Criminal Procedure — plea withdrawal

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — plea withdrawal

A defendant is not entitled to withdraw his guilty plea, even if the circuit court failed to ascertain that he knew the court was not bound by the plea agreement.

“Cross implicitly allows for us to hold the error at issue harmless. See id., 326 Wis. 2d 492, ¶36 (In discussing an insubstantial error during a plea colloquy, the supreme court stated ‘[b]y clear implication, the failure of the defendant to know and understand the precise maximum is subject to a harmless error test. It is not a per se violation of the defendant’s due process rights.’). The test for harmless error is “whether there is a reasonable possibility that the error contributed” to the outcome. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). ‘The standard for evaluating harmless error is the same whether the error is constitutional, statutory, or otherwise. An error is harmless if it does not affect the defendant’s substantial rights.’ State v. Sherman, 2008 WI App 57, ¶8, 310 Wis. 2d 248, 750 N.W.2d 500 (citation omitted); see also WIS. STAT. § 805.18(2). Clearly the error did not contribute to the outcome of Johnson’s plea hearing, nor were his substantial rights affected. Johnson’s situation is not one in which the circuit court failed to inform him that it was not bound by the plea agreement and then imposed a larger sentence than what was recommended as part of the plea agreement. Johnson received exactly what he bargained for when the second count was dismissed. Further, Johnson does not claim that he would not have pled guilty, or admitted in open court to sexually assaulting his daughter, had the court expressly informed him that it did not have to dismiss the second count. Johnson, therefore, has not demonstrated that this plea was not entered into knowingly, voluntarily or intelligently.”

Affirmed.

Recommended for publication in the official reports.

2011AP348-CR State v. Johnson

Dist. I, Milwaukee County, Conen, J., Kessler, J.

Attorneys: For Appellant: Swartz, Melinda A., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison