to reconstruct how a hypothetical trial would have proceeded and speculate as to how the jury would have viewed the evidence. We decline to do so. The circuit court accepted Harris's offer of proof that he pled guilty only because of the relative strength of the State's case and would not have pled guilty had this evidence been disclosed. As Harris demonstrated that he would not have pled guilty but for the nondisclosure of this favorable evidence, we are satisfied that the nondisclosure of the evidence sufficiently undermines our confidence in the outcome of the proceeding. As such, the State was under a statutory obligation to disclose B.M.M.'s allegation after Harris made a statutory demand for "any exculpatory evidence." … ¶39 Finally, we address whether the State's violation of § 971.23(1)(h) entitles Harris to withdraw his plea. … The common thread among the situations listed in Hatcher is that the defendant was deprived of a right guaranteed by the constitution, statute, or rule, and that deprivation induced the defendant to plead guilty. Here, the State violated the discovery statute by withholding material exculpatory impeachment evidence that, if admitted, would have raised serious questions about the credibility of the victim and the reliability of the State's expert witnesses. Aside from Harris's own version of events, this was the only existing material evidence that was "favorable to the accused." The circuit court accepted Harris's postconviction offer of proof that he would not have pled guilty had this evidence been available to him. This court has previously determined that a prosecutor's violation of discovery statute, if prejudicial to the defendant, entitles the defendant to a new trial. DeLao, 252 Wis. 2d 289, ¶59. Here, the State's violation of the discovery statute prevented Harris from ever having a trial. Harris has demonstrated the State's discovery statute violation resulted in "'a serious flaw in the fundamental integrity of the plea.'" State v. Thomas, 2000 WI 13, 16, 232 Wis. 2d 714, 605 N.W.2d 836 (quoting State v. Nawrocke, 193 Wis. 2d 373, 379, 534 N.W.2d 624 (Ct. App. 1995)). Under these circumstances, we believe it necessary to allow Harris to withdraw his guilty plea in order to prevent a manifest injustice. The logic of the holding extends inexorably to dispensing with the materiality requiremen on all pretrial requests for exculpatory information – that is, not where the information has been suppressed but where its disclosure is resisted and thus the subject of pretrial dispute. One such leading example is Pennsylvania v. Ritchie, 480 U.S. 39 (1987), where disclosure of mental health records were resisted and the Court ended up holding after trial that disclosure of such records is tested under the Brady standard, that is, the information must be both “favorable” and “material.” But, as Harris has just recognized, materiality – whether there’s a reasonable probability of a different result on retrial – isn’t meaningful before trial. And so, as one District Court recently held, “This (Ritchie) standard was developed in the context of appellate consideration of the effect of non-disclosure … Specifically, the materiality prong presumes that the trial has already occurred … But a court deciding whether material should be disclosed prior to trial does not have the luxury of reviewing the trial record.” U.S. v. Carter, 2004 U.S. Dist. LEXIS 665 (E.D. Wis. 4/12/04), no non-commercial link available. Consequently, “in the pretrial context, the court should require disclosure of favorable evidence under Brady and Giglio without attempting to analyze its ‘materiality’ at trial.… Therefore, the court should ordinarily require the pretrial disclosure of all exculpatory or impeachment evidence.” Id. Not only is Harris consistent with this approach, it trends very strongly in that direction. See also Ferrara v. U.S., 1st Cir No. 05-1736, 8/10/06 (analysis of other Brady case, Brady v. U.S., triggered by withholding of exculpatory evidence: misapprehension of strength of government's case resulting from impermissible conduct violates due process; court cautions will be rare instance when this is so); People v. Ramirez, Ca App B186837, 8/14/06 (similar: violation of statory right to discovery of certain reports -- which contained favorable information -- rendered plea unknowing and involuntary).

Withdrawal of Plea -- Post-sentencing -- Coercion – Grounds: “Package” Agreement, Youthfulness of Defendant

State v. Timothy J. Goyette, 2006 WI App 178

For Goyette: E.J. Hunt, Kathleen M. Quinn

Issue: Whether Goyette was coerced into pleading guilty under a “package” agreement (one “contingent on two or more codefendants all entering pleas according to the terms of the agreement”), given the seriousness of the charges and the youthfulness (age 16) of the defendant.

Holding: In the absence of any evidence that Goyette was too young to understand the implications or that he was pressured by his attorney or unable to meet alone with him, the trial court finding of no coercion is unassailable, ¶¶23-26. Nor did the offer of a package deal pressurize him in such a way as to amount to illicit coercion: ¶31 Collectively, Craker, Seybold, and Drake reject the proposition that a plea is constitutionally involuntary if it is motivated by a desire to obtain a benefit for another. None of these cases involved a package plea agreement, but Goyette suggests no reason why their reasoning should not apply here. We agree with Goyette that package plea agreements carry with them the risk that one of the defendants will be improperly pressured into entering a plea. But the pressure Goyette describes is not improper pressure. It is the same type of self-imposed pressure at issue in Craker, Seybold, and Drake. ¶32 Therefore, we agree with the State that, even if the package plea agreement’s offer of reduced charges, carrying with it limited exposure to imprisonment, had no effect on Goyette’s decision to plead guilty and that Goyette only entered his pleas to help his friends, such facts would not establish that Goyette’s pleas were involuntary. The court declines to reach the question of whether a package plea agreement is necessarily invalid, or whether such an agreement requires that “plea hearings be held individually for each defendant,” ¶24, n. 13.

Post-Sentencing Plea Withdrawal: Grounds -- Coercion: Defendant's Pregnancy

State v. Monika S. Lackershire, 2007 WI 74, affirming (this holding of) 2005 WI App 265

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

Issue/Holding: ¶62      Finally, we consider Lackershire's argument that her plea was involuntary because she feared that the stress of trial would affect her pregnancy. … … ¶64      Lackershire has raised no plausible argument that her plea was legally coerced. She does not contend that she asked the circuit court to postpone her trial date and was refused. Although she asserts that the district attorney told her that postponement "was not an option," she does not claim that the district attorney implied that the plea agreement was contingent upon Lackershire not seeking such a postponement. Thus, neither the court nor the prosecutor denied her a fair or reasonable alternative to choose from such that her choice was coerced. ¶65      Rather, we determine that because the decision whether to seek a postponement was within her control, the choice between pleading guilty and going to trial on the scheduled date was self-imposed. Accordingly, we conclude that her concern about the stress of a trial does not vitiate the voluntary nature of her plea.

Post-Sentencing Plea Withdrawal: Suppression of Material Exculpatory Impeachment Evidence – Constitutional Basis

State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813

For Harris: Steven A. Koch

Issue/Holding: ¶16 Therefore, the court of appeals in the instant case misstated the law when it held that "the State violates the Constitution if it withholds the type of information that could form the basis for further investigation by the defense[,]" and that a constitutional violation occurs when the State refuses to disclose "potentially exculpatory" evidence. Harris, 266 Wis. 2d 200, ¶36. … ¶17 Harris claims that the State violated his constitutional right to Brady evidence by failing to disclose, before he entered his plea, that B.M.M. alleged that her grandfather had assaulted her. Therefore, Harris asserts that he is entitled to withdraw his plea under Sturgeon. We determine, in light of the United States Supreme Court's decision in Ruiz, that due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain. … … ¶23 … We therefore hold, based on the United States Supreme Court decision in Ruiz, that due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain.15 15 The State asks us to go one step further and overrule the court of appeals' decision in State v. Sturgeon, 231 Wis. 2d 487, 605 N.W.2d 589 (Ct. App. 1999). We decline to do so. Today's decision is limited to the scope of material exculpatory impeachment evidence. We do not determine whether due process requires the disclosure of purely exculpatory information prior to a plea bargain.

