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Plea-Withdrawal – Pre-sentence – bias of PSI author

State v. Steven M. Shimek, 230 Wis.2d 730, 601 N.W.2d 865 (Ct. App. 1999)
For Shimek: Keith A. Findley.

Issue: Whether perceived bias on part of PSI author supports pre-sentence withdrawal of guilty plea.

Holding: Trial court’s denial of motion, along with disregarding recommendation of that PSI and allowing defense to prepare alternative PSI, was proper exercise of discretion:

The purpose of permitting plea withdrawals before sentencing under this liberal standard is to facilitate the efficient administration of justice by reducing the number of appeals contesting the knowing and voluntariness of a plea; it also ensures that a defendant is not denied a trial by jury unless he clearly waives it.  Libke v. State, 60 Wis.2d 121, 127-28, 208 N.W.2d 331, 335 (1973).  Although “fair and just reason” has not been precisely defined, in State v. Shanks, 152 Wis.2d 284, 290, 448 N.W.2d 264, 266 (Ct. App. 1989), we summarized reasons that have been considered fair and just in prior cases: genuine misunderstanding of the plea’s consequences; haste and confusion in entering the plea; and coercion on the part of trial counsel.  See also State v. Manke, No. 98‑2545-CR, slip op. at 6 (Wis. Ct. App. Sept. 8, 1999, ordered published Oct. 25, 1999) (stating another sufficient ground for plea withdrawal to be confusion resulting from misleading advice from defendant’s attorney).  We also identified the assertion of innocence and the promptness with which the motion is brought as factors relevant to the court’s consideration.  Shanks, 152 Wis.2d at 290, 448 N.W.2d at 266.[2]

The trial court here accepted as true Shimek’s reason for wanting to withdraw his plea, but decided there were adequate means to prevent the sentencing process from being influenced by the PSI that Shimek feared would be biased against him.  The court reasoned that fear of an unfair sentencing process was therefore not an adequate reason for withdrawing his plea.  We conclude the court properly exercised its discretion.  Defense counsel made clear that Shimek was not asserting any deficiency in the plea proceedings, or any lack of understanding, confusion or coercion relating to the entry of the pleas.[3]  The court correctly identified that Shimek’s concern about Vetrone’s PSI report went to the fairness of the sentencing process rather than fairness of the plea process.  It therefore properly focused its attention on eliminating any potential bias from the sentencing process.  The court allowed Shimek to choose who would prepare the second PSI.  It committed itself to consider only the statement of prior criminal history in Vetrone’s PSI, to which Shimek had no objection.[4]  The transcript of the sentencing hearing shows that the court followed through with this commitment.[5]  The court also commented on the favorable information in the second PSI and took that into account in its sentencing decision.


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