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Plea-Withdrawal – Pre-sentence – Original Sentence Vacated

State v. Jonathan V. Manke, 230 Wis.2d 421, 602 N.W.2d 139 (Ct. App. 1999)
For Manke: Waring R. Fincke

Issue/Holding: After a plea-based sentence has been vacated, and re-sentencing ordered, the “fair and just reason” standard applies to a motion to withdraw the plea:

Before considering if Manke met his burden of proof, our initial determination must be which is the correct standard to apply when evaluating his plea withdrawal motion.  To do so, we will briefly recapitulate the pertinent procedural history.  Manke pled no contest to the charge and was sentenced.  He subsequently filed his first motion to withdraw his plea.  In this motion, he also requested that in the alternative of the court allowing him to withdraw his plea, the court should order that he be resentenced before a different judge.  The court granted the latter request.  Manke again moved to withdraw his plea, which was granted, resulting in this appeal.

Manke contends that manifest injustice is not the appropriate test.  In support, he relies on State v. Nawrocke, 193 Wis.2d 373, 534 N.W.2d 624 (Ct. App. 1995).  There, we stated: “The manifest injustice standard is applicable here because the motion to withdraw the plea was filed after a sentencing decision had been made and that decision had not been reversed, vacated or nullified by the court.”  Id. at 380, 534 N.W.2d at 627.  Manke admits that his second motion was filed after sentencing, but, unlike the defendant in Nawrocke, his sentence was subsequently vacated.

… Contrary to the State’s representations, it is apparent from the record that the trial court did vacate Manke’s original sentence before sending the case on for resentencing. …

Having concluded that the sentence was vacated, we agree with the court’s application of the presentencing standard—a fair and just reason—to Manke’s plea withdrawal motion. …

On the merits of the issue of plea-withdrawal, the court of appeals reviews deferentially and upholds the grant of relief. Manke’s testimony that he misunderstood the consequences of the plea, was confused about his options and received misleading advice supports the order withdrawing plea.

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