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Plea-Withdrawal – Double Jeopardy

State v. Charles D. Brown, No. 2009AP2093-CR, District I, 6/23/10

court of appeals decision (3-judge, not recommended for publication); for Brown: Martin J. Pruhs; BiC; Resp.

Under State v. Comstock, 168 Wis. 2d 915, 485 N.W.2d 354 (1992), a court may not sua sponte order withdrawal of a guilty plea, absent fraud or intentional withholding of material information. That rule is not, however, triggered by the circumstances of this case:

¶20      The trial court never completed a formal Comstock analysis, however, because in the course of conversing with Brown about whether the plea was appropriate, Brown appeared to agree that the case should proceed to trial. Specifically, when the trial court suggested that if the drugs were not his, they should finish the trial, Brown twice responded affirmatively. In response, the trial court asked Brown if he wanted to consult with his trial counsel, and he said yes. Next, trial counsel told the trial court Brown wanted to proceed with the trial.

¶21      … Not only did Brown affirmatively indicate he wanted to proceed to trial, he does not claim to have subsequently objected to proceeding to trial on the counts as originally charged.

¶22      For these reasons, we reject Brown’s assertion that the trial court sua sponte vacated his pleas. We also reject his argument that he was subjected to double jeopardy when the original charges were tried to the jury. When Brown withdrew his guilty pleas, he waived any jeopardy that attached by the entry of that plea. See State v. Bagnall, 61 Wis. 2d 297, 302, 212 N.W.2d 122 (1973) (“Jeopardy is waived by the entry of a motion to withdraw a guilty plea.”), superseded by statute on other grounds as stated in State v. Rabe, 96 Wis. 2d 48, 55-56, 291 N.W.2d 809 (1980).

The plea was ordered withdrawn after Brown said the drugs at issue weren’t his. He argues on appeal that he nonetheless did have dominion and control — “possession,” in a word — but the court says this isn’t relevant: “But here, Brown ultimately elected to withdraw his pleas, after consulting with his trial counsel. His reasons for withdrawing the pleas or the wisdom of doing so are not issues properly before this court,” ¶23. The court must be seeing this in terms of estoppel (Brown elected to withdraw his plea on the ground the drugs weren’t his, so he’s estopped now from taking a contrary position), though the court doesn’t explicitly say so. A distinct and potentially interesting issue, whether the plea-withdrawal was knowing and voluntary, isn’t sufficiently pressed on appeal and the court declines to reach it, ¶23 n. 4.

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