The plea colloquy was deficient with respect to Lopez’s understanding of the rights waived by his no contest plea, therefore in response to his postconviction motion to withdraw plea the trial court held a hearing at which the State bore the burden of proving his understanding. The trial court found that Lopez in fact understood his rights, and the court of appeals affirms.
¶11 Upon review of the record, we agree with the trial court that the State has met its burden. Despite the inadequacy of the plea colloquy, the record shows that Lopez fully understood the constitutional rights he waived. First, the record shows that the trial court did list Lopez’s constitutional rights at the initial appearance, and Lopez affirmatively acknowledged that he understood them at that time. Subsequently, Lopez again acknowledged his understanding of the contents of his plea questionnaire by checking the boxes himself and signing it. He affirmed it once more at the plea hearing by acknowledging that he had signed the form and understood its contents.
¶12 Finally, we agree with the State’s underscoring of Lopez’s extensive criminal history as a significant factor showing his knowing and voluntary waiver of rights. It is quite apparent that Lopez was familiar with the court system, despite his education level. While his criminal history is not dispositive, it is appropriate to infer some understanding based on his prior experience. When combined, Lopez’s multiple affirmations that he understood his rights, his extensive criminal history, and the fact that he ultimately signed the plea questionnaire and pled guilty lead us to believe that his plea was knowing, intelligent, and voluntary.
The plea colloquy was indisputably deficient: the trial court made no effort to “explain or list Lopez’s constitutional rights at the plea hearing,” ¶3, and the court of appeals therefore expressly agreed “that the plea colloquy was deficient,” ¶10. This is a defect that shifted the burden of proof to the State to show that Lopez in fact knew the nature of the rights being waived. State v. Hansen, 168 Wis. 2d 749, 756, 485 N.W.2d 74 (Ct. App. 1992) (“The plea hearing colloquy in this case establishes only that Hansen had read and understood the form; it does not establish that Hansen understood that by entering his no contest plea he was waiving his applicable constitutional rights.”). Defense counsel testified, but “could not remember his specific interactions with Lopez,” ¶4. And counsel’s “custom and practice”? Well, sometimes he goes over the constitutional rights, sometimes he doesn’t, id. So you’ve got a defective plea colloquy and extrinsic evidence that amounts to a cipher. What’s a court to do? Leaven the defective record with “Lopez’s extensive criminal history,” and voila!, it is enough to “lead us to believe that his plea was knowing, intelligent, and voluntary,” ¶12. It’s a bit half-baked. Note that the court of appeals does not rely on trial counsel’s testimony, though that’s what the trial court hung its hat on. No wonder: counsel literally had nothing to add. The burden was on the State, so its failure to wring anything productive out of counsel – the only extra-record evidence, by the way – redounded to Lopez’s advantage. Or should have. Instead, the court of appeals takes a tour d’horizon of the record and ascertains that Lopez acknowledged an understanding of his rights at the initial appearance, ¶11. That, seemingly, was the crucial detail, because although the court otherwise relies on the plea hearing, id., that hearing was undeniably defective, and therefore cannot establish Lopez’s understanding of his rights. But given the court’s duty to scrutinize the record as a whole, an express and affirmative demonstration of knowledge at the initial appearance could certainly carry the day. (Not mentioned by the court but indicated by CCAP: the initial appearance occurred a mere 6 weeks before the plea.) Odd, though, that a commissioner setting bail would be more assiduous than a judge taking the plea with respect to the rights at stake.