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Plea withdrawal – adequacy of plea colloquy

State v. Justin L. Garrett, Case No. 12AP1341-CR, District 2, 12/19/12

Court of appeals decision (1 judge; ineligible for publication); case activity

Garrett failed to make a prima facie showing that his plea colloquy was defective, so his motion to withdraw plea was properly denied without an evidentiary hearing:

¶10      Garrett argues that he did not understand the meaning of the specific elements of the charge of fourth-degree sexual assault: sexual contact and consent.  Garrett, however, does not contest that he, with the assistance of his counsel, discussed and completed all of the sections of the plea questionnaire and reviewed the attached jury instructions, which contained specific references to, and definitions of, sexual contact and consent.  The elements section attached to the plea questionnaire was encircled, showing that special emphasis was placed on the elements Garrett claims he did not understand. Garrett expressed no uncertainty at the plea hearing nor questioned the meaning of any of the elements at his plea hearing.

¶11      Garrett argues that the court did not establish that he understood that he had a constitutional right to confront his accuser. Wisconsin law does not require a waiver of each individual right.  Bangert, 131 Wis. 2d at 270.  The circuit court asked specific questions about Garrett’s understanding of his waiver of his right to a jury trial.  Garrett affirmatively answered all of the relevant questions about his constitutional rights.  Garrett placed checkmarks in each box on the plea questionnaire next to each explicit description of each constitutional right that he was waiving, including the right to confront his accuser.  The court confirmed with Garrett’s counsel that Garrett knew the constitutional rights he was giving up and that he understood the meaning of sexual contact and consent.  We conclude that Garrett has failed to establish a prima facie case that his plea was not voluntary, knowing, and intelligent.

Probation – reasonableness of conditions

Probation conditions requiring absolute sobriety and AODA treatment as deemed appropriate by agent upheld; Garrett’s challenge that the conditions were unreasonable, inappropriate, and an erroneous exercise of discretion rejected:

¶14      The circuit court had sufficient grounds to set probation conditions of absolute sobriety and potential alcohol and drug treatment. Garrett had a history of using drugs, as evidenced by his prior conviction for possession of THC and drug paraphernalia, and there were unrefuted allegations that drugs and alcohol were involved in Garrett’s crime.  The court properly took these factors into account when setting Garrett’s probationary conditions.   The probationary conditions imposed by the circuit court were reasonable and appropriate.

Standard of review of probation conditions set forth, ¶13, citing State v. Miller, 175 Wis. 2d 204, 208, 499 N.W.2d 215 (Ct. App. 1993), and State v. Oakley, 2001 WI 103, ¶21, 245 Wis. 2d 447, 629 N.W.2d 200.

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