971.08 Pleas of guilty and no contest; withdrawal thereof.
(1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.
(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.
(c) Address the defendant personally and advise the defendant as follows: “If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."
(d) Inquire of the district attorney whether he or she has complied with s. 971.095 (2).
(2) If a court fails to advise a defendant as required by sub. (1) (c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.
(3) Any plea of guilty which is not accepted by the court or which is subsequently permitted to be withdrawn shall not be used against the defendant in a subsequent action.
History: 1983 a. 219; 1985 a. 252; 1997 a. 181.
A court can consider a defendant's record of juvenile offenses at a hearing on his guilty pleas prior to sentencing. McKnight v. State, 49 Wis. 2d 623, 182 N.W.2d 291 (1971).
When a plea agreement contemplates the nonprosecution of uncharged offenses, the details of the plea agreement should 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. A “read-in" agreement made after conviction or as part of a post-plea-of-guilty hearing to determine the voluntariness and accuracy of the plea should be a part of the sentencing hearing and made a matter of record. Austin v. State, 49 Wis. 2d 727, 183 N.W.2d 56 (1971).
A defendant may not withdraw a guilty plea simply because he or she did not specifically waive all of his constitutional rights if the record shows that the defendant understood what rights were waived by the plea. After a guilty plea, the hearing on the factual basis for the plea need not produce competent evidence that satisfies the criminal burden of proof. Edwards v. State, 51 Wis. 2d 231, 186 N.W.2d 193 (1971).
It is sufficient for a court to inform a defendant charged with several offenses of the maximum penalty that could be imposed for each. Burkhalter v. State, 52 Wis. 2d 413, 190 N.W.2d 502 (1971).
A desire to avoid a possible life sentence by pleading guilty to a lesser charge does not alone render a plea involuntary. A claimed inability to remember does not require refusal of the plea if the evidence is clear that the defendant committed the crime. State v. Herro, 53 Wis. 2d 211, 191 N.W.2d 889 (1971).
The proceedings following a plea of guilty were not designed to establish a prima facie case, but to establish the voluntariness of the plea and the factual basis therefor. If the defendant denies an element of the crime after pleading guilty, the court is required to reject the plea and set the case for trial and is not obliged to dismiss the action because of refusal to accept the guilty plea. Johnson v. State, 53 Wis. 2d 787, 193 N.W.2d 659 (1972).
A hearing on a motion to withdraw a guilty plea is to be liberally granted if the motion is made prior to sentencing; it is discretionary if made thereafter and need not be granted if the record refutes the allegations. The defendant must raise a substantial issue of fact. Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972).
If there is strong evidence of guilt, a conviction will be sustained even against a defendant who, having pleaded guilty, nonetheless denies the factual basis for guilt. State v. Chabonian, 55 Wis. 2d 723, 201 N.W.2d 25 (1972).
A plea bargain that contemplates special concessions to another person requires careful scrutiny by the court. 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. The bargain must also be reviewed to determine whether it is in the public interest. State ex rel. White v. Gray, 57 Wis. 2d 17, 203 N.W.2d 638 (1973).
A court has inherent power to refuse to accept a plea of guilty and may dismiss the charge on the motion of the district attorney in order to allow prosecution on a 2nd complaint. State v. Waldman, 57 Wis. 2d 234, 203 N.W.2d 691 (1973).
It is not error for the court to accept a guilty plea before hearing the factual basis for the plea if a sufficient basis is ultimately presented. Staver v. State, 58 Wis. 2d 726, 206 N.W.2d 623 (1973).
The fact that a defendant pled guilty with the understanding that his wife would be given probation on another charge did not necessarily render the plea involuntary. Seybold v. State, 61 Wis. 2d 227, 212 N.W.2d 146 (1973).
The defendant's religious beliefs regarding the merits of confessing one's wrongdoing and his desire to mollify his family or give in to their desires were self-imposed coercive elements and did not vitiate the voluntary nature of the defendant's guilty plea. Craker v. State, 66 Wis. 2d 222, 223 N.W.2d 872 (1974).
A defendant wishing to withdraw a guilty plea must show by clear and convincing evidence that the plea was not knowingly and voluntarily entered and that withdrawal is necessary to prevent manifest injustice, as indicated when: 1) the defendant was denied effective assistance of counsel; 2) the plea was not entered or ratified by the defendant or a person authorized to so act in his behalf; 3) the plea was involuntary or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; and 4) the defendant did not receive the concessions contemplated by the plea agreement and the prosecutor failed to seek them as promised in the agreement. Birts v. State, 68 Wis. 2d 389, 228 N.W.2d 351 (1975).
As required by Ernst v. State, 43 Wis. 2d 661, and sub. (1) (b), prior to accepting a guilty plea, the trial court must establish that the conduct that the defendant admits constitutes the offense charged or an included offense to which the defendant has pleaded guilty. If the plea is made under a plea bargain, the court need not probe as deeply in determining whether the facts would sustain the charge as it would were the plea not negotiated. Broadie v. State, 68 Wis. 2d 420, 228 N.W.2d 687 (1975).
The trial court did not abuse its discretion by failing to inquire into the effect a tranquilizer had on the defendant's competence to enter a plea. Jones v. State, 71 Wis. 2d 750, 238 N.W.2d 741 (1976).
A plea bargain agreement by law enforcement officials not to reveal relevant and pertinent information to the sentencing judge was unenforceable as being against public policy. Grant v. State, 73 Wis. 2d 441, 243 N.W.2d 186 (1976).
Withdrawal of a guilty plea prior to sentencing is not an absolute right but should be freely allowed when a fair and just reason for doing so is presented. Dudrey v. State, 74 Wis. 2d 480, 247 N.W.2d 105 (1976).
A guilty plea cannot be withdrawn on grounds that probation conditions were more onerous than expected. Garski v. State, 75 Wis. 2d 62, 248 N.W.2d 425 (1977).
A plea of guilty admits the facts charged but does not raise the issue of the statute of limitations because the time of the commencement of the action does not appear on the information. State v. Pohlhammer, 78 Wis. 2d 516, 254 N.W.2d 478 (1977).
While courts have no duty to secure informed waivers of possible statutory defenses, under the unique facts of the case, the defendant was entitled to withdraw a guilty plea to a charge barred by the statute of limitations. State v. Pohlhammer, 82 Wis. 2d 1, 260 N.W.2d 678 (1978).
Sub. (2) does not deprive the court of jurisdiction to consider an untimely motion. State v. Lee, 88 Wis. 2d 239, 276 N.W.2d 268 (1979).
Trial courts do not have subject matter jurisdiction to convict defendants under unconstitutionally vague statutes. The right to raise the issue on appeal cannot be waived, regardless of a guilty plea. State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979).
Withdrawal of a guilty plea on the grounds of ineffective representation by trial counsel is discussed. State v. Rock, 92 Wis. 2d 554, 285 N.W.2d 739 (1979).
Absent abuse of discretion in doing so, a prosecutor may withdraw a plea bargain offer at any time prior to an action by the defendant in detrimental reliance on the offer. State v. Beckes, 100 Wis. 2d 1, 300 N.W.2d 871 (Ct. App. 1980).
The trial court did not err in refusing to allow the defendant to withdraw a guilty plea accompanied by protestations of innocence. State v. Johnson, 105 Wis. 2d 657, 314 N.W.2d 897 (Ct. App. 1981).
A prosecutor is relieved from terms of a plea agreement if it is judicially determined that the defendant has materially breached its conditions. State v. Rivest, 106 Wis. 2d 406, 316 N.W.2d 395 (1982).
