971.08 Annotation
A prosecutor is relieved from terms of a plea agreement if it is judicially determined that the defendant has materially breached its conditions. State v. Rivest,
106 Wis. 2d 406,
316 N.W.2d 395 (1982).
971.08 Annotation
Except as provided by statute, conditional guilty pleas are not to be accepted and will not be given effect. State v. Riekkoff,
112 Wis. 2d 119,
332 N.W.2d 744 (1983).
971.08 Annotation
Effective assistance of counsel was denied when the defense attorney did not properly inform the client of the personal right to accept a plea offer. State v. Ludwig,
124 Wis. 2d 600,
369 N.W.2d 722 (1985).
971.08 Annotation
When the defendant offered a plea of no contest but refused to waive any constitutional rights or to answer the judge's questions, the judge should have set a trial date and refused any further discussion of the no contest plea. State v. Minniecheske,
127 Wis. 2d 234,
378 N.W.2d 283 (1985).
971.08 Annotation
Due process does not require that the record of a plea hearing demonstrate the defendant's understanding of the nature of the charge at the time of the plea. State v. Carter,
131 Wis. 2d 69,
389 N.W.2d 1 (1986).
971.08 Annotation
Failure to comply with this section is not necessarily a constitutional violation. Discussing procedures mandated for plea hearings and establishing a remedy. State v. Bangert,
131 Wis. 2d 246,
389 N.W.2d 12 (1986).
971.08 Annotation
The withholding of a sentence and imposition of probation, as those terms are used by courts, are functionally equivalent to sentencing for determining the appropriateness of a plea withdrawal. State v. Booth,
142 Wis. 2d 232,
418 N.W.2d 20 (Ct. App. 1987).
971.08 Annotation
Section 971.04 (2) allows entry of plea to a misdemeanor by an attorney without the defendant being present, but for guilty or no contest pleas all requirements of this section except attendance must be met. State v. Krause,
161 Wis. 2d 919,
469 N.W.2d 241 (Ct. App. 1991).
971.08 Annotation
A plea agreement to amend a judgment of conviction upon successful completion of probation is not authorized by statute. State v. Hayes,
167 Wis. 2d 423,
481 N.W.2d 699 (Ct. App. 1992).
971.08 Annotation
The decision to plead guilty is personal to the defendant. A defendant's attorney cannot renegotiate a plea agreement without the defendant's knowledge and consent. State v. Woods,
173 Wis. 2d 129,
496 N.W.2d 144 (Ct. App. 1992).
971.08 Annotation
Failure to comply with sub. (1) (c) is governed by sub. (2); the holding in
Bangert,
131 Wis. 2d 246 (1986), does not apply. Discussing the meaning of “likely" deportation under sub. (2). State v. Baeza,
174 Wis. 2d 118,
496 N.W.2d 233 (Ct. App. 1993).
971.08 Annotation
When it was undisputed that the defendant was aware of the potential for deportation when he entered his plea, the failure to advise him pursuant to this section was harmless error for which he was not entitled to relief. Legislative history indicates that the legislature sought to alleviate the hardship and unfairness involved when an alien unwittingly pleads guilty or no contest to a charge without being informed of the consequences of such a plea. The legislature did not intend a windfall to a defendant who was aware of the deportation consequences of the plea. State v. Chavez,
175 Wis. 2d 366,
498 N.W.2d 887 (Ct. App. 1993).
971.08 Annotation
A conclusory allegation of manifest injustice, unsupported by factual assertions, is legally insufficient to entitle a defendant to even a hearing on a motion to withdraw a guilty plea following sentencing. State v. Washington,
176 Wis. 2d 205,
500 N.W.2d 331 (Ct. App. 1993).
971.08 Annotation
In accepting a negotiated guilty plea for probation, the trial court should, but is not required to, advise the defendant of the potential maximum sentence that may be imposed if probation is revoked. State v. James,
176 Wis. 2d 230,
500 N.W.2d 345 (Ct. App. 1993).
971.08 Annotation
In the context of a plea bargain, sub. (1) (a) is satisfied if the plea is voluntarily and understandingly made and a factual basis is shown for either the offense pleaded to or to a more serious offense reasonably related to the offense pleaded to. State v. Harrell,
