2010AP1116-CR State v. Powless

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Criminal Procedure
Plea withdrawal

During the colloquy at the plea hearing in this case, the circuit court did not personally address Robert Powless to make certain that he understood that the court would not be bound at sentencing by the State’s agreement to recommend a sentence of no more than a specified length (agreeing to “cap” the maximum time that the State could recommend). To address this issue, the court held an evidentiary hearing under State v. Bangert, 131 Wis. 2d 246, 283, 389 N.W.2d 12 (1986). At the evidentiary hearing the State had the opportunity to attempt to prove by clear and convincing evidence that, despite the defect in the colloquy, Powless understood at the time he entered his plea that the court’s sentence could exceed the State’s anticipated recommended “cap.”

At the evidentiary hearing, Powless testified that he assumed at the plea hearing that the court could not sentence above the State’s “cap,” despite being instructed to the contrary by his attorney and the terms of a plea questionnaire that he read and signed. The court found Powless’s testimony on this point to be “incredible,” and denied Powless’s motion to vacate his plea and reverse his conviction. ¶3 We conclude based on the totality of the record that the circuit court made findings of evidentiary fact that were not clearly erroneous, and that those facts demonstrate that the defendant’s plea was entered knowingly, intelligently, and voluntarily. Accordingly, we affirm. Not recommended for publication in the official reports.

2010AP1116-CR State v. Powless

Dist III, Forest County, Mangerson, J., Blanchard, J.

Attorneys: For Appellant: Kachinsky, Leonard D., Appleton; For Respondent: Simono, Charles J., Crandon; Remington, Christine A., Madison

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