Except as provided by statute, conditional guilty pleas are not to be accepted and will not be given effect. State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983).
Effective assistance of counsel was denied when the defense attorney did not properly inform the client of the personal right to accept a plea offer. State v. Ludwig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985).
When the defendant offered a plea of no contest but refused to waive any constitutional rights or to answer the judge's questions, the judge should have set a trial date and refused any further discussion of the no contest plea. State v. Minniecheske, 127 Wis. 2d 234, 378 N.W.2d 283 (1985).
Due process does not require that the record of a plea hearing demonstrate the defendant's understanding of the nature of the charge at the time of the plea. State v. Carter, 131 Wis. 2d 69, 389 N.W.2d 1 (1986).
Bangert procedures under this section apply to a defendant pleading not guilty by reason of mental disease or defect. State v. Shegrud, 131 Wis. 2d 133, 389 N.W.2d 7 (1986). But see State v. Fugere, 2018 WI App 24, 381 Wis. 2d 142, 911 N.W.2d 127, 16-2258.
Failure to comply with this section is not necessarily a constitutional violation. Procedures mandated for plea hearings are discussed and a remedy established. State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
The withholding of a sentence and imposition of probation, as those terms are used by courts, are functionally equivalent to sentencing for determining the appropriateness of a plea withdrawal. State v. Booth, 142 Wis. 2d 232, 418 N.W.2d 20 (Ct. App. 1987).
Section 971.04 (2) allows entry of plea to a misdemeanor by an attorney without the defendant being present, but for guilty or no contest pleas all requirements of s. 971.08 except attendance must be met. State v. Krause, 161 Wis. 2d 919, 469 N.W.2d 241 (Ct. App. 1991).
A plea agreement to amend a judgment of conviction upon successful completion of probation is not authorized by statute. State v. Hayes, 167 Wis. 2d 423, 481 N.W.2d 699 (Ct. App. 1992).
The decision to plead guilty is personal to the defendant. A defendant's attorney cannot renegotiate a plea agreement without the defendant's knowledge and consent. State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992).
Failure to comply with sub. (1) (c) is governed by sub. (2); the holding in Bangert does not apply. The meaning of “likely" deportation under sub. (2) is discussed. State v. Beaza, 174 Wis. 2d 118, 496 N.W.2d 156 (Ct. App. 1993).
When it was undisputed that the defendant was aware of the potential for deportation when he entered his plea, the failure to advise him pursuant to this section was harmless error for which he was not entitled to relief. Legislative history indicates that the legislature sought to alleviate the hardship and unfairness involved when an alien unwittingly pleads guilty or no contest to a charge without being informed of the consequences of such a plea. The legislature did not intend a windfall to a defendant who was aware of the deportation consequences of the plea. State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993).
A conclusory allegation of manifest injustice, unsupported by factual assertions, is legally insufficient to entitle a defendant to even a hearing on a motion to withdraw a guilty plea following sentencing. State v. Washington, 176 Wis. 2d 205, 500 N.W.2d 331 (Ct. App. 1993).
In accepting a negotiated guilty plea for probation, the trial court should, but is not required to, advise the defendant of the potential maximum sentence that may be imposed if probation is revoked. State v. James, 176 Wis. 2d 230, 500 N.W.2d 345 (Ct. App. 1993).
In the context of a plea bargain, sub. (1) (a) is satisfied if the plea is voluntarily and understandingly made and a factual basis is shown for either the offense pleaded to or to a more serious offense reasonably related to the offense pleaded to. State v. Harrell, 182 Wis. 2d 408, 513 N.W.2d 700 (Ct. App. 1994).
A guilty plea, made knowingly and voluntarily, waives all nonjurisdictional defects and defenses, including alleged violations of constitutional rights, prior to the appeal. State v. Aniton, 183 Wis. 2d 125, 515 N.W.2d 302 (Ct. App. 1994).
Sub. (1) (c) requires the trial court to personally advise a defendant regarding deportation, and mere reference to a guilty plea questionnaire does not satisfy that requirement. However, under Chavez, 175 Wis. 2d 366, before the trial court is required to grant a motion to withdraw a guilty plea, it must determine whether, despite the trial court's failure to personally advise the defendant, the defendant understood the potential deportation consequences of his guilty pleas. State v. Issa, 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App. 1994).
A plea agreement is analogous to a contract, and contract law principals are drawn upon to interpret an agreement. The state's enforcement of a penalty provision in the agreement for failure of the defendant to fulfill his obligations under the agreement did not require an evidentiary hearing to determine a breach when the breach was obvious and material and did not give the defendant a basis for withdrawing his plea. State v. Toliver, 187 Wis. 2d 345, 523 N.W.2d 113 (Ct. App. 1994).
An executory plea bargain is without constitutional significance, and a defendant has no right to require the performance of the agreement. Upon entry of a plea, due process requires the defendant's expectations to be fulfilled. State v. Wills, 187 Wis. 2d 528, 523 N.W.2d 569 (Ct. App. 1994).
An Alford plea, under which the defendant pleads guilty while either maintaining innocence or not admitting having committed the crime, is acceptable when strong proof of guilt has been shown. State v. Garcia, 192 Wis. 2d 845, 532 N.W.2d 111 (1995).
A trial court need not advise a defendant of the potential that restitution will be ordered in accepting a plea under this section. Restitution is primarily rehabilitative, not punitive, and not “potential punishment" under sub. (1) (a). State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995).
A postconviction motion to withdraw a guilty plea requires showing that a “manifest injustice" would occur if the motion is denied. A postconviction recantation by a witness may constitute new evidence showing a “manifest injustice" and requiring a new trial if there is a reasonable probability that a jury would reach a different result. It is error for the judge to determine whether the recantation or the original allegation is true. State v. McCallum, 198 Wis. 2d 149, 542 N.W.2d 184 (Ct. App. 1995), 95-1518.
A defendant seeking a postconviction plea withdrawal due to a violation of sub. (1) (a) must make a prima facie showing that a violation occurred and must also allege that he or she did not know or understand the information that should have been provided. State v. Giebel, 198 Wis. 2d 207, 541 N.W.2d 815 (Ct. App. 1995), 94-2225.
The concept of notice pleading has no application to a postconviction motion challenging a guilty plea. An allegation that a guilty plea was entered because of misinformation provided by counsel is merely conclusory. Facts must be alleged that show a reasonable probability that but for counsel's errors the defendant would have proceeded to trial and that allow the court to meaningfully assess the claim of prejudice. State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996), 94-3310.
It is error for a trial court not to inquire whether the defendant has knowledge of the presumptive minimum sentence, but the error may be harmless if the defendant is otherwise aware of the minimum. State v. Mohr, 201 Wis. 2d 693, 549 N.W.2d 497 (Ct. App. 1996), 95-2186.
An Alford plea is acceptable only if strong proof of guilt has been shown. A plea under an agreement to plead to a related offense to that charged that would have been legally impossible for the defendant to have committed could not satisfy the strong proof requirement. State v. Smith, 202 Wis. 2d 21, 549 N.W.2d 232 (1996), 94-2894.
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, the promise must be fulfilled. When the state was unable to fulfill its promise, withdrawal of a no contest plea was in order. State v. Castillo, 205 Wis. 2d 599, 556 N.W.2d 428 (Ct. App. 1996), 95-1628.
Whether a defendant knowingly entered an Alford plea must be determined by the court based on the personal colloquy with the defendant and not whether specific words were used in making the plea. State v. Salentine, 206 Wis. 2d 419, 557 N.W.2d 439 (Ct. App. 1996), 95-3494.
