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Plea-Withdrawal, Post-sentence: Prima Facie Showing, Plea Questionnaire

State v. Christopher S. Hoppe, 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate

Issue: Whether a plea colloquy that merely established that the defendant was “satisfied” he understood “everything in the questionnaire and waiver of rights and the elements of the charges” sufficed under State v. Bangert, 131 Wis.  2d 246, 389 N.W.2d 12 (1986), given that the questionnaire covered these matters.

Holding:

¶14      … Here, the issue is whether, when the court incorporates the plea questionnaire into the colloquy, the contents of the plea questionnaire become an intrinsic part of that colloquy. We hold that it does.

¶16      That is precisely what occurred here. The plea questionnaire and waiver of rights form used here recited each constitutional right subject to being waived, and required that the box before each right be checked to signify an understanding that a plea would result in that right being relinquished. …

¶17      The form became State’s Exhibit Number 1 and was made part of the record. Judge Kennedy addressed Hoppe personally, as Wis. Stat. § 971.08 directs, and specifically invoked the plea questionnaire Hoppe had completed. The court ascertained that Hoppe had gone over the questionnaire with both attorneys; that he understood “everything in the questionnaire and waiver of rights and the elements of the charges you’re going to be pleading to,” and that a copy of the elements was attached; that Hoppe was satisfied he made a free, voluntary and intelligent plea with all of his rights in mind; that both attorneys were satisfied that Hoppe’s plea was free, knowing and voluntary; and that there was a factual basis for the plea. This colloquy, which establishes that Hoppe voluntarily and knowingly waived his constitutional rights, exceeds that in Hansen, where we deemed inadequate a plea colloquy limited to little more than asking the defendant if he had “gone over” the plea questionnaire with his attorney. See Hansen, 168 Wis.  2d at 755.

¶18      A plea questionnaire’s proper use can lessen the extent and degree of the colloquy otherwise required. See Hansen, 168 Wis.  2d at 755-56. AsMoederndorfer suggests, a written form both gives a defendant the opportunity to receive and digest critical information outside the courtroom’s possibly intimidating atmosphere, and aids the court in assessing the defendant’s understanding. See Moederndorfer, 141 Wis. 2d at 827-28. We do not interpret Howell or Brown as reading into BangertMoederndorfer or Wis. Stat. § 971.08 a requirement that, plea questionnaire in hand, the court must revisit the particulars of each item with a defendant, such as Hoppe, who has expressed his full understanding and gives the court no reason to believe that such is not the case. We thus say here what Moederndorfer only implies: a plea questionnaire is not outside the plea hearing; it is part and parcel of it.

The long and short of it: assuming the plea questionnaire accurately canvasses the required material, a colloquy establishing simply that the defendant went over and “understands” the questionnaire contents is adequate. The result should free up a lot of court time, otherwise taken up with the superfluous exercise of informing the defendant of the rights waived, elements necessary to the crime, direct consequences of the plea, etc. Whether this result is correct or not, one little procedural sticking point: the circuit court held an evidentiary hearing and denied relief on the merits, so why is the court of appeals getting its hands dirty with the irrelevant detail of whether a hearing should have been held? If this procedural issue hasn’t previously arisen in a Bangert setting, it has, underBatsonState v. George Melvin Taylor, 2004 WI App 81, ¶ 23 n. 5, holds that

once a neutral explanation has been offered, “and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion); State v. King, 215 Wis.  2d 295, 303, 572 N.W.2d 530 (Ct. App. 1997). As such, an explicit trial court finding that a prima facie case had been established is not necessary for this court to evaluate the rest of the analysis. King, 215 Wis. 2d at 303.

In other words, the prima facie train already left the station, and the court of appeals had no business trying to board it. But board, commandeer, and return it to the terminal, the court did, and the price of a Bangert ticket to ride has just gone up. (Hoppe loses anyway, on the merits, because the trial court made credibility determinations against him, ¶¶28-24.)

 

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