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Defendant failed to prove her panic attack justified pre-sentencing plea withdrawal

State v. Gabriella Bernabei, 2013AP1734-CR & 2013AP1735-CR, District 4, 2/27/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP1734-CR; 2013AP1735-CR

The trial court properly denied Bernabei’s motion to withdraw her pleas before sentencing because the record supported its conclusion that she had not proven she was suffering a panic attack at the time she entered her pleas.

Bernabei was charged with child neglect and multiple counts of animal mistreatment. (¶¶2-5). After selecting a jury, but before opening statements, Bernabei learned the police were executing a search warrant at her home based on fresh allegations of animal mistreatment. This led to a plea deal under which she pled no contest to child neglect and entered Alford pleas to four animal mistreatment charges. (¶8). During the plea colloquy she expressed some lack of understanding about what was going on, telling the court she felt threatened by the possibility of new charges arising from the search. (¶9). A week later she moved to withdraw her pleas, alleging she was in a state of extreme anxiety and in a “fog” at the time of the plea and that her pleas were induced by pressure from trial counsel.

At the plea withdrawal hearing her lawyer acknowledged he was “extremely forceful” in telling her to plead. Bernabei testified she was confused, frightened, intimidated and threatened, and described having physical symptoms of a panic attack. Bernabei’s therapist also testified. Though she didn’t opine about whether Bernabei was having a panic attack at the time of the plea, she described the symptoms of panic attacks, at least some of which wouldn’t likely have been evident to courtroom observers; explained that a person having a panic attack may appear able to rationally answer questions even if they don’t know what they’re saying; and explained that Bernabei called her in the evening after she entered her pleas and was exhibiting panic attack symptoms. (¶¶13, 25-31, 34-35).

Whether a defendant has shown a fair and just reason is up to the discretion of the circuit court, State v. Jenkins, 2007 WI 96, ¶29, 303 Wis. 2d 157, 736 N.W.2d 24. The circuit court concluded Bernabei didn’t prove she had a panic attack, noting in particular she didn’t exhibit any symptoms during the plea colloquy. The court of appeals affirms, disagreeing with Bernabei’s argument that the circuit court improperly rejected the testimony of Bernabei’s therapist that it might not be evident to observers a person is having a panic attack. The court of appeals says the trial judge’s conclusions were reasonable inferences from Bernabei’s conduct and demeanor at the plea hearing, which weighed in favor of a conclusion she wasn’t having a panic attack, and her testimony at the plea withdrawal hearing, which the trial court didn’t credit. The circuit court could also properly conclude that the fact Bernabei didn’t call her therapist till the evening, and didn’t alert anyone during the plea or immediately thereafter, indicates she wasn’t having the symptoms she claimed. (¶¶25-36).

The mantra that courts should take “a liberal, rather than a rigid, view” of reasons given for pre-sentencing plea withdrawal, e.g.State v. Bollig, 2000 WI 6, ¶29, 232 Wis. 2d 561, 605 N.W.2d 199, seems little more than precatory, pie-in-the-sky language, given that whether a defendant has presented a fair and just reasons is a discretionary determination by the trial court. Even so, the decision here is troubling because it ignores context that seems crucial to the “case-by-case analysis” these claims require, Jenkins, 303 Wis. 2d 157, ¶62.

Though the motion to withdraw (as described in Bernabei’s brief) broadly alleged hasty entry of the pleas, confusion, and pressure from trial counsel, the court of appeals addresses only the panic attack claim, saying that claim and her “desire for a trial” are the only two reasons Bernabei’s counsel cited at the plea withdrawal hearing. (¶¶16, 21). The state didn’t explicitly argue Bernabei’s claims were so narrowed, and it’s impossible from the appellate filings to assess the correctness of that conclusion. But even if it’s accurate, the court’s focus on two trees leads it to miss the forest of compelling contextual support for the panic attack claim. When filled out with information in Bernabei’s briefs that is given scant, if any, attention by the court of appeals, the whole picture is this: Bernabei was disabled due to dysthymia and anxiety diagnoses and was in therapy; she’s at trial when she learns the state is executing a search warrant at her home and may bring new charges–two startling developments each of which independently cause distress; she’s represented by a lawyer the trial court would not let her discharge two days earlier, and who has belittled and even insulted her (as evidenced by language in his pleadings quoted in Bernabei’s brief) and is now “extremely forceful” in telling her to plead; she expresses confusion during the plea hearing; and hours after the plea is still so distressed she calls her therapist and exhibits indicia of a panic attack. If a “liberal” view means anything, this concatenation of stressful events provides ample support for the claim Bernabei suffered a panic attack.

Finally, Bernabei’s claim is supported by two other factors. First, Bernabei asserted her innocence–something that is not necessary, though it bears on the credibility of the fair and just reason being offered. Jenkins, 303 Wis. 2d 157, ¶89. The court of appeals dismisses this consideration because Bernabei said at the plea withdrawal hearing that she wanted a fair trial and her day in court, ignoring the fact that Bernabei entered Alford pleas to the animal mistreatment charges–pleas that are by definition “accompanied by protestations of innocence,” State v. Johnson, 105 Wis. 2d 657, 661, 314 N.W.2d 897 (Ct. App. 1981). Second, Bernabei promptly filed a plea withdrawal motion, a fact the court doesn’t address because it wasn’t a specific reason raised at the plea withdrawal hearing. (¶16). But that’s inconsistent with the case law holding that promptly seeking plea withdrawal is relevant to overall assessment of the claim, e.g.State v. Shanks, 152 Wis. 2d 284, 290, 448 N.W.2d 264 (Ct. App. 1989), and not an independent reason for withdrawal that must be raised below or forfeited.

All in all, an example of how the putatively “liberal” rule governing fair and just reasons for plea withdrawal has devolved into a rigid, parsimonious one.

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