On Point

State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding: To attack a custody order as void, in defense against interference with child custody, § 948.31, “the family court would have had to lack subject matter jurisdiction or personal jurisdiction, or Campbell would have had to receive inadequate notice of the divorce proceedings,” ¶46.

Campbell argued that the custody order was procured by fraud, because the mother (who was then married to Campbell) obtained an order of adoption from a Missouri court but withholding her status at the time as a Wisconsin resident. Ultimately though, the parents were divorced in Wisconsin, where a family court entered the custody order Campbell was accused of interfering with. Because the parents were residents of Wisconsin when the divorce commenced, the family court had subject matter jurisdiction; nor is there any dispute that the family court had personal jurisdiction over Campbell, ¶48.

¶49      Even if the family court commissioner erred in granting custody and primary placement to Denise, Campbell had to abide by the terms of the custody order until he succeeded in reversing it through the applicable review process. See Orethun, 84 Wis. 2d at 490 (“Where a court has jurisdiction over the subject matter and the parties, the fact that an order or judgment is erroneously or improvidently rendered does not justify a person in failing to abide by its terms.”); Anderson v. Anderson, 82 Wis. 2d 115, 118-19, 261 N.W.2d 817 (1978); cf. Kett, 222 Wis. 2d at 128 (“A voidable judgment . . . has the same effect and force as a valid judgment until it has been set aside.”).

¶50      Since Campbell’s allegation of fraud, even if true, cannot deprive the family court of subject matter jurisdiction or personal jurisdiction, and cannot render the custody order void, evidence of Denise’s alleged fraud cannot negate an element of interference with custody.

State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶39      After sentencing, in cases that involve an alleged deficiency in the plea colloquy, an attempt to withdraw a guilty plea proceeds as follows. The defendant must file a postconviction motion under Wis. Stat. § 809.30 or other appropriate statute. The motion must (1) make a prima facie showing of a violation of Wis. Stat. § 971.08(1) or other court-mandated duties by pointing to passages or gaps in the plea hearing transcript; and (2) allege that the defendant did not know or understand the information that should have been provided at the plea hearing. Bangert, 131 Wis.  2d at 274.

¶40      When a Bangert motion is filed, it is reviewed by the court. If the motion establishes a prima facie violation of Wis. Stat. § 971.08 or other court-mandated duties and makes the requisite allegations, the court must hold a postconviction evidentiary hearing at which the state is given an opportunity to show by clear and convincing evidence that the defendant’s plea was knowing, intelligent, and voluntary despite the identified inadequacy of the plea colloquy. ^[23] Bangert, 131 Wis.  2d at 274. When the defendant has met his two burdens, the burden of producing persuasive evidence at the evidentiary hearing shifts to the state. ^[24] Id. at 275. In meeting its burden, the state may rely “on the totality of the evidence, much of which will be found outside the plea hearing record.” Hampton, 274 Wis.  2d 379, ¶47. For example, the state may present the testimony of the defendant and defense counsel to establish the defendant’s understanding. Bangert, 131 Wis.  2d at 275. The state may also utilize the plea questionnaire and waiver of rights form, documentary evidence, recorded statements, and transcripts of prior hearings to satisfy its burden.

The territory has been covered many times before, but “(t)his opinion is intended to revitalize Bangert,” ¶58, which the court says is a “timeless primer,” ¶24. Bangertarticulated three methods for a judge to establish a record of a voluntary, knowing plea; they’re recited by the court, ¶¶46-48. The court goes on to say that this “list is non-exhaustive …. There may be other ways to show a defendant’s understanding of the charges,” ¶49. Despite this unfortunate suggestion of some loose play in the joints the court’s discussion elsewhere resists such a construction. Bangert itself condemned “perfunctory” exchanges (which the court now repetitively stresses, ¶¶32, 33, 58); more importantly perhaps is this passage, ¶56:

… Bangert requires verification, independent of defense counsel’s assertion, that a defendant understands the nature of the charges. See Bangert, 131 Wis.  2d at 267 (requiring the circuit court to “ascertain that the defendant possesses accurate information about the nature of the charge”). Hence,Bangert requires a circuit court to summarize the elements of the offenses on the record, or ask defense counsel to summarize the elements of the offenses, or refer to a prior court proceeding at which the elements were reviewed, or refer to a document signed by the defendant that includes the elements. ^[26]Id.  at 268. Each method enables a court to ascertain the accuracy of the defendant’s knowledge; each method gives substantive content to a defendant’s understanding. Cf. id. at 269 (“Understanding must have knowledge as its antecedent; knowledge, like understanding, cannot be inferred or assumed on a silent record.”). Moreover, we encourage circuit court judges to translate legal generalities into factual specifics when necessary to ensure the defendant’s understanding of the charges.

… requires a circuit court to … not, “We encourage a circuit court” (as contrastingly, in the last-sentence’s exhortation). One can only assume that the court used “requires” a) consciously and therefore b) meant it to be mandatory rather than merely exhortatory.

A final point, seemingly picky but potentially recurrent and therefore worth mentioning anyway: the “defendant is not required to submit a sworn affidavit to the court” in support of the Bangert motion to withdraw plea, ¶62. It’s enough for counsel to assert in the motion itself the defendant’s lack of knowledge of the information omitted from the colloquy. But if the defendant files what the court terms “a dual purpose motion——that is, a Bangert motion combined with a motion that alleges ineffective assistance of counsel or some other problem affecting the plea that is extrinsic to the plea hearing record,” ¶62, then the pleading and proof requirements will be different.

State v. Jeremy D. Russ, 2006 WI App 9
For Russ: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: A deaf defendant who had been shackled when he entered a guilty plea and was sentenced must show actual inability to communicate effectively in order to meet his burden of showing a violation of rights. Thus, even though the defendant adduced expert proof at the postconviction hearing “that communication would be limited and difficult if a deaf person who used sign language were handcuffed,” he did not meet his burden of proof:

¶10      As the trial court observed, the expert’s testimony—the only evidence presented at the postconviction hearing—was purely theoretical. It established that Russ could have had a very difficult time communicating information to others in the courtroom. Russ, however, must prove that he was actually prevented from effectively communicating. Russ presented no evidence that the shackles hindered him from imparting any particular piece of information or from directing questions to anybody in the courtroom. Neither his trial counsel nor the interpreters took the stand to attest to their inability at any point during sentencing to understand Russ; nor did Russ give any testimony of his own. Moreover, despite the court’s invitation to let it know if the restraints prevented Russ from communicating adequately, Russ never notified the court of any such difficulty either personally or through counsel.

Deck v. Missouri, 125 S. Ct. 2005 (2005) distinguished, ¶11: that decision “was primarily concerned with the prejudicial effect of shackles” on a jury; Court’s observation that shackles could interfere with right to communicate with counsel deemed mere “observation” in nature of dicta, ¶11. A one-judge concurrence (¶¶18-23) makes some useful points about what factors ought to inform the discretionary determination of shackling, something the concurrence says should be “saved only for extraordinary cases.” For succinct analysis of Deck, see Lakin v. Stine, 431 F.3d 959 (6^th Cir 2005).

The result applies to sentencing as well as plea-withdrawal, ¶6 (” A common theme he raises on all three grounds is the fact that he was handcuffed at the plea hearing and sentencing”).

State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose

Issue/Holding: Defendant’s recalculation of his chance’s at trial after pleading guilty in an effort to maximize chances of avoiding or reducing prison term, uncoupled to any claim of confusion about the nature of the offense, was not a fair and just reason for pre-sentencing plea withdrawal, ¶¶24-29.