Withdrawal of Plea -- Post-Sentence -- Exculpatory evidence.

State v. Michael R. Sturgeon, 231 Wis.2d 487, 605 N.W.2d 589 (Ct. App. 1999).

For Sturgeon: Terry Evan Williams.

Issue/Holding: To prevail on a motion to withdraw guilty plea based on postplea discovery of exculpatory information, a defendant must prove (a) the existence of exculpatory evidence (b) in the exclusive control of the prosecution (c) unknown to the defense, the withholding of which (d) caused the guilty plea.

Analysis: Sturgeon pleaded guilty to burglary, based on the strength of testimony at the preliminary hearing of his codefendant and of a police officer who claimed that Sturgeon had confessed. A discovery demand produced a police report detailing this confession. After conviction, Sturgeon obtained other information not in the report, indicating that his supposed "confession" to the police actually denied knowledge that his companions were committing the burglary, and was therefore in fact exculpatory. The trial court denied the resultant motion to withdraw plea; the court of appeals reverses. When a plea withdrawal request is based on violation of a constitutional right, the defendant is entitled to the withdrawal by showing violation of constitutional right; causing him/her to plead guilty; where he/she was unaware of the potential constitutional challenge. The appellate court reviews these determinations de novo, giving deference to underlying findings of historical fact. ¶¶15-16. The withheld evidence - denial of scienter - clearly is exculpatory; the real question is whether it was in the exclusive possession of the state. ¶¶18-21. The police are an arm of the prosecution. And, though Sturgeon had the opportunity to cross-examine relevant police witnesses at both prelim and suppression hearings, the limited purpose of these hearings gave him neither incentive nor right to delve into discovery-related areas that might have revealed the critical police report or exculpatory testimony. ¶¶22-25. The fact that Sturgeon himself knew what he'd told the police doesn't defeat the idea of exclusive possession: "we see a marked difference between a defendant's exculpatory version of an event presented to his lawyer and the fact that the prosecution has in its possession evidence which independently corroborates that version." ¶11. Sturgeon therefore makes out a claim of constitutional violation of withheld exculpatory evidence. And, largely because he didn't know of the existence of the exculpatory, corroborative police information, he also satisfies the requirement that he was unaware of the potential constitutional challenge. ¶¶28-30. This leaves "causation" of the guilty plea, which the court defines to mean "a reasonable probability that, but for the failure to disclose, the defendant would have refused to plead and would have insisted on going to trial." ¶35. Postconviction counsel astutely created a record that Sturgeon felt he had no choice but to plead guilty in light of his confession and his codefendant's testimony. Stressing this fact, along with the importance of the withheld evidence, the court holds as a matter of law that Sturgeon is entitled to plea-withdrawal. UPDATE: Sturgeon was upheld, in  State v. Kevin Harris, 2003 WI App 144, PFR granted, summarized above.

Withdrawal of Plea -- Postsentence -- Newly Discovered Evidence

State v. Dennis R. Fosnow, 2001 WI App 2, 240 Wis. 2d 699, 624 N.W.2d 883

For Fosnow: David D. Cook

Issue: Whether a postconviction diagnosis supporting an NGI defense amounted to newly discovered evidence, where the defendant had pled no contest after receiving unfavorable NGI evaluations.

Holding: The new diagnosis was merely a new appreciation of the importance of evidence previously known but not used and therefore didn't satisfy the test for newly discovered evidence.

Analysis: Exams by several experts provided no support for Fosnow's NGI plea which he then dropped, leading to conviction on no contest pleas. Years later, a prison psychiatrist determined that he suffered from dissociative identity disorder at the time of his offenses. Fosnow argued in a § 974.06 motion that this new opinion was newly discovered evidence entitling him to plea withdrawal. The court of appeals' rejection of the claim is certainly explicit, but whether it's on a fact-specific or a more general basis isn't entirely clear. The court, that is, stresses that the basis for an NGI defense was available before conviction, including Fosnow's "extensive 'psychiatric evidence,'" in particular, DID symptomatology. ¶¶16-22. This suggests a limited, fact-specific holding: ¶25 In sum, the examining psychiatrists at the time of his pleas either were aware of or had available the information necessary to evaluate Fosnow's mental status at the time of the crimes. Fosnow and his trial counsel were aware of a possible DID diagnosis from Dr. Van Dyke's report and did not choose to obtain additional evaluations that might have supported it in 1989.... But the court doesn't end on that note; instead, it goes on to suggest that principles of finality generally preclude a new expert opinion from being newly discovered evidence. ¶¶26-28.

Post-Sentencing Plea-Withdrawal – Grounds: Misapprehension re: Plea Bargain Term (State’s Authority to Argue Facts Underlying Dismissed Charge)

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09

For Wesley: Alvin Ugent

Issue/Holding: ¶24      Here, as we said, Wesley claims that he understood the term “dismissed outright” to mean that the State could never use the underlying facts against him. He claims that his trial counsel was ineffective for failing to object. He also claims that, if the plea agreement was ambiguous, he should have known about it and lays the blame at counsel’s feet. These are all facts, which if true, would entitle him to relief. The trial court rejected the call for a hearing by deciding that the agreement was not ambiguous. We have already held otherwise. This leaves many facts to be parceled out and they can come out at a Machner hearing only. We reverse and remand with directions that the trial court conduct a Machner hearing. At this hearing, should Wesley decide to testify about whether he knowingly and intelligently understood the terms of the plea agreement, the court shall make findings of fact regarding this issue as well as any ineffective assistance of counsel claims before the court. ¶25      We also point out that there is another question that the parties must flesh out on remand. The law in Wisconsin is that “[a]greements by … prosecutors … not to reveal relevant and pertinent information to the trial judge charged with the duty of imposing an appropriate sentence upon one convicted of a criminal offense, are clearly against public policy and cannot be respected by the courts.” Grant v. State, 73 Wis. 2d 441, 448, 243 N.W.2d 186 (1976). Whether the State was merely providing pertinent and relevant information or went beyond it by using it to augment its argument in favor of incarceration is a question to be decided on remand. This question will come into play with respect to the ineffective assistance of counsel claims. It is up to the parties, and ultimately the trial court, to measure the extent by which the policy impacts the result. This is an exceptionally readable opinion, a genuine pleasure to read, but the court inexplicably stumbles a bit just before the finish line. Most significantly: the court acknowledges that Wesley may well be entitled “to relief,” but simply does not say explicitly what form of relief he’s eligible for. Presumably, it’s like this: notwithstanding ambiguity in the provision, if Wesley reasonably thought it meant no-allocution, then his reasonable assumption will be enforceable at a resentencing; nonetheless, if the provision is deemed, per Grant, violative of public policy, then the court may not enforce it and the remedy necessarily would be limited to plea-withdrawal. To be sure, the court doesn’t spell any of this out, but that seems to be what the court is driving at. Grant is, as the quote indicates, clear enough about unenforceability, but it expressly avoided the question of plea-withdrawal, 73 Wis. 2d at 447. However, a federal habeas court subsequently ordered plea-withdrawal, Grant v. Wisconsin, 450 F. Supp. 575 (E.D. Wis. 1978). One last thing, totally tangential: spell-check can be your best friend or your worst enemy (“The State then explained that the witness lost site of the vehicle,” ¶5).

