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Plea Withdrawal – Hampton Hearing

State v. Robert S. Powless, 2010AP1116-CR, District 3/4, 2/24/11

court of appeals decision (not recommended for publication); for Powless: Leonard D. Kachinsky; case activity

At an evidentiary hearing on a “Hampton” violation (failure to assure defendant knows the judge isn’t bound by the plea agreement), the State satisfied its burden of proving that Powless in fact knew the judge could exceed the State’s sentencing recommendation.

¶37      Our conclusion is based on the following.  Powless repeatedly, if inconsistently, testified during the evidentiary hearing that he did in fact understand that he could be sentenced to more time than the State was recommending in the agreement, and that the court was not bound by the State’s recommendation.  In making its findings following the evidentiary hearing, the court emphasized that Powless acknowledged in his testimony that he understood that the court could in fact impose a sentence beyond the State’s “cap,” that Jackomino explicitly told Powless this fact before Powless entered his plea, and that the plea questionnaire explicitly reinforced this same idea.

¶44      Powless disputes the circuit court’s credibility determination.  However, “[i]t is for the circuit court, not this court, to determine witness credibility.”  State v. Plank, 2005 WI App 109, ¶11, 282 Wis. 2d 522, 699 N.W.2d 235 (sustaining circuit court finding that defendant’s testimony at Bangert hearing was “just not believable”).  For all of the reasons given above and based on the record, we conclude that the circuit court’s findings are not clearly erroneous.

The guilty plea court must personally inform the defendant it isn’t bound by the plea agreement, State v. Hampton, 2004 WI 107, ¶20, 274 Wis. 2d 379, 683 N.W.2d 14. In discharging this obligation, the court can’t simply rely on the plea questionnaire, State v. Hoppe, 2009 WI 41, ¶32, 317 Wis. 2d 161, 765 N.W.2d 794 (“the Form cannot substitute for a personal, in-court, on-the-record plea colloquy between the circuit court and a defendant”). See slip op., ¶¶20-22.

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