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SCOW to consider whether defense attorney misconduct is a “fair and just reason” to withdraw plea

State v. Tyrus Lee Cooper, 2016AP375, review of a per curiam opinion granted 12/12/2018; case activity (including briefs)

Issues (from the petition for review):

  1. When defendant’s counsel has engaged in serious professional misconduct leading up to the trial date affecting defendant’s meaningful participation in his own defense, does that provide a sufficient reason to withdraw a guilty plea prior to sentencing?
  2. Did the the circuit court erroneously exercise its discretion when it denied defendant’s motion to withdraw his plea prior to sentencing without an evidentiary record to support substantial prejudice to the State?

Cooper’s defense lawyer committed professional misconduct in his representation of Cooper. We know this because of the resulting lawyer discipline decision from SCOW, OLR v. Hicks, 2016 WI 31. Per that opinion,

¶23  …. T.C. sent a letter to Attorney Hicks, in which he asked Attorney Hicks to send him a copy of discovery materials received from the state and raised concerns about his case. T.C. sent two more such letters to Attorney Hicks over the next approximately seven months. Attorney Hicks sent T.C. two letters about the rescheduling of T.C.’s trial, but did not communicate with T.C. about the matters raised in his letters, did not discuss his preparation or strategy for trial, and did not provide a copy of the requested discovery.

¶ 24 At a meeting with Attorney Hicks on August 18, 2013, T.C. repeated his request for a copy of the discovery materials and raised a number of questions about his case. Attorney Hicks promised T.C. that they would meet again prior to the trial to discuss T.C.’s defense. Over the following two months, however, Attorney Hicks did not provide T.C. with the requested discovery nor did he communicate with T.C. regarding his trial preparation and strategy.

¶ 25 On October 21, 2013, pursuant to Attorney Hicks’ advice to accept a plea agreement he had negotiated with the prosecutor, T.C. pled guilty to the pending charges. After entering the plea, however, T.C. began pursuing the withdrawal of his plea. On January 23, 2014, Attorney Hicks was allowed to withdraw as T.C.’s counsel.

¶ 26 During the time that Attorney Hicks represented T.C., his license to practice law was suspended for the second time. Attorney Hicks, however, did not notify T.C., the court, or opposing counsel of the suspension.

Not so good. But, the circuit court and court of appeals said, not a “fair and just reason” for Cooper to withdraw his plea, which he tried to do, pro se and with new counsel, before his sentencing date. The “fair and just reason” standard is, we are told, a “liberal rule” under which withdrawals are “freely allow[ed].” State v. Jenkins, 2007 WI 96, ¶¶2, 29, 303 Wis. 2d 157, 736 N.W.2d 24.

That “freely” part refers to the standard to be applied. But the standard can be rather meaningless where, as here, the circuit court simply declines to believe a criminal defendant’s articulation of the reasons why he wants to withdraw. Or where, as here, the courts just fail to consider how the above-described failings might alter a defendant’s calculation about whether to plead at all. If your lawyer was not preparing for your scheduled trial (or not telling you that he was), and wouldn’t have a “discussion of [your] defense” with you, wouldn’t you think about pleading too? And if, once you had a new, functioning lawyer, your calculation changed, doesn’t that seem like a “fair and just reason” to rethink things? We’ll see.

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