182 Wis. 2d 408,
513 N.W.2d 676 (Ct. App. 1994).
971.08 Annotation
A guilty plea, made knowingly and voluntarily, waives all nonjurisdictional defects and defenses, including alleged violations of constitutional rights, prior to the appeal. State v. Aniton,
183 Wis. 2d 125,
515 N.W.2d 302 (Ct. App. 1994).
971.08 Annotation
Sub. (1) (c) requires the trial court to personally advise a defendant regarding deportation, and mere reference to a guilty plea questionnaire does not satisfy that requirement. However, under
Chavez,
175 Wis. 2d 366 (1993), before the trial court is required to grant a motion to withdraw a guilty plea, it must determine whether, despite the trial court's failure to personally advise the defendant, the defendant understood the potential deportation consequences of his guilty pleas. State v. Issa,
186 Wis. 2d 199,
519 N.W.2d 741 (Ct. App. 1994).
971.08 Annotation
A plea agreement is analogous to a contract, and contract law principals are drawn upon to interpret an agreement. The state's enforcement of a penalty provision in the agreement for failure of the defendant to fulfill his obligations under the agreement did not require an evidentiary hearing to determine a breach when the breach was obvious and material and did not give the defendant a basis for withdrawing his plea. State v. Toliver,
187 Wis. 2d 346,
523 N.W.2d 113 (Ct. App. 1994).
971.08 Annotation
An executory plea bargain is without constitutional significance, and a defendant has no right to require the performance of the agreement. Upon entry of a plea, due process requires the defendant's expectations to be fulfilled. State v. Wills,
187 Wis. 2d 529,
523 N.W.2d 569 (Ct. App. 1994).
971.08 Annotation
An
Alford,
400 U.S. 25 (1970), plea, under which the defendant pleads guilty while either maintaining innocence or not admitting having committed the crime, is acceptable when strong proof of guilt has been shown. State v. Garcia,
192 Wis. 2d 845,
532 N.W.2d 111 (1995).
971.08 Annotation
A trial court need not advise a defendant of the potential that restitution will be ordered in accepting a plea under this section. Restitution is primarily rehabilitative, not punitive, and not “potential punishment" under sub. (1) (a). State v. Dugan,
193 Wis. 2d 610,
534 N.W.2d 897 (Ct. App. 1995).
971.08 Annotation
A postconviction motion to withdraw a guilty plea requires showing that a “manifest injustice" would occur if the motion is denied. A postconviction recantation by a witness may constitute new evidence showing a “manifest injustice" and requiring a new trial if there is a reasonable probability that a jury would reach a different result. It is error for the judge to determine whether the recantation or the original allegation is true. State v. McCallum,
198 Wis. 2d 149,
542 N.W.2d 184 (Ct. App. 1995),
95-1518.
971.08 Annotation
A defendant seeking a postconviction plea withdrawal due to a violation of sub. (1) (a) must make a prima facie showing that a violation occurred and must also allege that the defendant did not know or understand the information that should have been provided. State v. Giebel,
198 Wis. 2d 207,
541 N.W.2d 815 (Ct. App. 1995),
94-2225.
971.08 Annotation
The concept of notice pleading has no application to a postconviction motion challenging a guilty plea. An allegation that a guilty plea was entered because of misinformation provided by counsel is merely conclusory. Facts must be alleged that show a reasonable probability that but for counsel's errors the defendant would have proceeded to trial and that allow the court to meaningfully assess the claim of prejudice. State v. Bentley,
201 Wis. 2d 303,
548 N.W.2d 50 (1996),
94-3310.
971.08 Annotation
It is error for a trial court not to inquire whether the defendant has knowledge of the presumptive minimum sentence, but the error may be harmless if the defendant is otherwise aware of the minimum. State v. Mohr,
201 Wis. 2d 693,
549 N.W.2d 497 (Ct. App. 1996),
95-2186.
971.08 Annotation
An
Alford,
400 U.S. 25 (1970), plea is acceptable only if strong proof of guilt has been shown. A plea under an agreement to plead to a related offense to that charged that would have been legally impossible for the defendant to have committed could not satisfy the strong proof requirement. State v. Smith,
202 Wis. 2d 21,
549 N.W.2d 232 (1996),
94-2894.