Withdrawal of Plea - Post-sentence: Prima Facie Showing, Plea Questionnaire

State v. Christopher S. Hoppe, 2008 WI App 89

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

Issue: Whether a plea colloquy that merely established that the defendant was “satisfied” he understood “everything in the questionnaire and waiver of rights and the elements of the charges” sufficed under State v. Bangert, 131 Wis.  2d 246, 389 N.W.2d 12 (1986), given that the questionnaire covered these matters.

Holding: ¶14      … Here, the issue is whether, when the court incorporates the plea questionnaire into the colloquy, the contents of the plea questionnaire become an intrinsic part of that colloquy. We hold that it does. … ¶16      That is precisely what occurred here. The plea questionnaire and waiver of rights form used here recited each constitutional right subject to being waived, and required that the box before each right be checked to signify an understanding that a plea would result in that right being relinquished. … ¶17      The form became State’s Exhibit Number 1 and was made part of the record. Judge Kennedy addressed Hoppe personally, as Wis. Stat. § 971.08 directs, and specifically invoked the plea questionnaire Hoppe had completed. The court ascertained that Hoppe had gone over the questionnaire with both attorneys; that he understood “everything in the questionnaire and waiver of rights and the elements of the charges you’re going to be pleading to,” and that a copy of the elements was attached; that Hoppe was satisfied he made a free, voluntary and intelligent plea with all of his rights in mind; that both attorneys were satisfied that Hoppe’s plea was free, knowing and voluntary; and that there was a factual basis for the plea. This colloquy, which establishes that Hoppe voluntarily and knowingly waived his constitutional rights, exceeds that in Hansen, where we deemed inadequate a plea colloquy limited to little more than asking the defendant if he had “gone over” the plea questionnaire with his attorney. See Hansen, 168 Wis.  2d at 755. ¶18      A plea questionnaire’s proper use can lessen the extent and degree of the colloquy otherwise required. See Hansen, 168 Wis.  2d at 755-56. As Moederndorfer suggests, a written form both gives a defendant the opportunity to receive and digest critical information outside the courtroom’s possibly intimidating atmosphere, and aids the court in assessing the defendant’s understanding. See Moederndorfer, 141 Wis. 2d at 827-28. We do not interpret Howell or Brown as reading into Bangert, Moederndorfer or Wis. Stat. § 971.08 a requirement that, plea questionnaire in hand, the court must revisit the particulars of each item with a defendant, such as Hoppe, who has expressed his full understanding and gives the court no reason to believe that such is not the case. We thus say here what Moederndorfer only implies: a plea questionnaire is not outside the plea hearing; it is part and parcel of it. The long and short of it: assuming the plea questionnaire accurately canvasses the required material, a colloquy establishing simply that the defendant went over and “understands” the questionnaire contents is adequate. The result should free up a lot of court time, otherwise taken up with the superfluous exercise of informing the defendant of the rights waived, elements necessary to the crime, direct consequences of the plea, etc. Whether this result is correct or not, one little procedural sticking point: the circuit court held an evidentiary hearing and denied relief on the merits, so why is the court of appeals getting its hands dirty with the irrelevant detail of whether a hearing should have been held? If this procedural issue hasn’t previously arisen in a Bangert setting, it has, under Batson; State v. George Melvin Taylor, 2004 WI App 81, ¶ 23 n. 5, holds that once a neutral explanation has been offered, “and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion); State v. King, 215 Wis.  2d 295, 303, 572 N.W.2d 530 (Ct. App. 1997). As such, an explicit trial court finding that a prima facie case had been established is not necessary for this court to evaluate the rest of the analysis. King, 215 Wis. 2d at 303. In other words, the prima facie train already left the station, and the court of appeals had no business trying to board it. But board, commandeer, and return it to the terminal, the court did, and the price of a Bangert ticket to ride has just gone up. (Hoppe loses anyway, on the merits, because the trial court made credibility determinations against him, ¶¶28-24.)

Withdrawal of Plea -- Post-sentence -- Procedure, Generally

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

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

Issue/Holding: ¶39      After sentencing, in cases that involve an alleged deficiency in the plea colloquy, an attempt to withdraw a guilty plea proceeds as follows. The defendant must file a postconviction motion under Wis. Stat. § 809.30 or other appropriate statute. The motion must (1) make a prima facie showing of a violation of Wis. Stat. § 971.08(1) or other court-mandated duties by pointing to passages or gaps in the plea hearing transcript; and (2) allege that the defendant did not know or understand the information that should have been provided at the plea hearing. Bangert, 131 Wis.  2d at 274. ¶40      When a Bangert motion is filed, it is reviewed by the court. If the motion establishes a prima facie violation of Wis. Stat. § 971.08 or other court-mandated duties and makes the requisite allegations, the court must hold a postconviction evidentiary hearing at which the state is given an opportunity to show by clear and convincing evidence that the defendant's plea was knowing, intelligent, and voluntary despite the identified inadequacy of the plea colloquy. [23] Bangert, 131 Wis.  2d at 274. When the defendant has met his two burdens, the burden of producing persuasive evidence at the evidentiary hearing shifts to the state. [24] Id. at 275. In meeting its burden, the state may rely "on the totality of the evidence, much of which will be found outside the plea hearing record." Hampton, 274 Wis.  2d 379, ¶47. For example, the state may present the testimony of the defendant and defense counsel to establish the defendant's understanding. Bangert, 131 Wis.  2d at 275. The state may also utilize the plea questionnaire and waiver of rights form, documentary evidence, recorded statements, and transcripts of prior hearings to satisfy its burden. The territory has been covered many times before, but “(t)his opinion is intended to revitalize Bangert,” ¶58, which the court says is a “timeless primer,” ¶24. Bangert articulated three methods for a judge to establish a record of a voluntary, knowing plea; they’re recited by the court, ¶¶46-48. The court goes on to say that this “list is non-exhaustive …. There may be other ways to show a defendant’s understanding of the charges,” ¶49. Despite this unfortunate suggestion of some loose play in the joints the court’s discussion elsewhere resists such a construction. Bangert itself condemned “perfunctory” exchanges (which the court now repetitively stresses, ¶¶32, 33, 58); more importantly perhaps is this passage, ¶56: … Bangert requires verification, independent of defense counsel's assertion, that a defendant understands the nature of the charges. See Bangert, 131 Wis.  2d at 267 (requiring the circuit court to "ascertain that the defendant possesses accurate information about the nature of the charge"). Hence, Bangert requires a circuit court to summarize the elements of the offenses on the record, or ask defense counsel to summarize the elements of the offenses, or refer to a prior court proceeding at which the elements were reviewed, or refer to a document signed by the defendant that includes the elements. [26] Id.  at 268. Each method enables a court to ascertain the accuracy of the defendant's knowledge; each method gives substantive content to a defendant's understanding. Cf. id. at 269 ("Understanding must have knowledge as its antecedent; knowledge, like understanding, cannot be inferred or assumed on a silent record."). Moreover, we encourage circuit court judges to translate legal generalities into factual specifics when necessary to ensure the defendant's understanding of the charges. … requires a circuit court to … not, “We encourage a circuit court” (as contrastingly, in the last-sentence’s exhortation). One can only assume that the court used “requires” a) consciously and therefore b) meant it to be mandatory rather than merely exhortatory. A final point, seemingly picky but potentially recurrent and therefore worth mentioning anyway: the “defendant is not required to submit a sworn affidavit to the court” in support of the Bangert motion to withdraw plea, ¶62. It’s enough for counsel to assert in the motion itself the defendant’s lack of knowledge of the information omitted from the colloquy. But if the defendant files what the court terms “a dual purpose motion——that is, a Bangert motion combined with a motion that alleges ineffective assistance of counsel or some other problem affecting the plea that is extrinsic to the plea hearing record,” ¶62, then the pleading and proof requirements will be different.

