In a case of interest primarily, if not exclusively, to lawyers handling postconviction proceedings in state courts, the supreme court holds Burton’s plea withdrawal motion was insufficient to merit an evidentiary hearing because it failed to allege sufficient facts to support either the ineffective assistance of counsel claim or the claim Burton’s plea was invalid because of a defective plea colloquy.
Burton, charged with shooting two police officers, entered an NGI plea. One forensic expert supported his plea, another did not. (¶¶12-13, 17-19). Burton ultimately accepted a plea agreement, and while taking Burton’s plea the court asked him if he was withdrawing his NGI plea; Burton said “yes.” (¶¶21-22, 25). Burton later moved to withdraw his plea, claiming trial counsel was ineffective for failing to to advise him that under the bifurcated NGI procedure he could plead guilty to the charges and still have a trial on the issue of mental responsibility. (¶33). He also claimed the plea colloquy was deficient because the court did not advise him of the option of a trial on mental responsibility. (¶34). The supreme court holds Burton’s motion’s allegations were insufficient to merit an evidentiary hearing.
Burton’s ineffective assistance claim is governed by the Nelson/Bentley line of cases, which requires a motion to provide a factual basis–the who, what, where, when, why, and how–supporting the allegation that counsel’s performance was deficient and prejudicial. (¶¶52-60). (See, e.g., State v. Allen, 2004 WI 106, ¶¶11-24, 274 Wis. 2d 568, 682 N.W.2d 433; State v. Hampton, 2004 WI 107, ¶¶50-65, 274 Wis. 2d 379, 683 N.W.2d 14.) Burton’s motion doesn’t meet this standard.
First, the motion doesn’t adequately plead deficient performance. It doesn’t allege counsel failed to inform Burton of the possibility of a bifurcated plea; instead, it asserts there is “nothing in the record” showing counsel informed him of the option. (¶32). Discussions between a lawyer and client don’t ordinarily occur on the record, so the record will not reveal all the information a lawyer gives his or her client. (¶¶62-65). Thus, “Burton’s motion is conclusory and lacks sufficient material facts to establish a failure to inform. The motion presents a hypothesis, not an offer of proof. ” (¶64). Further, at the plea hearing counsel told the court he had discussed the defense with Burton and “specifically talked about [his] right to raise” the defense; thus, what the record does reveal about counsel’s advice undermines the assertion in the motion. (¶66).
Second, the motion doesn’t allege sufficient facts regarding prejudice. The motion asserts that if Burton had understood he could have a trial on mental responsibility at which the jury could have accepted the favorable expert opinion, “there is a reasonable probability that he would have not pled guilty to the crimes.” (¶32). This is “speculation, not assertion” (¶69) because it doesn’t explain why Burton would reject the plea deal if he had known he could have a trial on mental responsibility, under the circumstances of this case. The deal secured a sentencing recommendation from the state; while the recommendation “was not especially generous,” the state could have argued for more time in the absence of the plea deal. And even though Burton had one expert supporting his defense, the state had contrary expert testimony, and Burton would have had the burden of proof at the mental responsibility phase. (¶¶68-70).
Burton’s claim that the plea colloquy is inadequate is also rejected. Under State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986), the motion must explicitly allege that at the time of the plea the defendant did not know the information the court was required to provide. Burton’s motion lacks that allegation. And:
¶80 More important, Burton’s motion failed to identify a real deficiency in the plea colloquy. Neither Wis. Stat. § 971.08, nor the procedures mandated by Bangert and its progeny, require a court to inform a defendant during a plea colloquy that he may plead guilty to a crime and still have a jury trial on the issue of mental responsibility. Because the trial court was not required to inform Burton of this option, there was no deficiency in the plea colloquy.
The court agrees with the analysis in State v. Francis, 2005 WI App 161, 285 Wis. 2d 451, 701 N.W.2d 632, which held there is no requirement that the judge address the defendant personally regarding the withdrawal of an NGI plea, though such a colloquy would be “the better practice.” (¶¶81-84).
The pleading rules applied here are well-settled. What’s new is the holding that a judge taking a plea from a defendant who previously entered an NGI plea need not advise the defendant he could plead guilty and still have a mental responsibility trial. The corollary, of course, is that the absence of that advice from a colloquy is not grounds for a Bangert motion.