971.08 Annotation
When a plea rests in any significant degree on a promise or agreement of the prosecutor so that it can be said to be part of the inducement, the promise must be fulfilled. When the state was unable to fulfill its promise, withdrawal of a no contest plea was in order. State v. Castillo,
205 Wis. 2d 599,
556 N.W.2d 425 (Ct. App. 1996),
95-1628.
971.08 Annotation
Whether a defendant knowingly entered an
Alford,
400 U.S. 25 (1970), plea must be determined by the court based on the personal colloquy with the defendant and not whether specific words were used in making the plea. State v. Salentine,
206 Wis. 2d 419,
557 N.W.2d 439 (Ct. App. 1996),
95-3494.
971.08 Annotation
One type of manifest injustice that would allow postconviction withdrawal of a guilty plea is the failure to establish a sufficient factual basis that the defendant committed the offense. State v. Johnson,
207 Wis. 2d 239,
558 N.W.2d 375 (1997),
95-0072.
971.08 Annotation
A plea not knowingly and intelligently made violates due process and entitles the defendant to withdraw the plea. The plea may be involuntary either because the defendant does not have a full understanding of the charge or the nature of the rights being waived. State v. Van Camp,
213 Wis. 2d 131,
569 N.W.2d 577 (1997),
96-0600.
971.08 Annotation
The test to determine a knowing and intelligent no contest plea is whether the defendant has made a prima facie showing that the plea was made without the court's conformance with this section and whether the defendant has properly alleged that the defendant in fact did not know or understand the information that should have been provided. The state must then prove that the plea was knowingly and intelligently made by clear and convincing evidence. State v. Van Camp,
213 Wis. 2d 131,
569 N.W.2d 577 (1997),
96-0600.
971.08 Annotation
The unintentional misstatement of a plea agreement, promptly rectified by the efforts of both counsel, did not deny the defendant's due process right to have the full benefit of a relied upon plea bargain. State v. Knox,
213 Wis. 2d 318,
570 N.W.2d 599 (Ct. App. 1997),
97-0682.
971.08 Annotation
The court's acceptance of a guilty plea and order to implement a diversion agreement, the successful completion of which would have resulted in dismissal of criminal charges, constituted “sentencing." The standard to be applied in deciding a motion to withdraw the guilty plea was the “manifest injustice" standard applicable to such motions after sentence has been entered. State v. Barney,
213 Wis. 2d 344,
570 N.W.2d 731 (Ct. App. 1997),
96-3240.
971.08 Annotation
A conviction following an
Alford,
400 U.S. 25 (1970), plea does not prevent imposing as a condition of probation that the defendant complete a treatment program that requires acknowledging responsibility for the crime that resulted in the conviction. The imposition of the condition does not violate the defendant's due process rights. There is nothing inherent in the plea that gives the defendant any rights as to punishment. State ex rel. Warren v. Schwarz,
219 Wis. 2d 615,
579 N.W.2d 698 (1998),
96-2441.
971.08 Annotation
In order for a plea to be knowingly and intelligently made, the defendant must be informed of the “direct consequences" of the plea, but due process does not require informing the defendant of collateral consequences. Direct consequences are definite, immediate, and largely automatic and do not depend on the defendant's future psychological condition. State ex rel. Warren v. Schwarz,
219 Wis. 2d 615,
579 N.W.2d 698 (1998),
96-2441.
971.08 Annotation
The state's burden of proving that a plea was knowingly and voluntarily made cannot be proved by a negative inference. There must be some affirmative evidence of the fact. State v. Nichelson,
220 Wis. 2d 214,
582 N.W.2d 460 (Ct. App. 1998),
97-3136.
971.08 Annotation
The defendant's misunderstanding of the defendant's citizenship status did not render his plea not voluntarily, knowingly, or intelligently entered. A defendant does not have a constitutional right to be informed of the collateral consequences of a plea. There is no distinction between lack of awareness and an affirmative misunderstanding of a collateral consequence. State v. Rodriguez,
221 Wis. 2d 487,
585 N.W.2d 701 (Ct. App. 1998),
97-3097.
971.08 Annotation
Parole eligibility is not a statutorily or constitutionally necessary component of a valid plea colloquy in a case in which a life sentence is imposed. State v. Byrge,
225 Wis. 2d 702,
594 N.W.2d 388 (Ct. App. 1999),
97-3217.