Withdrawal of Plea -- Post-sentence -- Procedure: Prima Facie Showing, Relative to Knowledge of Charge – Illiterate Defendant, Perfunctory Colloquy

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

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

Issue/Holding: The defendant demonstrated a prima facie showing that his guilty plea was inadequate, where he was illiterate (such that a plea questionnaire wasn’t even prepared) and the trial court’s colloquy was superficial, ¶¶53-58.

The facts are sufficiently extreme that recurrence is highly unlikely and they therefore won’t be detailed in this summary; sufficiently extreme that this case surely exists at the outer margins of what any circuit court would have deemed acceptable before, and is inconceivable after, the decision was released.

Withdrawal of Plea -- Post-sentence -- Procedure: Prima Facie Showing, Relative to Rights Waived – Illiterate Defendant, Perfunctory Colloquy

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

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

Issue/Holding: On the particular facts (illiterate defendant, no written questionnaire, perfunctory colloquy) the defendant was entitled to a Bangert hearing on whether the understood the nature of the rights waived by his guilty plea.

(With respect to waiver of right to jury trial, the court intriguingly hints—but no more than that—that failure to explain “the possibility of a hung jury” might be required, ¶70 n. 28. The court also “suggest(s) that the Judicial Conference Forms Committee review the wording of this point,” id.

Withdrawal of Plea -- Post-sentence -- Procedure -- Burden of Proof: Spanish-speaking Defendant, Untranslated Questionnaire

State v. Everardo A. Lopez, 2001 WI App 265

For Lopez: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether Lopez made a prima facie showing that the plea colloquy was inadequate.

Holding: The Spanish-speaking Lopez had problems, acknowledged by the trial court, communicating with his interpreter and necessitating a continuance of the plea hearing. At neither the aborted plea hearing or the subsequent one at which the plea was accepted did the trial court determine, as required by § 971.08(1)(a) that Lopez understood the nature of the charge. ¶¶14-18. On postonviction motion, he specifically asserted that he didn't understand one of the elements (touching for gratification). Because the plea questionnaire was in Spanish, and not translated into English, it can't support a knowing an intelligent plea. ¶19 ("We cannot determine whether a defendant has made a knowing and voluntary waiver of rights from a record that does not provide an English translation of what was provided to the defendant.") ¶20. Given that Lopez made a prima facie showing that there was a violation of Wis. Stat. § 971.08(1)(a) by the circuit court, and given that Lopez alleged that he in fact did not know or understand the information which should have been provided at the plea hearing, the burden shifted to the State to show by clear and convincing evidence that Lopez's plea was knowingly, voluntarily, and intelligently entered. See Bangert, 131 Wis. 2d at 274. Therefore, the circuit court erred when it assigned to Lopez the burden of showing "by clear and convincing evidence" the grounds for withdrawal of his plea. We reverse the order and judgment of the circuit court."

Withdrawal of Plea - Post-sentence - Procedure - Remedy, No Showing Defendant Understood All Elements

State v. Everardo A. Lopez, 2001 WI App 265

For Lopez: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether plea withdrawal is the appropriate remedy where the record contains no evidence that Lopez understood all elements of the offense

Holding: ¶22. The proper remedy upon determining that the State failed to establish that Lopez understood the elements of the offense with which he was charged when he entered his no contest plea is to remand the case to permit Lopez to withdraw his plea. State v. Nichelson, 220 Wis. 2d 214, 226, 582 N.W.2d 460 (Ct. App. 1998). ... ¶24. Nichelson is instructive even though we do not apply waiver to the case at hand. The State did not meet its burden in Nichelson, and the State has not met its burden here. At the plea withdrawal hearing, the State did not make any attempts to make a record fulfilling its burden. We do not remand for a hearing to give the State a second opportunity to make an affirmative showing that Lopez's plea was voluntarily entered because we conclude that under Nichelson, when the State has failed to meet its burden of proof in a plea withdrawal setting, it should not get a "second kick at the cat."

Withdrawal of Plea - Post-Sentencing - Procedure - Burden of Proof

State v. John A. Jipson, 2003 WI App 222

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

Issue/Holding: ¶7. When challenging a guilty or no contest plea, the defendant has the initial burden to produce a prima facie case comprised of the following two parts. First, the defendant must show the trial court accepted the defendant's guilty plea without conforming to Wis. Stat. § 971.08 or other mandatory procedures. Second, the defendant must merely allege he or she did not know or understand the information that should have been provided at the plea hearing. Bangert, 131 Wis. 2d at 268-69. If the defendant satisfies this test, the burden of persuasion then shifts to the State to show by clear and convincing evidence that the defendant's plea was somehow otherwise knowingly, voluntarily, and intelligently made, despite any shortcomings at the plea hearing. Id. at 274. ... ¶11. The second step in the Bangert analysis shifts the burden to the State to prove by clear and convincing evidence that, notwithstanding deficiencies at the plea hearing, the defendant's plea was otherwise knowingly, intelligently and voluntarily made. Bangert, 131 Wis.2d at 274. However, no matter how incredible the defendant's prima facie case is, the State must present affirmative evidence to rebut it. See Nichelson, 220 Wis.2d at 224-25. The State is not limited to what transpired at or before the plea hearing to meet this standard, but rather can scour the entire record for affirmative evidence. See id.

Withdrawal of Plea - Post-Sentencing - Procedure - Proof of Knowledge of Elements / Remedy for Lack of Proof

State v. John A. Jipson, 2003 WI App 222

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

Issue/Holding: ¶16. Jipson's answers, while incriminating, have no bearing on the focus here. That is, the answers do not establish Jipson knew the State had to prove the purpose of the sexual contact was an element of the crime. The critical inquiry is whether Jipson otherwise knew at the time of entering his plea all of the essential elements of the offense so that it can be said he knowingly pled guilty to the crime. His testimony does not establish this. ¶17. In conclusion, the State has failed to meet its burden. It has not shown any affirmative evidence that proves clearly and convincingly that Jipson's plea was knowingly, intelligently, and voluntarily made. See Bangert, 131 Wis.2d at 274. Accordingly, Jipson is entitled to withdraw his plea. The circuit court order is reversed and the matter is remanded to the circuit court for further proceedings.

