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State v. Julius C. Burton, 2011AP450-CR, WSC review granted 9/27/12

on review of unpublished decision; case activity

Issues (composed by on Point) 

1. Whether Burton is entitled to a Machner hearing on his postconviction motion asserting that counsel was ineffective for failing to advise that Burton could pursue a bifurcated (NGI) plea along with his guilty plea, and have a jury determine whether he was not responsible by reason of mental disease or defect.

2. Whether the plea colloquy was defective because the trial court failed to advise that Burton could plead guilty and still have a jury determine the issue of sanity.

Petitions for review aren’t posted, so issue-formulation requires a bit of guesswork. The recitation above is taken from Burton’s brief in the court of appeals; whether he has renewed both issues, or recast one or both in some way, remains to be seen. With that caveat in mind …

Burton, charged with shooting police officers, entered an NGI plea which got mixed forensic support (one expert supported the plea, another did not). The parties worked out a plea agreement, and in the process of accepting the plea, the trial “engaged (Burton) in a colloquy, discussing in particular the fact that Burton would no longer be pursuing an NGI plea,” slip op., ¶4. Burton later filed a postconviction motion, asserting denial of effective assistance grounded in counsel’s failure to advise that Burton could continue to pursue his NGI plea. The court of appeals characterized, and dispatched, the issue this way:

¶11      Burton’s ineffective-assistance claim is that trial counsel was ineffective for not advising him of the availability of the bifurcated plea and trial.  As relevant to that claim, Burton alleged only that “there is nothing in the record to indicate that defense counsel had ever advised the defendant of the possibility of entering such a bifurcated plea” and that “if he had been advised that he could have had the jury consider that affirmative defense even if he had pled guilty to having committed the crimes charged, there is a reasonable probability that he would not have pled guilty to the crimes.”  These allegations are not sufficient.

In other words, this appears to be a Machner-pleading type of review (assuming, again, that this issue is renewed in the supreme court). Burton didn’t, the court of appeals held, sufficiently plead deficient performance, because it’s simply not enough to say the “the record fails to show” counsel’s advice. Slip op., ¶12 (“Indeed, expecting the record to do so would seem to undermine the very nature of an attorney-client relationship.”). Nor did the motion adequately put IAC-prejudice at issue, ¶14 (“That is, he does not allege how the availability of bifurcation would have persuaded him to do something other than accept the State’s offer.”).

The other potential issue has to do with the plea colloquy with respect to an NGI defense, handled this way by the court of appeals:

¶18      “Courts engage in personal colloquies in order to protect defendants against violations of their fundamental constitutional rights. Neither the federal constitution nor our state constitution confers a right to an insanity defense or plea.”  State v. Francis, 2005 WI App 161, ¶1, 285 Wis. 2d 451, 701 N.W.2d 632.  The circuit court also “had no obligation to personally address [Burton] with respect to the withdrawal of [his] NGI plea.”  See id.  Thus, the circuit court correctly found that the circuit court was not obligated to advise Burton of the availability of bifurcation, and it properly denied relief.

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