971.08 Annotation
No manifest injustice entitling a defendant to withdraw a plea occurs when the defendant is not informed of a collateral consequence of the plea. That a conviction would result in the defendant's permanent prohibition from possessing firearms under federal law was a collateral consequence of his plea. A direct consequence must have an effect on the range of punishment for which the conviction is entered, and the firearms prohibition arises outside of the state court proceedings under which the plea is taken and sentence imposed. State v. Kosina,
226 Wis. 2d 482,
595 N.W.2d 464 (Ct. App. 1999),
98-3421.
971.08 Annotation
The trial court did not have an obligation to verify the accuracy of the information contained in a guilty plea questionnaire when it did not rely on the incorrect information contained therein in conducting a personal colloquy with the defendant to describe the correct elements of the crime and insure that the defendant understood the nature of the crimes. State v. Brandt,
226 Wis. 2d 610,
594 N.W.2d 759 (1999),
97-1489.
971.08 Annotation
It was not fatal to a conviction entered on a plea of no contest that the defendant did not personally state “I plead no contest" when the totality of the facts, including a signed guilty plea questionnaire and colloquy with the judge on the record, indicated an intent to plead no contest. State v. Burns,
226 Wis. 2d 762,
594 N.W.2d 799 (1999),
96-3615.
971.08 Annotation
The purpose of the court inquiry under sub. (1) (b) as to basic facts is to protect a defendant who understands the charge and voluntarily pleads guilty but does not realize that the conduct does not actually fall within the statutory definition of the charge. The purpose is not to resolve factual disputes about what did or did not happen; that is for a trial, which the defendant is waiving the right to. State v. Merryfield,
229 Wis. 2d 52,
598 N.W.2d 251 (Ct. App. 1999),
98-1106.
971.08 Annotation
A claim of insufficient factual basis for charging a crime survives a no contest plea and can be raised in a postconviction motion. State v. Higgs,
230 Wis. 2d 1,
601 N.W.2d 653 (Ct. App. 1999),
98-1811.
971.08 Annotation
Plea withdrawals before sentencing are subject to a liberal “fair and just" standard that facilitates the efficient administration of justice by reducing the number of appeals contesting the knowing and voluntariness of pleas. Reasons that have been considered fair and just are genuine misunderstanding of the plea's consequences, haste and confusion in entering the pleas, and coercion on the part of trial counsel. State v. Shimek,
230 Wis. 2d 730,
601 N.W.2d 865 (Ct. App. 1999),
99-0291.
971.08 Annotation
Because the state failed to provide the defendant with exculpatory evidence related to his confession to the police and because that failure caused the defendant to plead guilty, the defendant's post-sentencing motion to withdraw a guilty plea should have been granted. State v. Sturgeon,
231 Wis. 2d 487,
605 N.W.2d 589 (Ct. App. 1999),
98-2885.
971.08 Annotation
The state did not violate the sentencing terms of a plea agreement by failing to recite the express terms of the sentencing recommendation and by reciting a less than neutral statement of the recommendation. State v. Hanson,
2000 WI App 10,
232 Wis. 2d 291,
606 N.W.2d 278,
99-0120.
971.08 Annotation
A defendant should be freely allowed to withdraw a plea, prior to sentencing, for any fair and just reason, unless the prosecution will be substantially prejudiced. The state bears the burden of demonstrating substantial prejudice once a defendant has offered a fair and just reason for withdrawal of the plea. State v. Bollig,
2000 WI 6,
232 Wis. 2d 561,
605 N.W.2d 199,
98-2196.
971.08 Annotation
If the court fails to establish a factual basis that the defendant admits to the offense pleaded to, manifest injustice justifying withdrawal of a plea exists. A defendant is not required to personally articulate the specific facts that constitute the elements of the crime charged. All that is required is that the factual basis is developed on the record. State v. Thomas,
2000 WI 13,
232 Wis. 2d 714,
605 N.W.2d 836,
97-2665.
971.08 Annotation
If the defendant understands before entering a plea that the trial court will not be bound by the prosecutor's sentence recommendation, the trial court's deviation from the recommendation does not result in manifest injustice. State v. Williams,
2000 WI 78,
236 Wis. 2d 293,
613 N.W.2d 132,
99-0752.
