Defense win: COA affirms circuit court order for plea withdrawal in yet another TPR burden of proof appeal
State v. D.H., 2025AP2668, 4/10/26, District I (ineligible for publication); case activity
Potentially reviving an issue many may have thought already settled, COA upholds the circuit court’s order for plea withdrawal in a case involving a deficient colloquy regarding the dispositional burden of proof in a TPR case.
For those who don’t recall the tumultuous times TPR litigators have been living through, we are including links to our posts discussing the issues discussed throughout this opinion at the outset:
- H.C. (holding there is no burden of proof at a TPR dispositional hearing).
- A.G. (rejecting a plea withdrawal claim premised on a miscommunication about the burden of proof).
- B.W. (holding no prima facie case for plea withdrawal based on ambiguous comments that are only maybe a reference to burden of proof at dispo).
At the plea hearing in this case, D.H. was informed that the petitioner would have to prove “adoption serves the best interest” of the child “by a reasonable certainty.” (¶3). This was explained as a middle burden somewhere between reasonable doubt and a preponderance of the evidence. (Id.). As a result, D.H, ultimately filed a postdisposition motion seeking to withdraw his plea. (¶6). He argued that the circuit court’s miscommunication of the burden of proof established a prima facie case for plea withdrawal, thereby shifting the burden to the State to prove that the plea was knowing, intelligent and voluntary. (Id.). The circuit court agreed and, after hearing testimony, found the State failed to meet that burden. (¶11). The State and GAL appealed.
Insubstantial Defect
The appellants’ first gambit is to ask COA to invoke the “insubstantial defect doctrine.” (¶15). Here, the court told D.H. there would be a burden of proof at disposition. The circuit court then appeared to apply that standard at the dispositional hearing. Thus, the appellants argue that D.H. “got what he bargained for” and, even if the statements about a burden of proof were legally incorrect, they are irrelevant to the knowing and intelligent nature of his plea. (Id.).
COA doesn’t take the bait. It observes that the “insubstantial defect doctrine has previously only been applied in a few very specific instances, primarily in criminal cases where the circuit court informed the defendant of the wrong maximum sentence, which are all distinguishable from the present case.” (¶16). Even though it acknowledges the persuasive force of these criminal cases, COA holds that the defect here cannot be adequately analogized to the plea colloquy defects in those cases. (¶17). Moreover, the cited cases “did not stand for the proposition that a plea is made knowingly, intelligently, and voluntarily based solely on the fact that a defendant got what he or she bargained for.” (Id.) And, while SCOW applied the insubstantial defect doctrine to an identical claim in A.G., invocation of the insubstantial defect doctrine was limited to a “lead opinion” that did not gather a majority of votes on that subject. (¶19). COA finds the lead opinion’s analysis unpersuasive on this point and therefore does not follow it. (Id.).
Plea Colloquy Defect
Applying the Bangert analysis, COA first addresses whether D.H. has pleaded a prima facie case for plea withdrawal. Here, even though the circuit court did make references to the proper “best interest” standard, it also erroneously referenced a burden of proof. (¶22). “Without a clear explanation, it would certainly be possible that D.H. would understand that the State would be held to a higher burden of proof at disposition than in reality. We therefore agree with the circuit court on this issue, and conclude that this satisfied D.H.’s burden to demonstrate a prima facie case for plea withdrawal.” (Id.).
State’s Burden
COA acknowledges some potentially problematic testimony, including D.H.’s admission that he “did not understand the court to mean that there was a burden of proof at disposition.” (¶24). However, COA ultimately agrees “with the postdisposition court’s reasoning, in which it stated that ‘the evidence before us indicates that [D.H.] was told by [the circuit court] that the State did have a burden of proof and that is the only information that [D.H.] was given about burden of proof.'” (¶25). COA therefore affirms the circuit court’s order for plea withdrawal.
This is a sequel we should have seen coming–a case that highlights a few interesting and unresolved issues, all of which surely make this the baity-est SCOW bait we’ve seen come down the pike in a while.
First, there is COA’s treatment of the “insubstantial defect doctrine,” a tricky issue intertwined with its consideration of A.G.’s precedential weight (or apparent lack thereof). Thus, while the “insubstantial defect doctrine” has been batted around for years, it has found only sporadic purchase in cases analyzing claimed plea colloquy defects. Cross seemingly permits appellate courts to overlook at least some plea colloquy defects and does not (at least on first read) narrowly limit the application of the doctrine. (“We do not embrace a formalistic application of the Bangert requirements that would result in the abjuring of a defendant’s representations in open court for insubstantial defects.”) But as COA notes, the real-world application of this “insubstantial defect doctrine” has been somewhat limited and not definitively applied to this circumstance.
This segues naturally into COA’s discussion of Justice Bradley’s “lead opinion” in A.G. which sought to resolve an identical legal claim using an “insubstantial defect” analysis. Reading the “lead” opinion, one might therefore think COA had no choice but to reverse. But that’s the thing: Lead opinions, at least in COA’s view, have no precedential (or even any persuasive) force. Although SCOW’s internal operating procedures make clear that a “lead” is not the same as a “majority” opinion, not much else can be said about this quirk of SCOW that appears to be a relatively recent innovation. Notably, Justice A.W. Bradley, in a 2019 concurrence, flagged the issue as having been the subject of two prior certifications and highlighted the need for SCOW clarify this aspect of appellate procedure.
Second, discussion of “insubstantial defects” inevitably brings to mind what the appellants really seem to be advocating for: application of a harmless error rule in analyzing claimed plea colloquy defects. This was one of the points made in Justice Dallet’s A.G. dissent, where she claimed the “lead” appeared to be engaging in harmless error review, notwithstanding Justice Bradley’s denials in a footnote elsewhere. This is, of course, another hotly debated issue without apparent resolution. (In fact, SCOW’s decision in Taylor acknowledges that application of the harmless error rule remains an open question.)
Third, we observe that this case–if undisturbed by further review–appears to construct an extremely high bar for the State in proving the knowing and intelligent nature of a plea. Here, the parent’s testimony seemed to somewhat undermine the legal claim. However, the circuit court appears to have granted relief because there was no evidence in the record that anyone ever affirmatively corrected the court’s misinformation (even if, inferentially, there is significant evidence that the parent was advised of the correct dispositional standard). COA applies a surprisingly deferential read of the lower court’s reasoning on this point, generating an unusually favorable citation for litigants appealing an adverse Bangert ruling.
Will all this be enough to tempt SCOW? Or has the Court had its fill of this issue? Only time will tell.