Withdrawal of Plea – Post-sentencing – Procedure – Challenge to Factual Basis

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

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

Issue/Holding: Bangert procedure applies to challenge to failure to establish adequate factual basis where the facts are disputed: ¶50      In the present case, however, the facts are in dispute precisely because the circuit court failed to conduct a sufficient inquiry into the factual basis of the offense charged … … ¶53      Because the circuit court had an obligation to make further inquiry as to the factual basis of the offense charged under § 971.08(1)(b), Lackershire has satisfied the first condition necessary for her to withdraw her plea. She has established a prima facie showing that her plea colloquy was defective. ¶54      In her motion to withdraw her plea, Lackershire stated that "she did not fully understand the elements of the crime to which she pled, that she did not fully understand the consequences of her plea, and that her plea was not knowing or voluntary." Further, she states that "she has always maintained that she was raped." ¶55      Lackershire's allegation of lack of understanding focuses on the effect of being raped in relation to the charge of sexual assault of a child. We therefore determine she has alleged that she did not know or understand information that the court should have provided at the plea hearing, and that Lackershire fulfills the second requirement for plea withdrawal. ¶56      Once the defendant meets those two requirements, the court must hold a postconviction evidentiary hearing at which the state is given an opportunity to show by clear and convincing evidence that the defendant's plea was knowing, intelligent, and voluntary, despite the identified inadequacy of the plea colloquy. Brown, 293 Wis. 2d 594, ¶40 (citing Bangert, 131 Wis. 2d at 274). We therefore conclude that such a hearing is required in this case. Because Lackershire's plea colloquy was defective due to the circuit court's failure to make further inquiry to establish an adequate factual basis, the focus of the inquiry will be on whether Lackershire's plea was knowing and intelligent. Specifically, it will focus on whether Lackershire realized that if she was raped, her conduct would not actually fall within the charge. If the facts indisputably show that no crime was committed, then plea-withdrawal necessarily follows: ¶48      In some ways, however, applying the Bangert procedure for failure to satisfy the factual basis requirement is an awkward fit. Factual basis cases typically involve the question of whether undisputed facts actually constitute the crime charged. Where undisputed facts cannot constitute the crime charged as a matter of law, the defendant is allowed to withdraw her plea to prevent a manifest injustice. State v. Smith, 202 Wis. 2d 21, 25, 539 N.W.2d 232 (1996). Apparently, then, a factual-basis challenge raises two possible grounds, broadly speaking: undisputed facts which, if they fail to establish a crime, require plea-withdrawal; and unresolved, disputed facts which may not establish a crime and which, if properly pleaded, require an evidentiary hearing. One other point of note: the court’s linkage of unresolved disputed-fact to a knowing, intelligent plea constitutionalizes this type of challenge; this, in turn, means that the issue can be raised under § 974.06, though that procedure may be problematic on its own terms. Also see Loop v. State, 65 Wis.2d 499, 222 N.W.2d 694 (1974) (factual basis challenge can be raised under § 974.06). For that matter, Loop raises yet a third type of challenge – one where the record isn’t so much in dispute but is simply silent, because the circuit court failed to establish a factual basis. Loop says that this defect can be shored up on the postconviction motion. It’s pre-Bangert , but its result is probably consistent with that case.

Withdrawal of Plea -- Post-sentencing -- Procedure -- Pleading Requirements, Dual Bangert and Nelson/Bentley Motion

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

For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: ¶74      The Bangert and Nelson/Bentley motions, however, are applicable to different factual circumstances. [47] A defendant invokes Bangert when the plea colloquy is defective; a defendant invokes Nelson/Bentley when the defendant alleges that some factor extrinsic to the plea colloquy, like ineffective assistance of counsel or coercion, renders a plea infirm. [48] A "dual purpose" motion would include allegations of a defective plea colloquy and allegations of some other injustice that renders the plea infirm. We again state that a defendant may include both Bangert and Nelson/Bentley claims in a single motion to withdraw a plea of guilty or no contest. The court goes on to summarize the higher pleading standard for a Nelson/Bentley motion, namely to “allege sufficient, nonconclusory facts” that would lead to relief, ¶76. If the pleading falls short then “the circuit court in its discretion may nevertheless grant or deny an evidentiary hearing.” But, even if the pleading does pass muster, “an evidentiary hearing is not mandatory if the record as a whole conclusively demonstrates that defendant is not entitled to relief, even if the motion alleges sufficient nonconclusory facts,” ¶77 n. 51. And that said, “An adequate and accurate plea colloquy does not foreclose a Bentley challenge. The court of appeals recently explained that "[t]he State is simply incorrect that a good and sufficient plea colloquy, one that concededly complies with the requirements of Bangert, can be relied on to deny an evidentiary hearing for a defendant who seeks to withdraw his or her plea on non-Bangert grounds. The entire premise of a Nelson/Bentley plea withdrawal motion is that something not apparent from the plea colloquy may have rendered a guilty or no contest plea infirm." State v. Basley, 2006 WI App 253, ¶15, ___ Wis. 2d ___, 726 N.W.2d 671,” ¶77 n. 52. The court says that, even though it need not on these facts reach the issue, that in this instance “the record as a whole does nor conclusively demonstrate that Howell is entitled to no relief,” ¶¶84-85.

Withdrawal of Plea -- Post-sentencing -- Procedure -- Pleading Requirements, Bangert Motion, Generally

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

For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: ¶27      A Bangert Motion. A defendant may invoke Bangert only by alleging that the circuit court failed to fulfill its plea colloquy duties. [16] A Bangert motion warrants an evidentiary hearing if (1) the motion makes "a prima facie showing that [the] plea was accepted without the trial court's conformance with [Wis. Stat.] § 971.08 or other mandatory procedures," [17] and if (2) the motion alleges that in fact the defendant did not know or understand the information that should have been provided at the plea colloquy. [18] ¶28      The requirements for a Bangert motion are relatively relaxed because the source of the defendant's misunderstanding, the plea colloquy defect, should be clear from the transcript of the hearing at which the plea was taken. We require less from the allegations in a Bangert motion because the circuit court bears the responsibility of preventing failures in the plea colloquy. [19] ¶29      If the defendant's motion meets both prongs of Bangert, the State has the burden to prove at the evidentiary hearing that the plea was knowing, intelligent, and voluntary. [20]

Withdrawal of Plea -- Post-sentencing -- Procedure -- Pleading Requirements, Generally

