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Plea-Withdrawal – Pre-Sentence – Claimed Lack of Understanding Between No-Contest and Guilty Plea

State v. Jeremy K. Morse, 2005 WI App 223
For Morse: Amelia L. Bizarro

Issue/Holding:

¶10      Here, the record reflects that Morse failed to demonstrate either a statutory or a Bangert violation. The plea hearing addressed all the appropriate issues and contains no statutory violations. The plea was extensive and complete. The fact that Morse now contends that he lied in answering the trial court’s questions during the plea colloquy cannot operate to create an unconstitutional plea. Morse has failed to make a prima facie showing that his plea was not knowing, intelligent or voluntary.

¶11      Moreover, Morse’s claim that the trial court should have explained the difference between a no contest plea and a guilty plea to dispel his misconception that he would receive a lesser sentence for pleading no contest is unpersuasive. Although the trial court did not extensively address the differences, the record does reflect the trial court addressed Morse’s contention. The trial court specifically asked if Morse understood the consequences of pleading no contest—that it would find him guilty and sentence him as though he were guilty. The trial court also asked if Morse understood “that if a person enters a plea of no contest, they are giving up all the same rights and all the same defenses as a person who enters a plea of guilty?” Further, the trial court asked Morse if he understood that it was free to sentence him to the maximum possible prison term. Morse answered all the questions affirmatively. Accordingly, we are not convinced that Morse’s claimed confusion regarding a no contest plea resulted in an unconstitutional plea. Thus, the trial court’s decision denying his request to withdraw his plea was not erroneous.

Couple of potentially nettlesome procedural points. The plea-withdrawal motion was made after grant of resentencing, ¶¶4-5. Undoubtedly, then, the motion should have been treated as a pre-sentencing motion to withdraw plea, State v. Jonathan V. Manke, 230 Wis.2d 421, 602 N.W.2d 139 (Ct. App. 1999) (“Having concluded that the sentence was vacated, we agree with the court’s application of the presentencing standard—a fair and just reason—to Manke’s plea withdrawal motion”). Yet, although the court of appeals doesn’t explicitly discuss the appropriate standard, the caselaw it relies on describes post-plea procedure. The holding is therefore suspect. (Oddly, though, the court does seem to apply the pre-sentencing standard in a separate discussion of a distinct issue, ¶17.) Second, the trial court did conduct a hearing on the motion, ¶5, though the court of appeals doesn’t recite the details – it might be argued that when a hearing has been held, the issue of a prima facie showing required for the hearing simply drops away. But that idea, too, isn’t discussed in the opinion. Whether these procedural problems affected the result simply can’t be known.

 

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