Issue: Whether, in moving to withdraw guilty plea on the basis of failure to inform the defendant that the trial court wasn’t bound by the plea agreement, the defendant need only assert lack of such understanding; or whether the defendant must go further and allege sufficient facts which if true would have entitled the defendant to withdraw the plea.
¶51 … The State relies on a line of cases highlighted by State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996) …. However, Bangert controls the facts of this case because Bangert-type cases are confined to alleged defects in the record of the plea colloquy. Bentley is inapposite because it applies to allegations less susceptible to objective confirmation in the record.
¶56 We conclude that Bangert and Bentley, although different, are not inconsistent. They are not inconsistent because they apply to different fact situations. …
¶57 We see several distinctions in the Bangert-type case. First, the defendant must point to a specific defect in the plea hearing which constitutes an error by the court. The defendant will not satisfy this burden merely by alleging that “the plea colloquy was defective” or “the court failed to conform to its mandatory duties during the plea colloquy.” The defendant must make specific allegations such as “at no point during the plea colloquy did the court explain that it was not bound by the plea bargain and was free to disregard the prosecutor’s sentencing recommendation.” In addition, the defendant must allege that he did not in fact understand that the court was not bound by the plea agreement because that information/explanation was not provided. We think a motion of this nature passes the test of Nelson and Bentley: a motion to withdraw a plea that alleges facts which, if true, would entitle the defendant to relief. The allegation that the defendant did not understand is, admittedly, conclusory; but the allegation raises a question of fact and perhaps law that requires resolution.
The court goes on to say that Hampton’s plea colloquy was defective: the trial court neither expressly told him that it was not bound by his plea agreement, nor did it ask him if he understood as much. And, because Hampton’s postconviction motion “alleged that he did not understand that the court was not bound by the prosecutor’s sentence recommendation, he made the requisite showing and is entitled to an evidentiary hearing.” ¶66. It’s not enough that this information was contained in the guilty plea questionnaire, which, Hampton acknowledged, counsel had read to him. ¶¶68-69.