State v. Donnell Basley, 2006 WI App 253

For Basley: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding1: The postconviction court erroneously denied without evidentiary hearing Basley’s motion for plea-withdrawal (on Nelson/Bentley rather than Bangert grounds): ¶8        Accompanying Basley’s motion is an affidavit from his postconviction counsel averring that the motion “summarizes … Basley’s expected testimony.” Counsel also acknowledges in the affidavit that Basley’s trial counsel will likely dispute that he threatened to withdraw unless Basley accepted the proffered plea bargain. ¶9        We conclude that Basley’s postconviction motion, as described in the preceding paragraphs, meets the Nelson/Bentley standard for conducting an evidentiary hearing. First, Basley’s motion states sufficient facts that, if true, would entitle Basley to withdraw his plea. If his trial counsel in fact told him that, if Basley would not agree to the State’s proffered plea bargain, counsel would withdraw from representation, thereby forcing a potentially lengthy delay of Basley’s trial, Basley’s plea was tendered under the duress of his attorney’s coercive conduct, rendering his plea involuntary. See, e.g., Brady v. United States, 397 U.S. 742, 749-755 (1970). [4] ¶10      We also conclude that the factual assertions set forth in Basley’s motion are not “conclusory allegations.” Basley’s motion does not simply allege that he was “pressured” or “coerced” by his attorney to enter a plea. He asserts that his counsel made specific statements at specific times and locations in the hours preceding his no contest plea. These factual assertions, which we have summarized above, are sufficient to “permit a meaningful assessment” of Basley’s claim that his plea was involuntary, and they are thus not “conclusory allegations.” See Howell, 722 N.W.2d 567, ¶34. [5] Issue/Holding2: The fact that the plea colloquy satisfied Bangert does not in and of itself show that “the record conclusively demonstrates that” relief may be denied without an evidentiary hearing, ¶¶11-19: ¶18      Thus, although a circuit court’s compliance with Bangert cannot immunize a guilty or no contest plea against all possible postconviction challenges, a proper plea colloquy not only ensures, to the greatest extent possible, that a guilty or no contest plea complies with constitutional requirements, but it also goes a long way toward deflecting many potential postconviction challenges to the plea. Compliance with the Bangert requirements does not, however, permit a circuit court to rely on a defendant’s plea colloquy responses to deny the defendant an evidentiary hearing on a properly pled postconviction motion that asserts a non- Bangert reason why the plea was not knowing or voluntary. Put another way, when a defendant convicted on a guilty or no contest plea asserts, as Basley has in this case, that the responses given during a plea colloquy were false and the defendant provides non-conclusory information that plausibly explains why the answers were false, the defendant must be given an evidentiary hearing on his or her plea withdrawal motion. See Howell, 722 N.W.2d 567, ¶33.

Withdrawal of Plea -- Post-sentencing -- Procedure -- Pleading Requirements, Generally: Bangert and Hampton, Compared

State v. Timothy J. Goyette, 2006 WI App 178

For Goyette: E.J. Hunt, Kathleen M. Quinn

Issue/Holding: ¶17 The purpose of filing a Bangert plea withdrawal motion is to obtain an evidentiary hearing at which the State bears the burden of producing evidence showing that, despite a defective plea colloquy, the defendant’s plea was nonetheless knowing and voluntary. State v. Bangert, 131 Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986). [8] … ¶18 The only difference between Goyette’s evidentiary hearing and the one required by Bangert is that, under Bangert, the burden of proof shifts to the State. If a Bangert plea withdrawal hearing had been held, it would have been incumbent on the State to call necessary witnesses or otherwise meet its burden. Instead, at Goyette’s hearing, Goyette called the witnesses and examined them first. [9] [8] Under Bangert, if a defendant files a motion that (1) identifies a failure by the circuit court to comply with Wis. Stat. § 971.08 or a court-mandated plea hearing procedure, and (2) alleges that the defendant did not understand the information at issue, then the burden shifts to the State to show by clear and convincing evidence that the plea was knowingly and voluntarily entered. Bangert, 131 Wis. 2d at 274-75. Notably, the second Bangert prong is satisfied by a conclusory allegation that the defendant did not know or understand. State v. Hampton, 2004 WI 107, ¶57, 274 Wis. 2d 379, 683 N.W.2d 14. When a plea withdrawal motion is sufficient under Bangert, the circuit court must hold an evidentiary hearing at which the State has the burden of proving by clear and convincing evidence that the plea was knowingly entered. State v. Brown, 2006 WI 100, ¶¶36, 40, __ Wis. 2d __, 716 N.W.2d 906; Bangert, 131 Wis. 2d at 274-75. [9] Goyette’s hearing was the sort courts hold when they conclude that a plea withdrawal motion meets the Nelson/ Bentley test. Regardless whether plea colloquies contain Bangert violations, defendants are entitled to post-sentencing plea withdrawal if they can show by clear and convincing evidence that their plea was not knowingly or voluntarily entered. See State v. Reppin , 35 Wis. 2d 377, 384-86, 151 N.W.2d 9 (1967); State v. Giebel, 198 Wis. 2d 207, 212, 541 N.W.2d 815 (Ct. App. 1995). When defendants file non- Bangert plea withdrawal motions requesting an evidentiary hearing, courts apply the Nelson/ Bentley test to determine whether a hearing is required. … A motion requesting an evidentiary hearing must contain non-conclusory allegations, that is, allegations that “‘allow the reviewing court to meaningfully assess [the defendant’s] claim.’” Allen, 274 Wis. 2d 568, ¶21 (quoting Bentley, 201 Wis. 2d at 314). Bangert motions and Nelson/ Bentley motions are not mutually exclusive. A defendant may, in the same physical motion, request a plea withdrawal hearing based on an alleged Bangert violation and, in the alternative, assert that a hearing must be held because the motion contains allegations that are sufficient under the Nelson/Bentley test. Worth culling from this survey the following acknowledgement in fn. 8: “Notably, the second Bangert prong is satisfied by a conclusory allegation that the defendant did not know or understand.” That is, it is now settled that to get a Bangert hearing it’s enough for counsel to make a mere assertion in the motion that the defendant didn’t know the information omitted form the plea colloquy; no affidavit, let alone one from the defendant, is necessary. Same quote, by the way, is in (no coincidence: same author), State v. Howell, 2006 WI App 182, ¶14.

Withdrawal of Plea -- Post-sentencing -- Procedure -- Pleading Requirements

State v. Andrae D. Howell, 2006 WI App 182, PFR filed 9/25/06 (reconsideration of previously issued but subsequently withdrawn opinion)

For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding1: A conclusory allegation suffices to obtain a hearing on a Bangert claim (involving a defect in the plea colloquy), ¶14; however, more is required for a non- Bangert claim, ¶¶21-29. Nor is there, for pleading purposes, a third category involving a colloquy that doesn’t amount to a Bangert defect but nonetheless could have contributed to the defendant’s asserted misunderstanding, ¶¶30-33.

