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Plea-Withdrawal – Pre-Sentence – “Fair and Just” Reason: Claim of Unrealized Benefit from Efforts to Cooperate with Law Enforcement

State v. Barry M. Jenkins, 2007 WI 96, reversing 2006 WI App 28
For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether Jenkins’ claim that he (wrongly) thought he would be guaranteed an opportunity to work with law enforcement in return for potential sentencing benefit was a fair and just reason to allow pre-sentencing plea withdrawal.


¶71      First, Jenkins did not proffer a fair and just reason at the time of his motion for plea withdrawal. “[T]he burden is on the defendant to offer a fair and just reason for withdrawal of the plea.” Canedy, 161 Wis. 2d at 583-84. Jenkins did not plainly assert that he misunderstood the consequences of the plea. Jenkins asserted that he wanted to withdraw his plea because of stipulations that he could not fulfill and because of his “projections.” Disappointment and unfulfilled hopes are not the same as a misunderstanding of the consequences of the plea. See Leitner, 247 Wis. 2d 195, ¶33; Dudrey, 74 Wis. 2d at 486.

¶73      Second, even if we assume that Jenkins alleged a misunderstanding of the plea, the circuit court still had to find that this misunderstanding actually existed. …

¶74      The circuit court’s statement supports the inference that the circuit court found that Jenkins understood the consequences of the plea and simply took his chances on whether he would be able to meet with law enforcement and benefit from that encounter. See Dudrey, 74 Wis. 2d at 486. Like the defendant in Dudrey, when Jenkins realized that his chances had passed, he decided to withdraw his plea. See id. As we have stated, “[t]he defendant must show some reason more than a mere desire to have a trial.” Id. There must be some fair and just reason for a “change of heart.” In its post-conviction decision, the circuit court explicitly found that Jenkins did not misunderstand the consequences of his plea.

¶75      Third, even if we were to accept Jenkins’ argument that the circuit court applied the wrong legal standard by not considering his plea withdrawal in the context of a misunderstanding of the plea, we must still “independently review the record to determine whether the [circuit] court’s decision can be sustained when the facts are applied to the applicable law.” Shanks, 152 Wis. 2d at 289.

¶76      When we review the record, especially the plea colloquy, we find evidence to support a finding that Jenkins did not misunderstand the consequences of his plea.

¶88      Even if Jenkins entertained hopes of giving extensive cooperation to law enforcement in order to potentially affect his sentence, his hopes were too unrealistic in view of the serious charge against him, his lengthy incarceration before his plea, and his extensive criminal history, to constitute a fair and just reason to withdraw his plea when his hopes were not realized. Jenkins knew he could not count on that cooperation to materially affect his sentence. [17]



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