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Plea-Withdrawal – Post-sentence – Procedure, Generally

State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate


¶39      After sentencing, in cases that involve an alleged deficiency in the plea colloquy, an attempt to withdraw a guilty plea proceeds as follows. The defendant must file a postconviction motion under Wis. Stat. § 809.30 or other appropriate statute. The motion must (1) make a prima facie showing of a violation of Wis. Stat. § 971.08(1) or other court-mandated duties by pointing to passages or gaps in the plea hearing transcript; and (2) allege that the defendant did not know or understand the information that should have been provided at the plea hearing. Bangert, 131 Wis.  2d at 274.

¶40      When a Bangert motion is filed, it is reviewed by the court. If the motion establishes a prima facie violation of Wis. Stat. § 971.08 or other court-mandated duties and makes the requisite allegations, the court must hold a postconviction evidentiary hearing at which the state is given an opportunity to show by clear and convincing evidence that the defendant’s plea was knowing, intelligent, and voluntary despite the identified inadequacy of the plea colloquy. [23] Bangert, 131 Wis.  2d at 274. When the defendant has met his two burdens, the burden of producing persuasive evidence at the evidentiary hearing shifts to the state. [24] Id. at 275. In meeting its burden, the state may rely “on the totality of the evidence, much of which will be found outside the plea hearing record.” Hampton, 274 Wis.  2d 379, ¶47. For example, the state may present the testimony of the defendant and defense counsel to establish the defendant’s understanding. Bangert, 131 Wis.  2d at 275. The state may also utilize the plea questionnaire and waiver of rights form, documentary evidence, recorded statements, and transcripts of prior hearings to satisfy its burden.

The territory has been covered many times before, but “(t)his opinion is intended to revitalize Bangert,” ¶58, which the court says is a “timeless primer,” ¶24. Bangertarticulated three methods for a judge to establish a record of a voluntary, knowing plea; they’re recited by the court, ¶¶46-48. The court goes on to say that this “list is non-exhaustive …. There may be other ways to show a defendant’s understanding of the charges,” ¶49. Despite this unfortunate suggestion of some loose play in the joints the court’s discussion elsewhere resists such a construction. Bangert itself condemned “perfunctory” exchanges (which the court now repetitively stresses, ¶¶32, 33, 58); more importantly perhaps is this passage, ¶56:

… Bangert requires verification, independent of defense counsel’s assertion, that a defendant understands the nature of the charges. See Bangert, 131 Wis.  2d at 267 (requiring the circuit court to “ascertain that the defendant possesses accurate information about the nature of the charge”). Hence,Bangert requires a circuit court to summarize the elements of the offenses on the record, or ask defense counsel to summarize the elements of the offenses, or refer to a prior court proceeding at which the elements were reviewed, or refer to a document signed by the defendant that includes the elements. [26]Id.  at 268. Each method enables a court to ascertain the accuracy of the defendant’s knowledge; each method gives substantive content to a defendant’s understanding. Cf. id. at 269 (“Understanding must have knowledge as its antecedent; knowledge, like understanding, cannot be inferred or assumed on a silent record.”). Moreover, we encourage circuit court judges to translate legal generalities into factual specifics when necessary to ensure the defendant’s understanding of the charges.

… requires a circuit court to … not, “We encourage a circuit court” (as contrastingly, in the last-sentence’s exhortation). One can only assume that the court used “requires” a) consciously and therefore b) meant it to be mandatory rather than merely exhortatory.

A final point, seemingly picky but potentially recurrent and therefore worth mentioning anyway: the “defendant is not required to submit a sworn affidavit to the court” in support of the Bangert motion to withdraw plea, ¶62. It’s enough for counsel to assert in the motion itself the defendant’s lack of knowledge of the information omitted from the colloquy. But if the defendant files what the court terms “a dual purpose motion——that is, a Bangert motion combined with a motion that alleges ineffective assistance of counsel or some other problem affecting the plea that is extrinsic to the plea hearing record,” ¶62, then the pleading and proof requirements will be different.


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