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COA affirms denial of plea withdrawal though circuit court applied the wrong standard

State v. Brian Anthony Taylor, 2019AP1770-CR,  District 1, 7/28/20 (not recommended for publication); case activity (including briefs)

What a frustrating decision. Taylor filed a pre-sentencing motion to withdraw his plea for repeated sexual assault of a child, but the circuit court denied it applying the more stringent post-sentencing plea withdrawal standard. “No problem,” says the court of appeals, “we’ll apply the correct standard for you and affirm.”

When a defendant moves for pre-sentencing plea withdrawal he must show by a preponderance of the evidence “a fair and just reason” for his motion. Circuit courts should liberally grant plea withdrawal unless the prosecution has been substantially prejudiced by reliance of the defendant’s plea. State v. Kivioja, 225 Wis. 2d 271, ¶26, 592 N.W.2d 220 (1999).

When a defendant files the motion post-sentencing, he must show, by clear and convincing evidence, that plea withdrawal is necessary to correct “a manifest injustice. ” Id. at ¶32.

When the circuit court applies the wrong legal standard to the defendant’s motion, the appellate court need not reverse if an application of the correct legal standard to the facts of record supports the circuit court’s conclusion.  Id. at ¶35.

In this case, the circuit court held that Taylor failed to show a manifest injustice for pre-sentencing plea withdrawal.  According to the court of appeals, the circuit court simply “misspoke.” Plus Taylor would lose under the “fair and just reason” standard anyway because plea withdrawal would prejudice the State.

The victim was 6 years old when she reported the assaults. The case had been scheduled for trial 6 times over two years. Taylor caused the delay by firing his lawyers. And a case worker had written the court a letter expressing concern about the victim’s ability to recall the facts.  State v. Bollig, 2000 WI 6, ¶46, 232 Wis. 2d 561, 605 N.W.2d 199 denied plea withdrawal based on similar facts. Thus, the court of appeals says the circuit court reached the correct result. Opinion, ¶¶14-17.


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