One type of manifest injustice that would allow postconviction withdrawal of a guilty plea is the failure to establish a sufficient factual basis that the defendant committed the offense. State v. Johnson, 207 Wis. 2d 239, 558 N.W.2d 375 (1997), 95-0072.
A defendant is automatically prejudiced when the prosecutor materially and substantially breaches a plea agreement. New sentencing is required. State v. Smith, 207 Wis. 2d 258, 558 N.W.2d 379 (1997), 94-3364.
Requirements for accepting a no contest plea are discussed. State v. McKee, 212 Wis. 2d 488, 569 N.W.2d 93 (Ct. App. 1997), 97-0163.
A plea not knowingly and intelligently made violates due process and entitles the defendant to withdraw the plea. The plea may be involuntary either because the defendant does not have a full understanding of the charge or the nature of the rights being waived. State v. Van Camp, 213 Wis. 2d 131, 569 N.W.2d 577 (1998), 96-0600.
The test to determine a knowing and intelligent no contest plea is whether the defendant has made a prima facie showing that the plea was made without the court's conformance with this section and whether the defendant has properly alleged that he or she in fact did not know or understand the information that should have been provided. The state must then prove that the plea was knowingly and intelligently made by clear and convincing evidence. State v. Van Camp, 213 Wis. 2d 131, 569 N.W.2d 577 (1998), 96-0600.
The unintentional misstatement of a plea agreement, promptly rectified by the efforts of both counsel, did not deny the defendant's due process right to have the full benefit of a relied upon plea bargain. State v. Knox, 213 Wis. 2d 318, 570 N.W.2d 599 (Ct. App. 1997), 97-0682.
The court's acceptance of a guilty plea and order to implement a diversion agreement, the successful completion of which would have resulted in dismissal of criminal charges, constituted “sentencing." The standard to be applied in deciding a motion to withdraw the guilty plea was the “manifest injustice" standard applicable to such motions after sentence has been entered. State v. Barney, 213 Wis. 2d 344, 570 N.W.2d 731 (Ct. App. 1997), 96-3240.
A conviction following an Alford plea does not prevent imposing as a condition of probation that the defendant complete a treatment program that requires acknowledging responsibility for the crime that resulted in the conviction. The imposition of the condition does not violate the defendant's due process rights. There is nothing inherent in the plea that gives the defendant any rights as to punishment. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 579 N.W.2d 698 (1998), 96-2441.
In order for a plea to be knowingly and intelligently made, the defendant must be informed of the “direct consequences" of the plea, but due process does not require informing the defendant of collateral consequences. Direct consequences are definite, immediate, and largely automatic and do not depend on the defendant's future psychological condition. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 579 N.W.2d 698 (1998), 96-2441.
The state's burden of proving that a plea was knowingly and voluntarily made cannot be proved by a negative inference. There must be some affirmative evidence of the fact. State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998), 97-3136.
A defendant's misunderstanding of his citizenship status did not render his plea not voluntarily, knowingly, or intelligently entered. A defendant does not have a constitutional right to be informed of the collateral consequences of the plea. There is no distinction between lack of awareness and an affirmative misunderstanding of a collateral consequence. State v. Rodriguez, 221 Wis. 2d 487, 585 N.W.2d 701 (Ct. App. 1998), 97-3097.
Parole eligibility is not a statutorily or constitutionally necessary component of a valid plea colloquy in a case in which a life sentence is imposed. State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388 (Ct. App. 1999), 97-3217.
No manifest injustice entitling a defendant to withdraw a plea occurs when the defendant is not informed of a collateral consequence of the plea. That a conviction would result in the defendant's permanent prohibition from possessing firearms under federal law was a collateral consequence of his plea. A direct consequence must have an effect on the range of punishment for which the conviction is entered, and the firearms prohibition arises outside of the state court proceedings under which the plea is taken and sentence imposed. State v. Kosina, 226 Wis. 2d 482, 595 N.W.2d 464 (Ct. App. 1999), 98-3421.
The trial court did not have an obligation to verify the accuracy of the information contained in a guilty plea questionnaire when it did not rely on the incorrect information contained therein in conducting a personal colloquy with the defendant to describe the correct elements of the crime and insure that the defendant understood the nature of the crimes. State v. Brandt, 226 Wis. 2d 610, 594 N.W.2d 759 (1999), 97-1489.
It was not fatal to a conviction entered on a plea of no contest that the defendant did not personally state “I plead no contest" when the totality of the facts, including a signed guilty plea questionnaire and colloquy with the judge on the record, indicated an intent to plead no contest. State v. Burns, 226 Wis. 2d 762, 594 N.W.2d 799 (1999), 96-3615.
The purpose of the court inquiry under sub. (1) (b) as to basic facts is to protect a defendant who understands the charge and voluntarily pleads guilty but does not realize that the conduct does not actually fall within the statutory definition of the charge. The purpose is not to resolve factual disputes about what did or did not happen; that is for a trial, which the defendant is waiving the right to. State v. Merryfield, 229 Wis. 2d 52, 598 N.W.2d 251 (Ct. App. 1999), 98-1106.
A claim of insufficient factual basis for charging a crime survives a no contest plea and can be raised in a postconviction motion. State v. Higgs, 230 Wis. 2d 1, 601 N.W.2d 653 (Ct. App. 1999), 98-1811.
Plea withdrawals before sentencing are subject to a liberal “fair and just" standard that facilitates the efficient administration of justice by reducing the number of appeals contesting the knowing and voluntariness of pleas. Reasons that have been considered fair and just are genuine misunderstanding of the plea's consequences, haste and confusion in entering the pleas, and coercion on the part of trial counsel. State v. Shimek, 230 Wis. 2d 730, 601 N.W.2d 865 (Ct. App. 1999), 99-0291.
Because the state failed to provide the defendant with exculpatory evidence related to his confession to the police and because that failure caused the defendant to plead guilty, the defendant's post-sentencing motion to withdraw a guilty plea should have been granted. State v. Sturgeon, 231 Wis. 2d 487, 605 N.W.2d 589 (Ct. App. 1999), 98-2885.
The State did not violate the sentencing terms of a plea agreement by failing to recite the express terms of the sentencing recommendation and by reciting a less than neutral statement of the recommendation. State v. Hanson, 2000 WI App 10, 232 Wis. 2d 291, 606 N.W.2d 278, 99-0120.
A defendant should be freely allowed to withdraw a plea, prior to sentencing, for any fair and just reason, unless the prosecution will be substantially prejudiced. The state bears the burden of demonstrating substantial prejudice once a defendant has offered a fair and just reason for withdrawal of the plea. State v. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, 98-2196.
If the court fails to establish a factual basis that the defendant admits to the offense pleaded to, manifest injustice justifying withdrawal of a plea exists. A defendant is not required to personally articulate the specific facts that constitute the elements of the crime charged. All that is required is that the factual basis is developed on the record. State v. Thomas, 2000 WI 13, 232 Wis. 2d 714, 605 N.W.2d 836, 97-2665.
If the defendant understands before entering a plea that the trial court will not be bound by the prosecutor's sentence recommendation, the trial court's deviation from the recommendation does not result in manifest injustice. State v. Williams, 2000 WI 78, 236 Wis. 2d 293, 613 N.W.2d 132, 99-0752.
A defendant found guilty following a fair and error-free trial may not then object to the trial court's pretrial rejection of an Alford plea. State v. Williams, 2000 WI App 123, 237 Wis. 2d 591, 614 N.W.2d 11, 99-0812.
That a defendant would be subject to a presumptive mandatory release date under s. 302.11 (1g) (am) was a collateral consequence of the defendant's entry of a plea, and the court was not required to inform the defendant of the presumptive mandatory release date for the plea to have been knowingly entered. State v. Yates, 2000 WI App 224, 239 Wis. 2d 17, 619 N.W.2d 132, 99-1643.
