On Point blog, page 1 of 2
Defense Win! Circuit court’s failure to “personally ascertain” factual basis for pleas entitles defendant to Bangert hearing
State v. Megan E. Zeien, 2023AP1787-CR, 4/24/24, District II (one-judge decision, ineligible for publication); case activity
If you’ve ever wondered whether you have a Bangert claim concerning a circuit court’s failure to “ascertain personally whether a factual basis exists to support [your client’s] plea,” this unpublished but citable decision is worth a read. Unfortunately, the decision is a bit unclear about how exactly the state may seek to establish that Zeien’s pleas were knowing, intelligent, and voluntary at an evidentiary hearing. See Op., ¶¶19, 22.
Defense win: Defendant entitled to withdraw plea on count for which the circuit court failed to explain elements
State v. Damon D. Taylor, 2021AP272-CR, District 4, 12/30/22 (not recommended for publication); case activity (including briefs)
Taylor moved to withdraw his Alford pleas to three crimes. The court of appeals agrees his plea to one of the three crimes was not knowing and intelligent because the circuit court failed to ascertain that he understood the elements of the offense.
Defense win: Defects in plea colloquy require plea withdrawal
State v. Caroline J. Arndt, 2022AP450-CR, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Arndt pleaded no contest to disorderly conduct, but the circuit court’s plea colloquy was defective in two crucial ways, so on the merits—and because the state declined to file a brief in the court of appeals—she’s entitled to withdraw her plea.
COA rejects defendant’s claim that he thought counsel decided whether to accept or reject plea offer
State v. Nathaniel Lee Mattson, 2019AP201-CR, 6/16/20, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)
Mattson pled guilty to domestic battery and disorderly conduct and moved to withdraw his pleas after sentencing. Argued that he did not realize that the decision as to whether accept a plea or go to trial was exclusively his. And during the colloquy the circuit court did not inform him of that fact.
Client’s motion for plea withdrawal defeated by counsel’s testimony that he explained charges and elements
State v. Orlando Davis, 2018AP2326-CR, 10/1/19, District 1, (1-judge opinion, ineligible for publication) case activity (including briefs)
Davis filed a Bangert motion alleging that (1) the trial court failed to advise him of the elements of the offense to which he pled guilty, and (2) he did not understand those elements. At the postconviction hearing, Davis and his trial lawyer testified about Davis’s understanding of the elements. The postconviction court found counsel more credible, and the court of appeals affirms.
Denial of plea withdrawal affirmed based on trial counsel’s notes and practice indicating that she discussed crime elements with client
State v. Dionte J. Nowels, 2018AP1171-CR, 1/8/19, District 1 (not recommended for publication); case activity (including briefs)
Nowels pled guilty to hit and run. He later sought plea withdrawal because during his colloquy the trial court failed to state 2 of the crime elements that the State would be required to prove at trial. The trial court agreed with him on this point, so for the plea withdrawal hearing the burden shifted to the State to prove that Nowles knew and understood those elements when he pled.
SCOW: Judge’s failure to give mandated immigration warning was harmless
State v. Jose Alberto Reyes Fuerte, 2017 WI 104, reversing a published court of appeals decision, 12/19/17; case activity (including briefs)
A judge taking a guilty or no contest plea is required by § 971.08(1)(c) to warn the defendant that if he or she is not a U.S. citizen the plea might result in deportation, inadmissibility, or denial of naturalization. If the judge doesn’t comply with § 971.08(1)(c) and the defendant shows the plea is likely to result in one of those immigration consequences, the defendant can move to withdraw the plea under § 971.08(2). State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, held that harmless error principles don’t apply to § 971.08(2), so the defendant is entitled to withdraw the plea even if the state claims the defendant actually knew the immigration consequences. This decision overrules Douangmala and holds that the judge’s failure to comply with § 971.08(1)(c) in Reyes Fuerte’s case was harmless.
Plea withdrawal claims rejected
State v. Erika Lisette Gutierrez, 2014AP1983-CR, 3/7/2017 (not recommended for publication); case activity (including briefs)
Gutierrez pleaded guilty to intentional physical abuse of a trial and had a bench trial on her plea of not guilty by reason of mental disease or defect. She asserts she should be allowed to withdraw her guilty plea because the circuit court didn’t give the full § 971.08(1)(c) immigration warning and because her plea was premised on incorrect advice from her lawyer. The court of appeals disagrees.
SCOW to revisit whether judge’s failure to give immigration warning can be harmless
Petition for review of State v. Jose Alberto Reyes Fuerte, 2016 WI App 78, granted 1/18/2017; case activity (including briefs)
Issue presented (from the State’s petition for review):
Now that criminal defense attorneys are obligated to advise their clients about the immigration consequences of their pleas, Padilla v. Kentucky, 559 U.S. 356 (2010), should the Wisconsin Supreme Court overturn its decision in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, and reinstate the harmless error rule to prohibit a defendant who was aware of the potential immigration consequences of his plea from being able to withdraw the plea just because the circuit court failed to give a statutory immigration warning that complied with Wis. Stat. § 971.08(1)(c)?
Circuit court’s immigration warning didn’t comply with § 971.08(1)(c), and defendant has sufficiently alleged likelihood of deportation
State v. Jose Alberto Reyes Fuerte, 2016 WI App 78, petition for review granted 1/18/2017, reversed, 2017 WI 104; case activity (including briefs)
This decision is important to anyone who litigates claims for plea withdrawal under § 971.08(2) because it helps clarify the law in two ways. First, it provides two examples of a circuit court’s failure to comply with § 971.08(1)(c)’s requirement that the defendant be warned about the immigration consequences of a plea. Second, it explains what a defendant must allege to make a sufficient showing that his or her plea is likely to result in deportation.