Hernandez filed a postconviction motion arguing that he pled guilty to lewd and lascivious behavior while he was drunk–so drunk that he incorrectly told the court that he had not consumed alcohol within the previous 24 hours, that he understood the rights he was waiving, and that there was a factual basis for his plea. In rejecting his claim, the court of appeals commits an error that continues to dog postconviction motions.
Before the plea hearing, Hernandez checked the box on his guilty plea questionnaire and waiver of right forms indicating that he had not consumed any alcohol, medications, or drugs within the past 24 hours. He reconfirmed the point on the record during his colloquy with the court. In the court of appeals view, those admissions doomed Hernandez’s appeal–especially since he offered no evidence other than his self-serving assertions that he was drunk. “The motion did not attach an affidavit with factual assertions.” Op. ¶16. Also, “there is a total absence of evidence in the record that anyone present in the courtroom at the hearing observed that Hernandez was intoxicated.” Op. ¶17. Thus, circuit court was right to deny his motion without a hearing under Nelson/Bentley.
Oops. According to SCOW, a defendant is NOT required to submit a sworn affidavit in support of a motion for plea withdrawal in order to get a hearing. He may simply submit a motion that sufficiently alleges the facts supporting his position. State v. Brown, 2006 WI 100, ¶62, 293 Wis. 2d 594, 716 N.W.2d 906. See also §802.05(1), which provides that pleadings need not be verified or accompanied by affidavits.
The court’s analysis of the factual basis for Hernandez’s plea is also suspect. At the plea hearing, trial counsel told the court that Hernandez was so drunk when he exposed his genitals that he could not remember what had happened, so he was in no position to deny the allegations of the complaint. Nevertheless he agreed that they were true. Op. ¶6. The court of appeals cited the sentencing transcript for further proof that Hernandez conceded the factual basis of the plea. But that’s questionable. The sentencing court told him that he could not walk around without pants. Hernandez responded that he knew that but on the day in question he was wearing a dress. The court told him that he had to wear underwear otherwise he would offend people. Hernandez responded that he did not do it on purpose. Op. ¶21.
What the opinion does not tell the reader is that Hernandez is gay, likes to cross dress, believed that he was wearing underwear under his dress, and pled guilty hoping for probation because his lawyer told him that going to jail would be very bad for a guy like him. The opinion also does not account for the fact that at the sentencing stage Hernandez’s sentence hinged in part on his willingness to accept responsibility.
The court of appeals refused to address the question of whether Hernandez was warned of the consequences of his plea (that he would have to follow the DOC’s sex offender rules). His postconviction motion made the point in just 1 paragraph without citation to legal authority. Apparently, that’s not enough to preserve an issue. Since the court of appeals makes this point in 1 paragraph without citation to legal authority, the source of this rule is unclear. Op. ¶27.