On Point

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. […]

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 […]

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 […]

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 […]

State v. Andrae D. Howell, 2006 WI App 182, PFR filed 9/25/06 (reconsideration of previously issued but subsequently withdrawn opinion) For Howell: Ellen Henak, SPD, Milwaukee Appellate Issue/Holding1: A conclusory allegation suffices to obtain a hearing on a Bangert claim (involving a defect in the plea colloquy), ¶14; however, more is required for a non-Bangert claim, ¶¶21-29. Nor is there, for […]

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 […]

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, like ineffective assistance of counsel or coercion, […]

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 […]

State v. James E. Brown, 2006 WI 100, reversing summary order For Brown: Richard D. Martin, SPD, Milwaukee Appellate Issue/Holding: The defendant demonstrated a prima facie showing that his guilty plea was inadequate, where he was illiterate (such that a plea questionnaire wasn’t even prepared) and the trial court’s colloquy was superficial, ¶¶53-58. The facts are sufficiently extreme […]