On Point: D. Plea withdrawal

State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding:

¶12      As the circuit court recognized after the State brought its motion for reconsideration, circuit courts in Wisconsin may not, absent circumstances not present here, sua sponte vacate guilty pleas validly accepted. State v. Comstock, 168 Wis.

State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: Trial courts possess inherent authority to reconsider any non-final ruling prior to entry of final order or judgment, ¶13, citing State v. Bobby R. Williams, 2005 WI App 221, ¶17, 287 Wis. 2d 748, 706 N.W.2d 355.

The trial court reconsidered its own prior sua sponte vacatur of a guilty plea.

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. 

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,

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.

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.

State v. Donnell Basley, 2006 WI App 253
For Basley: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding1: The postconviction court erroneously denied without evidentiary hearing Basley’s motion for plea-withdrawal (on Nelson/Bentley rather than Bangert grounds):

¶8        Accompanying Basley’s motion is an affidavit from his postconviction counsel averring that the motion “summarizes … Basley’s expected testimony.” Counsel also acknowledges in the affidavit that Basley’s trial counsel will likely dispute that he threatened to withdraw unless Basley accepted the proffered plea bargain.

State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding:

¶74      The Bangert and Nelson/Bentley motions, however, are applicable to different factual circumstances. [47] A defendant invokes Bangert when the plea colloquy is defective; a defendant invokes Nelson/Bentley when the defendant alleges that some factor extrinsic to the plea colloquy,

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

Issue/Holding: On the particular facts (illiterate defendant, no written questionnaire, perfunctory colloquy) the defendant was entitled to a Bangert hearing on whether the understood the nature of the rights waived by his guilty plea.

With respect to waiver of right to jury trial,