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Hearing on motion for plea withdrawal granted; trial court failed to ensure mentally-impaired defendant understood plea

State v. Matthew Allen Lilek, Appeal No. 2012AP1855, District 1; 11/13/13, (not recommended for publication), case activity

The dispositive issue in this appeal was whether the defendant, who is legally blind and has suffered cognitive disabilities his entire life, knowingly, intelligently, and voluntarily entered a no-contest plea to second degree sexual assault, with use of force, and to aggravated battery.  During the plea colloquy, defense counsel assured the court that experts had examined his client and, at a basic level, found him competent.  The trial judge then proceeded to ask a long series of “yes” or “no” questions, to which the defendant sometimes gave non-responsive answers.  This, said the court of appeals, violated State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) and State v. Howell, 2007 WI 75,¶¶52-53 301 Wis. 2d 350, 734 N.W.2d 48 (“As we explained in Bangert, ‘[a] defendant’s mere affirmative response that he understands the nature of the charge, without establishing his knowledge of the nature of the charge, submits more to a perfunctory procedure rather than to the constitutional standard that a plea be affirmatively shown to be voluntarily and intelligently made.”) (citation omitted, brackets in Howell).

The Record here shows that the circuit court did exactly what Howell warned against: it engaged in a “perfunctory exchange” and did not take the required “great care” to ensure this cognitively disabled, legally blind, child-like man understood what was going on and what he was doing. Further, Bangert, warns that the “[d]efense counsel may not speak for the defendant; the defendant must affirmatively state his own knowledge and understanding when he is capable of doing so.” Bangert, 131 Wis. 2d at 270, 389 N.W.2d at 24. Accordingly, the circuit court erroneously relied on Kohn’s statement that Lilek understood what he was doing instead of getting that information directly from Lilek, as Bangert requires.  Slip op. ¶15.

This decision is a change of pace in more ways than one.  First, a defense victory–especially one so sensitive to the needs of the vulnerable–is rare but always welcome.  Second, District 1 takes the extra step of admonishing the circuit court, rather than its preferred whipping post (defense counsel).  (“We admonish the circuit court for [referring to defense counsel’s intern as the defendant’s lawyer].)” On Point doesn’t rejoice in the admonishment of anyone.  We simply noticed the traditional sauce for the defense goose being ladled over the judicial gander.

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