Post-Sentencing Plea-Withdrawal, Generally
When a defendant satisfies the burden of showing, by clear and convincing evidence, the existence of a “manifest injustice,” the plea should be withdrawn as a matter of right:
1. ineffective assistance of counsel;
2. the defendant did not personally enter or ratify the plea;
3. the plea was involuntary;
4. the prosecutor failed to fulfill the plea agreement;
5. the defendant did not receive the concessions tentatively or fully concurred in by the court, and the defendant did not reaffirm the plea after being told that the court no longer concurred in the agreement; [or],
6. the court had agreed that the defendant could withdraw the plea if the court deviated from the plea agreement.
2006 WI App 81, ¶20 n.3, 292 Wis. 2d 517, 716 N.W.2d 146 ….
Court’s discussion of well-settled plea-withdrawal procedure, including standard of review on appeal, is straightforward and won’t be repeated in this post (¶¶20-26) – except to remind, as does the court, ¶25 n. 5, that where the plea colloquy was defective, the burden shifts to the State to show that the plea was nonetheless valid. As for this particular case, the court treats Cain’s attack as one alleging absence of personal entry of the plea, as opposed to an unknowing or involuntary plea. That’s not necessarily how Cain himself framed the issue – conc. op., ¶40: “I question the majority’s decision to recast the defendant’s central argument” – but the court has the last word on the point, which is discussed immediately below.
Plea Procedure – Personal Entry of Plea, and Review
Cain pleaded no contest to a charge of manufacturing marijuana (growing plants, really), where the class of felony hinged on the number of plants – no more than four is Class I, more than four Class H. At the plea hearing, he admitted to growing four plants, but he was convicted of a Class H offense; he argues therefore that his plea to the Class H felony shouldn’t have been accepted. This is how his principal brief summarizes his argument: “The Circuit Court Erred When It Accepted Mr. Cain’s No Contest Plea and When It Denied Mr. Cain’s Postconviction Motion to Withdraw His Plea Because Mr. Cain Denied an Essential Element of the Crime to Which He Was Pleading.” The court, as suggested above, characterizes the issue this way: “he is essentially contending that he did not plead at all, in the sense that he did not admit to the manufacture of more than four marijuana plans,” ¶27. Review of this issue covers “the entire record, including the sentencing hearing,” ¶29; although the trial court did err in accepting the plea (because Cain admitted to no more than four plants), ¶30 n. 7, the error was cured by his admission in subsequent proceedings.
¶34 At the plea hearing, Cain stated, inter alia, that he had only four marijuana plants in his workshop. Yet Cain’s attorney stipulated to the facts contained in the criminal complaint, which stated that law enforcement officers found 16 marijuana plants in Cain’s workshop. After so stipulating, Cain’s attorney listened without objection as the State reiterated, at the request of the court, the facts contained in the criminal complaint, including that law enforcement had discovered 16 marijuana plants in Cain’s workshop.
¶35 At the sentencing hearing, Cain, again with his attorney present, was given the opportunity to contest the PSI, which stated that law enforcement had discovered 16 marijuana plants in Cain’s workshop. However, he did not contest the accuracy of the report. In fact, later at the sentencing hearing, Cain’s attorney asked the court to “consider this particular infraction, even with the 16 plants, as on the lower end of this continuum of [C]lass H felonies.” (emphasis added). This statement was not qualified as being merely what the State alleged, but rather constitutes an endorsement of what was recited both in the criminal complaint as well as in the PSI. The record indicates no objection from Cain.
¶36 Finally, we agree with the court of appeals that it is clear that Cain admitted at the sentencing hearing that law enforcement officers found more than four marijuana plants when he referred to “those five plants which got excavated” from his house. Although Cain’s comments are difficult to follow at times, his statement regarding the number of plants is clear and unequivocal.
¶37 Cain’s statements and actions, when viewed in the totality of the circumstances, demonstrate that he personally entered and ratified his plea of no contest. The facts contained in the record indicate that Cain was well aware that he was pleading to the offense of manufacturing more than four marijuana plants, and that he did not maintain that he had four or fewer marijuana plants. Accordingly, we conclude that given the totality of the circumstances, Cain has not met the burden of showing by clear and convincing evidence that allowing the withdrawal of his no contest plea is necessary to correct a manifest injustice.