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Defense win! State failed to prove dad’s “no contest” plea to grounds was knowing

State v. A.G., 2022AP652, 7/12/22, District 1 (1-judge opinion, ineligible for publication); case activity

District 1 means business. Not long ago, it reversed an order denying A.G.’s claim that his no-contest plea to grounds for a TPR was not knowing, intelligent, and voluntary because the circuit court neglected to explain the potential dispositions to him. It remanded the case for an evidentiary. There, the State simply presented a transcript showing that 10 months before the plea, the circuit court explained potential dispositions to A.G. The circuit court said the State met its burden. On appeal after remand, the court of appeals says no way!

When a parent alleges that a no-contest plea colloquy failed to comply with §48.422 or other mandatory duty, the court applies the framework in n State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). See Oneida Cnty. DSS v. Therese S., 2008 WI App 159, ¶6, 314 Wis. 2d 493, 762 N.W.2d 122.  If the parent makes a prima facie showing that the circuit court violated its mandatory duties, the burden shifts to the State to prove by clear and convincing evidence that the parent knowingly and intelligently waived his right to contest the petition’s allegations.

The State may rely on the totality of the evidence, including evidence outside the record–e.g. testimony from the parent, trial counsel, plea questionnaires, documents, recorded statements, or transcripts from prior hearings. Opinion, ¶6.

A.G. argued that nobody explained the potential dispositions to him before he pled “no contest” to grounds for a TPR. The State argues that a transcript from a hearing 10 months before the plea hearing proves that A.G. wrong. The court of appeals sides with A.G. (again):

¶20 While there is no requirement as to what evidence the State presents at a Bangert hearing, we conclude that a pre-plea transcript from approximately ten months before the plea hearing standing alone is insufficient to establish by clear and convincing evidence that A.G. understood the potential dispositions at the time of his plea. At the remand hearing, the State did not present any testimony or witnesses pertaining to A.G.’s knowledge and understanding at the time of the plea. For example, the State did not call trial counsel to testify regarding what he explained to A.G. Nor did the State introduce or point to any documentary evidence, such as a plea questionnaire or notes from trial counsel. Contrast with State v. Bollig, 2000 WI 6, ¶¶54-55, 232 Wis. 2d 561, 605 N.W.2d 199 (holding that a plea questionnaire coupled with a pre-hearing proceeding was sufficient to establish the State’s burden to show by clear and convincing evidence that the defendant was aware of the nature of the offense); State v. Taylor, 2013 WI 34, ¶¶35-38, 347 Wis. 2d 30, 829 N.W.2d 482 (holding that the record was “replete with evidence” that the defendant was aware of the potential penalty when the penalty was listed on the complaint, the information, and the plea questionnaire, which the defendant signed, acknowledging that he had read and understood the form).

¶21 In addition, the State did not introduce or point to any information in the record establishing that A.G. had familiarity with the potential dispositional outcomes due to a previous termination of parental rights case, or personal characteristics, such as a college education, that might make him particularly savvy regarding legal proceedings. Thus, we conclude that, under the particular facts in this case, that a pre-plea transcript from approximately ten months prior to the plea hearing was insufficient to establish A.G.’s understanding of the potential dispositions at the time of the plea.

A.G. presented a second ground for plea withdrawal–the circuit court incorrectly advised him about the State’s burden of proof at the disposition hearing. The State again pointed to the 10-month-old transcript. But the court of appeals replied: “We do not see how a transcript from an earlier hearing establishes by clear and convincing evidence that A.G.’s plea was knowing intelligent, and voluntary when incorrect information was provided at a later plea hearing.” Opinion, ¶23.

Saving the best for last. When the GAL argued that the circuit court’s errors were not prejudicial it received a smackdown typically reserved for the defense. The court of appeals said: “The GAL, however, does not cite any legal authority or develop an argument for the proposition that we undergo a prejudice analysis in this context. As a result, we decline to address this argument. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).” Opinion, ¶24.

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