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COA: No Machner hearing on trial counsel’s misstatement of DA’s plea offer

State v. Jonathan A. Ortiz-Rodriguez, 2018AP2401-CR, District 1, 11/26/19, (not recommended for publication); case activity (including briefs)

The State charged the defendant with repeated sexual assault of a child, which carries a 25-year minimum term of initial confinement. Trial counsel told the defendant that the State had offered to recommend 5 to 8 years if he would plead to one count of child sexual assault.  But then at sentencing the State argued for 20 years IC and 20 years ES.

The defendant moved to withdraw his guilty plea based on ineffective assistance of counsel. The trial court did not address counsel’s deficient performance. It denied the motion based on allegedly insufficient allegations of prejudice, and the court of appeals affirmed. Opinion, ¶¶16-17.

So what was the defendant’s allegation? He said that he was ““prejudiced by counsel’s deficient performance because he would not have entered his guilty plea but for counsel’s error.” Opinion, ¶17. He argued that despite Hill v. Lockhart, 474 U.S. 52 (1982) he was not required to assert any “special circumstances” to support this point because the 12 to 15 year difference in initial confinement was so significant that it was obviously his reason for accepting the plea. Opinion, ¶21. The court of appeals held”

¶23 Indeed, under the reasoning presented by Ortiz-Rodriguez, the trial court would essentially always have to grant evidentiary hearings for postconviction motions seeking plea withdrawal based on ineffective assistance of counsel as long as a defendant makes “a mere conclusory allegation of prejudice to obtain a hearing[.]” See Bentley, 201 Wis. 2d at 317. This directly contradicts our supreme court’s holding in Bentley—to which we are bound—which recognized that such allowances would frustrate “the fundamental interest in the finality of guilty pleas[.]” Id.


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