Plea Withdrawal

Listen to this article

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Erika Lisette Gutierrez

Case No.: 2014AP1983-CR

Officials: Brennan, P.J., Kessler, and Brash, JJ.

Focus: Plea Withdrawal

Erika Lisette Gutierrez appeals from a judgment of conviction, following a bifurcated criminal trial, for four counts of intentional physical abuse of a child with high probability of great bodily harm. She also appeals an order denying her postconviction motion for 1) withdrawal of her plea in the guilt phase and 2) a new trial on the question of mental responsibility.

Gutierrez argues that she is entitled to withdraw her plea for three reasons. First, because the trial court omitted required words from its warning—it warned that her plea could result in “deportation, exclusion or denial of naturalization” when the required statutory language is “deportation, the exclusion from admission to this country or the denial of naturalization.” WIS. STAT. 971.08(1)(c) (2015-16) (emphasis added). She argues that because the trial court failed to fully advise her of the deportation statute and because she will likely be deported as a result of her plea, she is entitled to plea withdrawal under State v. Negrete, 2012 WI 92, ¶23, 343 Wis. 2d 1, 819 N.W.2d 749.

Secondly, Gutierrez argues that her plea was not free, voluntary, and knowing because she was incorrectly advised by her trial counsel that if she pled and waived her right to a jury for the mental responsibility phase, the court would not view a hospital videotape of her repeatedly stopping her baby son from breathing. Gutierrez argues that this viewing, which counsel advised her would not happen, was an unwarned collateral consequence of her guilty plea that renders the plea involuntary under Brown, Riekkoff, and Woods.  Third, she also argues that this promise constituted ineffective assistance of counsel and that she would not have entered a plea had she known the court would view the videotape. As an alternative to her plea withdrawal arguments, she argues that she is entitled to a new trial in the interest of justice on the issue of mental responsibility because the verdict was against the greater weight of the evidence presented at trial. We disagree and affirm.

Full Text

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.