State v. Andrae D. Howell, 2006 WI App 182, PFR filed 9/25/06 (reconsideration of previously issued but subsequently withdrawn opinion)
For Howell: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding1: A conclusory allegation suffices to obtain a hearing on a Bangert claim (involving a defect in the plea colloquy), ¶14; however, more is required for a non-Bangert claim, ¶¶21-29. Nor is there, for pleading purposes, a third category involving a colloquy that doesn’t amount to a Bangert defect but nonetheless could have contributed to the defendant’s asserted misunderstanding, ¶¶30-33.Much potential for mischief in this seemingly innocuous passage:
¶20 Although courts often speak in terms of Bangert motions andNelson/Bentley motions, the two are not mutually exclusive. A defendant may, in the same physical motion, request a plea withdrawal hearing based on an alleged Bangert violation and, in the alternative, assert that a hearing must be held because the motion contains allegations that are sufficient under theNelson/Bentley test. When motions contain these alternatives, they must be assessed, respectively, under Bangert and under Nelson/Bentley. Moving parties would be wise to be clear about which argument is being made, or that both are being made. 
 We note that non- Bangert plea withdrawal motions come in several stripes. Indeed, Nelson and Bentley themselves differ in that Bentley involves the additional complexity of an allegation of ineffective assistance of counsel.Bentley, 201 Wis. 2d at 306-07. Moreover, plea withdrawal motions are but one type of motion assessed under the Nelson/ Bentley standard. The Nelson/Bentley test is used in its pure form, or in a slightly modified form, in a variety of situations to determine whether an evidentiary hearing is required.See, e.g., State v. Samuel, 2002 WI 34, ¶¶8, 33-35, 47, 252 Wis. 2d 26, 643 N.W.2d 423 (need for pretrial suppression hearing); State v. Velez, 224 Wis. 2d 1, 4, 13-14, 589 N.W.2d 9 (1999) (allegation that State deliberately delayed charging defendant to avoid juvenile court jurisdiction); State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 611, 618-19, 571 N.W.2d 385 (1997) (need for John Doe proceeding); State v. Reynolds, 2005 WI App 222, ¶¶1, 7-8, 15, 287 Wis. 2d 653, 705 N.W.2d 900 (allegation that counsel rendered ineffective assistance at trial); State v. Pharm, 2000 WI App 167, ¶¶1, 8, 27, 238 Wis. 2d 97, 617 N.W.2d 163 (allegation that counsel rendered ineffective assistance during post-commitment Wis. Stat. ch. 980 trial).
Note that the only thing before the court is plea-withdrawal, yet lumped into that footnote are a variety of issues, most problematically the unembellished “need for pretrial suppression hearing,” citing Samuel. Don’t count on this glancing reference earning nothing more than the obscurity it richly deserves. Howell may not require an affidavit in support of a motion but that is a matter of mere form; it imposes a stiff pleading burden as a prerequisite to an evidentiary hearing – and if that burden is imported across the board into “pretrial suppression hearings” then a staple of motion practice is going to be significantly altered, and not for the better. Without making too fine a point of it: the cases string cited in the footnote deal with issues on which the defendant bears a burden of proof, and that ought to be a distinction with a difference. (See, e.g, Samuel, ¶35.) On warrantless searches and seizures (and Miranda-Goodchild issues), the State bears the burden of proof, and it therefore makes sense to say that the defendant ought not have a burden to plead facts that the other side must end up (dis)proving.Issue2: Whether Howell’s pleading required an evidentiary hearing on plea withdrawal, where his claim raised a non- Bangert issue, that is, one alleging that he didn’t fully understand the (party-to-a-crime) nature of the offense but not one which relied on any defect in the plea colloquy; where, more particularly, he alleged that for various reasons he did not understand that his mere presence and failure to stop a shooting would not have supported guilt.Holding2: Howell’s assertion that he mistakenly believed he could be found guilty under a mere bystander theory is “a conclusory allegation. It provides no facts explaining why Howell might have misunderstood,” ¶38. Moreover, the guilty plea colloquy indicates that Howell knew the direct actor had a gun, something “completely consistent with Howell’s guilt as an aider and abettor,” ¶39; and, a thrust of the plea proceeding “indicated that Howell’s participation was in fact active”—nor “did anyone say that mere presence constituted assistance for purposes of party-to-a-crime liability,” ¶40. Finally, even though Howell referred to trial counsel’s extrajudicial explanation of ptac liability, this too is conclusory, ¶¶43-44.A somewhat heated exchange between majority (¶46) and dissent (¶¶47-64) makes for interesting reading, with this perhaps the most salient point:
¶57 Common sense tells us that the supreme court was correct. It is difficult to the point of impossibility to explain why one misunderstood something. Was there room noise? Did the perceiver have a problem with the meaning of a word? A sentence? Was the defendant’s attorney rustling papers? Is a person’s vocabulary limited in some respect? We know that some people are more intelligent than others. There are a myriad of reasons why people do not understand each other. No one always remembers why he or she did not understand something. Many people do not know why they do not know what they do not know. For example, appellate judges have been known to say to each other that they do not understand something a colleague believes he or she has explained. Explaining why one does not understand is often difficult if he or she does not understand in the first place.
Indeed, it is hard to imagine how someone can demonstrate he or she didn’t know something. Howell asserted he didn’t understand ptac liability—absent counsel affirmatively (mis-)advising him that being a mere bystander amounted to guilt rather than a defense, just what was he supposed to assert to take it out of the realm of the conclusory? The majority doesn’t say.Issue/Holding3: ¶45, n. 14:
Although we decide this case in favor of the State on other grounds, we briefly comment on the State’s argument that Howell’s motion was not accompanied by an affidavit from Howell, but only his counsel’s affidavit containing hearsay assertions about what Howell claimed to be true. According to the State, there is a general rule that hearsay recitations in an affidavit are insufficient to trigger an evidentiary hearing and we should apply that general rule here. In support, the State cites State v. Lass, 194 Wis. 2d 591, 535 N.W.2d 904 (Ct. App. 1995), and State v. Bruckner, 151 Wis. 2d 833, 447 N.W.2d 376 (Ct. App. 1989). However, these cases provide no support for such a requirement. In Lass, we did not address whether the circuit court wrongly denied the defendant an evidentiary hearing. Rather, we concluded that an affidavit containing hearsay was insufficient to support a request for disclosure of the identity of a confidential informer. Lass, 194 Wis. 2d at 599-600. In Bruckner, we did address the denial of an evidentiary hearing, but did not purport to set forth any general rule. Rather, in dictum in a footnote we addressed the prerequisites for holding a Franks hearing, not hearings generally. Bruckner, 151 Wis. 2d at 864-65 n.15. Furthermore, even in the Franks context, the footnote does not say that an affidavit based on personal knowledge is generally required. See id. Finally, we note that inState v. Brown, 2006 WI 100, __ Wis. 2d __, 716 N.W.2d 906, the supreme court stated: “A defendant is not required to submit a sworn affidavit to the court, but he is required to plead in his motion that he did not know or understand some aspect of his plea that is related to a deficiency in the plea colloquy.” Id., ¶62.