Much potential for mischief in this seemingly innocuous passage: ¶20 Although courts often speak in terms of Bangert motions and Nelson/Bentley motions, the two are not mutually exclusive. A defendant may, in the same physical motion, request a plea withdrawal hearing based on an alleged Bangert violation and, in the alternative, assert that a hearing must be held because the motion contains allegations that are sufficient under the Nelson/Bentley test. When motions contain these alternatives, they must be assessed, respectively, under Bangert and under Nelson/Bentley. Moving parties would be wise to be clear about which argument is being made, or that both are being made. [8] [8] We note that non- Bangert plea withdrawal motions come in several stripes. Indeed, Nelson and Bentley themselves differ in that Bentley involves the additional complexity of an allegation of ineffective assistance of counsel. Bentley, 201 Wis. 2d at 306-07. Moreover, plea withdrawal motions are but one type of motion assessed under the Nelson/ Bentley standard. The Nelson/ Bentley test is used in its pure form, or in a slightly modified form, in a variety of situations to determine whether an evidentiary hearing is required. See, e.g., State v. Samuel, 2002 WI 34, ¶¶8, 33-35, 47, 252 Wis. 2d 26, 643 N.W.2d 423 (need for pretrial suppression hearing); State v. Velez, 224 Wis. 2d 1, 4, 13-14, 589 N.W.2d 9 (1999) (allegation that State deliberately delayed charging defendant to avoid juvenile court jurisdiction); State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 611, 618-19, 571 N.W.2d 385 (1997) (need for John Doe proceeding); State v. Reynolds, 2005 WI App 222, ¶¶1, 7-8, 15, 287 Wis. 2d 653, 705 N.W.2d 900 (allegation that counsel rendered ineffective assistance at trial); State v. Pharm, 2000 WI App 167, ¶¶1, 8, 27, 238 Wis. 2d 97, 617 N.W.2d 163 (allegation that counsel rendered ineffective assistance during post-commitment Wis. Stat. ch. 980 trial). Note that the only thing before the court is plea-withdrawal, yet lumped into that footnote are a variety of issues, most problematically the unembellished “need for pretrial suppression hearing,” citing Samuel. Don't count on this glancing reference earning nothing more than the obscurity it richly deserves. Howell may not require an affidavit in support of a motion but that is a matter of mere form; it imposes a stiff pleading burden as a prerequisite to an evidentiary hearing – and if that burden is imported across the board into “pretrial suppression hearings” then a staple of motion practice is going to be significantly altered, and not for the better. Without making too fine a point of it: the cases string cited in the footnote deal with issues on which the defendant bears a burden of proof, and that ought to be a distinction with a difference. (See, e.g, Samuel, ¶35.) On warrantless searches and seizures (and Miranda-Goodchild issues), the State bears the burden of proof, and it therefore makes sense to say that the defendant ought not have a burden to plead facts that the other side must end up (dis)proving.

Issue2: Whether Howell’s pleading required an evidentiary hearing on plea withdrawal, where his claim raised a non- Bangert issue, that is, one alleging that he didn’t fully understand the (party-to-a-crime) nature of the offense but not one which relied on any defect in the plea colloquy; where, more particularly, he alleged that for various reasons he did not understand that his mere presence and failure to stop a shooting would not have supported guilt.

Holding2: Howell’s assertion that he mistakenly believed he could be found guilty under a mere bystander theory is “a conclusory allegation. It provides no facts explaining why Howell might have misunderstood,” ¶38. Moreover, the guilty plea colloquy indicates that Howell knew the direct actor had a gun, something “completely consistent with Howell’s guilt as an aider and abettor,” ¶39; and, a thrust of the plea proceeding “indicated that Howell’s participation was in fact active”—nor “did anyone say that mere presence constituted assistance for purposes of party-to-a-crime liability,” ¶40. Finally, even though Howell referred to trial counsel’s extrajudicial explanation of ptac liability, this too is conclusory, ¶¶43-44.

A somewhat heated exchange between majority (¶46) and dissent (¶¶47-64) makes for interesting reading, with this perhaps the most salient point: ¶57 Common sense tells us that the supreme court was correct. It is difficult to the point of impossibility to explain why one misunderstood something. Was there room noise? Did the perceiver have a problem with the meaning of a word? A sentence? Was the defendant’s attorney rustling papers? Is a person’s vocabulary limited in some respect? We know that some people are more intelligent than others. There are a myriad of reasons why people do not understand each other. No one always remembers why he or she did not understand something. Many people do not know why they do not know what they do not know. For example, appellate judges have been known to say to each other that they do not understand something a colleague believes he or she has explained. Explaining why one does not understand is often difficult if he or she does not understand in the first place. Indeed, it is hard to imagine how someone can demonstrate he or she didn’t know something. Howell asserted he didn’t understand ptac liability—absent counsel affirmatively (mis-)advising him that being a mere bystander amounted to guilt rather than a defense, just what was he supposed to assert to take it out of the realm of the conclusory? The majority doesn’t say.

Issue/Holding3: ¶45, n. 14: Although we decide this case in favor of the State on other grounds, we briefly comment on the State’s argument that Howell’s motion was not accompanied by an affidavit from Howell, but only his counsel’s affidavit containing hearsay assertions about what Howell claimed to be true. According to the State, there is a general rule that hearsay recitations in an affidavit are insufficient to trigger an evidentiary hearing and we should apply that general rule here. In support, the State cites State v. Lass, 194 Wis. 2d 591, 535 N.W.2d 904 (Ct. App. 1995), and State v. Bruckner, 151 Wis. 2d 833, 447 N.W.2d 376 (Ct. App. 1989). However, these cases provide no support for such a requirement. In Lass, we did not address whether the circuit court wrongly denied the defendant an evidentiary hearing. Rather, we concluded that an affidavit containing hearsay was insufficient to support a request for disclosure of the identity of a confidential informer. Lass, 194 Wis. 2d at 599-600. In Bruckner, we did address the denial of an evidentiary hearing, but did not purport to set forth any general rule. Rather, in dictum in a footnote we addressed the prerequisites for holding a Franks hearing, not hearings generally. Bruckner, 151 Wis. 2d at 864-65 n.15. Furthermore, even in the Franks context, the footnote does not say that an affidavit based on personal knowledge is generally required. See id. Finally, we note that in State v. Brown, 2006 WI 100, __ Wis. 2d __, 716 N.W.2d 906, the supreme court stated: “A defendant is not required to submit a sworn affidavit to the court, but he is required to plead in his motion that he did not know or understand some aspect of his plea that is related to a deficiency in the plea colloquy.” Id., ¶62.

Withdrawal of Plea -- Post-sentencing -- Procedure -- Pleading Requirements for Evidentiary Hearing on Bangert Motion Relative to Nature of Charge

