Criminal Procedure — plea withdrawal

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Wisconsin Supreme Court

Criminal

Criminal Procedure — plea withdrawal

Where a defendant’s actions show ratification of facts he later disputes in a motion to withdraw his plea, the motion was properly denied.

“At the sentencing hearing, Cain, again with his attorney present, was given the opportunity to contest the PSI, which stated that law enforcement had discovered 16 marijuana plants in Cain’s workshop. However, he did not contest the accuracy of the report. In fact, later at the sentencing hearing, Cain’s attorney asked the court to ‘consider this particular infraction, even with the 16 plants, as on the lower end of this continuum of [C]lass H felonies.’ (emphasis added). This statement was not qualified as being merely what the State alleged, but rather constitutes an endorsement of what was recited both in the criminal complaint as well as in the PSI. The record indicates no objection from Cain.”

“Finally, we agree with the court of appeals that it is clear that Cain admitted at the sentencing hearing that law enforcement officers found more than four marijuana plants when he referred to ‘those five plants which got excavated’ from his house. Although Cain’s comments are difficult to follow at times, his statement regarding the number of plants is clear and unequivocal.”

“Cain’s statements and actions, when viewed in the totality of the circumstances, demonstrate that he personally entered and ratified his plea of no contest. The facts contained in the record indicate that Cain was well aware that he was pleading to the offense of manufacturing more than four marijuana plants, and that he did not maintain that he had four or fewer marijuana plants. Accordingly, we conclude that given the totality of the circumstances, Cain has not met the burden of showing by clear and convincing evidence that allowing the withdrawal of his no contest plea is necessary to correct a manifest injustice.”

Affirmed.

2010AP1599-CR State v. Cain

Gableman, J.

Attorneys: For Appellant: Moses, Faun M., Madison; For Respondent: Balistreri, Thomas J., Madison; Hendee, Chad A., Montello