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Motion to withdraw Plea, Pre-Sentence; Motion to withdraw Plea – Ineffective Assistance

State v. John M. Anthony, 2009AP2171-CR, District 1, 10/13/10

court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Br.

Motion to withdraw Plea, Pre-Sentence

Based on trial court findings that Anthony decision to plead no contest was based on his attorney’s informed assessment that he was likely to be found guilty if he went to trial, the court of appeals rejects his claim that he was coerced into pleading by counsel’s lack of preparation and holds instead that he failed to establish a “fair and just” reason for plea-withdrawal, ¶¶9-24. Standard for pre-sentencing plea-withdrawal discussed.

Anthony’s renewal of his motion to withdraw plea meets the same fate, ¶¶26-30.

Motion to withdraw Plea – Ineffective Assistance

Anthony’s claim of an inadequate investigation by counsel was unproven, ¶39. Moreover, counsel’s purported lack of preparation wouldn’t have caused Anthony to plead no contest pursuant to plea bargain, because although the plea bargain involved reduced charges the sentencing exposure was nonetheless substantial:

¶41      Having been aware of the serious consequences of his pleas—facing up to thirty years on count one alone—it makes no sense that Anthony would plead no contest simply out of fear that his counsel was unprepared for trial.  Anthony could have expressed his concerns about his lawyer to the circuit court during the plea colloquy, in lieu of stating that his pleas were knowingly, intelligently, and voluntarily given. Simply put, Anthony has not set forth “objective factual assertions” that persuade us that he would have pled differently or gone to trial, had he believed that Attorney Morales was more prepared.

The court cites no authority for its apparent assumption, as a matter of law, that a defendant wouldn’t accede to substantial exposure “simply out of fear that his counsel was unprepared for trial.” Why not, Fear that counsel’s lack of preparation would certainly result in more than 60 years (the original charge) compelled a change of plea so that Anthony could have some hope of release before senescence? Of course, the court also concluded that Anthony failed to show that counsel was unprepared, which makes the ensuing discussion unnecessary, and that’s probably where the matter should have rested.

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