State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
¶12 As the circuit court recognized after the State brought its motion for reconsideration, circuit courts in Wisconsin may not, absent circumstances not present here, sua sponte vacate guilty pleas validly accepted. State v. Comstock, 168 Wis. 2d 915, 921–922, 953, 485 N.W.2d 354, 356, 369–370 (1992) (“[W]e exercise our superintending authority, and direct each circuit court to refrain from sua sponte vacating a guilty or no contest plea after the circuit court has validly accepted the plea by assuring itself of the voluntariness of the plea and the factual basis for the charges unless the circuit court finds that there was fraud in procuring the plea or that a party intentionally withheld from the circuit court material information which would have induced the circuit court not to accept the plea.”) (footnote omitted). Although Rushing argues that Comstock is distinguishable because it involved a plea bargain, the breadth of the supreme court’s pronouncement was not so limited. Cf. Malone v. Fons, 217 Wis. 2d 746, 754, 580 N.W.2d 697, 701 (Ct. App. 1998) (“When an appellate court intentionally takes up, discusses and decides a question germane to a controversy, such a decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.”) (citation, internal quotation marks, and brackets omitted). Indeed, Comstock recognized that circuit courts have authority to reject proffered pleas not yet accepted in order to ensure that the public interest is served by a proposed plea bargain. Comstock, 168 Wis. 2d at 927–928 n.11, 485 N.W.2d at 358 n.11 (“A circuit court has the power to accept or reject a plea agreement reducing or amending charges; it should consider the public interest in making its decision about the plea agreement and should make a complete record of the plea agreement. The court must personally advise the defendant that the agreement is in no way binding on the court.”).  The crux of Comstock is that circuit courts may not sua sponte vacate fully and fairly entered and accepted pleas.