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Plea withdrawal motion insufficient to merit evidentiary hearing

State v. Jeremy Wand, 2015AP2344-CR, District 4, 8/25/16 (not recommended for publication); case activity (including briefs)

The court of appeals holds that Wand’s postconviction motion for plea withdrawal failed to allege sufficient facts to merit an evidentiary hearing on his claims that his plea was coerced and that his trial lawyers were ineffective by failing to retain certain experts to assist in his defense.

Wand pleaded guilty to guilty to crimes related to a fire that caused the death of three nephews, serious injuries to a sister-in-law, and the death of the sister-in-law’s fetus. After sentencing he moved to withdraw his pleas, alleging his trial lawyers were ineffective for: 1) coercing him to plead guilty; 2) failing to secure an independent fire investigation expert; and 3) failing to retain an expert on police interrogation to support his pretrial motion to suppress his statements to police. The circuit court denied the motion without a hearing, and the court of appeals affirms. (¶¶2-4).

To be entitled to an evidentiary hearing on a plea withdrawal motion, the defendant must allege sufficient facts that, if true, would entitle the defendant to relief; “conclusory allegations” are insufficient. State v. Howell, 2007 WI 75, ¶¶75-76, 301 Wis. 2d 350, 734 N.W.2d 48.  Id., ¶¶75, 79. Alleging sufficient facts requires setting out “the five ‘w’s’ and one ‘h’; that is[,] who, what, where, when, why, and how.” State v. Allen, 2004 WI 106, ¶23, 274 Wis. 2d 568, 682 N.W.2d 433. The allegations in Wand’s motion are insufficient to merit an evidentiary hearing on any of his claims.

•First, while Wand’s motion alleges coercion (¶17), it fails to describe coercive conduct by trial counsel:

¶18     Strikingly absent are any details about what either [Attorney] Michel or Medina said to Wand, when they did so, and with what threats or other means, to coerce Wand to plead guilty (the “five ‘w’s’ and one ‘h’” required to be provided under Allen). Cf. [State v.] Basley, [2006 WI App 253,] 298 Wis. 2d 232, ¶10[, 726 N.W.2d 671] (allegations that counsel made specific statements at specific times and locations were factual assertions and not conclusory allegations of coercion). It is not, by itself, coercive conduct for a defense attorney to challenge with a client the client’s version of events, or to tell the client that the attorney knows best and that the client should trust the attorney. Nor is it, by itself, coercive conduct for a defense attorney to determine as a matter of professional judgment that no viable defense is available, and that efforts should instead be directed toward obtaining the best plea agreement possible.

¶19     At most, the statements itemized above [¶17] support the conclusion that Wand’s trial attorneys strongly advised him to enter a plea. But “forceful advice” based on counsel’s professional belief that conviction is highly likely is not coercion. [State v.] Rhodes, [2008 WI App 32,] 307 Wis. 2d 350, ¶11[, 746 N.W.2d 599]; see also Salters v. State, 52 Wis. 2d 708, 712, 191 N.W.2d 19 (1971) (“The distinction between a motivation which induces and a force which compels the human mind to act must always be kept in focus.” (quoted source omitted)).

The court criticizes Wand for adding “unnecessary layers of complexity” to his coercion claim (¶12) by arguing the claim under the framework of ineffective assistance and by arguing the more liberal, pre-sentencing plea withdrawal standard should apply. The IAC framework is unnecessary because coercion is a sufficient, stand-alone basis for plea withdrawal: “While coercion by counsel may constitute ineffective assistance of counsel, once a defendant proves a plea was involuntary because it was coerced by counsel, he or she is entitled to plea withdrawal, regardless of whether ineffective assistance was present.” (¶14). Likewise, there’s no need to try to get the pre-sentencing standard to apply because “coercion suffices to invalidate a plea, regardless of whether the pre- or post-sentencing plea withdrawal standard is applied.” (¶15).

•Second, attached to Wand’s postconviction motion was a report from a fire investigation expert criticizing the state’s fire investigation and concluding the origin and cause of the fire were “undetermined.” But this doesn’t show trial counsel were ineffective in not obtaining this expert’s opinion before advising Wand to plead guilty, for several reasons. To begin with, while Wand alleges he would have gone to trial if this report had been available, he doesn’t explain why, so the allegation is conclusory. Further, Wand’s trial attorneys had retained a fire investigation expert before trial, but the report or opinions of that expert are not in the record, and Wand’s motion doesn’t allege that the new expert provided more helpful information from a defense perspective or that the pretrial expert’s report was tainted or otherwise deficient; thus, Wand’s motion doesn’t explain why his trial attorneys were deficient either to hire that particular expert or to not seek a second expert. (¶¶24-28).

•Third, Wand attached to his postconviction motion a summary of testimony from a psychology professor about the risk factors for false confession present in Wand’s case. The problem is that the issue with Wand’s statements is whether they were involuntary, and the expert doesn’t provide an opinion about that issue; instead, the expert concluded that the presence of the risk factors makes it “difficult to know” whether Wand’s statements were truthful. Thus, his motion doesn’t provide sufficient factual basis to conclude trial counsel was ineffective for failing to retain the expert. (¶¶29-31).

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