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Defense win: Defendant entitled to withdraw plea on count for which the circuit court failed to explain elements

State v. Damon D. Taylor, 2021AP272-CR, District 4, 12/30/22 (not recommended for publication); case activity (including briefs)

Taylor moved to withdraw his Alford pleas to three crimes. The court of appeals agrees his plea to one of the three crimes was not knowing and intelligent because the circuit court failed to ascertain that he understood the elements of the offense.

Taylor’s pleas came on the morning of trial, when he accepted a final offer from the state to plead to second degree recklessly endangering safety with use of a dangerous weapon—which was amended from attempted first-degree intentional homicide by use of a dangerous weapon—as well as possession of a firearm by a felon and failure to comply with an officer’s attempt to take a person into custody. (¶¶5-6, 14-17). His postconviction plea withdrawal motion raised multiple grounds for plea withdrawal: 1) he didn’t understand the elements of the charges to which he was pleading; 2) he was pressured into pleading because his lawyer wasn’t prepared for trial; and 3) there wasn’t strong proof of guilty for each charge, as required for an Alford plea. (¶¶8, 27).

The first ground is analyzed under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), which assesses whether there was any defect in the court’s plea colloquy; if there was, and the defendant asserts he didn’t know or understand the missing information, the state has to prove the defendant knew or understood the information despite the defect. (¶¶12-13). The record here shows that during the plea colloquy the circuit court gave a bare-bones recitation of the elements of the possession of a firearm and failure to comply with an officer charges but said nothing about the elements of the second degree reckless endangerment charge. (¶¶18-26, 30-33). Nor did the plea questionnaire state any of the elements, and no additional paperwork (for instance, the relevant jury instruction) was filed with the questionnaire. (¶¶34, 37). And at the postconviction hearing, Taylor testified that during his brief discussion of the charge with his lawyer right after the offer was made, his lawyer didn’t advise him of the elements of any of the offenses. (¶¶27, 35).

The circuit court concluded it had sufficiently advised Taylor of the elements of the offenses, so trial counsel didn’t testify at the postconviction hearing—though the court did say he was a “very practiced attorney.” (¶28). The court of appeals agrees  the court informed Taylor of the elements of the felon in possession and failure to comply with an officer charges and that Taylor understood those elements, as he answered “yes” when the court asked him if he understood those elements. (¶¶24-25, 31-32). But contrary to the circuit court, it holds the reckless endangering elements weren’t explained, either by the court or in any document in the record. (¶¶23, 33-37). Further, the court of appeals finds there’s no evidence Taylor’s lawyer explained the elements of reckless endangering, as it rejects, as ungrounded in the evidence and speculative, the state’s argument that Taylor’s “very practiced lawyer” would have explained the elements. (¶38).

The court also notes that the offer to amend the charge was last minute and the amended information wasn’t even filed until after Taylor and his lawyer talked about the offer. (¶38). And it rejects the state’s argument that the circuit court found Taylor’s testimony not credible; while the circuit court discredited some of Taylor’s testimony about the course of events, it did not specifically find his testimony about his meeting with trial counsel to be incredible. (¶39).

As to remedy: Taylor argues, without citation to authority, that because his plea to one count was not knowing and intelligent he gets to withdraw his pleas to the other two counts as well. While repudiation of part of the plea agreement (here, withdrawal of the plea to one count) ordinarily counts as a repudiation of the entire plea agreement, the appropriate remedy is determined on remand by the circuit court in light of the totality of the circumstances and the interests of the parties. State v. Roou, 2007 WI App 193, 305 Wis. 2d 164, 738 N.W.2d 173. Thus, the court rejects Taylor’s request that his pleas to the other two charges must be vacated, too. (¶¶69-72).

Finally, in fact-specific discussions, the court of appeals rejects Taylor’s alternate claims that his pleas were involuntary based on his trial lawyer’s purported unpreparedness (¶¶41-50) and that there was not strong proof of guilt for his Alford pleas (¶¶51-68).

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