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Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements, Generally

State v. Donnell Basley, 2006 WI App 253
For Basley: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding1The postconviction court erroneously denied without evidentiary hearing Basley’s motion for plea-withdrawal (on Nelson/Bentley rather than Bangert grounds):

¶8        Accompanying Basley’s motion is an affidavit from his postconviction counsel averring that the motion “summarizes … Basley’s expected testimony.” Counsel also acknowledges in the affidavit that Basley’s trial counsel will likely dispute that he threatened to withdraw unless Basley accepted the proffered plea bargain.

¶9        We conclude that Basley’s postconviction motion, as described in the preceding paragraphs, meets the Nelson/Bentley standard for conducting an evidentiary hearing. First, Basley’s motion states sufficient facts that, if true, would entitle Basley to withdraw his plea. If his trial counsel in fact told him that, if Basley would not agree to the State’s proffered plea bargain, counsel would withdraw from representation, thereby forcing a potentially lengthy delay of Basley’s trial, Basley’s plea was tendered under the duress of his attorney’s coercive conduct, rendering his plea involuntary. See, e.g., Brady v. United States, 397 U.S. 742, 749-755 (1970). [4]

¶10      We also conclude that the factual assertions set forth in Basley’s motion are not “conclusory allegations.” Basley’s motion does not simply allege that he was “pressured” or “coerced” by his attorney to enter a plea. He asserts that his counsel made specific statements at specific times and locations in the hours preceding his no contest plea. These factual assertions, which we have summarized above, are sufficient to “permit a meaningful assessment” of Basley’s claim that his plea was involuntary, and they are thus not “conclusory allegations.” See Howell, 722 N.W.2d 567, ¶34. [5]

Issue/Holding2The fact that the plea colloquy satisfied Bangert does not in and of itself show that “the record conclusively demonstrates that” relief may be denied without an evidentiary hearing, ¶¶11-19:

¶18      Thus, although a circuit court’s compliance with Bangert cannot immunize a guilty or no contest plea against all possible postconviction challenges, a proper plea colloquy not only ensures, to the greatest extent possible, that a guilty or no contest plea complies with constitutional requirements, but it also goes a long way toward deflecting many potential postconviction challenges to the plea. Compliance with the Bangert requirements does not, however, permit a circuit court to rely on a defendant’s plea colloquy responses to deny the defendant an evidentiary hearing on a properly pled postconviction motion that asserts a non- Bangert reason why the plea was not knowing or voluntary. Put another way, when a defendant convicted on a guilty or no contest plea asserts, as Basley has in this case, that the responses given during a plea colloquy were false and the defendant provides non-conclusory information that plausibly explains why the answers were false, the defendant must be given an evidentiary hearing on his or her plea withdrawal motion. See Howell, 722 N.W.2d 567, ¶33.


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