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Circuit court must hold hearing on allegation that defendant wasn’t advised about domestic abuse modifier

State v. Martin F. Kennedy, 2015AP475-CR, District 1, 9/29/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court erred in denying Kennedy’s plea withdrawal motion without a hearing, as the record of the plea shows he wasn’t advised about the domestic abuse modifier at the time of his plea and Kennedy alleged his trial lawyer was ineffective for failing to advise him of the modifier.

Kennedy was charged with battery with the domestic abuse modifier, § 968.075(1)(a), but pled to an amended charge of disorderly conduct. While the judgment of conviction shows the amended charge also included the modifier and that the § 973.055 assessment was applied, there was no mention at the plea hearing of the fact that it was being amended to a DC with a domestic abuse modifier instead of a simple disorderly conduct. Kennedy moved to withdraw his plea, alleging he didn’t know the modifier still applied and that his lawyer failed to tell him that it would. (¶¶3-6).

The circuit court denied the motion without a hearing, saying Kennedy had notice of the modifier because it was attached to the original battery charge and, in any event, defense counsel had no duty to advise him the modifier still applied. Not so, says the court of appeals:

¶8     On the strength of this record, Kennedy would not have known that he was pleading guilty to disorderly conduct (domestic abuse assessment) and not a simple charge of disorderly conduct. He did not plead to the original charge of battery so he may have believed that the references to domestic abuse no longer applied, particularly since the offending conduct was amended from “striking” to “pushing.” Thus, the advisals given by the complaint and the court commissioner that he was being charged with battery (domestic abuse assessment) do not suffice to establish his knowledge of the charge. As to the fact that Kennedy was advised he could not own a firearm, he may have believed that this was part of the penalty for disorderly conduct. There was no mention of the fact that the firearm prohibition was a result of a domestic abuse conviction. Consequently, unless Kennedy was given notice of the fact he was pleading guilty to disorderly conduct (domestic abuse assessment) in some other fashion, he is entitled to withdraw his plea.

And, contrary to the circuit court’s holding, Kennedy’s lawyer should have told him the modifier still applied because “Kennedy was entitled to know the crime to which he was pleading guilty.” (¶11, relying on SCR 20:1.4). Kennedy alleges his lawyer didn’t tell him about the modifier; whether that’s the case has to be determined at the Machner hearing the circuit court is ordered to hold on remand. (¶12).

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  • Peter Heyne September 30, 2015, 5:40 am

    ” ¶ 11 Kennedy asserts that he would not have pled guilty if he knew the charge contained a domestic abuse modifier. Kennedy was entitled to know the crime to which he was pleading guilty.” This would seem to suggest that the domestic abuse modifier adds elements to the crime. Unfortunately the opinion does not get into any kind of Sixth Amendment Apprendi analysis. I have been arguing for years that the $100 surcharge is punishment beyond the statutory maximum fine for the base of offense, requiring 2 facts other than the fact of a prior conviction (1. Domestic relationship 2. Abusive conduct), therefore Apprendi applies. It’s not just that the judge has to make those findings of fact at sentencing which it’s not clear that the judge in this case even did. These can be put to a jury. We will have to see what the courts do in the future on this issue but it’s good to see some momentum.

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