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Plea-Withdrawal – Pre-Sentence – “Fair and Just Reason” Standard – Generally

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


¶31      A “fair and just reason” has never been precisely defined. State v. Shimek, 230 Wis. 2d 730, 739, 601 N.W.2d 865 (Ct. App. 1999). Indeed, the fair and just reason standard “lack[s] any pretense of scientific exactness.” United States v. Barker, 514 F.2d 208, 220 (D.C. Cir.) (en banc), cert. denied, 421 U.S. 1013 (1975). This court has said that the term contemplates “the mere showing of some adequate reason for the defendant’s change of heart,” Libke v. State, 60 Wis. 2d 121, 128, 208 N.W.2d 331 (1973), and that “the exercise of discretion requires the [circuit] court to take a liberal, rather than a rigid, view of the reasons given for plea withdrawal.” Bollig, 232 Wis. 2d 561, ¶29. Nonetheless, “[w]hether a defendant’s reason adequately explains his or her change of heart is up to the discretion of the circuit court.” Kivioja, 225 Wis. 2d at 284 (citing Canedy, 161 Wis. 2d at 584).

¶62      A fair and just reason for plea withdrawal before sentence will always be subject to case-by-case analysis. As a general rule, a fair and just reason for plea withdrawal before sentence will likely exist if the defendant shows that the circuit court failed to conform to its statutory or other mandatory duties in the plea colloquy, and the defendant asserts misunderstanding because of it. In such a circumstance, the State may show that it has been prejudiced, in which case the court will have to decide whether the deficiency in the plea colloquy compromised the knowing, intelligent, and voluntary nature of the defendant’s plea. Cf. State v. Van Camp, 213 Wis. 2d 131, 139, 569 N.W.2d 577 (1997). A defendant may proffer a fair and just reason, including misunderstanding and changed circumstances, based on matters outside the plea colloquy record. When the plea colloquy is sufficient, however, the defendant’s fair and just reason should rely on matters outside the plea colloquy record or be able to show why it is fair and just to disregard the solemn answers the defendant gave in the colloquy. A failure to recognize the implications of a valid plea colloquy would “debase[ ] the judicial proceeding at which a defendant pleads and the court accepts its plea.” United States v. Hyde, 520 U.S. 670, 676 (1997).

¶89      Finally, we address the question of whether an assertion of innocence is necessary under the fair and just reason standard. We note that like the manifest injustice standard, the fair and just reason standard does not require that the defendant assert his innocence. See Reppin, 35 Wis. 2d at 385 n.2 (stating that under the manifest injustice standard, “[t]he defendant may move for withdrawal of his plea without alleging that he is innocent of the charge to which the plea has been entered.”). However, an assertion of innocence is a factor “that bear[s] on whether the defendant’s proffered reason of misunderstanding, confusion or coercion [is] credible.” Shimek, 230 Wis. 2d at 740 n.2. In other words, an assertion of innocence is not necessary, but it helps the circuit court evaluate the defendant’s “fair and just reason.”

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