Plea Agreement Case Analysis

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Given the importance of this issue, it should be expected that the State will seek review in the Wisconsin Supreme Court, and that review will be granted.

In the meantime, a flood of motions from prisoners affected by this decision should also be expected.

Finally, it should be expected that the Supreme Court, if it does consider the issue, will withdraw the language in Gray that requires courts accepting guilty pleas to personally inform the defendant that the court is not bound by it.

When the court issued that language, it was not central to the case in Gray, nor was it at issue in Comstock or McQuay when the court reiterated it.

Given that courts are not required to personally inform a defendant of anything (including more important matters like the maximum sentence), and that a prima facie case of an inadequate plea colloquy is not made by any similar deficiency, save the statutorily required deportation consequences, it would be anathema for the court to hold that a prima facie case is met in this case.

Furthermore, although the court in Gray did appear to make it mandatory that a defendant be informed that the court is not bound by the plea agreement, the reasoning in the decision does not necessarily lead to a mandatory requirement.

For example, the court earlier noted, "We have repeatedly said that plea agreements should be made a part of the record. (emphasis added)(cites omitted)." If there is no absolute obligation to make the plea agreement itself part of the record, it is not logical to make it absolute that the court inform the defendant that it is not bound by the agreement.

In addition, looking to other jurisdictions, the court noted only that two other states, Pennsylvania and California, require courts to ascertain the nature of any plea agreement. The court cited no other jurisdictions that require defendants be told the court is not bound by the agreement.

Again, there is a leap in logic in concluding that, because courts either should or must ascertain the nature of plea agreements, that the failure in this case constitutes a prima facie showing of an inadequate plea colloquy.

Finally, the Supreme Court has considered a similar case since Gray, in which the court did not reiterate the mandatory language in that case.

In State v. Lee, 88 Wis.2d 239, 251, 276 N.W.2d 268, 273-274 (1979), the court held that failure to state the terms of a plea agreement on the record is not grounds for reversal, per se.

In Lee, the defendant pleaded no contest to carrying a concealed weapon, pursuant to a plea agreement in which the State dismissed a resisting arrest charge, and agreed to recommend 20 days in jail.

	Links Wisconsin Supreme Court Related Article Defendant must be told about plea agreement

However, no one brought the plea agreement to the court’s attention, and so, at the plea hearing, the court did not mention it, nor obviously, did the court state it was not bound by it. The court did state that the maximum penalty was one year of incarceration.

The State followed through with its end of the bargain, but the sentencing court imposed 60 days. In affirming the denial of Lee’s motion to withdraw the plea, the Supreme Court particularly emphasized that the court correctly stated the maximum sentence that could be imposed, a factor the court of appeals in Hampton’s case found to be of little significance.

The Supreme Court in Lee also emphasized that the error was the fault of the defendant in not bringing the plea agreement to the attention of the court, rather than the fault of the court.

Nevertheless, the decision in Lee, the leap in reasoning that led to the absolute commandment in Gray, and the fact that
no other plea deficiency constitutes a prima facie showing, provide ample authority for the Supreme Court to possibly reverse this decision and limit the language in Gray.

– David Ziemer

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David Ziemer can be reached by email.