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

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

Issue/Holding: ¶59      To earn a Bangert evidentiary hearing, a defendant must satisfy a second obligation. In addition to making a prima facie case that the circuit court erred in the plea colloquy, a defendant must allege he did not enter a knowing, intelligent, and voluntary plea because he did not know or understand information that should have been provided at the plea hearing. … … ¶62      We share the State's concern that this motion does not allege directly that the defendant did not know or understand certain information that should have been provided or addressed at the plea hearing. A defendant is not required to submit a sworn affidavit to the court, but he is required to plead in his motion that he did not know or understand some aspect of his plea that is related to a deficiency in the plea colloquy. … ¶66      In this case, defense counsel persuasively documented deficiencies in the plea hearing transcript, but the motion did not allege directly that the defendant did not understand the nature of the charges against him. Counsel explained his decision not to submit an affidavit from the defendant or himself, but he did not explain why the defendant could not plead that he did not understand the nature of the charges. We are required to infer such an allegation from the totality of the motion. In this case, we accept counsel's representations that the defendant lacked understanding about the charges and that the defendant's "testimony will make this clear beyond dispute." ¶67      In the ordinary case, defense counsel should plead with greater particularity a defendant's lack of understanding. A defendant must identify deficiencies in the plea colloquy, state what he did not understand, and connect his lack of understanding to the deficiencies. See Hampton, 274 Wis.  2d 379, ¶57; State v. Giebel, 198 Wis.  2d 207, 217, 541 N.W.2d 815 (Ct. App. 1995). This procedure should prove fair to both parties. The quoted language disturbs, in its suggestion of a requirement to “connect his lack of understanding to the deficiencies.” Neither case cited supports that proposition. In fact, Hampton, ¶57, stands for just the opposite; and Giebel merely says that the defendant failed to allege he didn’t know or understand the omitted information, hence fell short of his pleading requirement. If that were all, it might be enough to ascribe the phrase to a bout of imprecision. But that characterization is bit tougher to make given the court’s repetitive usage, “a defendant must allege he did not enter a knowing, intelligent, and voluntary plea because he did not know or understand information that should have been provided at the plea hearing,” which includes stress on “because.” And yet … the court upholds Brown’s motion which did not itself make any such connection between  ignorance of omitted information and decision to plead guilty. Moreover it simply isn’t conceivable that the court would cite without any explanation authorities that undermined rather than supported the principle. It is even less conceivable that the court overrule its own relatively recent decision, Hampton, in such a manner. Note, too, that Bangert (which is, after all, now being “revitalized,” ¶58) requires no such connection. Take similar account as well of State v. Kenneth V. Harden, 2005 WI App 252, ¶5 (“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.”) Best then, not to make much of the language, potentially worrisome though it might be.

Withdrawal of Plea - Post-sentencing - Procedure - Pleading Requirements - Sexual Assault

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

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

Issue: Whether Lackershire, an adult female convicted of sexual assault (intercourse) of a child, established a prima facie case for plea-withdrawal due to lack of adequate understanding of the elements.

Holding: ¶8        Initially, we note that in a plea withdrawal motion like Lackershire’s, “the motion must include facts that allow the reviewing court to meaningfully assess the defendant’s claim.” State v. Allen , 2004 WI 106, ¶21, 274 Wis.  2d 568, 682 N.W.2d 433 (citation omitted). Here, Lackershire contends the plea procedure was defective because “the elements [of her crime] were never incorporated in the plea questionnaire, nor were they discussed or recited on the record at the time of the plea taking.” Second-degree sexual assault of a child has two elements: (1) sexual intercourse (2) with a person under sixteen years of age. Lackershire never alleges which element she misunderstood. ¶9        Lackershire argues “[s]he believed she had a defense to the charge because she was [allegedly] raped by the boy, thereby suggesting her misunderstanding that consent was somehow an issue in the case.” However, she cites no authority for her implicit proposition that the trial court must explain away everything that is not an element of the charged crime. [3] Moreover, the record reveals the court did explain the elements of the crime to Lackershire …. ¶10      “A circuit court is given discretion to tailor the colloquy to its style and to the facts of the particular case ….” Brandt, 226 Wis. 2d at 620. Here, the elements of the crime are set forth in plain, easily understood language in the statute. Thus, there is no need for a complicated plea colloquy when the statute is straightforward. The court asked if Lackershire understood it was alleged she had sexual intercourse with someone under sixteen years of age—encompassing both elements—and Lackershire answered affirmatively. In addition, Lackershire and her attorney acknowledged counsel had explained how evidence in the State’s possession related to both elements and would be sufficient to justify finding Lackershire guilty. In short, Lackershire has failed to establish a deficient plea colloquy and we need not examine factors or the record beyond that hearing.[4] [3] Indeed, a valid plea generally results in waiver of all defenses. See State v. Aniton, 183 Wis.  2d 125, 129, 515 N.W.2d 302 (Ct. App. 1994). To the extent her attorney may not have informed her of this consequence, Lackershire has not raised an ineffective assistance of counsel argument.  [4] Lackershire’s attempted analogy to State v. Nichelson, 220 Wis.  2d 214, 582 N.W.2d 460 (Ct. App. 1998), is unavailing. In Nichelson, we concluded that the State failed to present any evidence the defendant’s plea was knowing, intelligent, and voluntary. Lackershire likewise complains that the State has presented no evidence about the nature of her plea. There is one key difference. The record in Nichelson was absolutely silent regarding one element of the crime. Nichelson had been charged under Wis. Stat. § 948.02(1), first-degree sexual assault of a child under the age of thirteen. Unlike Lackershire, who engaged in intercourse with her victim, Nichelson allegedly engaged in sexual contact with his victim. Sexual contact, by definition, requires the touching to be intentional and for the purpose of defendant’s sexual arousal or gratification. Wis. Stat. § 948.01(5)(a). The colloquy failed to discuss this component, a deficiency exacerbated by Nichelson’s borderline mental retardation. The supreme court subsequently reversed, albeit on the separate ground of inadequate factual basis, 2007 WI 74, ¶5 n. 4 ("Because we determine that the plea colloquy was inadequate as a result of the circuit court's failure to make sufficient inquiry to satisfy the factual basis requirement, we do not address the argument regarding the elements of the offense."). Thus, the court of appeals' holding with respect to the elements arguably remains undisturbed. The following comments address the court of appeals' holding. Though the opinion is silent on this point, Lackershire testified, indeed was the only witness, on this portion of her postconviction motion. But this background makes the court’s discussion on her failure to make a prima facie showing peculiar. This showing is supposed to be a mere pleading requirement: if the defendant raises a sufficient allegation in the motion, then the State must assume the burden of persuasion at an evidentiary hearing. We are left to guess at the implications of the holding in this case, but apparently the court treated Lackershire’s testimony as if it were part of her pleading requirement. This might seem a very picky point, but the potential for confusion is relatively large. Plea-withdrawal procedure is fairly well-settled. A motion to withdraw plea must be screened by the judge; if it passes muster, then the court hears evidence, and if the State fails to present any witnesses then it simply hasn’t met its burden of proof. None of this might merit attention, except that the court’s importation of Allen into its discussion of the prima facie showing is flat wrong and holds the potential for pernicious impact. Allen is an ineffective-assistance case, something handled much differently than challenges to guilty pleas. Allen says that mere conclusory allegations generally aren’t enough for an IAC hearing, which makes sense given that the allegations are necessarily extrajudicial. But plea-withdrawal focuses on the sufficiency of the record, whether the guilty plea court adequately complied with § 971.08 and Bangert. Thus, as the court put it, in State v. John A. Jipson , 2003 WI App 222, ¶7, “First, the defendant must show the trial court accepted the defendant's guilty plea without conforming to Wis. Stat. § 971.08 or other mandatory procedures. Second, the defendant must merely allege he or she did not know or understand the information that should have been provided at the plea hearing.” Must merely allege: surely as conclusory an allegation as might be imagined. Same effect, more detailed discussion, State v. Corey J. Hampton, 2004 WI 107, ¶51-65. This point was, if anything, made equally explicitly by the court of appeals’ decisi