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Plea-Withdrawal, Post-sentencing – Procedure – Challenge to Factual Basis

State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: Bangert procedure applies to challenge to failure to establish adequate factual basis where the facts are disputed:

¶50      In the present case, however, the facts are in dispute precisely because the circuit court failed to conduct a sufficient inquiry into the factual basis of the offense charged. …

¶53      Because the circuit court had an obligation to make further inquiry as to the factual basis of the offense charged under § 971.08(1)(b), Lackershire has satisfied the first condition necessary for her to withdraw her plea. She has established a prima facie showing that her plea colloquy was defective.

¶54      In her motion to withdraw her plea, Lackershire stated that “she did not fully understand the elements of the crime to which she pled, that she did not fully understand the consequences of her plea, and that her plea was not knowing or voluntary.” Further, she states that “she has always maintained that she was raped.”

¶55      Lackershire’s allegation of lack of understanding focuses on the effect of being raped in relation to the charge of sexual assault of a child. We therefore determine she has alleged that she did not know or understand information that the court should have provided at the plea hearing, and that Lackershire fulfills the second requirement for plea withdrawal.

¶56      Once the defendant meets those two requirements, 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. Brown, 293 Wis. 2d 594, ¶40 (citing Bangert, 131 Wis. 2d at 274). We therefore conclude that such a hearing is required in this case. Because Lackershire’s plea colloquy was defective due to the circuit court’s failure to make further inquiry to establish an adequate factual basis, the focus of the inquiry will be on whether Lackershire’s plea was knowing and intelligent. Specifically, it will focus on whether Lackershire realized that if she was raped, her conduct would not actually fall within the charge.

If the facts indisputably show that no crime was committed, then plea-withdrawal necessarily follows:

¶48      In some ways, however, applying the Bangert procedure for failure to satisfy the factual basis requirement is an awkward fit. Factual basis cases typically involve the question of whether undisputed facts actually constitute the crime charged. Where undisputed facts cannot constitute the crime charged as a matter of law, the defendant is allowed to withdraw her plea to prevent a manifest injustice. State v. Smith, 202 Wis. 2d 21, 25, 539 N.W.2d 232 (1996).

Apparently, then, a factual-basis challenge raises two possible grounds, broadly speaking: undisputed facts which, if they fail to establish a crime, require plea-withdrawal; and unresolved, disputed facts which may not establish a crime and which, if properly pleaded, require an evidentiary hearing. One other point of note: the court’s linkage of unresolved disputed-fact to a knowing, intelligent plea constitutionalizes this type of challenge; this, in turn, means that the issue can be raised under § 974.06, though that procedure may be problematic on its own terms. Also see Loop v. State, 65 Wis.2d 499, 222 N.W.2d 694 (1974) (factual basis challenge can be raised under § 974.06). For that matter, Loop raises yet a third type of challenge – one where the record isn’t so much in dispute but is simply silent, because the circuit court failed to establish a factual basis.Loop says that this defect can be shored up on the postconviction motion. It’s pre-Bangert, but its result is probably consistent with that case.


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