971.08 Annotation
That a defendant would be subject to a presumptive mandatory release date under s. 302.11 (1g) (am) was a collateral consequence of the defendant's entry of a plea, and the court was not required to inform the defendant of the presumptive mandatory release date for the plea to have been knowingly entered. State v. Yates,
2000 WI App 224,
239 Wis. 2d 17,
619 N.W.2d 132,
99-1643.
971.08 Annotation
If the circuit court fails to establish a factual basis that the defendant admits to the offense pleaded to, manifest injustice occurs. The inquiry requirement of sub. (1) (b) allows the judge to establish the factual basis for the plea as the judge sees fit and does not require that the judge satisfy the defendant that he or she committed the crime. A factual basis may be found solely in a stipulation to the facts stated in the complaint. State v. Black,
2001 WI 31,
242 Wis. 2d 126,
624 N.W.2d 363,
99-0230.
971.08 Annotation
When a plea agreement indicates that a recommendation is to be for concurrent sentences and consecutive sentences are recommended, without correction at the sentencing hearing, there is a material and substantial breach of the agreement. Absent an objection, the right to directly appeal is waived and the defendant is entitled to a remedy for the breach only if there is ineffective assistance of counsel, the remedy for which is allowing the withdrawal of the plea or specific performance of the agreement. State v. Howard,
2001 WI App 137,
246 Wis. 2d 475,
630 N.W.2d 244,
00-2046.
971.08 Annotation
A plea agreement in which the prosecution agreed to make no specific sentencing recommendation was not breached by the prosecutors commenting that the case was, “if not the most serious case I've handled this year, it is certainly among the top two or three" and “this is one of the most serious non-fatal crimes that I have dealt with." State v. Richardson,
2001 WI App 152,
246 Wis. 2d 711,
632 N.W.2d 84,
00-2129.
971.08 Annotation
The clear and convincing evidence and close case rules do not apply in determining a breach of a plea agreement. Historical facts are reviewed with a clearly erroneous standard and whether the state's conduct was a substantial and material breach is a question of law. State v. Williams,
2002 WI 1,
249 Wis. 2d 492,
637 N.W.2d 733,
00-0535.
971.08 Annotation
A defendant has a constitutional right to have a negotiated plea bargain enforced, if it was relied on. A prosecutor is not required to enthusiastically advocate for a bargained for sentence and may inform the court about the character of the defendant, even if it is negative. The prosecutor may not personalize information presented in a way that indicates that the prosecutor has second thoughts about the agreement. State v. Williams,
2002 WI 1,
249 Wis. 2d 492,
637 N.W.2d 733,
00-0535.
971.08 Annotation
When a defendant repudiates a negotiated plea agreement on the ground that it contains multiplicitous counts, the defendant materially and substantially breaches the agreement. When the defendant successfully challenges the plea and a conviction on multiplicity grounds and the information has been amended pursuant to a negotiated plea agreement by which the state made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information, but a different remedy may be appropriate. State v. Robinson,
2002 WI 9,
249 Wis. 2d 553,
638 N.W.2d 564,
00-2435.
971.08 Annotation
Generally, once counsel is appointed, the day-to-day conduct of the defense rests with the attorney. However, a defense attorney may not as a matter of trial strategy admit a client's guilt, contrary to the client's not guilty plea, unless the defendant unequivocally understands and consents to the admission. State v. Gordon,
2002 WI App 53,
250 Wis. 2d 702,
641 N.W.2d 183,
01-1679.
971.08 Annotation
A valid plea requires only knowledge of the elements of the offense, not a knowledge of the nuances and descriptions of the elements. State v. Trochinski,
2002 WI 56,
253 Wis. 2d 38,
644 N.W.2d 891,
00-2545.
971.08 Annotation
Once a defendant enters a plea, an evidentiary hearing is necessary to determine whether a breach of a plea agreement has occurred before the state may be permitted to withdraw from it. When after entry of the plea and before sentencing the trial court warned that, if the defendant “screwed up" while on bail, the state would be free to change its sentencing recommendation, which the defendant acknowledged and agreed to, there was an amendment of the plea agreement. The state did not withdraw from the agreement when, based on the defendant's subsequent misconduct, it recommended a harsher sentence than originally agreed to. State v. Zuniga,
2002 WI App 233,
257 Wis. 2d 625,
652 N.W.2d 423,
01-2806.
