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Guilty Pleas – 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  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.

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