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Defense win! Dad wins hearing on motion to withdraw TPR plea

State v. A.G., 2021AP1476, 2/15/22, District 1 (1-judge opinion; ineligible for publication); case activity

Wonders never cease. Parents virtually never win TPR appeals no matter how strong their arguments are. Yet here A.G. wins an evidentiary hearing on not one but two claims that his “no contest” plea was not knowing, intelligent and voluntary.

A.G. pled “no contest” to the ground of continuing CHIPS. He argued that his plea was not knowing, intelligent, and voluntary because the trial court  (1) failed to establish during the plea colloquy that he understood the potential dispositions that could result from his plea, and (2) improperly explained the statutory standard that would apply at disposition.

When a parent alleges that a TPR plea was not knowing, intelligent and voluntary, the court applies the analysis set forth in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), a criminal case. Thus, A.G. established a prima facie violation of the court’s duties. The State and the GAL responded that A.G. was not entitled to an evidentiary hearing for reasons outside the plea hearing–i.e. he had been informed of the potential dispositions at an earlier hearing.

The court of appeals reversed on this point. It acknowledged the State may refute A.G.’s claim that he did not understand the potential dispositions with evidence found outside of the plea hearing record. Opinion, ¶10. However, once the parent proves a defective plea colloquy, a court cannot skip an evidentiary hearing. It must hold the hearing and consider the record as a whole during it. Opinion, ¶¶14-15. (citing State v. Howell, 2007 WI 75, ¶7, 301 Wis. 2d 350, 734 N.W.2d 48).

The court of appeals also ordered a hearing on A.G.’s claim that the court botched its explanation of the legal standards that would apply at the disposition hearing. Specifically, the circuit court told A.G. that the State bears the burden of proof at a disposition hearing, which is incorrect.

A parent presented a similar claim in State v. T.A.D.S., No. 2018AP2173, unpublished slip op. (WI App June 18, 2019). In T.A.D.S., the court of appeals held the circuit court’s comment about the burden of proof irrelevant because the circuit court “thoroughly explained T.A.D.S.’s rights at the disposition hearing, explained the potential outcomes and unequivocally stated that its primary consideration at disposition was [the child’s] best interest.” Id., ¶13.

But the court of appeals held that A.G.’s situation was different:

¶20 Here, unlike in T.A.D.S., the trial court did not advise A.G. that the “driving factor” or “the most important factor” at the dispositional phase would be the child’s best interest. In addition, as discussed above, the court did not explain the potential outcomes. Thus, in the context of this particular case, we conclude that the plea colloquy defect was not irrelevant.

¶21 Thus, because A.G.’s post-disposition motion established a prima facie case that the trial court failed to properly explain the statutory standard that would apply at the dispositional hearing and sufficiently alleged that he did not know information that should have been provided, we conclude that he is also entitled to an evidentiary hearing on his second claim. See Brown, 293 Wis. 2d
594, ¶40

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{ 1 comment… add one }
  • Bernardo Cueto February 19, 2022, 11:27 am

    Good job to Attorney Christopher Sobic! These cases are so difficult on appeal because the volume of paper is enormous and it is very difficult to get any time extensions. I always look up to attorneys willing to do TPR appeals.

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