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).
¶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.