2006AP14 State v. Milanes

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“[A]s the United States Supreme Court stated in McMann v. Richardson, 397 U.S. 759, 769-71 (1970):

‘[T]he decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. …. In our view a defendant’s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant’s confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.’

McMann has long been the law of the United States. While it does not appear that the Wisconsin courts have yet decided a case based upon McMann’s reasoning on this point, the scope, extent, and interpretation of the right to counsel under the Wisconsin and United States Constitutions are identical. State v. Polak, 2002 WI App 120, ¶8, 254 Wis. 2d 585, 646 N.W.2d 845. For this reason, even if we were to believe that Milanes was correct that his confession would likely have been suppressed (and that he would not have been convicted without it) this would not necessarily entitle him to withdraw his plea. The question is not whether Milanes’ counsel’s advice that Milanes should plead guilty is the same advice we would have given, but ‘whether that advice was within the range of competence demanded of attorneys in criminal cases.’ McMann, 347 U.S. 770-71. Given the risk involved in rejecting the State’s plea offer and the limited chance of success at a suppression hearing, we hold that Milanes’ counsel easily met that standard.”

Affirmed.

Recommended for publication in the official reports.

Dist. II, Kenosha County, Milisauskas, J., Brown, J.

Attorneys: For Appellant: Boyd, Joan M., Shawano; For Respondent: Zapf, Robert D., Kenosha; Weinstein, Warren D., Madison