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Denial of plea withdrawal affirmed based on trial counsel’s notes and practice indicating that she discussed crime elements with client

State v. Dionte J. Nowels, 2018AP1171-CR, 1/8/19, District 1 (not recommended for publication); case activity (including briefs)

Nowels pled guilty to hit and run. He later sought plea withdrawal because during his colloquy the trial court failed to state 2 of the crime elements that the State would be required to prove at trial. The trial court agreed with him on this point, so for the plea withdrawal hearing the burden shifted to the State to prove that Nowles knew and understood those elements when he pled.

Nowles and his trial counsel testified at the plea withdrawal hearing. Trial counsel did not have independent knowledge of what the two discussed, but she did have notes indicating, among other things, that she went through the applicable jury instructions before he pled. Nowles testified that he didn’t recall seeing the elements sheet attached to the plea questionnaire or going over them with trial counsel. The trial court found counsel more credible, and the court of appeals affirmed:

¶20 We affirm findings of fact if “evidence would permit a reasonable person to make the same finding.” See [Reusch v. Roob, 2000 WI App 76, ¶8, 234 Wis. 2d 270, 610 N.W.2d 168.]  The trial court found that trial counsel did discuss the elements of the hit and run charge with Nowels. The evidence on which this was based was trial counsel’s testimony about the documents she provided to Nowels that included a list of the elements of that charge, her testimony about the number of times she met with him, her testimony about her standard practice for preparing defendants for plea hearings over a twenty-three-year practice as a criminal defense attorney, and her testimony about the handwritten markings and underlining on the copy of the jury instructions that she reviewed with Nowels. Nowels argues that trial counsel’s testimony was insufficient evidence to support the finding. However, trial counsel did testify, “I am positive that I went through the jury instructions with [Nowels] in February; I believe I also went through the jury instructions in January, but I have no documentation of that.” She testified that she had no reason to think she had deviated from her routine practice of having each client facing a plea agreement “acknowledge each element” and “articulate himself, with no prodding, no pulling from them what happened[.]” This constitutes evidence that would permit a reasonable person to make the finding that the trial court did in this case. The trial court’s findings are therefore not clearly erroneous.

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