This decision smells like SCOW bait. Miller pleaded guilty believing that he had the right to appeal the circuit court’s denial of his pre-trial motion to dismiss. Both the court and defense counsel told him so. The State concedes they were wrong. The court of appeals held the error harmless because the motion had no merit. In doing so it bungled case law re plea withdrawal and the “prejudice” prong of an ineffective assistance of counsel claim.
Miller confessed to 1st-degree sexual assault of his child while watching a porn video. The only corroborating evidence was his wife’s statement that she found a porn video in the PlayStation in Miller’s bedroom. Miller’s trial lawyer moved to dismiss the complaint for lack of corroborating evidence and lost. At the plea hearing, the circuit court told Miller that he could appeal that decision even if he pleaded guilty. Long after sentencing, Miller moved to withdraw his plea arguing that but for the court’s misinformation he would not have pleaded guilty. He said that his lawyer provided ineffective assistance in giving him the same bad advice and in failing to raises the “corroboration rule” defense at trial. The circuit court denied the motion without an evidentiary hearing.
As noted, the State concedes that the circuit court misinformed Miller. The court of appeals found the error harmless because the motion to dismiss (which was based on the lack of corroboration) was untimely. Further, had it been timely, it would have failed because the mother’s statement corroborated the confession and because the “corroboration rule,” does not apply to complaints, it “applies to convictions at trial . . .” Slip op. ¶12 (emphasis supplied). Thus, said the court of appeals, “the denial of the motion to dismiss cannot constitute manifest injustice.” Id.
Rejecting the IAC claim, the court of appeals found no prejudice because, again, there was no merit to the to the motion to dismiss. And:
Miller has not alleged sufficient facts to show that his lawyer’s pretrial motion to dismiss prejudiced him. His trial lawyer successfully negotiated a plea bargain resulting in Miller getting a ten-year stayed sentence (five years’ initial confinement, five years’ extended supervision) that put him on eight years’ probation. Therefore, these claimed errors against his trial lawyer do not rise to the level of ineffective assistance of counsel. Slip op. ¶16.
Let’s start with the last error. It is black letter law that when a defendant claims ineffective assistance of counsel in connection with his guilty plea, he must show a reasonable probability that but for counsel’s unprofessional error he would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 59 (1985). The court of appeals got the prejudice test wrong. In fact the quote above shows that it conflated the “deficient performance” and “prejudice” concepts.
Then there’s the matter of State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983), which held that when a defendant pleads guilty while misapprehending his right to appellate review, then “as a matter of law his plea was neither knowing nor voluntary” and he is entitled to withdraw his plea. Id. at 129. The court of appeals distinguishes Riekoff claiming that it applies only when the DA, the defendant, and the court explicitly condition a plea on a defendant’s right to appeal a motion. Slip op. ¶10 n4. That’s not what Reikoff holds, and subsequent Wisconsin cases have recognized and applied its broader rule that a defendant who pleads guilt based on a misunderstanding of his appellate rights may withdraw his guilty plea. See e.g. State v. Maday, 2002 WI App 56, 251 Wis. 2d 482, 640 N.W.2d 565 (unpublished).