Przytarski can’t withdraw her plea even if her trial lawyer erroneously told her that she could appeal the trial court’s pretrial order that barred her from introducing certain evidence to defend against charges of interference with child custody.
Charged with violating § 948.31(1)(b) for keeping her daughter beyond her period of physical placement, Przytarski wanted to raise the affirmative defense under § 948.31(4)(a)1. using evidence that the child’s father was causing emotional harm to the child. The state moved to exclude that evidence as irrelevant because the affirmative defense applies only to “a situation in which the parent … reasonably believes that there is a threat of physical harm … to the child,” and State v. McCoy, 143 Wis. 2d 274, 293-94, 421 N.W.2d 107 (1988), held that under the precursor interference with custody statute, “emotional harm” is not included in “physical harm.” After the trial court granted the state’s motion, Przytarski then struck a deal to plead to non-summary criminal contempt, an unclassified misdemeanor, §§ 785.03(1)(b) and 785.04(2)(a). (¶2).
Postconviction, Przytarski moved to withdraw her plea, alleging her trial lawyer was ineffective for erroneously assuring her she could appeal the trial court’s order barring the emotional harm evidence. (¶3). The court of appeals affirms the trial court’s denial of the plea withdrawal motion on the grounds Przytarski can’t show prejudice:
¶8 First, even though the State no longer charged Przytarski with the felony under Wis. Stat. § 948.31(1)(b), the defendant seeks to re-assert an affirmative defense under § 948.31(4)(a). But that charge has been abandoned and superseded by the misdemeanor charge under Wis. Stat. § 785.03(1)(b). Second, Przytarski has not even attempted to attack § 785.03(1)(b) or its elements.
This analysis is as irrelevant as it is curt. Przytarski’s claim is that: (1) her lawyer told her the pretrial evidentiary issue was preserved for appeal, when in fact her plea waived (or, more properly, forfeited) the issue, State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886 (the general rule is that a guilty, no contest, or Alford plea waives all nonjurisdictional defects, including constitutional claims); and (2) she wouldn’t have pled had she known that her plea would mean she couldn’t appeal the issue. A straightforward claim, it is barely acknowledged in the opinion, as it is relegated to one sentence. (¶3). It’s also a claim addressed in a long line of cases, starting with State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983) (permitting plea withdrawal where bargained-for benefit—preserving the right to appeal a particular issue—was legally unenforceable). The court of appeals mentions none of this case law.
We don’t know what trial counsel told Przytarski, as the trial court didn’t hold a Machner hearing; but assuming he did erroneously tell her she could appeal the trial court’s ruling even after entering her plea, the prejudice question is not whether the affirmative defense applies to the contempt charge, or whether Przytarski has some basis to “attack” the elements of that charge, as the court of appeals says here. (¶8). Instead, the question is whether she would have rejected the deal to plead to the contempt charge and would have insisted on going to trial on the interference charge had her lawyer correctly told her that entering that plea would mean she couldn’t appeal the judge’s ruling on her emotional harm evidence. State v. Bentley, 201 Wis. 2d 303, 312, 548 N.W.2d 50 (1996), citing Hill v. Lockhart, 474 U.S. 52, 59 (1985). This question is answered objectively, based on what a reasonable defendant would do; and it isn’t hard to hypothesize that a reasonable defendant would take a deal for misdemeanor contempt rather than go to trial on the interference charge just to preserve an claim that’s likely foreclosed by McCoy and thereby risk a felony conviction that can’t be undone. But regardless of whether the court might have reached the same result had it applied the proper standard, it’s odd the court didn’t apply that standard and instead engaged in the analysis set out in ¶8.