On Point: D. Plea withdrawal

State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Guilty Plea – Withdrawal – Presentence

The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.

The particular grounds asserted – no factual basis for plea;

State v. Ricardo Lopez, 2010 WI App 153 (recommended for publication); for Lopez: Catherine M. Canright; BiC; Resp.; Reply

The plea colloquy was deficient with respect to Lopez’s understanding of the rights waived by his no contest plea, therefore in response to his postconviction motion to withdraw plea the trial court held a hearing at which the State bore the burden of proving his understanding.

State v. John M. Anthony, 2009AP2171-CR, District 1, 10/13/10

court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Br.

Motion to withdraw Plea, Pre-Sentence

Based on trial court findings that Anthony decision to plead no contest was based on his attorney’s informed assessment that he was likely to be found guilty if he went to trial, the court of appeals rejects his claim that he was coerced into pleading by counsel’s lack of preparation and holds instead that he failed to establish a “fair and just”

2nd Circuit court of appeals decision

Federal Habeas (28 U.S.C. § 2254) – Filing Deadline – Brady Claim

The 2254 filing deadline is one year from the date the state-court conviction becomes “final,” subject to certain exceptions, including one which restarts the limitation period from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” 28 U.S.C.

State v. Timothy Ray Anderson, 2009AP2416-CR, District 1, 8/17/10

court of appeals decision (3-judge, not recommended for publication); for Anderson: Jeremy C. Perri; BiC; Resp.; Reply

Anderson’s postconviction motion for plea withdrawal, on the ground he didn’t understand that a charge “dismissed outright” could nonetheless be considered at sentencing, was properly denied without hearing. The circuit expressly denied that the dismissed charge was factored into the sentence,

State v. Charles D. Brown, No. 2009AP2093-CR, District I, 6/23/10

court of appeals decision (3-judge, not recommended for publication); for Brown: Martin J. Pruhs; BiC; Resp.

Under State v. Comstock, 168 Wis. 2d 915, 485 N.W.2d 354 (1992), a court may not sua sponte order withdrawal of a guilty plea, absent fraud or intentional withholding of material information.

court of appeals decision (3-judge; not recommended for publication); Randall E. Paulson, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply

Pre-Sentence Plea Withdrawal
Adverse findings of fact doom pre-sentencing plea withdrawal premised on claims: attorney rushed Watson into pleading out, but trial court accepted attorney’s testimony to contrary; and Watson hadn’t seen victims’ videotaped statements, but Watson knew through police reports and discussions with attorney nature of their allegations.

court of appeals decision (3-judge; not recommended for publication)

Guilty Plea – Hearing on Motion to Withdraw
Ruby satisfied burden of production, therefore was entitled to postconviction hearing, on plea-withdrawal due to ignorance of elements and/or maximum penalty.

State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: A court may incorporate a plea questionnaire form into the guilty plea colloquy, but only up to a point:

 ¶32     The Plea Questionnaire/Waiver of Rights Form provides a defendant and counsel the opportunity to review together a written statement of the information a defendant should know before entering a guilty plea.

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09

For Wesley: Alvin Ugent

Issue/Holding:

¶24      Here, as we said, Wesley claims that he understood the term “dismissed outright” to mean that the State could never use the underlying facts against him. He claims that his trial counsel was ineffective for failing to object. He also claims that, if the plea agreement was ambiguous,