If the circuit court fails to establish a factual basis that the defendant admits to the offense pleaded to, manifest injustice occurs. The inquiry requirement of sub. (1) (b) allows the judge to establish the factual basis for the plea as the judge sees fit and does not require that the judge satisfy the defendant that he or she committed the crime. A factual basis may be found solely in a stipulation to the facts stated in the complaint. State v. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363, 99-0230.
Once a court decides to accept a plea agreement, it cannot reverse its acceptance. State v. Terrill, 2001 WI App 70, 242 Wis. 2d 415, 625 N.W.2d 353, 00-2152.
When a plea agreement indicates that a recommendation was to be for concurrent sentences and consecutive sentences were recommended, without correction at the sentencing hearing, there is a material and substantial breach of the agreement. Absent an objection, the right to directly appeal is waived and the defendant is entitled to a remedy for the breach only if there was ineffective assistance of counsel, the remedy for which is allowing the withdrawal of the plea or specific performance of the agreement. State v. Howard, 2001 WI App 137, 246 Wis. 2d 475, 630 N.W.2d 244, 00-2046.
A plea agreement in which the prosecution agreed to make no specific sentencing recommendation was not breached by the prosecutors commenting that the case was, “if not the most serious case I've handled this year, it is certainly among the top two or three" and “this is one of the most serious non-fatal crimes that I have dealt with." State v. Richardson, 2001 WI App 152, 246 Wis. 2d 711, 632 N.W.2d 84, 00-2129.
The clear and convincing evidence and close case rules do not apply in determining a breach of a plea agreement. Historical facts are reviewed with a clearly erroneous standard and whether the state's conduct was a substantial and material breach is a question of law. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, 00-0535.
A defendant has a constitutional right to have a negotiated plea bargain enforced, if it was relied on. A prosecutor is not required to enthusiastically advocate for a bargained for sentence and may inform the court about the character of the defendant, even if it is negative. The prosecutor may not personalize information presented in a way that indicates that the prosecutor has second thoughts about the agreement. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, 00-0535.
When a defendant repudiates a negotiated plea agreement on the ground that it contains multiplicitous counts, the defendant materially and substantially breaches the agreement. When the defendant successfully challenges the plea and a conviction on multiplicity grounds 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, but a different remedy may be appropriate. State v. Robinson, 2002 WI 9, 249 Wis. 2d 553, 638 N.W.2d 564, 00-2435.
Generally, once counsel is appointed, the day-to-day conduct of the defense rests with the attorney. However, a defense attorney may not as a matter of trial strategy admit a client's guilt, contrary to the client's not guilty plea, unless the defendant unequivocally understands and consents to the admission. State v. Gordon, 2002 WI App 53, 250 Wis. 2d 702, 641 N.W.2d 183, 01-1679.
A valid plea requires only knowledge of the elements of the offense, not a knowledge of the nuances and descriptions of the elements. State v. Trochinski, 2002 WI 56, 253 Wis. 2d 38, 644 N.W.2d 891, 00-2545.
Once a defendant enters a plea, an evidentiary hearing is necessary to determine whether a breach of a plea agreement has occurred before the state may be permitted to withdraw from it. When after entry of the plea and before sentencing the trial court warned that if the defendant “screwed up" while on bail, the state would be free to change its sentencing recommendation, which the defendant acknowledged and agreed to, there was an amendment of the plea agreement. The state did not withdraw from the agreement when, based on the defendant's subsequent misconduct, it recommended a harsher sentence than originally agreed to. State v. Zuniga, 2002 WI App 233, 257 Wis. 2d 625, 652 N.W.2d 423, 01-2806.
In the absence of any attachments to a waiver of rights form or any other evidence in the record demonstrating that the defendant had knowledge of the elements of the offense charged, coupled with the trial court's failure to ascertain the defendant's understanding of the elements during the plea colloquy, the defendant made a prima facie showing that the colloquy failed to meet the requirements of sub. (1) (a) and Bangert. State v. Lange, 2003 WI App 2, 259 Wis. 2d 774, 656 N.W.2d 480, 01-2584.
The district attorney's contact with the division of community corrections to complain about a presentence investigation sentence recommendation, which resulted in a change in recommendation from probation to incarceration, breached the plea agreement in which the district attorney's office agreed to make no sentence recommendation. State v. Howland, 2003 WI App 104, 264 Wis. 2d 279, 663 N.W.2d 340, 02-2083.
When in closing argument counsel concedes guilt on a lesser count in a multiple-count case, in light of overwhelming evidence on that count and in an effort to gain credibility and win acquittal on the other charges, the concession is a reasonable tactical decision and counsel is not deemed to have been constitutionally ineffective by admitting a client's guilt contrary to the client's plea of not guilty. State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, 01-1679.
Judicial participation in the bargaining process raises a conclusive presumption that the plea was involuntary. Judicial participation in plea negotiations before a plea agreement has been reached is barred. State v. Williams, 2003 WI App 116, 265 Wis. 2d 229, 666 N.W.2d 58, 02-1651.
Defendant's automatic ineligibility for Medicare and Medicaid benefits as the result of a drug trafficking conviction imposed by operation of federal law by a federal tribunal was a collateral consequence of the defendant's guilty plea and was not grounds for plea withdrawal. State v. Merten, 2003 WI App 171, 266 Wis. 2d 588, 668 N.W.2d 750, 02-1530.
There is compliance with Bangert as long as there is a record that the defendant was present when rights were given en masse and was personally questioned by the court to establish that he or she understood the rights, had no questions, and waived those rights. State v. Stockland, 2003 WI App 177, 266 Wis. 2d 549, 668 N.W.2d 810, 02-2129.
When discussing a plea recommendation, the state may not give a less than neutral recitation of the agreement's terms. Reference to the plea agreement was not less than neutral when the prosecutor agreed with the presentence report that the defendant needed to be incarcerated, without commenting on the sentence recommendation in the report. State v. Stenseth, 2003 WI App 198, 266 Wis. 2d 959, 669 N.W.2d 776, 02-3330.
The defendant's due process rights were violated when the investigating detective in the case gave a sentencing recommendation to the sentencing court, written on police department letterhead, that undermined the state's plea-bargained recommendation, in effect breaching the plea agreement when the court had also forwarded the letter to the presentence investigation writer to assess and evaluate. State v. Matson, 2003 WI App 253, 268 Wis. 2d 725, 674 N.W.2d 51, 03-0251.
The prosecution may discuss negative facts about the defendant in order to justify a recommended sentence within the parameters of a plea agreement. A defendant is entitled to a neutral recitation of the terms of the plea agreement. The prosecutor may not overtly or covertly convey to the court that a sentence harsher than that recommended is warranted, but the state is not obligated to say something nice or positive about the defendant in order to avoid breaching a plea agreement. State v. Naydihor, 2004 WI 43, 270 Wis. 2d 585, 678 N.W.2d 220, 01-3093.
A defendant breached plea agreements entered in previous completed cases for which he had already served the sentences by collaterally attacking those convictions in a subsequent case in which they were found invalid for penalty enhancement purposes. State v. Deilke, 2004 WI 104, 274 Wis. 2d 595, 682 N.W.2d 945, 02-2898. See also State v. Bembenek, 2006 WI App 198, 296 Wis. 2d 422, 724 N.W.2d 685, 04-1963.
