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SCOW: Courts taking guilty pleas needn’t cover each constitutional right being waived

State v. Javien Cajujuan Pegeese, 2019 WI 60, 5/31/19, review of an unpublished court of appeals decision; case activity (including briefs)

Pegeese pleaded guilty to a robbery and received probation. He later sought plea withdrawal, asserting the circuit court’s colloquy had been deficient because it didn’t inform him of the constitutional rights he was waiving, and further alleging that he actually did not understand those rights–that is, he asserted a Bangert-type plea-withdrawal claim. The supreme court now holds the colloquy not deficient, because the court referred to the plea questionnaire form on which the rights were listed, asked Pegeese’s attorney whether he believed Pegeese understood the questionnaire, and asked Pegeese himself whether he understood “the Constitutional Rights you give up when you enter a plea” and confirmed that Pegeese had no questions about those rights.

The majority opinion breaks no new ground. In essence, it finds the facts here more like those in State v. Moederndorfer, 141 Wis. 2d 823, 416 N.W.2d 627 (Ct. App. 1987), than those in State v. Hansen, 168 Wis. 2d 749, 485 N.W.2d 74 (Ct. App. 1992). Just how much colloquy is enough, constitutionally, continues to be a guessing game.

The court could have done away with that problem, as Pegeese asked it to, by using its superintending authority to simply impose a requirement that trial courts inform each defendant of each constitutional right. The court declines to do so, though the two concurring justices would have. This result puts Wisconsin in a distinct minority of jurisdictions: as Pegeese noted, forty-two states plus the federal system have a statute, rule, or court decision requiring a judge to advise the defendant of each constitutional right; only seven (with Wisconsin now being the eighth) do not.

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