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Counsel – Waiver, Self-Representation – Presentencing Plea-Withdrawal

State v. Dennis C. Strong, Jr., 2012AP1204-CR, District 3, 11/30/12

court of appeals decision (1-judge, ineligible for publication); case activity

The trial court undertook an appropriate colloquy with Strong before allowing him to waive counsel and represent himself, leading to guilty pleas. The court thus rejects his claim that his pleas were premised on a violation of his right to counsel, ¶12.

Strong had an apparent change of heart after entering guilty pleas: he turned around and made a request for representation, which was granted. Counsel then unsuccessfully moved for presentencing plea-withdrawal. The court now rejects Strong’s renewal of the issue on appeal:

¶16      On appeal, Strong argues the circuit court erred by refusing to allow him to withdraw his guilty pleas because “his desire to have counsel and his assertion of innocence are sufficient reasons to satisfy the ‘fair and just standard.’”  We, however, conclude that, because Strong knowingly, voluntarily, and intelligently waived his right to counsel at the plea hearing, his subsequent desire to be represented by counsel at that hearing is not a fair and just reason for plea withdrawal.  See Jenkins, 303 Wis. 2d 157, ¶63 (“[B]ecause a fair and just reason will nullify both a sufficient plea colloquy and a constitutional valid plea, the court may consider whether the proffered fair and just reason outweighs the efficient administration of justice.”).

¶17      As for Strong’s assertion of innocence, “[a] claim of innocence alone is insufficient to support a motion to withdraw a guilty plea.”  State v. Rhodes, 2008 WI App 32, ¶13, 307 Wis. 2d 350, 746 N.W.2d 599 (Ct. App. 2007).  “The claim must be backed up with credible evidence to support it.”  Id.  Here, Strong’s assertion of innocence regarding the twenty-two original counts is conclusory.  He does not explain of what or why he is claiming innocence.  Therefore, his assertion does not amount to a fair and just reason for plea withdrawal.  See id.  However, to the extent Strong is asserting one of his convictions lacked a factual basis, we observe that, at the plea hearing, Strong advised the court that he read all the criminal complaints and that the court could rely on information in the complaints to serve as a factual basis for his guilty pleas.

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