Coram Nobis: “Very Limited Scope”

Chintan V. Patel v. State of Wisconsin, 2012 WI App 117 (recommended for publication); case activity

¶12      In this appeal, we are asked to determine whether the trial court erred in denying Patel’s writ of coram nobis.  The writ of coram nobis is a discretionary writ of “very limited scope” that is “addressed to the trial court.”  Jessen v. State, 95 Wis. 2d 207, 213, 290 N.W.2d 685 (1980).  …

¶13      “A person seeking a writ of coram nobis must pass over two hurdles.”  State v. Heimermann, 205 Wis. 2d 376, 384, 556 N.W.2d 576 (Ct. App. 1996).  First, the individual must establish that no other remedy is available. …  See Heimermann, 205 Wis. 2d at 376.  []Second, … “there must be shown the existence of an error of fact which was unknown at the time of [the plea] and which is of such a nature that knowledge of its existence at the time … would have prevented the entry of judgment.”  See Jessen, 95 Wis. 2d at 214.  The writ does not “correct errors of law and of fact appearing on the record since such errors are traditionally corrected by appeals and writs of error.”  Id. 

¶14      Patel urges us to view the scope of the writ of coram nobis more expansively.  He cites Ernst, supra; United States v. Morgan, 346 U.S. 502 (1954); and Skok v. State, 760 A.2d 647 (Md. 2000), for the proposition that the writ may in fact apply to legal errors of fundamental and constitutional dimension, particularly when there are “serious collateral consequences.”  See Skok, 760 A.2d at 660-61 ….

¶15      While Patel correctly points out that several states have adopted this broadened view, see, e.g., id. at 658-59 (collecting cases following the broadened scope of the writ of coram nobis), the standard articulated by Jessen and Heimermann leads us to conclude that Wisconsin has not done so.

¶16      ….  Furthermore, … Wisconsin courts have repeatedly reiterated the rule that the writ does not “correct errors of law and of fact appearing on the record,” see, e.g., Jessen, 95 Wis. 2d at 214; Heimermann, 205 Wis. 2d at 381-84 (discussing history of writ of coram nobis and citing cases that explain writ’s current scope).

Patel was no longer in custody when he filed this writ, challenging his guilty plea, ¶9. It is settled that § 974.06 does not support a postconviction motion for an out-of-custody defendant, therefore Patel satisfies the first requirement for his writ, “that no other remedy is available.” This litigation turns on the second requirement, an error of fact that, had it been known, would have prevented entry of judgment. Patel argues that his ignorance of an element of the offense and his need for an interpreter satisfy this requirement. The court rejects these claims:

¶23      The alleged defect in the plea colloquy is undoubtedly an error appearing on the record. …  The parties do not dispute that the plea colloquy did not include the definition of sexual contact. … While Patel tries to describe the error as unknown, the fact of the matter is that this error was easily discernible from a review of the record, which would have been available to Patel almost immediately after he pled guilty.  This is the type of error to be corrected by appeal.  Consequently, the trial court’s decision to deny Patel’s writ of coram nobis was proper. …

¶24      Additionally, the alleged defect would not have prevented the entry of the judgment.  As the State aptly points out, if the trial court had been told during—or even shortly after—the plea colloquy that the sexual arousal/humiliation element of “sexual contact” had been omitted from the colloquy and plea questionnaire, the court could have corrected the error immediately. …

¶25      Turning next to Patel’s contention that he required an interpreter, we conclude that the trial court properly denied the writ regarding this alleged error because:  (1) it is a legal issue; and (2) it is an error appearing on the record.  See Jessen, 95 Wis. 2d at 214.

¶26      “Whether the trial court erred in not conducting an inquiry before trial to determine if an interpreter was necessary … is a question of law.”  See State v. Yang, 201 Wis. 2d 725, 731, 549 N.W.2d 769 (Ct. App. 1996).[5]  Thus, the writ of coram nobis does not apply here.  See Jessen, 95 Wis. 2d at 214.

¶27      Moreover, the alleged errors Patel points to regarding his alleged need for an interpreter are necessarily errors “of fact appearing on the record.”  See id. … One glaring problem with Patel’s argument, however, is that by arguing that the trial court should have been aware of the alleged need for an interpreter at the time of the plea hearing, he necessarily describes the error as one that would have appeared on the record. …

UPDATE. Federal coram nobis litigant may have greater – which is to say, some – hope for success: U.S. v. Akinsade, 4th Cir 09-7554, 7/25/12 (guilty plea induced by counsel’s bad advice that wouldn’t subject defendant to deportation; court holds that petition for writ of error coram nobis pursuant to 28 U.S.C. § 1651 supported IAC-based challenge to plea).