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2010AP1599-CR State v. Cain

By: WISCONSIN LAW JOURNAL STAFF//August 11, 2011//

2010AP1599-CR State v. Cain

By: WISCONSIN LAW JOURNAL STAFF//August 11, 2011//

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Criminal Procedure
Plea withdrawal; elements of offense; drug quantity

At a plea hearing in this criminal case, defendant Lee Roy Cain denied a fact that must be proven to support his conviction on the charged offense. However, at the sentencing hearing held two months after the plea hearing, Cain admitted this elemental fact, without having raised any objection to any aspect of the plea hearing. Cain argues on appeal that the circuit court erred in accepting his plea at the plea hearing, on the grounds that as soon as Cain denied the elemental fact, the court should have adjourned the plea hearing and set the case for trial. Cain also contends that the court’s denial of his postconviction motion to withdraw his plea, which rested on the same grounds, results in a manifest injustice.

We conclude that Cain’s first contention is correct, but his second is not. We agree with Cain that the court should not have accepted Cain’s plea at the time of the plea hearing, because Cain protested his innocence regarding an elemental fact. However, we also conclude that, based on the entire record of the case, including the court’s explanations to Cain of his trial rights as reflected in the extended plea hearing colloquy as well as the record of the sentencing hearing that included his unambiguous admission, Cain has not carried his burden of showing by clear and convincing evidence that allowing him to withdraw his plea is necessary to correct a manifest injustice. Accordingly, we affirm the circuit court. Not recommended for publication in the official reports.

2010AP1599-CR State v. Cain

Dist IV, Marquette County, Wright, J., Blanchard, J.

Attorneys: For Appellant: Donnelly, Patrick M., Madison; Moses, Faun M., Madison; For Respondent: Balistreri, Thomas J., Madison; Dufour, Richard J., Montello

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