Plea withdrawal made easier

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Two Wisconsin Supreme Court decisions issued June 21 make it easier for defendants to withdraw guilty pleas.

The decisions reverse two published court of appeals decisions: State v. Howell, 2006 WI App 182, 296 Wis.2d 380, 722 N.W.2d 567; and State v. Lackershire, 2005 WI App 265, 288 Wis.2d 609, 707 N.W.2d 891.

Howell

In the first case, case, Andrae D. Howell was charged in the shooting of Marcus Pearson. The complaint was later amended to allege party-to-a-crime (PTAC) liability, based on Howell’s claim that he was not the shooter.

After Howell pleaded guilty and was sentenced, he moved to withdraw his plea, claiming he did not understand PTAC liability, but the trial court denied the motion, without holding an evidentiary hearing.

A divided court of appeals affirmed, but the Supreme Court reversed, in a decision by Chief Justice Shirley S. Abrahamson. Justices David T. Prosser and Jon P. Wilcox wrote dissents, each joined by the other and Justice Patience Drake Roggensack.

Howell and the State agreed that the case was governed by State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). Under Bangert, if a defendant shows that a plea colloquy was deficient, and alleges that he did not understand the omitted information, the burden shifts to the State to show that he did understand.

The majority agreed with Howell’s contention that the plea colloquy reinforced his erroneous belief that he could be found guilty merely for being present and not stopping the crime.

Setting forth the jury instruction for PTAC liability, the court found that the trial court’s explanation of the concept fell short, even though it stated that the State would have to prove that Howell “assisted” or “intentionally assisted” the shooter.

The majority also found that the trial court filed to establish the factual basis for the plea. The trial court accepted the defense counsel’s stipulation that a factual basis existed in the complaint; however, the contents of the complaint were never amended, but still stated that Howell was the shooter.

Thus, the complaint set forth no facts to support the crime of aiding and abetting the shooting, and nothing at the plea colloquy stated exactly what Howell did to abet the shooting.

Accordingly, the court held that it was error to deny Howell an evidentiary hearing, at which the State would have to show that Howell did, in fact, understand PTAC liability, despite the deficient plea colloquy.

In dissent, Justice Wilcox wrote, “Now, judges considering defendants’ motions have the added obligation to be on the lookout for substantial questions and red flags in the record. That role used to be fulfilled by the defendants and their counsel.”

Wilcox concluded, “Appellate courts that fail to recognize when judges are humbly applying the rules, rather than engaging in the work properly left to the advocates, undermine the proper role of the judiciary.”
Prosser also concluded that the majority opinion would impose new burdens on trial judges.

Prosser detailed the facts of the case, including that the victim identified Howell as the shooter, as well as extensive discussions between the court and the attorneys prior to the formal plea colloquy.

Prosser concluded that, even if Howell wasn’t the shooter, the statements at the colloquy adequately show that he “set up” the shooting.

Prosser concluded that there was no need for the trial judge to further explain PTAC liability, because nothing in the record suggested that Howell was claiming mere presence at the scene of the crime.

Regarding the burdens on trial courts, Prosser opined that the majority opinion, “adds a new responsibility for circuit judges in plea colloquies; that is, it directs judges to anticipate and foreclose a defendant’s theoretical defenses by asking questions that will rule out those defenses. This will require circuit judges to elicit more facts and more admissions from defendants which, in turn, will take additional time.”

Lackershire

In the second case, Monika S. Lackershire, who is cognitively challenged and legally blind, was charged with four counts of second
-degree sexual assault of a child, based on two acts of alleged sexual intercourse with two boys, each aged 14. At the time, she told police officers and her boyfriend that she was raped.

She pleaded guilty to one count, and later moved to withdraw the plea, contending she did not understand the elements of the crime, that she pleaded under duress because she was pregnant, and that she did not understand the nature of the three counts that were dismissed and read in.

The circuit court denied the motion, and the court of appeals affirmed.

The Supreme Court granted review, and, in a decision by Justice Ann Walsh Bradley, reversed on a different ground — that the plea colloquy was deficient because it raised a substantial question whether she was guilty of sexual assault or was herself the victim of rape.

Justice Wilcox dissented in an opinion joined by Justices Prosser and Roggensack.

Calling the case “somewhat unique,” the majority noted that sexual assault of a child is generally a strict liability offense, in which consent is not relevant, but here, the defendant is claiming lack of consent on her part.

The court acknowledged that it would have been better had Lackershire explicitly based her motion on the failure to establish a factual basis for the plea, but noted that she had made the claim of rape consistently, and that her claim of rape is inconsistent with the elements of her committing sexual assault.

The majority found the trial court’s inquiry into the facts during the plea colloquy insufficient. Although the trial court found that the complaint and the preliminary hearing testimony provided a factual basis, the majority found both equivocal.

The fact section of the complaint included her allegation of rape, and, at the preliminary hearing, the victim admitted that he was the instigator of the sexual activity, that Lackershire had repeatedly refused to have sex with him, and that her “consent” was not verbal.

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The court thus concluded, “there is a substantial question as to whether these facts, which form the basis of Lackershire’s plea, constitute the offense charged. That substantial question obligated the circuit court to make additional inquiry … to ensure that Lackershire in fact committed the crime charged.”

The court cited, with approval, State v. Olson, 2000 WI App 158, 238 Wis.2d 74, 616 N.W.2d 144, in which a defendant charged with sexual assault of a child claimed that she had been the victim of rape. The court of appeals held that Olson was entitled to a jury instruction that the state had to prove the intercourse was the result of the defendant’s intentional acts.

Just as the defendant in Olson was entitled to a jury instruction, the majority held that the circuit court was obligated to inquire into the facts, stating that the complaint and the preliminary hearing should have raised a “red flag prompting further inquiry.”

Justice Wilcox dissented, noting that it was not until supplemental briefs were filed after oral argument before the Supreme Court that the question whether a factual basis for the plea was present was even raised.

Wilcox wrote, “The majority arrives at its odd result by imposing a new obligation on trial judges during the plea procedure. Now, regardless of the motion made by a defendant seeking to withdraw his or her plea, the judge is responsible for identifying any potential grounds for withdrawal (i.e., substantial questions that warrant further inquiry).”

Wilcox added, “The new obligation affects judges considering a defendant’s plea withdrawal motion. Before, such a judge would focus on the allegations made in the defendant’s motion. Now, such a judge will have to be on the lookout for substantial questions and red flags in the record, even if the defendant did not raise them.”

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David Ziemer can be reached by email.