State v. Barry M. Jenkins, 2006 WI App 28, overruled on other grounds, 2007 WI 96
For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue/Holding:

¶31      Our conclusion that Jenkins had a fair and just reason for plea withdrawal does not end our inquiry.  We must consider whether the State would be substantially prejudiced by the plea withdrawal. See id., ¶28.  The trial court never considered prejudice, but we note that neither at the trial court nor on appeal does the State suggest that it would have been prejudiced in any way if the plea withdrawal had been allowed. In the absence of even an assertion of prejudice, we conclude that the trial court erroneously exercised its discretion when it denied Jenkins’s pre-sentencing motion to withdraw his plea. See State v. Shanks, 152 Wis. 2d 284, 292, 448 N.W.2d 264 (Ct. App. 1989) (concluding defendant should have been allowed to withdraw plea where he proved a fair and just reason and the State made no argument that it would be substantially prejudiced by the defendant’s plea withdrawal). Therefore, we reverse and remand for further proceedings.

Because the court of appeals was overruled on other grounds (indeed, the State didn’t even dispute prejudice in the supreme court), the holding quoted above should remain viable.

State v. Andrae D. Howell, 2006 WI App 182, PFR filed 9/25/06 (reconsideration of previously issued but subsequently withdrawn opinion)

For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue^/Holding¹: A conclusory allegation suffices to obtain a hearing on a Bangert claim (involving a defect in the plea colloquy), ¶14; however, more is required for a non-Bangert claim, ¶¶21-29. Nor is there, for pleading purposes, a third category involving a colloquy that doesn’t amount to a Bangert defect but nonetheless could have contributed to the defendant’s asserted misunderstanding, ¶¶30-33.Much potential for mischief in this seemingly innocuous passage:

¶20 Although courts often speak in terms of Bangert motions andNelson/Bentley motions, the two are not mutually exclusive. A defendant may, in the same physical motion, request a plea withdrawal hearing based on an alleged Bangert violation and, in the alternative, assert that a hearing must be held because the motion contains allegations that are sufficient under theNelson/Bentley test. When motions contain these alternatives, they must be assessed, respectively, under Bangert and under Nelson/Bentley. Moving parties would be wise to be clear about which argument is being made, or that both are being made. ^[8]

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^[8] We note that non- Bangert plea withdrawal motions come in several stripes. Indeed, Nelson and Bentley themselves differ in that Bentley involves the additional complexity of an allegation of ineffective assistance of counsel.Bentley, 201 Wis. 2d at 306-07. Moreover, plea withdrawal motions are but one type of motion assessed under the Nelson/ Bentley standard. The Nelson/Bentley test is used in its pure form, or in a slightly modified form, in a variety of situations to determine whether an evidentiary hearing is required.See, e.g., State v. Samuel, 2002 WI 34, ¶¶8, 33-35, 47, 252 Wis. 2d 26, 643 N.W.2d 423 (need for pretrial suppression hearing); State v. Velez, 224 Wis. 2d 1, 4, 13-14, 589 N.W.2d 9 (1999) (allegation that State deliberately delayed charging defendant to avoid juvenile court jurisdiction); State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 611, 618-19, 571 N.W.2d 385 (1997) (need for John Doe proceeding); State v. Reynolds, 2005 WI App 222, ¶¶1, 7-8, 15, 287 Wis. 2d 653, 705 N.W.2d 900 (allegation that counsel rendered ineffective assistance at trial); State v. Pharm, 2000 WI App 167, ¶¶1, 8, 27, 238 Wis. 2d 97, 617 N.W.2d 163 (allegation that counsel rendered ineffective assistance during post-commitment Wis. Stat. ch. 980 trial).

