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Plea-Withdrawal – Post-Sentencing – Prima Facie Showing: Plea Questionnaire Function

State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: A court may incorporate a plea questionnaire form into the guilty plea colloquy, but only up to a point:

 ¶32     The Plea Questionnaire/Waiver of Rights Form provides a defendant and counsel the opportunity to review together a written statement of the information a defendant should know before entering a guilty plea. A completed Form can therefore be a very useful instrument to help ensure a knowing, intelligent, and voluntary plea. The plea colloquy cannot, however, be reduced to determining whether the defendant has read and filled out the Form. Although we do not require a circuit court to follow inflexible guidelines when conducting a plea hearing, [18] the Form cannot substitute for a personal, in-court, on-the-record plea colloquy between the circuit court and a defendant.

¶33      We conclude that in the present case the circuit court incorporated the Plea Questionnaire/Waiver of Rights Form into the plea colloquy and that the circuit court’s reliance on the Form was so great that the Plea Questionnaire/Waiver of Rights Form substituted for an in-court colloquy. We do not agree with the court of appeals or the State that the circuit court in the present case fulfilled the mandatory requirements.

¶34      At least with respect to the first two allegations in the defendant’s Bangert motion, we therefore agree with the defendant that his motion does 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. As the defendant asserts, the plea hearing transcript shows that neither the circuit court nor the defendant made any statements during the plea hearing relating to promises or threats made in connection with the defendant’s plea or any statements relating to the range of punishments to which the defendant subjected himself by entering his plea. The plea hearing transcript is completely silent on these matters.

State v. Hansen, 168 Wis. 2d 749, 485 N.W.2d 74 (Ct. App. 1992) (in effect: colloquy insufficient if establishes only that defendant read and understands plea questionnaire form), expressly approved, ¶¶35-38; as is State v. Moederndorfer, 141 Wis. 2d 823, 416 N.W.2d 627 (Ct. App. 1987) (colloquy may properly incorporate plea form if references are specific enough), ¶¶39-42.Potentially significant development, because the court of appeals all but approved mere, glancing mention of the questionnaire. The supreme court now squarely rejects that view, and though the mandate formally indicates the court of appeals’ decision is “affirmed,” it is more properly described, “affirmed as modified,” something made more or less explicitly by ¶8: “we affirm the decision of the court of appeals, although on different grounds.” And by the following passage:

¶38      The Hansen decision is incompatible with the position taken by the court of appeals in the instant case that when the circuit court ascertains during the plea hearing that the defendant generally understands the contents of the Plea Questionnaire/Waiver of Rights Form, the Form’s contents thereby become an intrinsic part of the plea colloquy and may substitute for an in-court personal colloquy between the circuit court and the defendant. Hansendemonstrates that it is not enough for the circuit court to ascertain that a defendant generally understands the contents of the Plea Questionnaire/Waiver of Rights Form.

Shorter version: Feel free to continue cutting corners with guilty plea forms, just don’t fetishize them.


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