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SCOW reverses court of appeals and holds parent is unable to withdraw their plea, fails to agree on much of anything else

State v. A.G., 2023 WI 61, 6/30/23, reversing an unpublished decision of the court of appeals; case activity (briefs not available)

In a closely-watched appeal involving tricky questions regarding plea withdrawal in TPR cases, a fractured court agrees that the court of appeals got it wrong but fails to otherwise develop the law.

(See our previous posts on this case here and here.)

On appeal, A.G. argues he was entitled to plea withdrawal as a result of two defects during the plea colloquy: (1) the court failed to adequately inform him of the potential dispositions at a disposition hearing and (2) the court erroneously informed him of a burden of proof for that hearing which does not exist. (¶1). The Court holds that A.G. “knowingly, intelligently, and voluntarily pled no contest” and therefore denies relief. (¶3). While four justices agree this is the correct outcome, there is disagreement on how that outcome should be reached. As a result, the decision fails to generate useful precedent and appears to apply only to the precise facts of this case.

Justice R.G. Bradley, joined by Chief Justice Ziegler, announces the “mandate” of the court. As to the first claim–whether A.G. was accurately informed of the potential dispositions available–the Court rejects what it believes to be a request for a “magic words” requirement in TPR plea colloquies. (¶28). Applying a limited standard of review, the lead opinion relies on the circuit court, which found A.G. understood the “stakes” of a disposition hearing–that either a termination order or a dismissal would be entered by the circuit court. (¶¶29-30). That finding is not clearly erroneous and corroborated by other record evidence; hence, it must be deferred to on appeal. (Id.)

A.G.’s second claim, involving a miscommunication of the burden of proof at a dispositional hearing, fares no better. Although the lead opinion accepts A.G.’s argument that there is no burden of proof assigned to the State at a dispositional hearing, the lead opinion denies relief because it believes any miscommunication of that standard was an “insubstantial defect” (¶33). Here, the record reflects that the circuit court actually applied that burden of proof at disposition. (¶36). A.G. received the benefit of the lower court’s legal error when the State was held to a burden of proof it should not have had to meet; accordingly, he is not entitled to withdraw his plea. (Id.).

Justice Hagedorn, joined by Justice Karofsky, reaches the same conclusion on both fronts in a decision that has substantial analytical overlap with the lead opinion. As to the claim regarding dispositions, the concurrence agrees that the record evidence establishes A.G.’s understanding. (¶44). A.G.’s second claim fails because it relies on a “strained” reading of what the circuit court said during the plea colloquy. (¶46).

Finally, Justices Dallet and A.W. Bradley believe that A.G. should have been entitled to obtain plea withdrawal on his claim regarding the burden of proof. (¶55). Although the dissenting justices are not sold on A.G.’s legal argument that there is no burden of proof, they feel duty-bound to accept that proposition as “law of the case.” (¶59). Relying almost entirely on the plea hearing transcript, in which A.G. ratified his understanding of the (erroneously communicated) dispositional standard, the dissenters feel that A.G. should have been entitled to withdraw his plea and that the lead opinion has impermissibly unsettled the solid body of precedent otherwise governing plea withdrawal motions. (¶61).

As pointed out in a footnote, there are other cases in the appellate pipeline raising similar issues. Given the fractured decision and contentious exchange between the Justices, we may be seeing a sequel to this case any day now.

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