If the court is aware of a plea agreement, the court must advise the defendant personally that the court is not bound by the terms of that agreement and ascertain that the defendant understands this information. When the defendant shows that the court failed to inform the defendant that it was not bound by the plea agreement, and the defendant alleges that he did not understand that the court was not bound, the defendant is entitled to an evidentiary hearing on a motion to withdraw the plea. State v. Hampton, 2004 WI 107, 274 Wis. 2d 379, 683 N.W.2d 14, 01-0509.
The strategic decision by defense counsel to forego an objection to the state's breach of a plea agreement without consulting the defendant was tantamount to entering a renegotiated plea agreement without the defendant's knowledge or consent. On that basis defense counsel's performance was deficient and because counsel's deficient performance involved a breach of a plea agreement, the defendant was automatically prejudiced. State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522, 03-2240.
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 state. A plea agreement that does not allow the sentencing court to be apprised of relevant information is void as against public policy. The fact that the prosecutor's comments were compelling and delivered by strong words does not transform the commentary into a plea bargain violation. State v. Jackson, 2004 WI App 132, 274 Wis. 2d 692, 685 N.W.2d 839, 03-1805.
A prosecutor may not make comments that suggest the prosecutor believes the disposition he or she is recommending pursuant to a plea agreement is insufficient, but may provide relevant negative information including information that has come to light after a plea agreement has been reached. A prosecutor can assert that a recommendation is appropriate and at the same time argue that the circumstances were so severe that the court should impose no less than the recommended sentence. State v. Liukonen, 2004 WI App 157, 276 Wis. 2d 64, 686 N.W.2d 689, 03-1539. See also State v. Bokenyi, 2014 WI 61, 355 Wis. 2d 28, 848 N.W.2d 759, 12-2557.
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 and the defendant must be allowed to withdraw the plea. Even if the trial court had rejected the illegal provision at sentencing, it would not have cured the error when the defendant was induced to enter the plea by a promise that the state could never keep. State v. Dawson, 2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12, 03-2116.
When a defendant entered a plea believing he would not be subject to the collateral consequences that actually applied and that belief was based on affirmative, incorrect statements on the record by the defendant's counsel and the prosecutor that were not corrected by the court, the plea was not knowingly and voluntarily entered and could be withdrawn. State v. Brown, 2004 WI App 179, 276 Wis. 2d 559, 687 N.W.2d 543, 03-2915.
Williams, 2003 WI App 116, expressly applies only to direct judicial participation in the plea bargaining process itself. A judge's comments on the strength of the state's case and urging a defendant to carefully consider his or her chances of prevailing at trial are many steps removed from the direct judicial participation in plea negotiations that occurred in Williams. State v. Hunter, 2005 WI App 5, 278 Wis. 2d 419, 692 N.W.2d 256, 03-2348.
The state is not required to correct a misstated sentence recommendation forcefully or enthusiastically. It is sufficient to promptly acknowledge the mistake of fact and to rectify the error without impairing the integrity of the sentencing process. State v. Bowers, 2005 WI App 72, 280 Wis. 2d 534, 696 N.W.2d 255, 04-1093.
The state was free to recommend consecutive sentences under a plea agreement that contained no provision regarding whether the sentence for the pled-to charges was to run concurrent or consecutive with the sentence entered in another proceeding. State v. Bowers, 2005 WI App 72, 280 Wis. 2d 534, 696 N.W.2d 255, 04-1093.
Wisconsin eliminated parole and good-time credit when it adopted its “truth-in-sentencing" scheme. The lack of parole eligibility and good-time credit are not direct consequences of a plea that a court must inform a defendant of prior to accepting a plea. State v. Plank, 2005 WI App 109, 282 Wis. 2d 522, 699 N.W.2d 235, 04-2280.
A defendant seeking to withdraw a plea of guilty or no contest prior to sentencing must show a fair and just reason for allowing the withdrawal, which is some adequate reason for defendant's change of heart other than the desire to have a trial. A lack of knowledge of sex offender registration or that one is eligible for a ch. 980 commitment are fair and just reasons for withdrawing a guilty plea. Prejudice needed to merit a denial of a plea withdrawal must be significant in order to trump a defendant's fair and just reason. Entitlement to withdraw pleas to some charges does not entitle the defendant to withdraw all guilty pleas. State v. Nelson, 2005 WI App 113, 282 Wis. 2d 502, 701 N.W.2d 32, 04-1954.
The state is free to negotiate away any right it may have to recommend a sentence, but the state does not have a right to make an agreement to stand mute in the face of factual inaccuracies or to withhold relevant factual information from the court. Such an agreement would violate a prosecutor's duty and result in sentences based upon incomplete facts or factual inaccuracies, a notion that is abhorrent to the legal system. State v. Neuaone, 2005 WI App 124, 284 Wis. 2d 473, 700 N.W.2d 298, 04-0196.
A court is not required to conduct an on-the-record colloquy with respect to a defendant's desire to abandon a plea of not guilty by reason of mental disease or defect. Only fundamental constitutional rights warrant this special protection and such a plea falls outside the realm of fundamental rights. State v. Francis, 2005 WI App 161, 285 Wis. 2d 451, 701 N.W.2d 632, 04-1360.
If a defendant makes a prima facie showing that he or she was not informed of the direct consequences of a plea, the burden shifts to the state to show by clear and convincing evidence that the plea was knowingly, voluntarily, and intelligently entered. The state was required to prove that the defendant knew the correct maximum sentence despite being given erroneous information at every stage of the proceeding. The defendant was not required to show that the misinformation caused the plea. State v. Harden, 2005 WI App 252, 287 Wis. 2d 871, 707 N.W.2d 173, 05-0262.
For purposes of plea withdrawal motions, 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 and a motion for plea withdrawal after entry of the agreement is subject to the standard for withdrawal of a plea after sentencing. State v. Daley, 2006 WI App 81, 292 Wis. 2d 517, 716 N.W.2d 146, 05-0048.
Although a circuit court must establish that a defendant understands every element of the charges pled to, the court is not expected to explain every element of every charge in every case. Bangert allows a court to tailor a plea colloquy to the individual defendant, but in customizing a plea colloquy a circuit court must do more than merely record the defendant's affirmation of understanding. A statement from defense counsel that he or she 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. State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716 N.W.2d 906, 03-2662.
The circuit court properly advised the defendant of the range of punishments associated with his crimes when it informed him of the maximum term of imprisonment that could be imposed. Nothing in sub. (1) (a) or Bangert requires a sentencing court to make the maximum term of confinement associated with a bifurcated sentence explicit prior to accepting a plea of guilty or no contest. State v. Sutton, 2006 WI App 118, 294 Wis. 2d 330, 718 N.W.2d 146, 05-1693.
Sub. (2) uses the term “likely" and not “shall," meaning the defendant need not prove he definitely will be deported as a result of the case in question. Even though an earlier conviction sparked an investigation and immigration detainer, that an additional sexual assault conviction obviously would be included as part of the Immigration and Naturalization Service's information when determining whether to deport him, the defendant had shown his plea in this case offense was likely to result in his deportation requiring that he be permitted to withdraw his plea. State v. Bedolla, 2006 WI App 154, 295 Wis. 2d 410, 720 N.W.2d 158, 05-2717.
A package plea agreement, which is a plea agreement contingent on two or more codefendants all entering pleas according to the terms of the agreement, is not involuntary if the defendant felt pressure in the sense of a psychological need to try to help his codefendants get the benefit of the package agreement. State v. Goyette, 2006 WI App 178, 296 Wis. 2d 359, 722 N.W.2d 731, 04-2211.
