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Defendant must be told about plea agreement

By: dmc-admin//December 4, 2002//

Defendant must be told about plea agreement

By: dmc-admin//December 4, 2002//

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Where a judge fails to personally inform a defendant during his plea colloquy that the court is not bound by the terms of the plea agreement, the defendant is entitled to an evidentiary hearing on whether or not he understood that, the Wisconsin Court of Appeals held on Nov. 27.

Corey Hampton was charged with second-degree sexual assault of a child, a charge carrying a maximum prison term of twenty years. Hampton entered an Alford plea, pursuant to an agreement in which the State agreed to recommend an imposed and stayed prison term of seven years, and seven years’ probation with nine to 12 months’ jail time as a condition.

Prior to the plea hearing, Hampton’s attorney reviewed a plea questionnaire with him, which included the following: "I understand that the Judge is not bound to follow any plea agreement or any recommendation made by the District Attorney, my attorney, or any presentence report. I understand that the Judge is free to sentence me to the following … maximum possible penalties in this case."

Underneath that, the questionnaire identifies Hampton’s crime and states: "Years: 20" and "Fine: $10,000."

Hampton signed the questionnaire, and in response to questions from the circuit court, acknowledged that his counsel read the questionnaire to him and that he, Hampton, signed both sides of the form. Hampton’s trial counsel also signed the questionnaire, attesting that "the defendant acknowledged his understanding of each item in this questionnaire."

What the court held

Case: State of Wisconsin v. Corey J. Hampton, No. 01-0509-CR.

Issue: Where a trial court fails to inform a defendant at his plea hearing that it is not bound by the terms of the plea agreement, does that failure automatically require that a defendant receive an evidentiary hearing on whether his plea was intelligently entered?

Holding: Yes. Pursuant to State ex rel. White v. Gray, a court must personally inform the defendant that it is not bound by the agreement, and the failure to do so creates a prima facie case that the plea was not intelligently entered.

Counsel: Corey J. Hamilton, Milwaukee; Melinda A. Swartz, Milwaukee, for appellant; Robert D. Donohoo, Milwaukee; Joanne F. Kloppenburg, Madison, for respondent.

At no point during the plea colloquy, however, did the court personally tell Hampton that it was not bound by the plea agreement.

At sentencing, the court declined to follow the State’s recommendation, and instead imposed and stayed a 12-year term. The length of probation imposed was also 12 years.

Hampton later moved to withdraw his plea, asserting that the circuit court failed to personally advise him it was not bound by the plea agreement sentencing recommendation. The motion also asserted that Hampton did not, at the time of his plea, understand that the court was not bound by the plea agreement.

The circuit court denied the motion without an evidentiary hearing, and Hampton appealed. The court of appeals reversed in a decision written by Judge Paul G. Lundsten and joined by Judge Charles P. Dykman. Judge Patience Roggensack dissented.

Prima Facie Showing

The court concluded that Hampton made a prima facie showing under State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986), that the plea colloquy was defective.

The court acknowledged that neither Bangert nor sec. 971.08 says that a court must personally inform a defendant entering a plea that the court is not bound by the terms of a plea agreement.

Nonetheless, the court found that it was judicially mandated in the case of State ex rel. White v. Gray, 57 Wis.2d 17, 24, 203 N.W.2d 638 (1973). In Gray, the Wisconsin Supreme Court adopted language in the ABA Standards Relating to Pleas of Guilty, as follows: "If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court."

The court further acknowledged that Bangert was decided after Gray, and yet did not mention the Gray requirement as a required duty when accepting pleas.

However, the court found no intent on the Supreme Court’s part to abandon the Gray requirement, because the court
has reiterated it in two post-Bangert cases: State v. McQuay, 154 Wis. 2d 116, 452 N.W.2d 377 (1990), and State v. Comstock, 168 Wis. 2d 915, 485 N.W.2d 354 (1992).

The court also acknowledged that a requirement that a defendant be personally advised by the court of the information contrasts with all other plea colloquy duties, which only require that courts personally make a determination that a defendant understands the requisite information.

In fact, the only other information that courts must personally provide to defendants arises from the directive in sec. 971.08(1)(c) that courts personally advise defendants of deportation consequences. Nevertheless, the court found the language in Gray controlling.

The court then rejected the State’s argument that the court functionally met the duty by informing Hampton of the potential maximum penalty for the crime. The court reasoned, "We agree with Hampton, however, that the maximum penalty information could be understood to simply mean that Hampton faced a potential 20-year sentence if he did not follow through with the plea agreement. … [P]ersonally providing maximum penalty information was insufficient to satisfy Gray."

Accordingly, the court concluded that Hampton made a prima facie showing that the plea colloquy was defective.

Evidentiary Hearing

The court then held that, because Hampton made a prima facie showing, he is entitled to an evidentiary hearing on whether or not he understood, nevertheless, that the court was not bound by the plea agreement.

Links

Wisconsin Supreme Court

Related Article

Case Analysis

The court rejected the State’s argument that, under State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996), because the record conclusively demonstrated that Hampton did understand, and because he made only bald, conclusory assertions to the contrary, Hampton is not entitled to a hearing.

The court held that Bentley applies only where a defendant seeks to withdraw a plea because of ineffective assistance of counsel.
Instead, the court concluded that the burden-shifting scheme imposed by Bangert must be applied when a plea colloquy is deficient, and, therefore, Hampton must be given an evidentiary hearing.

The Dissent

Judge Roggensack dissented, stating, "even 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."

Click here for Case Analysis.

David Ziemer can be reached by email.

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