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Plea-Withdrawal, Post-sentencing – Procedure – Pleading Requirements

State v. Corey J. Hampton, 2002 WI App 293, affirmed, 2004 WI 107
For Hampton: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue/Holding: The pleading requirements for a hearing imposed by State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996) aren’t applicable to a motion for plea-withdrawal based on defective colloquy:

¶20. Hampton responds that Bentley does not apply because the defendant in Bentley sought plea withdrawal based on ineffective assistance of counsel and, therefore, bore the burden of showing both ineffective assistance and the need for an evidentiary hearing. See id. at 311-12. In contrast, under Bangert, once a defendant makes a prima facie showing, the burden shifts to the State. See Bangert, 131 Wis. 2d at 274. Hampton contends that once he made a prima facie showing of a deficient colloquy, he was entitled to an evidentiary hearing on the issue of his actual understanding, regardless whether he made any additional factual allegations and regardless whether there was evidence in the existing record tending to show that he did understand.

¶21. We agree with Hampton’s description of the differing burdens and conclude that the burden-shifting scheme imposed by Bangert is inconsistent with the State’s proposal that we apply Bentley. In effect, the State argues that Hampton not only had the burden of presenting a prima facie case, but also had the burden of making non-conclusory assertions about the evidence he would present at a hearing and why, if believed, his evidence would entitle him to relief. Cf. Bentley, 201 Wis. 2d at 313-18; State v. Washington, 176 Wis. 2d 205, 216, 500 N.W.2d 331 (Ct. App. 1993) (“[T]he motion must contain at least enough facts to lead the trial court to conclude that an evidentiary hearing is necessary.”). Regardless whether the imposition of this additional burden makes sense in some Bangert situations, it is for the supreme court, not this court, to impose a different burden-shifting framework than the one set forth in Bangert.

The supreme court affirmed, 2004 WI 107, ¶¶51-65, but the court of appeals’ holding quoted immediately above is a more efficient statement of the operative principle.


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