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Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements, Dual Bangert and Nelson/Bentley Motion

State v. Andrae D. Howell, 2007 WI 75reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate


¶74      The Bangert and Nelson/Bentley motions, however, are applicable to different factual circumstances. [47] A defendant invokes Bangert when the plea colloquy is defective; a defendant invokes Nelson/Bentley when the defendant alleges that some factor extrinsic to the plea colloquy, like ineffective assistance of counsel or coercion, renders a plea infirm. [48] A “dual purpose” motion would include allegations of a defective plea colloquy and allegations of some other injustice that renders the plea infirm. We again state that a defendant may include both Bangert andNelson/Bentley claims in a single motion to withdraw a plea of guilty or no contest.

The court goes on to summarize the higher pleading standard for a Nelson/Bentleymotion, namely to “allege sufficient, nonconclusory facts” that would lead to relief, ¶76. If the pleading falls short then “the circuit court in its discretion may nevertheless grant or deny an evidentiary hearing.” But, even if the pleading does pass muster, “an evidentiary hearing is not mandatory if the record as a whole conclusively demonstrates that defendant is not entitled to relief, even if the motion alleges sufficient nonconclusory facts,” ¶77 n. 51. And that said, “An adequate and accurate plea colloquy does not foreclose a Bentley challenge. The court of appeals recently explained that “[t]he State is simply incorrect that a good and sufficient plea colloquy, one that concededly complies with the requirements of Bangert, can be relied on to deny an evidentiary hearing for a defendant who seeks to withdraw his or her plea on non-Bangert grounds. The entire premise of a Nelson/Bentley plea withdrawal motion is that something not apparent from the plea colloquy may have rendered a guilty or no contest plea infirm.” State v. Basley, 2006 WI App 253, ¶15, ___ Wis. 2d ___, 726 N.W.2d 671,” ¶77 n. 52. The court says that, even though it need not on these facts reach the issue, that in this instance “the record as a whole does nor conclusively demonstrate that Howell is entitled to no relief,” ¶¶84-85.

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