Henry sought to withdraw his guilty pleas to three crimes. He claimed that with respect to one of the crimes, he didn’t “ratify” his guilty plea, he didn’t understand one of the elements of the crime, and there wasn’t a factual basis for the plea to the crime. The court of appeals rejects his claims.
Henry’s arguments involve his plea to felony intimidation of a witness. The charge was based on Henry’s phone call to a third party (recorded by the jail’s phone system) during which he asked the third party to tell two witnesses that the case will be dismissed if they don’t show up in court; during the call the third party switched to speakerphone, and relayed Henry’s request to one of the witnesses, who happens to be with the third party. (¶6). During the plea colloquy Henry said “no” when the judge asked him if he made the call with the purpose of attempting to dissuade the witness from testifying (the so-called “malicious intent” element). (¶19). Based on that “no” answer, he claims he didn’t “ratify” his plea, see State v. Cain, 2012 WI 68, ¶28, 342 Wis. 2d 1, 816 N.W.2d 177, and didn’t understand that element of the offense.
Not so, says the court of appeals. In reviewing the validity of a plea, the court reviews then entire record, not just the answer to one question. The entire record—including Henry’s answers to further questions from the circuit court (¶24); the pattern jury instruction attached to the plea questionnaire (¶22); and Henry’s acceptance of responsibility at the sentencing hearing which followed immediately after his plea (¶26)—show he was entering his plea to the intimidation charge with knowledge and understanding of the malicious intent element. (¶¶14-26).
Henry also challenges the factual basis for the intimidation charge, and in particular the malicious intent element. Once again, the entire record shows sufficient factual basis:
¶28 …. Henry never disputed any of the words of his calls from the jail, and they were clearly designed to tell T.T. not to appear and testify. The timing and context support a reasonable inference that that was also Henry’s intent. He was in court until 3:30 p.m. on August 1, 2016, and was aware that T.T. and N.M. had appeared, the jury had been selected and sworn and that the trial testimony was to start the next morning. Henry made no objection when the State told the court at sentencing that Henry called the third party, D.H., at 5:21 p.m. the day the jury was sworn— shortly after returning from court—participated in a call to T.T., and directed D.H. to tell T.T. that if she did not come to court the following day, the case would be dismissed. These undisputed facts support the trial court’s reasonable inference that in doing so, Henry intended to dissuade T.T. from appearing in court the next day so that his case would be dismissed. That was sufficient for the factual basis.