State v. Lee Roy Cain, 2010AP1599-CR, District 4, 8/11/11, affirmed, 2012 WI 68
If, during a (non-Alford) guilty plea colloquy, the defendant denies the existence of an element of the charged the offense, the court must refuse to accept the plea:
¶28 However, when, as here, a defendant explicitly denies an element at a plea hearing, the trial court “is required” to reject the plea based on that denial and set the case for trial. Johnson v. State, 53 Wis. 2d 787, 790, 193 N.W.2d 659 (1972); see also State v. Garcia, 192 Wis. 2d 845, 867-68, 532 N.W.2d 111 (1995) (Abrahamson, J., concurring) (“[A] circuit court cannot enter a plea of guilty coupled with claims of innocence ‘unless there is a factual basis for the plea and until the judge taking the plea has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence.’”) (emphasis added) (quoting North Carolina v. Alford, 400 U.S. 25, 38 n.10 (1970)). This rule is part of the requirement that a trial court at a plea hearing is “to determine that the conduct which the defendant admits constitutes” a charged offense. Thomas, 232 Wis. 2d 714, ¶17 (emphasis added) (citations, internal quotation marks, and brackets omitted).
¶29 For these reasons, as the State conceded at oral argument on appeal, given Cain’s denial of the plant-quantity element at the plea hearing, if Cain had not admitted the element at sentencing, the conviction for the Class H felony could not stand. It was error to adjudicate Cain and enter a conviction for the Class H felony at the time of the plea hearing and set the case for sentencing, instead of adjourning and setting for trial.
Cain pleaded guilty to a Class H felony manufacturing charge, which required a minimum of 5 marijuana plants else the offense would be a Class I. The trial court explicitly informed him, during the colloquy, of that minimum but Cain equally explicitly acknowledged having had only 4 plants. The trial court ignored this sticking point and, as suggested by the blockquote, the court of appeals in effect construes the admission of 4 plants to be an explicit denial of more than 4 plants (hence an explicit denial of an elemental fact). More importantly, the court holds that the plea simply should not have been accepted under that circumstance. (Also, ¶30: “At issue is the legal significance of Cain’s denial. Johnson controls this particular argument advanced by Cain as a matter of law.”) Cain, as will shortly be seen, wins this battle but loses the war. But if nothing else, the battlespace has now been prepared for you, should you face a similar skirmish, enabling a different outcome. The lesson, in brief, is that there is a limited shelf-life to the invalidity of a non-Alford guilty plea accompanied by a denied element: sentencing defines the expiration date, ¶31 (“if Cain had moved to withdraw his plea at any time during the two months between the plea hearing and the sentencing hearing, the circuit court in its sound discretion should have allowed withdrawal under the ‘fair and just’ standard for pre-sentencing plea withdrawal requests”).
Why stress “non-Alford plea? Because, unlike a straight guilty or no-contest plea, it assumes the defendant’s denial of guilt and therefore, of course, can’t be deemed invalid by the very thing on which it is premised. But this plea can’t be characterized as an Alford plea: the trial court wouldn’t have accepted an Alford plea; and, “circuit courts must take special care before accepting an Alford plea to make sure that a defendant is well informed as to the meaning of this unusual variety of plea [but] Cain’s denial of an element of the offense was essentially ignored,” ¶28 n. 10. The first concern is specific to the case, but the second has general applicability.
There is still more to this fairly remarkable case. The difference between the classes of felony at issue are, as noted, the number of plants grown by the defendant. The matter denied by the defendant, in other words, related to the degree of guilt, not absolute innocence. The State thus argues that the number of plants isn’t an offense element, but is more in the nature of aggravation of penalty, ¶26 n. 9. The court rejects the argument, saying in so many words that the precise label doesn’t matter, what is important is that Cain would have had the right to jury determination, by proof beyond reasonable doubt, of the number of plants, id. The court thus says that this factual matter will be treated as an “element” for purposes of this appeal. As Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) puts it, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” and the court here touches on the problem, ¶¶19, 26, without needing deeper analysis, given its decision to treat the number of plants as an element anyway. It’s as simple – or complex – a problem as you want to make it, but the existence of 5 vs. 4 plants very clearly seems to fall within the Apprendi rule.
¶23 However, Cain makes an error of law in asserting that his admission at the sentencing hearing is “irrelevant” to the question of whether the plea accepted by the court represents a manifest injustice. In addressing an argument on appeal that a conviction resulted from a plea that represents a manifest injustice, we “may consider the whole record since the issue is no longer whether the guilty plea should have been accepted, but rather whether there was an abuse of discretion in the trial court’s denial of the motion to withdraw.” White v. State, 85 Wis. 2d 485, 491, 271 N.W.2d 97 (1978) (emphasis added). Thus, we rely on the entire record in evaluating whether Cain has shown by clear and convincing evidence that the court’s error in accepting the plea produced a manifest injustice, a record that includes Cain’s admission at sentencing. As discussed below, under the unusual facts of this case, the record of the sentencing directly undermines Cain’s manifest injustice argument.
Cain unquestionably knew that manufacturing 4 plants couldn’t be a Class H felony and that he had a right to jury determination beyond reasonable doubt of all elements; his “well-informed intent at the time of sentencing to proceed with a plea to the Class H felony, admitting the larger number of plants, was clear to all,” ¶¶34-36. Moreover, his explicit admission at sentencing to having had 5 plants effectively retracted his prior denial of the existence of that element.
¶42 Neither Johnson, nor any other authority cited by Cain, stands for the proposition that it would be a manifest injustice to deny a motion for plea withdrawal because a defendant denied an element at a plea hearing under the unusual circumstances presented here: a full colloquy at the plea hearing and then a subsequent, direct admission to the elemental fact before the court pronounces sentence. This was an explicit ratification of the plea. Ultimately, Cain makes no arguments that approach the manifest injustice standard on this record. Therefore, we agree with the trial court’s conclusion that Cain did not prove by clear and convincing evidence that withdrawal of the no contest plea is necessary to correct a manifest injustice.