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Defense win: Defects in plea colloquy require plea withdrawal

State v. Caroline J. Arndt, 2022AP450-CR, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Arndt pleaded no contest to disorderly conduct, but the circuit court’s plea colloquy was defective in two crucial ways, so on the merits—and because the state declined to file a brief in the court of appeals—she’s entitled to withdraw her plea.

Arndt points to a half-dozen defects in the colloquy, but the two that matter are the trial court’s failure to: 1) determine whether any promises, agreements, or threats were made in connection with her plea, or make any other inquiry into whether she was pleading voluntarily; and 2) ascertain that Arndt understood the charge to which she was pleading, by, for instance, summarizing the elements or referring to the jury instruction for the offense that was attached to the plea questionnaire but never referred to by the trial court. (¶¶18, 23-27).

The court of appeals emphasizes the importance of making some inquiry into the voluntariness of the plea, it doesn’t resolve whether the failure to ask about promises or threats by itself is grounds for plea withdrawal because, combined with the second defect, tip the balance to plea withdrawal. (¶24). As for the four other alleged defects, three were covered in the standard plea questionnaire form Arndt and her lawyer acknowledged reviewing and signing (¶¶18 n.8, 20-21) and the fourth—advising Arndt that the judge wasn’t bound by the plea agreement—is mooted by the fact the judge did follow the agreement, down to the joint sentencing recommendation (¶19).

Having found two defects in the plea colloquy, the ordinary result would be a remand for a hearing under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), at which the state would have the chance to prove that Arndt knew or understood the information the court didn’t cover in the colloquy. But the state did not file a response brief in the court of appeals, which prompted a delinquency notice from the court. The state then filed a letter advising the court it wouldn’t be filing a brief and that the appeal should be decided based on Arndt’s brief. (¶¶2-3). The state’s abandonment of any defense of the circuit court’s denial of Arndt’s plea withdrawal motion gives the court of appeals another basis to reverse, and it also justifies remand with directions that Arndt be allowed to withdraw her plea. (¶¶10-12).

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