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Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements, Generally: Bangert and Hampton, Compared

State v. Timothy J. Goyette, 2006 WI App 178
For Goyette: E.J. Hunt, Kathleen M. Quinn


¶17 The purpose of filing a Bangert plea withdrawal motion is to obtain an evidentiary hearing at which the State bears the burden of producing evidence showing that, despite a defective plea colloquy, the defendant’s plea was nonetheless knowing and voluntary. State v. Bangert, 131 Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986). [8] …

¶18 The only difference between Goyette’s evidentiary hearing and the one required by Bangert is that, under Bangert, the burden of proof shifts to the State. If a Bangert plea withdrawal hearing had been held, it would have been incumbent on the State to call necessary witnesses or otherwise meet its burden. Instead, at Goyette’s hearing, Goyette called the witnesses and examined them first. [9]

[8] Under Bangert, if a defendant files a motion that (1) identifies a failure by the circuit court to comply with Wis. Stat. § 971.08 or a court-mandated plea hearing procedure, and (2) alleges that the defendant did not understand the information at issue, then the burden shifts to the State to show by clear and convincing evidence that the plea was knowingly and voluntarily entered.Bangert, 131 Wis. 2d at 274-75. Notably, the second Bangert prong is satisfied by a conclusory allegation that the defendant did not know or understand. State v. Hampton, 2004 WI 107, ¶57, 274 Wis. 2d 379, 683 N.W.2d 14. When a plea withdrawal motion is sufficient under Bangert, the circuit court must hold an evidentiary hearing at which the State has the burden of proving by clear and convincing evidence that the plea was knowingly entered. State v. Brown, 2006 WI 100, ¶¶36, 40, __ Wis. 2d __, 716 N.W.2d 906; Bangert, 131 Wis. 2d at 274-75.[9] Goyette’s hearing was the sort courts hold when they conclude that a plea withdrawal motion meets the Nelson/ Bentley test. Regardless whether plea colloquies contain Bangert violations, defendants are entitled to post-sentencing plea withdrawal if they can show by clear and convincing evidence that their plea was not knowingly or voluntarily entered. See State v. Reppin , 35 Wis. 2d 377, 384-86, 151 N.W.2d 9 (1967); State v. Giebel, 198 Wis. 2d 207, 212, 541 N.W.2d 815 (Ct. App. 1995). When defendants file non-Bangert plea withdrawal motions requesting an evidentiary hearing, courts apply the Nelson/ Bentley test to determine whether a hearing is required. … A motion requesting an evidentiary hearing must contain non-conclusory allegations, that is, allegations that “‘allow the reviewing court to meaningfully assess [the defendant’s] claim.’” Allen, 274 Wis. 2d 568, ¶21 (quoting Bentley, 201 Wis. 2d at 314). Bangert motions and Nelson/ Bentleymotions are not mutually exclusive. A defendant may, in the same physical motion, request a plea withdrawal hearing based on an alleged Bangertviolation and, in the alternative, assert that a hearing must be held because the motion contains allegations that are sufficient under the Nelson/Bentley test.

Worth culling from this survey the following acknowledgement in fn. 8: “Notably, the second Bangert prong is satisfied by a conclusory allegation that the defendant did not know or understand.” That is, it is now settled that to get a Bangert hearing it’s enough for counsel to make a mere assertion in the motion that the defendant didn’t know the information omitted form the plea colloquy; no affidavit, let alone one from the defendant, is necessary. Same quote, by the way, is in (no coincidence: same author), State v. Howell, 2006 WI App 182, ¶14.


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