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Defense Win! Circuit court’s failure to “personally ascertain” factual basis for pleas entitles defendant to Bangert hearing

State v. Megan E. Zeien, 2023AP1787-CR, 4/24/24, District II (one-judge decision, ineligible for publication); case activity

If you’ve ever wondered whether you have a Bangert claim concerning a circuit court’s failure to “ascertain personally whether a factual basis exists to support [your client’s] plea,” this unpublished but citable decision is worth a read. Unfortunately, the decision is a bit unclear about how exactly the state may seek to establish that Zeien’s pleas were knowing, intelligent, and voluntary at an evidentiary hearing. See Op., ¶¶19, 22.

After sentencing, Zeien filed a postconviction motion seeking to withdraw her pleas to misdemeanor battery and disorderly conduct, both with a dangerous weapon. The circuit court denied her Bangert claim without an evidentiary hearing. On appeal, the court asks two questions: (1) did Zeien make a prima facie showing that the circuit court failed to comply with Wis. Stat. § 971.08 “or other procedures mandated at a plea hearing;” and (2) whether Zeien alleged that she did not “know or understand the information that should have been provided at the plea hearing.” Op., ¶14.

With regard to the first part of Zeien’s claim, the court reviews the plea hearing transcript and concludes that Zeien made a prima facie case because the circuit court did not fully comply with § 971.08 and Bangert “because it failed to address whether there was a factual basis to support Zeien’s pleas.” The court sets forth the applicable law related to the “factual basis” requirement:

The factual basis requirement ‘protect[s] a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.’” State v. Thomas, 2000 WI 13, ¶14, 232 Wis. 2d 714, 605 N.W.2d 836 (alteration in original). Although a defendant does not need to personally admit to the facts alleged, the court must— on the record—establish that a factual basis exists before accepting the plea. Id., ¶¶20-21. This can be accomplished in a number of ways: “A factual basis may … be established through witnesses’ testimony, or a prosecutor reading police reports or statements of evidence.” Id., ¶21. It can also be “established when counsel stipulate[s] on the record to facts in the criminal complaint.” Id.

Op., ¶18.

With regard to the second element of Zeien’s claim, the court notes that aside from the circuit court’s deficient plea colloquy, “Zeien asserted that she told the presentence investigation agent that the criminal complaint [was] a “tale of lies” and said that [b]ecause the [circuit] court did not personally question [her] regarding the facts that led to her plea, the court could not personally ascertain whether there was a factual basis to accept [her] plea.” Op., ¶19 (cleaned up).

The state’s attempts to point to the standard plea waiver form fails because “the law nevertheless requires thtat the circuit court personally ascertain a factual basis for the plea on the Record,” and reliance on the plea form alone “fails to satisfy this requirement. Op., ¶20. Further, the court’s recitation of the charges at the plea hearing failed to confirm  Zeien “engaged in the actual conduct itself for purposes of satisfying the factual basis requirement.” Op., ¶21.

At the typical Bangert hearing, the burden shifts to the state to prove, by clear and convincing evidence, that the defendant’s plea was knowing, intelligent, and voluntary despite the identified inadequacy of the plea colloquy. The state generally seeks to meet its burden by pointing to other portions of the record or by calling trial counsel to testify. For example, the state might call trial counsel to testify about whether counsel warned the defendant that the court was not bound by any plea agreement or sentencing recommendations and that the court could impose any sentence up to the statutory maximum. A circuit court’s failure to determine whether a factual basis existed for Zeien’s pleas presents a different type of deficiency. Here, the court of appeals was unwilling to take up the state’s request to simply review the record on its own and conclude that a factual basis existed for Zeien’s pleas. Op., ¶22, n.5. Instead, Zeien is entitled to an evidentiary hearing “where the state will have the opportunity to prove that, despite the deficiency, Zeien’s pleas were entered knowingly, voluntarily, and intelligently.”


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