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Plea Withdrawal

State v. Adam W. Gilmour, 2011AP878-CR, District 2, 6/20/12

court of appeals decision (not recommended for publication); case activity

The trial court’s rejection, as lacking credibility, Gilmour’s claim that his acceptance of a deferred prosecution agreement was coerced by financial considerations (in that he had been unable to afford the costs associated with jury trial) is affirmed:

¶10      On review, we note that while Gilmour testified that he decided to take the DPA because he could not afford the trial retainer, he did not present any evidence in support of his claim.  Gilmour did not testify as to his income, financial status, or ability to borrow or raise funds at the time of the plea negotiations.  Bellin testified that while Gilmour was concerned with the cost of a trial, he was also concerned about the effect of a trial on him, the victim’s family, and Gilmour’s own family and friends.  Clearly, the circuit court rejected Gilmour’s testimony in support of his claim of financial coercion.  See State v. Canedy, 161 Wis. 2d 565, 585-86, 469 N.W.2d 163 (1991) (this court will not disturb a circuit court’s exercise of discretion where the defendant’s testimony is the only support for plea withdrawal and the circuit court disbelieves that testimony).

¶11      As noted above, the circuit court is in the best position to evaluate witness credibility and, accordingly, we defer to the circuit court’s credibility determinations.  See Wis. Stat. § 805.17(2) (2009-10) (due regard shall be given to the opportunity of the circuit court to judge the credibility of the witnesses).  Here, the only evidence supporting Gilmour’s claim was his testimony, which the circuit court found incredible.  Given that Gilmour otherwise failed to establish he was coerced into pleading no contest due to the cost of going to trial, weconclude that the circuit court appropriately exercised its discretion in denying Gilmour’s motion for plea withdrawal.

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