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01-0509 State v. Hampton

By: dmc-admin//December 3, 2002//

01-0509 State v. Hampton

By: dmc-admin//December 3, 2002//

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Where defendant alleged the error and also alleged that he did not understand that the circuit court was not bound by the plea agreement, he has made a prima facie showing under the terms set out in State ex rel. White v. Gray, 57 Wis. 2d 17 and the procedures outlined in State v. Bangert, 131 Wis. 2d 246 (1986) and the trial court, therefore, improperly denied his plea withdrawal without a hearing. We conclude that defendant was entitled to an evidentiary hearing on his motion to withdraw his plea.

“The parties’ arguments regarding whether Hampton made a prima facie showing include discussions about the plea questionnaire and whether Hampton’s signature on it shows that Hampton understood the circuit court was not bound by the plea agreement. This discussion is beside the point because the prima facie issue is not whether Hampton actually understood the information. A defendant’s actual understanding is addressed, if at all, after the burden shifts to the State. … The issue here is whether the circuit court met its obligation under Gray to personally inform Hampton that it was not bound by the plea agreement. …

“Accordingly, we remand for an evidentiary hearing on the question whether Hampton understood, at the time of his plea, that his sentencing court would not be bound by the recommended sentence contained in the plea agreement. We do not suggest that the circuit court must give any particular weight to Hampton’s live testimony, should he decide to testify. The circuit court is free to disbelieve Hampton, even if the only contrary evidence is the evidence relied on by the State thus far, including Hampton’s education and the signed plea questionnaire. We only hold that because Hampton made a prima facie showing under Bangert, and requested an evidentiary hearing to resolve factual disputes, it was error to resolve the credibility issue without giving Hampton an opportunity to present evidence.”

Reversed and remanded.

Recommended for publication in the official reports.

DISSENTING OPINION: Roggensack, J. “[E]ven if I were to assume that the circuit court had an obligation to personally tell Hampton during its colloquy that it was not bound by his plea agreement, Hampton’s motion is insufficient to support a right to a hearing because it alleges only a conclusion or ‘ultimate fact,’ rather than setting forth evidentiary facts, which if proved true, would show why he did not understand then what he claims now not to have understood. Therefore, I conclude that the circuit court’s decision not to grant a hearing on Hampton’s motion was discretionary. Because the record demonstrates a rational exercise of discretion, I would affirm the circuit court’s order. Accordingly, I respectfully dissent.”

Dist I, Milwaukee County, Flanagan and Moroney, JJ., Lundsten, J.

Attorneys:

For Appellant: Corey J. Hamilton, Milwaukee; Melinda A. Swartz, Milwaukee

For Respondent: Robert D. Donohoo, Milwaukee; Joanne F. Kloppenburg, Madison

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