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Client’s motion for plea withdrawal defeated by counsel’s testimony that he explained charges and elements

State v. Orlando Davis, 2018AP2326-CR, 10/1/19, District 1, (1-judge opinion, ineligble for publication) case activity (including briefs)

Davis filed a Bangert motion alleging that (1) the trial court failed to advise him of the elements of the offense to which he pled guilty, and (2) he did not understand those elements. At the postconviction hearing, Davis and his trial lawyer testified about Davis’s understanding of the elements. The postconviction court found counsel more credible, and the court of appeals affirms.

State v. Bangert, 131 Wis. 2d 246, 268, 389 N.W.2d 12 (1986) holds:

[I] is no longer sufficient for a trial judge merely to perfunctorily question the defendant about his understanding of the charge. Likewise, a perfunctory affirmative response by the defendant that he understands the nature of the offense, without an affirmative showing that the nature of the crime has been communicated to him or that the defendant has at some point expressed his knowledge of the nature of the charge, will not satisfy the requirement of Section 971.08, Stats.

Davis argued that the trial court engaged in “perfunctory questioning” by simply asking him if he understood what the DA would have to prove for each charge. Also, the trial court accepted his “perfunctory affirmative responses” without any follow up questioning. Davis testified that he simply signed off on the plea questionnaire and waiver of rights without fully understanding it. He did not know what an element was though he had pled guilty in prior cases and had an undergraduate degree in business management. He did not recall his trial lawyer discussing the elements or the applicable jury instruction with him.

In contrast, trial counsel testified that he discussed the elements of the offense with Davis multiple times during the case, including before the plea hearing. He also believed that Davis understood all of the charges and their elements.

The postconviction court found trial counsel’s explanation “very deliberate and careful” and his testimony “far more credible” than Davis’s. That doomed the motion because the court of appeals won’t “disturb the postconviction court’s credibility determination.” See Fidelity & Deposit Co. v. First Nat’l Bank, 98 Wis. 2d 474, 485, 297 N.W.2d 46 (Ct. App. 1980). The court of appeals held that because trial counsel went over the elements with Davis, the trial court didn’t breach its statutory duty. But if it had, the State met its burden of showing Davis’s plea was knowing, intelligent, and voluntary. Opinion, ¶¶31-32.

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