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Plea withdrawal – adequacy of plea colloquy – failure to advise that court is not bound by plea negotiation; failure to inquire whether defendant coerced or pressured into plea

State v. Stephen Robert Felix Schurk, 2012AP1501-CR, District 1, 3/5/13; court of appeals decision (1 judge; ineligible for publication); case activity

Schurk was not entitled to plea withdrawal even though the judge did not specifically inform Schurk that he was not bound by the parties’ plea agreement because the information was conveyed to Schurk in other ways:

¶11      …. [The court’s] colloquy advised Schurk that with regard to certain aspects of the sentencing, the court was free to decide what amounts he could be fined, how long his license would be revoked, and that the sentences could be consecutive. Thus, besides having been advised in the guilty plea questionnaire that the trial court was free to craft the sentences, Schurk knew that the trial court was free to decide other aspects of the sentences. Moreover, the trial court did follow the plea negotiation, so Schurk obtained what he requested. Given this scenario, no manifest injustice occurred.

See also State v. Johnson, 2012 WI App 21, ¶12, 339 Wis. 2d 421, 811 N.W.2d 441 (defendant not affected by the defect in his plea colloquy where he received the benefit of the agreement).

Nor did the judge’s failure to ask Schurk if his plea was “coerced” make the colloquy inadequate because the guilty plea questionnaire, which Schurk admitted reading and signing, included a statement that he had decided to enter the plea “of my own free will” and had “not been threatened or forced to enter this plea.” (¶12). Schurk’s claim that he was “coerced” to plead to the charges in this case to avoid the state making a prison recommendation in another case is also rejected, as “a desire to accept a plea negotiation that insures a lesser sentence is not coercion,” citing Rahhal v. State, 52 Wis. 2d 144, 151, 187 N.W.2d 800 (1971).

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