On Point: D. Plea withdrawal

State v. Tyrus Lee Cooper, 2016AP375, review of a per curiam opinion granted 12/12/2018; case activity (including briefs)

Issues (from the petition for review):

1. When defendant’s counsel has engaged in serious professional misconduct leading up to the trial date affecting defendant’s meaningful participation in his own defense, does that provide a sufficient reason to withdraw a guilty plea prior to sentencing?
2. Did the the circuit court erroneously exercise its discretion when it denied defendant’s motion to withdraw his plea prior to sentencing without an evidentiary record to support substantial prejudice to the State?

State v. Darrick L. Bennett, 2016AP2209-CR, 9/18/18, District 1 (not recommended for publication); case activity (including briefs)

Bennett was charged with 1st degree intentional homicide, but pled guilty to 1st degree reckless homicide. In a decision turning on facts specific to this case, the court of appeals affirmed the trial court’s decision denying (a) plea withdrawal without a hearing, (b) sentence modification based on a new factors, and (c) postconviction discovery of evidence that might have affected his sentence.

State v. Terrell Antwain Kelly, 2017AP1584, 7/31/18, District 1 (not recommended for publication); case activity (including briefs)

Kelly was charged with both a long-ago second-degree sexual assault of a child and several domestic violence counts (the victim was the same). The state offered him a choice between two plea deals: one in which he would plead to the sexual assault with the DV counts dismissed and read in, and one in which he would plead to the DV counts with the sexual assault dismissed and read in.

State v. Laron Henry, 2017AP939-CR & 2017AP940-CR, District 1, 6/19/18 (not recommended for publication); case activity (including briefs)

Henry sought to withdraw his guilty pleas to three crimes. He claimed that with respect to one of the crimes, he didn’t “ratify” his guilty plea, he didn’t understand one of the elements of the crime, and there wasn’t a factual basis for the plea to the crime. The court of appeals rejects his claims.

State v. Harlan L. Schultz, 2017AP2185, 4/26/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Schultz moved under § 974.06 to withdraw his no contest plea to OWI 4th. He argues that his trial lawyer was ineffective for failing to file a motion challenging the traffic stop and that he didn’t understand everything he was giving up when he entered a plea. The court of appeals rejects both claims.

State v. Terrance Lavone Egerson, 2016AP1045-CR, District 1, 2/27/18 (not recommended for publication); case activity (including briefs)

Egerson moved to withdraw his pleas, alleging his trial lawyer was ineffective for failing to challenge the domestic abuse repeater enhancers appended to the charges Egerson faced. According to Egerson, those enhancers never applied, so he was overcharged and led to believe his sentencing exposure was greater than it was. The court of appeals holds trial counsel wasn’t deficient because the complaints supported charging them and, in any event, Egerson hasn’t shown prejudice.

State v. Mario Douglas, 2018 WI App 12; case activity (including briefs)

Douglas got inaccurate advice about the prison time he faced if he went to trial instead of taking the State’s plea offer. The inaccurate advice makes his plea invalid.

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.

State v. Donald L. White, 2017AP188-CR, 8/23/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

White argued that his plea colloquy was defective because the circuit court did not (1) sufficiently describe the nature of the charge against him, (2) ascertain his education or level of comprehension, especially of the constitutional rights that he was waiving, (3) advise him that he was not bound by the plea agreement and could impose the maximum penalty. He relied primarily on State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716 N.W.2d 906. The court of appeals distinguished White from Brown and affirmed the decision to deny the motion for plea withdrawal without a hearing.

State v. Derek Asunto, 2015AP50, 8/8/17, District 2 (recommended for publication); case activity (including briefs)

Derek Asunto and the state agreed to resolve several charges by dismissing some and having him plead to others. At the hearing where the deal was announced to the court, he entered a plea to one criminal count. The parties and court agreed the other counts would be held open until the sentencing hearing, but that at that hearing, Asunto would plead to an OWI-4th and the rest would be dismissed.