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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.

 

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