Note that the only thing before the court is plea-withdrawal, yet lumped into that footnote are a variety of issues, most problematically the unembellished “need for pretrial suppression hearing,” citing Samuel. Don’t count on this glancing reference earning nothing more than the obscurity it richly deserves. Howell may not require an affidavit in support of a motion but that is a matter of mere form; it imposes a stiff pleading burden as a prerequisite to an evidentiary hearing – and if that burden is imported across the board into “pretrial suppression hearings” then a staple of motion practice is going to be significantly altered, and not for the better. Without making too fine a point of it: the cases string cited in the footnote deal with issues on which the defendant bears a burden of proof, and that ought to be a distinction with a difference. (See, e.g, Samuel, ¶35.) On warrantless searches and seizures (and Miranda-Goodchild issues), the State bears the burden of proof, and it therefore makes sense to say that the defendant ought not have a burden to plead facts that the other side must end up (dis)proving.Issue²: Whether Howell’s pleading required an evidentiary hearing on plea withdrawal, where his claim raised a non- Bangert issue, that is, one alleging that he didn’t fully understand the (party-to-a-crime) nature of the offense but not one which relied on any defect in the plea colloquy; where, more particularly, he alleged that for various reasons he did not understand that his mere presence and failure to stop a shooting would not have supported guilt.Holding²: Howell’s assertion that he mistakenly believed he could be found guilty under a mere bystander theory is “a conclusory allegation. It provides no facts explaining why Howell might have misunderstood,” ¶38. Moreover, the guilty plea colloquy indicates that Howell knew the direct actor had a gun, something “completely consistent with Howell’s guilt as an aider and abettor,” ¶39; and, a thrust of the plea proceeding “indicated that Howell’s participation was in fact active”—nor “did anyone say that mere presence constituted assistance for purposes of party-to-a-crime liability,” ¶40. Finally, even though Howell referred to trial counsel’s extrajudicial explanation of ptac liability, this too is conclusory, ¶¶43-44.A somewhat heated exchange between majority (¶46) and dissent (¶¶47-64) makes for interesting reading, with this perhaps the most salient point:

¶57 Common sense tells us that the supreme court was correct. It is difficult to the point of impossibility to explain why one misunderstood something. Was there room noise? Did the perceiver have a problem with the meaning of a word? A sentence? Was the defendant’s attorney rustling papers? Is a person’s vocabulary limited in some respect? We know that some people are more intelligent than others. There are a myriad of reasons why people do not understand each other. No one always remembers why he or she did not understand something. Many people do not know why they do not know what they do not know. For example, appellate judges have been known to say to each other that they do not understand something a colleague believes he or she has explained. Explaining why one does not understand is often difficult if he or she does not understand in the first place.

Indeed, it is hard to imagine how someone can demonstrate he or she didn’t know something. Howell asserted he didn’t understand ptac liability—absent counsel affirmatively (mis-)advising him that being a mere bystander amounted to guilt rather than a defense, just what was he supposed to assert to take it out of the realm of the conclusory? The majority doesn’t say.Issue/Holding³: ¶45, n. 14:

Although we decide this case in favor of the State on other grounds, we briefly comment on the State’s argument that Howell’s motion was not accompanied by an affidavit from Howell, but only his counsel’s affidavit containing hearsay assertions about what Howell claimed to be true. According to the State, there is a general rule that hearsay recitations in an affidavit are insufficient to trigger an evidentiary hearing and we should apply that general rule here. In support, the State cites State v. Lass, 194 Wis. 2d 591, 535 N.W.2d 904 (Ct. App. 1995), and State v. Bruckner, 151 Wis. 2d 833, 447 N.W.2d 376 (Ct. App. 1989). However, these cases provide no support for such a requirement. In Lass, we did not address whether the circuit court wrongly denied the defendant an evidentiary hearing. Rather, we concluded that an affidavit containing hearsay was insufficient to support a request for disclosure of the identity of a confidential informer. Lass, 194 Wis. 2d at 599-600. In Bruckner, we did address the denial of an evidentiary hearing, but did not purport to set forth any general rule. Rather, in dictum in a footnote we addressed the prerequisites for holding a Franks hearing, not hearings generally. Bruckner, 151 Wis. 2d at 864-65 n.15. Furthermore, even in the Franks context, the footnote does not say that an affidavit based on personal knowledge is generally required. See id. Finally, we note that inState v. Brown, 2006 WI 100, __ Wis. 2d __, 716 N.W.2d 906, the supreme court stated: “A defendant is not required to submit a sworn affidavit to the court, but he is required to plead in his motion that he did not know or understand some aspect of his plea that is related to a deficiency in the plea colloquy.” Id., ¶62.