Compliance with the Bangert requirements does not 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. Under Howell, when a defendant convicted on a guilty or no contest plea asserts 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. State v. Basley, 2006 WI App 253, 298 Wis. 2d 232, 726 N.W.2d 671, 05-2449.
Establishing a sufficient factual basis under sub. (1) (b) requires a showing that the conduct the defendant admits to constitutes the offense charged. 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 or her conduct does not actually fall within the charge. When the factual basis relied upon by the court in this case in accepting the defendant's guilty plea raised a substantial question as to whether the defendant had committed sexual assault of a child or had herself been the victim of rape, the circuit court was required to make further inquiry to establish a sufficient factual basis to support the plea. State v. Lackershire, 2007 WI 74, 301 Wis. 2d 418, 734 N.W.2d 23, 05-1189.
To ascertain a defendant's understanding of a charge, a circuit court might: 1) summarize the nature of the charge by reading the jury instructions; 2) ask defendant's counsel about his or her explanation to the defendant and ask counsel or the defendant to summarize the explanation; or 3) refer to the record or other evidence of the defendant's understanding of the nature of the charge. State v. Howell, 2007 WI 75, 301 Wis. 2d 350, 734 N.W.2d 48, 05-0731.
A defendant's affirmative response that he or she understands the nature of the charge, without establishing his or her 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. A defendant must at some point have expressed his or her knowledge of the nature of the charge to satisfy the requirement of this section. State v. Howell, 2007 WI 75, 301 Wis. 2d 350, 734 N.W.2d 48, 05-0731.
A defendant may invoke both Bangert and Nelson (54 Wis. 2d 489)/Bentley (201 Wis. 2d 303) in a single postconviction motion to withdraw a plea of guilty or no contest. 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, such as ineffective assistance of counsel or coercion, renders a plea infirm. State v. Howell, 2007 WI 75, 301 Wis. 2d 350, 734 N.W.2d 48, 05-0731.
Upon a motion to withdraw a plea before sentencing, the defendant faces 3 obstacles: 1) the defendant must proffer a fair and just reason for withdrawing the plea; 2) the circuit court must find the reason credible; and 3) the defendant must rebut evidence of substantial prejudice to the state. If the defendant does not overcome these obstacles in the view of the circuit court, and is not permitted to withdraw the plea, the defendant's burden to reverse the circuit court on appeal becomes relatively high. State v. Jenkins, 2007 WI 96, 303 Wis. 2d 157, 736 N.W.2d 24, 05-0302.
Misinformation as to one charge did not render all the defendants' pleas under a plea agreement unknowing, involuntary, and not intelligently entered. A return of the parties to pre-plea positions is not the mandated remedy when convictions are based on a negotiated plea agreement and an error later surfaces as to one count. The appropriate remedy depends upon the totality of the circumstances and a consideration of the parties' interests, a matter committed to the sentencing court's discretion. State v. Roou, 2007 WI App 193, 305 Wis. 2d 164, 738 N.W.2d 173, 06-1574.
Circuit courts may not sua sponte vacate fully and fairly entered and accepted pleas. When the state never asked the circuit court to sua sponte vacate a guilty plea, but merely acquiesced in that decision until it filed its motion for reconsideration, the state was not judicially estopped from seeking to have the circuit court comply with the law. State v. Rushing, 2007 WI App 227, 305 Wis. 2d 739, 740 N.W.2d 894, 06-3152.
Wisconsin's read-in procedure does not require a defendant to admit guilt of a read-in charge for purposes of sentencing and does not require a circuit court to deem the defendant to admit to the read-in crime for purposes of sentencing. The terms “admit" or “deemed admitted" should be avoided in referring to a defendant's agreement to read in a dismissed charge. A 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. A court is not barred from accepting a defendant's admission of guilt of a read-in charge. State v. Straszkowski, 2008 WI 65, 310 Wis. 2d 259, 750 N.W.2d 835, 06-0064.
Williams does not prohibit a trial judge from informing a defendant that the judge intends to exceed the sentencing recommendation and allowing the defendant to withdraw a plea. State v. Marinez, 2008 WI App 105, 313 Wis. 2d 490, 756 N.W.2d 570, 07-0964.
A circuit court may not rely entirely on the Plea Questionnaire/Waiver of Rights Form as a substitute for a substantive in-court plea colloquy. 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 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. State v. Christopher S. Hoppe, 2009 WI 41, 317 Wis. 2d 161, 765 N.W.2d 794, 07-0905.
Courts do not construe plea bargains against the drafter. When language is equally capable of two constructions, the construction that would safeguard the public interests, substantially, must be given preference over that construction that secures only insufficient or unsubstantial advantages to the public. State v. Wesley, 2009 WI App 118, 321 Wis. 2d 151, 772 N.W.2d 232, 08-1338.
When a plea agreement merely prohibited the state from recommending a particular length of sentence, the plea agreement did not curtail the state's ability to advocate its position that the defendant receive prison time. The state's recitation of the pre-sentence investigation report's recommendation for a specific sentence was simply that, a recitation, and the state's discussion of the particulars of the crime did not amount to an endorsement of the report's recommendation. State v. Duckett, 2010 WI App 44, 324 Wis. 2d 244, 781 N.W.2d 522, 09-0958.
Deciding whether to reject a plea agreement is squarely within the court's authority; to hold otherwise would permit encroachment by the executive branch into the realm that has historically been that of the judicial branch. Consideration of the views of the prosecutor as well as the defense attorney enter into that determination. Authority vests in the circuit court to determine what pleas are in the public interest without permitting the court to intrude on the authority of the prosecutor to decide what charges to file or whether to file charges in the first instance. Factors to be considered by the court are discussed. State v. Conger, 2010 WI 56, 325 Wis. 2d 664, 797 N.W.2d 341, 08-0755.
Matson did not stand for the proposition that law enforcement views can never be properly considered by a court. Considering law enforcement representatives' views as a factor in determining whether to reject the proposed plea agreement is quite a different matter from allowing law enforcement to slip a harsher sentencing recommendation to a court while the prosecutor uses a lesser sentencing recommendation to procure a plea from the defendant. Here, the consideration of law enforcement's views was only one factor, of several noted in the record, in the circuit court's decision, and it was not obtained after the prosecution had secured the defendant's plea. State v. Conger, 2010 WI 56, 325 Wis. 2d 664, 797 N.W.2d 341, 08-0755.
When a defendant is told that he or she faces a maximum possible sentence that is higher, but not substantially higher, than that authorized by law, the circuit court has not violated the plea colloquy requirements outlined in this section and the Bangert line of cases and the circuit court has still fulfilled its duty to inform the defendant of the range of punishments. However, when the difference is significant, or when the defendant is told the sentence is lower than the amount allowed by law, a defendant's due process rights are at greater risk and a Bangert violation may be established. State v. Cross, 2010 WI 70, 326 Wis. 2d 492; 786 N.W.2d 64, 09-0003.
Given the provision's placement within the statute, the context requires circuit courts to give the sub. (1) (c) deportation advisement at the plea hearing. The duty set forth in sub. (1) (c) is imposed solely on the circuit court. A defendant's action or inaction cannot alter that duty. A defendant may neither waive nor forfeit the right to plea withdrawal under sub. (2), which provides a specific remedy when a defendant later shows that the plea is likely to result in the defendant's deportation. State v. Vang, 2010 WI App 118, 328 Wis. 2d 251; 789 N.W.2d 115, 09-2162.
When the circuit court did not inform the defendant that it was not bound by the plea agreement, the circuit court erred; however, given that the circuit court accepted the plea agreement, the defendant did not demonstrate that withdrawal of his plea was necessary to correct a manifest injustice. The defendant was not affected by the defect in his plea colloquy; in fact, he received the benefit of the plea agreement when the court accepted the plea, dropping one of 2 charges. State v. Johnson, 2012 WI App 21, 339 Wis. 2d 421, 811 N.W.2d 441, 11-0348.
