Criminal Procedure — plea withdrawal

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Wisconsin Supreme Court

Criminal

Criminal Procedure — plea withdrawal

Where a defendant failed to allege that he would have sought a trial solely on the issue of mental responsibility, if he had been aware of that option, the trial court properly denied him an evidentiary hearing on his motion to withdraw his guilty plea.

“We conclude, first, that Burton’s Nelson/Bentley motion was insufficient.  The motion asserted that Burton’s two trial counsel were ineffective in not pursuing an NGI or ‘insanity’ defense.  The motion claimed that Burton’s explicit withdrawal of that defense as part of a plea agreement must have been based upon a failure by trial counsel to inform Burton that he had the option of pleading guilty to the crimes but also not guilty by reason of mental disease or defect.  Significantly, Burton’s motion never alleged that his trial counsel failed to inform Burton of this option.  Instead, it merely pointed to the absence of evidence in the record that indicated that counsel had explained this option to Burton.  The absence of record evidence in this situation is not enough.  A defendant must affirmatively plead facts that, if true, would constitute deficient performance of counsel.  Moreover, even if deficient performance had been properly pled, Burton’s motion did not affirmatively assert that if trial counsel had informed him of the option of a trial focused solely upon mental responsibility, he would have chosen that option and why he would have chosen it.”

Affirmed.

2011AP450-CR State v. Burton

Prosser, J.

Attorneys: For Appellant: Lee, Esther Cohen, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Wellman, Sally L., Madison