State v. Timothy J. Goyette, 2006 WI App 178
For Goyette: E.J. Hunt, Kathleen M. Quinn

Issue/Holding:

¶17 The purpose of filing a Bangert plea withdrawal motion is to obtain an evidentiary hearing at which the State bears the burden of producing evidence showing that, despite a defective plea colloquy, the defendant’s plea was nonetheless knowing and voluntary. State v. Bangert, 131 Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986). ^[8] …

¶18 The only difference between Goyette’s evidentiary hearing and the one required by Bangert is that, under Bangert, the burden of proof shifts to the State. If a Bangert plea withdrawal hearing had been held, it would have been incumbent on the State to call necessary witnesses or otherwise meet its burden. Instead, at Goyette’s hearing, Goyette called the witnesses and examined them first. ^[9]

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^[8] Under Bangert, if a defendant files a motion that (1) identifies a failure by the circuit court to comply with Wis. Stat. § 971.08 or a court-mandated plea hearing procedure, and (2) alleges that the defendant did not understand the information at issue, then the burden shifts to the State to show by clear and convincing evidence that the plea was knowingly and voluntarily entered.Bangert, 131 Wis. 2d at 274-75. Notably, the second Bangert prong is satisfied by a conclusory allegation that the defendant did not know or understand. State v. Hampton, 2004 WI 107, ¶57, 274 Wis. 2d 379, 683 N.W.2d 14. When a plea withdrawal motion is sufficient under Bangert, the circuit court must hold an evidentiary hearing at which the State has the burden of proving by clear and convincing evidence that the plea was knowingly entered. State v. Brown, 2006 WI 100, ¶¶36, 40, __ Wis. 2d __, 716 N.W.2d 906; Bangert, 131 Wis. 2d at 274-75.^[9] Goyette’s hearing was the sort courts hold when they conclude that a plea withdrawal motion meets the Nelson/ Bentley test. Regardless whether plea colloquies contain Bangert violations, defendants are entitled to post-sentencing plea withdrawal if they can show by clear and convincing evidence that their plea was not knowingly or voluntarily entered. See State v. Reppin , 35 Wis. 2d 377, 384-86, 151 N.W.2d 9 (1967); State v. Giebel, 198 Wis. 2d 207, 212, 541 N.W.2d 815 (Ct. App. 1995). When defendants file non-Bangert plea withdrawal motions requesting an evidentiary hearing, courts apply the Nelson/ Bentley test to determine whether a hearing is required. … A motion requesting an evidentiary hearing must contain non-conclusory allegations, that is, allegations that “‘allow the reviewing court to meaningfully assess [the defendant’s] claim.’” Allen, 274 Wis. 2d 568, ¶21 (quoting Bentley, 201 Wis. 2d at 314). Bangert motions and Nelson/ Bentleymotions are not mutually exclusive. A defendant may, in the same physical motion, request a plea withdrawal hearing based on an alleged Bangertviolation and, in the alternative, assert that a hearing must be held because the motion contains allegations that are sufficient under the Nelson/Bentley test.

Worth culling from this survey the following acknowledgement in fn. 8: “Notably, the second Bangert prong is satisfied by a conclusory allegation that the defendant did not know or understand.” That is, it is now settled that to get a Bangert hearing it’s enough for counsel to make a mere assertion in the motion that the defendant didn’t know the information omitted form the plea colloquy; no affidavit, let alone one from the defendant, is necessary. Same quote, by the way, is in (no coincidence: same author), State v. Howell, 2006 WI App 182, ¶14.