The pleading requirements for a motion to withdraw a guilty plea under sub. (2) when there is no transcript of the plea hearing are those set forth in Bentley. Applying the Bentley-type standard of review, the court independently reviews whether a defendant's motion alleges sufficient facts that, if true, would entitle the defendant to withdraw his or her plea. State v. Negrete, 2012 WI 92, 343 Wis. 2d 1, 819 N.W.2d 749, 10-1702.
Inconclusive assertions, such as “I do not recall," will not support plea withdrawal because the truth or falsity of the defendant's statement has no bearing on whether the court actually advised the defendant of the potential immigration consequences of the plea. Whether the defendant remembers being told is not the operative fact upon which the right of withdrawal under sub. (2) is based; rather, the operative fact is whether the judge fulfilled the statutory requirement. If the defendant does not allege that the court did not tell him or her of the potential immigration consequences of his or her plea, the defendant has not met the first element of sub. (2), and the motion to withdraw may be denied without an evidentiary hearing. State v. Negrete, 2012 WI 92, 343 Wis. 2d 1, 819 N.W.2d 749, 10-1702.
Plea bargains should pin down whether a district attorney is agreeing not to prosecute a dismissed charge. The term “dismissed outright" should be discontinued. It leads to misunderstanding. As a general rule, parties may not immunize certain offenses from consideration by the court. Rather, the court is expected to utilize the fullest amount of relevant information concerning a defendant's life and character in fashioning a sentence. It is the responsibility of defense counsel to assure that the defendant understands and consents to the terms of any plea bargain and appreciates the authority and independence of the sentencing court. State v. Frey, 2012 WI 99, 343 Wis. 2d 358, 817 N.W.2d 436, 10-2801.
When a good-faith legal error is made at the plea hearing regarding the maximum periods of initial confinement and extended supervision, and when that error is corrected at the sentencing hearing, to the defendant's benefit, there is no manifest injustice. State v. Lichty, 2012 WI App 126, 344 Wis. 2d 733, 823 N.W.2d 830, 11-2873.
The defendant's plea colloquy was not defective when the trial court did not explain party to a crime liability during the plea hearing. Party to a crime liability includes situations in which the defendant directly commits the crime, and the defendant directly committed the robbery in question. Therefore, an explanation of party to a crime liability in this case would have been superfluous. State v. Brown, 2012 WI App 139, 345 Wis. 2d 333, 824 N.W.2d 916, 12-0236.
A court is not required to inform a defendant during a plea colloquy that he or she may plead guilty to a crime and still have a jury trial on the issue of mental responsibility. Because neither the federal or state constitutions confers a right to an insanity defense, a court has no obligation to personally address a defendant in regard to the withdrawal of an NGI plea, although it is the better practice to do so. State v. Burton, 2013 WI 61, 349 Wis. 2d 1, 832 N.W.2d 611, 11-0450.
The felony or misdemeanor designation of a charge is not part of the “nature of the charge" under sub. (1). Accordingly, a circuit court accepting a plea is not required to specifically inform the defendant of the applicable designation. The term “nature of the charge" refers to the elements of the offense in relation to the facts associated with that charge. A circuit court's plea colloquy duties related to the “nature of the charge" can be satisfied by summarizing the elements of the crime charged by reading from the appropriate jury instructions or from the applicable statute. State v. Robles, 2013 WI App 76, 348 Wis. 2d 325, 833 N.W.2d 184, 12-0307.
The state did not breach a plea agreement when two police officers, one of whom the defendant shot during the execution of a search warrant, requested during the sentencing hearing that the sentencing court impose the maximum sentence. The police officers were not speaking to the court as investigating officers, but as victims of a crime, which they have a right to do. In Wisconsin, every crime victim has the right to make a statement to the court at disposition. State v. Stewart, 2013 WI App 86, 349 Wis. 2d 385, 836 N.W.2d 456, 12-1457.
The defendant was not entitled to withdraw his guilty plea when the trial court, in providing him the immigration warning pursuant to sub. (1) (c), did not state the statutory language verbatim, but instead gave a warning that substantially complied with the statute and included very slight linguistic differences that in no way altered the meaning of the warning. State v. Mursal, 2013 WI App 125, 351 Wis. 2d 180, 839 N.W.2d 173, 12-2775.
The defendant breached a plea agreement when the defendant was charged with new crimes and the agreement provided that the state reserved the right to withdraw from the agreement if the defendant committed any new or additional crime pending sentencing. The circuit court's decision to hold the defendant to his plea and allow the state to make a recommendation at sentencing, when the state had agreed not to make a recommendation under the agreement, was an appropriate exercise of discretion in crafting a remedy for the breach. State v. Reed, 2013 WI App 132, 351 Wis. 2d 517, 839 N.W.2d 877, 12-2191.
Under Padilla, 559 U.S. 356, counsel's failure to advise a defendant concerning clear deportation consequences of a plea bargain is prejudicial if the defendant shows that "a decision to reject the plea bargain would have been rational under the circumstances." The defendant is not required to show that "there would be a different outcome" or that he or she had "real and viable challenges to the underlying veracity of the conviction." State v. Mendez, 2014 WI App 57, 354 Wis. 2d 88, 847 N.W.2d 895, 13-1862.
See also State v. Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W.2d 93, 13-1437.
Under s. 972.14 (3) (a), “If a victim wants to make a statement, the court shall allow the victim to make a statement in court or to submit a written statement to be read in court." Section 972.14 does not specify any particular party to read a victim's statement. The sole limitation on the victim's statement is that it be relevant to the sentence. If a judge does not ensure compliance with the victims' rights statutes, the judge can be fined under s. 950.11. A prosecutor's reference to a victim's letter will not automatically operate as a breach of a plea agreement. In fact, a victim's wishes may often come to bear in considering the need to protect the public and it was incumbent on both the court and the prosecutor to ensure compliance with the victims' rights statutes. State v. Bokenyi, 2014 WI 61, 354 Wis. 2d 51, 847 N.W.2d 855, 12-2557.
To withdraw a guilty plea after sentencing, a defendant must show by clear and convincing evidence that a refusal to allow withdrawal of the plea would result in manifest injustice, that is, that there are serious questions affecting the fundamental integrity of the plea. The defendant has the burden to establish manifest injustice. State v. Dillard, 2014 WI 123, 358 Wis. 2d 543, 859 N.W.2d 44, 12-2044.
Under the totality of the circumstances of this case, in which a no-contest plea was entered to avoid a consequence that was a legal impossibility, the defendant had the right as a matter of law to withdraw his no-contest plea on the ground that it was not entered knowingly, intelligently, and voluntarily. When deciding whether to accept the state's plea offer or go to trial, the state, the court, and the defendant's trial counsel mistakenly advised the defendant that he was facing a mandatory sentence of life in prison without the possibility of extended supervision. The fundamental error of law about the applicability of the persistent repeater enhancer to the defendant that pervaded the plea negotiations and sentencing rendered the defendant's plea unknowing, unintelligent, and involuntary. State v. Dillard, 2014 WI 123, 358 Wis. 2d 543, 859 N.W.2d 44, 12-2044.
While a defendant may generally be able to wait until after sentencing to decide whether to allege a deficiency in the plea colloquy, that proposition does not apply when a concern about the defendant's understanding of the plea has been raised prior to sentencing and the defendant specifically elects to proceed with sentencing. The defendant in this case, after being made aware that the state believed the plea agreement allowed it to make a specific recommendation and that the state intended to do so, waived his right to seek plea withdrawal when he elected to move forward with sentencing. State v. Fortes, 2015 WI App 25, 361 Wis. 2d 249, 862 N.W.2d 154, 14-0714.
