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Court of appeals finds faults in motion to withdraw plea, but not in colloquy

State v. Donald L. White, 2017AP188-CR, 8/23/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

White argued that his plea colloquy was defective because the circuit court did not (1) sufficiently describe the nature of the charge against him, (2) ascertain his education or level of comprehension, especially of the constitutional rights that he was waiving, (3) advise him that he was not bound by the plea agreement and could impose the maximum penalty. He relied primarily on State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716 N.W.2d 906. The court of appeals distinguished White from Brown and affirmed the decision to deny the motion for plea withdrawal without a hearing.

The court of appeals held that the circuit court advised White of the conduct described in the complaint and summarized it along with the elements of the charge and the law that White violated. So it did not understand the claimed error on this point. ¶¶13-14.

The court of appeals also held that even if the plea colloquy were defective, White had to allege that he did not in fact know or understand the missing information. ¶15 (citing Brown¶¶63-65).  He did not have to submit an affidavit but he was required to “(1) state what was not understood and (2) explain how the lack of understanding connects to the defect.” ¶16 (citing Brown ¶67).

White pointed out that Brown granted an evidentiary hearing on a similar claim for plea withdrawal because the “guilty plea record fails to demonstrate that Brown actually understood the elements of any of the crimes to which he pled guilty.” The court of appeals held that Brown’s situation was unique because he was illiterate and no plea questionnaire and waiver of rights form was used. In contrast, White’s plea questionnaire indicated that he had a high school diploma or its equivalent.

¶23 Moreover, despite its holding that an evidentiary hearing was warranted, the Brown court noted its concern about the motion’s lack of directness and explained that, in “the ordinary case,” the defendant should provide more specific allegations as to the lack of understanding, i.e., what was not understood and how the lack of understanding related to a defect.  Brown, 293 Wis. 2d 594, ¶¶62, 67.  White does not point to any particular or extraordinary circumstances— such as those that existed in Brown—as to why he should be exempt from having to allege that he in fact did not understand “some aspect of his plea that is related to a deficiency in the plea colloquy.”  Id., ¶62.

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