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Plea withdrawal – understanding of collateral consequences

State v. Mitchell F. Graf, 2012AP1356-CR, District 3, 1/8/13

Court of appeals decision (1 judge; ineligible for publication); case activity

The court of appeals rejects Graf’s plea withdrawal claim, holding: 1)  Graf was not affirmatively misled to believe that by pleading to the offenses he would be able to keep his job because he understood that the circuit court was not bound by any plea agreement and could have sentenced him to imprisonment, which would have cost him his job (¶14); and 2) he was not erroneously misled to believe that if the court imposed probation with limited or no jail time, the Department of Corrections would be able to supervise him in his current employment:

¶16      Graf’s alleged misunderstanding about the Department of Corrections does not amount to a manifest injustice requiring plea withdrawal. First, unlike the situation in [State v.] Brown, [2004 WI App 179, 276 Wis. 2d 559, 687 N.W.2d 543,] where the prosecutor and defense attorney affirmatively advised Brown about a legal impossibility—i.e., avoiding certain collateral consequences by pleading to select offenses[—]in this case, it is not a legal impossibility for the Department of Corrections to supervise a probationer who leaves the state for employment purposes. See Wis. Admin. Code § DOC 328.06 (explaining travel permits for probationers). We cannot conclude that, similar to Brown, Graf was given information that amounted to a legal impossibility.

¶17      Second, and more importantly, Graf failed to prove by clear and convincing evidence a basis for plea withdrawal.  He never presented any evidence regarding the details of his pre- and post-sentencing conversations with the Department of Corrections or explained why the Department of Corrections advised him that it would be able to issue travel permits only to later declare he was “unavailable for supervision.” As the State points out in its brief, we cannot assume that Graf provided the same information about his employment to the Department of Corrections on both occasions.  Graf has not proven that a manifest injustice would result if he were not entitled to withdraw his pleas based on his alleged misunderstanding regarding the Department of Corrections.

Graf, a ship’s captain, negotiated a plea deal designed to allow him to argue for a  disposition under which he could keep his job. The parties jointly recommended probation and agreed on all the proposed conditions of probation except the amount of conditional jail time, as the state asked for an amount that would cost Graf his current captain’s job. That aspect of the deal, as well as the court’s power to reject the joint recommendation and impose straight imprisonment, scuttles the claim Graf entered the deal expecting to keep his job.

As to the conflicting information from DOC: Before the plea a DOC employee told Graf’s attorney that Graf’s employment, which required him to leave the state periodically, would not pose a problem; but shortly after sentencing, DOC determined that Graf was “unavailable for supervision,” apparently because his employment took him out of state too often. As noted, Graf’s appeal runs aground on the lack of evidence about the communications with DOC before versus after the plea. Clarifying and memorializing such important details before the plea will establish later on what the defendant was told (not to mention help make sure he understands what he is really getting at the time of the plea).

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