Negrete, 2012 WI 92, governs a non-citizen's motion to withdraw a guilty plea under sub. (2) based on “likely" deportation. It does not govern “ likely" exclusion from admission. Under Negrete the defendant must allege facts demonstrating a causal nexus between the entry of the guilty plea and the federal government's likely institution of deportation proceedings. Sub. (2) does not require a showing that the federal government has taken steps to exclude the defendant from admission. In this case, the text of the federal statute and the necessity that a defendant take affirmative steps to leave the country in order to actually be excluded from admission satisfy the “likely" test. State v. Valadez, 2016 WI 4, 366 Wis. 2d 332, 874 N.W.2d 514, 14-0678.
When a plea agreement is silent regarding concurrent or consecutive sentences, the defendant has not bargained for the state's promise to refrain from recommending the sentences be served consecutively. Whether a sentence recommendation involves four charges or one charge in addition to a sentence already being served, a recommendation of consecutive sentences has the same effect on the defendant. State v. Tourville, 2016 WI 17, 367 Wis. 2d 285, 876 N.W.2d 735, 14-1248.
The Nelson/Bentley test has 2 prongs: 1) if a motion to withdraw a guilty plea after judgment and sentence alleges facts which, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing; and 2) if the defendant fails to allege sufficient facts in his or her motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing. The correct interpretation of this test is that an evidentiary hearing is not mandatory if the record as a whole conclusively demonstrates that the defendant is not entitled to relief, even if the motion alleges sufficient nonconclusory facts. State v. Sulla, 2016 WI 46, 366 Wis. 2d 332, 874 N.W.2d 514, 13-2316.
The phrase “potential punishment" in sub. (1) (a) has not been defined in the statutes or the case law. In analyzing whether a defendant was correctly advised of the potential punishment, cases have looked to the maximum statutory penalty, that is, the maximum sentence provided for by statute. The opinion in this case provides a glossary of terms to assist readers and the courts in using and understanding the correct terminology for discussing the duty of circuit courts to advise a defendant of the potential punishment before accepting a plea. State v. Finley, 2016 WI 63, 370 Wis. 2d 402, 882 N.W.2d 761, 14-2488.
When, during the plea colloquy, the court erroneously informed the defendant that the maximum statutory penalty the defendant faced if convicted was lower than the maximum actually allowed by law, and the state failed to prove that the defendant knew the potential punishment he faced at the time he entered his plea, the defendant's plea was not entered knowingly, intelligently, and voluntarily, and he was entitled to withdraw his plea. Under those circumstances, the defect could not be remedied by reducing the sentence to the maximum the defendant was informed and believed he could receive instead of letting the defendant withdraw his plea. State v. Finley, 2016 WI 63, 370 Wis. 2d 402, 882 N.W.2d 761, 14-2488.
Sub. (2) is subject to harmless error analysis under s. 971.26 and this section. State v. Douangmala, 2002 WI 62, was objectively wrong because it failed to properly consider the harmless error statutes, s. 971.26 and this section, and is thus overruled. The mandatory “shall" in sub. (2) did not control when both of the harmless error savings statutes also use the mandatory “shall" language. All of the relevant statutes use “shall," and, accordingly, none is "more mandatory" than any other. Sections 805.18 and 971.26 and this section are most comprehensibly harmonized by applying harmless error analysis. State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504, 904 N.W.2d 773, 15-2041.
The defendant's guilty plea to 2nd-degree sexual assault of a child was not knowing, intelligent, and voluntary because the defendant was incorrectly informed that he faced a potential sentence of 100 years if convicted of both 1st-degree and 2nd-degree sexual assault. Because 2nd-degree sexual assault is a lesser-included offense to 1st-degree sexual assault, the defendant could not have lawfully been convicted of both offenses. Thus, the defendant was not truly aware of the direct consequences of his plea and was entitled to withdraw it. State v. Douglas, 2018 WI App 12, 380 Wis. 2d 139, 908 N.W.2d 466, 16-1865.
The requirements established under Bangert, 131 Wis. 2d 246, and its progeny for a valid plea apply only to the guilt phase of a defendant's plea of not guilty by reason of mental disease or defect (NGI). Although a circuit court must correctly advise a defendant pleading NGI of the maximum term of imprisonment the defendant faces, the court need not advise the defendant of the potential range of civil commitment the defendant will face if found not mentally responsible for his or her crimes. State v. Fugere, 2018 WI App 24, 381 Wis. 2d 142, 911 N.W.2d 127, 16-2258.
Lifetime global positioning system (GPS) tracking is not a punishment such that due process requires a defendant be informed of it before entering a plea of guilty. Neither the intent nor effect of lifetime GPS tracking is punitive. Consequently, the defendant in this case was not entitled to withdraw his plea because the circuit court was not required to inform the defendant that his guilty plea would subject him to lifetime GPS tracking. State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, 16-0740.
The intent-effects test is the proper test used to determine whether a sanction rises to the level of punishment such that due process requires a defendant be informed of it before entering a plea of guilty. Under the intent-effects test, the court first looks to the statute's primary function, intent. Determining whether the legislature intended a statute to be punitive is primarily a matter of statutory construction. The court also considers whether the effect of the statute is penal or regulatory in character. To aid its determination of the effect, the court applies the seven factors set out in Mendoza-Martinez, 372 U.S. 144: 1) whether the sanction involves an affirmative disability or restraint; 2) whether the sanction has historically been regarded as a punishment; 3) whether the sanction comes into play only on a finding of scienter; 4) whether the sanction's operation will promote the traditional aims of punishment-retribution and deterrence; 5) whether the behavior to which the sanction applies is already a crime; 6) whether an alternative purpose to which the sanction may rationally be connected is assignable for it; and 7) whether the sanction appears excessive in relation to the alternative purpose assigned. State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, 16-0740.
A circuit court is not required at the guilt phase to inform a defendant who has pled not guilty by reason of mental disease or defect (NGI) of the maximum possible term of civil commitment because: 1) a defendant who prevails at the responsibility phase of the NGI proceeding has proven an affirmative defense in a civil proceeding, avoiding incarceration, and is not waiving any constitutional rights by so proceeding in that defense; and 2) an NGI commitment is not punishment but, rather, is a collateral consequence to one who successfully mounts an NGI defense to criminal charges. State v. Fugere, 2019 WI 33, 386 Wis. 2d 76, 924 N.W.2d 469, 16-2258.
When the accused rejected a plea bargain on a misdemeanor charge and instead requested a jury trial, the prosecutor did not act vindictively in raising the charge to a felony. United States v. Goodwin, 457 U.S. 368 (1982).
The defendant's acceptance of the prosecutor's proposed plea bargain did not bar the prosecutor from withdrawing the offer. Mabry v. Johnson, 467 U.S. 504 (1984).
When a defendant knowingly entered a guilty plea and the state's evidence supported a conviction, the conviction was valid even though the defendant gave testimony inconsistent with the plea. Hansen v. Mathews, 424 F.2d 1205 (1970).
Following a guilty plea, the defendant could not raise a speedy trial issue. United States v. Gaertner, 583 F.2d 308 (1978).
Guilty pleas in Wisconsin. Bishop, 58 MLR 631.
Pleas of guilty; plea bargaining. 1971 WLR 583.
The Immigration Consequence of a Plea. Odrcic. Wis. Law. May 2018.