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Plea Withdrawal – Nelson/Bentley Motion

State v. Timothy Ray Anderson, 2009AP2416-CR, District 1, 8/17/10

court of appeals decision (3-judge, not recommended for publication); for Anderson: Jeremy C. Perri; BiC; Resp.; Reply

Anderson’s postconviction motion for plea withdrawal, on the ground he didn’t understand that a charge “dismissed outright” could nonetheless be considered at sentencing, was properly denied without hearing. The circuit expressly denied that the dismissed charge was factored into the sentence, and Anderson therefore is unable to show manifest injustice, and “the record conclusively establishes that Anderson is not entitled to relief, ¶¶17-22.

In effect, the dismissed charge wasn’t held against him, so he received the benefit of the plea bargain and can’t be heard to complain now about that very bargain, State v. Denk, 2008 WI 130, controlling; contrary authority distinguished on the ground that in those instances the bargain-for consequence was “a legal impossibility.”

An agreement to “dismiss outright” a pending charge puts the defendant squarely in a minefield, because the ramifications are simply not clear. The court alludes in this regard (¶17 n.5) to State v. Wesley, 2009 WI App 118, ¶20, which says: “Because we are unconvinced by both parties’ arguments regarding the definite meaning of the term ‘dismissed outright,’ and because we are satisfied that the agreement is hopelessly ambiguous to us, we must next determine whether the term was nonetheless unambiguous in Wesley’s mind at the time he pled, such that he did not knowingly and intelligently understand the consequences of his plea.” The court doesn’t have to wade into this thicket, given its conclusion that Anderson received the benefit of the “dismissed outright” term as he understood it.

Machner Hearing – Plea-Withdrawal

Anderson plea-bargained dismissal of a count of armed robbery and pleaded guilty to taking a car without owner’s consent: his postconviction motion for plea-withdrawal on the ground that counsel didn’t inform him that the State could argue at sentencing the allegation underlying the armed robbery charge was properly denied without hearing as conclusory.

¶25 Anderson has offered only the bald assertion that he would have gone to trial if he had known the facts concerning the alleged armed robbery would be considered at sentencing. He offers no explanation why he would risk going to trial on two counts, including one that carried a maximum penalty of “a fine not to exceed $100,000 or imprisonment not to exceed 40 years, or both,” see Wis. Stat. § 939.50(3)(c) (2005-06), rather than face a maximum penalty of “a fine not to exceed $10,000 or imprisonment not to exceed 6 years, or both,” see § 939.50(3)(h), where the trial court might consider the facts related to the dismissed charge at sentencing. Anderson’s assertion that he would have gone to trial is especially puzzling because he had already admitted to police that he drove the woman’s car without her consent, so he could not have realistically hoped for acquittal on that count. Thus, Anderson, a man with an extensive criminal history, would have subjected himself to conviction for a Class H felony, and possible conviction for a Class C felony, simply to avoid having a dismissed charge mentioned at sentencing for the lesser crime. Anderson’s postconviction motion makes no attempt to explain his reasoning.

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