971.08 Annotation
In the absence of any attachments to a waiver of rights form or any other evidence in the record demonstrating that the defendant had knowledge of the elements of the offense charged, coupled with the trial court's failure to ascertain the defendant's understanding of the elements during the plea colloquy, the defendant made a prima facie showing that the colloquy failed to meet the requirements of sub. (1) (a) and
Bangert,
131 Wis. 2d 246 (1986). State v. Lange,
2003 WI App 2,
259 Wis. 2d 774,
656 N.W.2d 480,
01-2584.
971.08 Annotation
The district attorney's contact with the division of community corrections to complain about a presentence investigation sentence recommendation, which resulted in a change in recommendation from probation to incarceration, breached the plea agreement in which the district attorney's office agreed to make no sentence recommendation. State v. Howland,
2003 WI App 104,
264 Wis. 2d 279,
663 N.W.2d 340,
02-2083.
971.08 Annotation
When in closing argument counsel concedes guilt on a lesser count in a multiple-count case, in light of overwhelming evidence on that count and in an effort to gain credibility and win acquittal on the other charges, the concession is a reasonable tactical decision, and counsel is not deemed to have been constitutionally ineffective by admitting a client's guilt contrary to the client's plea of not guilty. State v. Gordon,
2003 WI 69,
262 Wis. 2d 380,
663 N.W.2d 765,
01-1679.
971.08 Annotation
Judicial participation in the bargaining process raises a conclusive presumption that the plea was involuntary. Judicial participation in plea negotiations before a plea agreement has been reached is barred. State v. Williams,
2003 WI App 116,
265 Wis. 2d 229,
666 N.W.2d 58,
02-1651.
971.08 Annotation
Defendant's automatic ineligibility for Medicare and Medicaid benefits as the result of a drug trafficking conviction imposed by operation of federal law by a federal tribunal was a collateral consequence of the defendant's guilty plea and was not grounds for plea withdrawal. State v. Merten,
2003 WI App 171,
266 Wis. 2d 588,
668 N.W.2d 750,
02-1530.
971.08 Annotation
There is compliance with
Bangert,
131 Wis. 2d 246 (1986), as long as there is a record that the defendant was present when rights were given en masse and was personally questioned by the court to establish that the defendant understood the rights, had no questions, and waived those rights. State v. Stockland,
2003 WI App 177,
266 Wis. 2d 549,
668 N.W.2d 810,
02-2129.
971.08 Annotation
When discussing a plea recommendation, the state may not give a less than neutral recitation of the agreement's terms. Reference to the plea agreement was not less than neutral when the prosecutor agreed with the presentence report that the defendant needed to be incarcerated, without commenting on the sentence recommendation in the report. State v. Stenseth,
2003 WI App 198,
266 Wis. 2d 959,
669 N.W.2d 776,
02-3330.
971.08 Annotation
The defendant's due process rights were violated when the investigating detective in the case gave a sentencing recommendation to the sentencing court, written on police department letterhead, that undermined the state's plea-bargained recommendation, in effect breaching the plea agreement when the court had also forwarded the letter to the presentence investigation writer to assess and evaluate. State v. Matson,
2003 WI App 253,
268 Wis. 2d 725,
674 N.W.2d 51,
03-0251.
971.08 Annotation
The prosecution may discuss negative facts about the defendant in order to justify a recommended sentence within the parameters of a plea agreement. A defendant is entitled to a neutral recitation of the terms of the plea agreement. The prosecutor may not overtly or covertly convey to the court that a sentence harsher than that recommended is warranted, but the state is not obligated to say something nice or positive about the defendant in order to avoid breaching a plea agreement. State v. Naydihor,
2004 WI 43,
270 Wis. 2d 585,
678 N.W.2d 220,
01-3093.
971.08 Annotation
If the court is aware of a plea agreement, the court must advise the defendant personally that the court is not bound by the terms of that agreement and ascertain that the defendant understands this information. When the defendant shows that the court failed to inform the defendant that it was not bound by the plea agreement, and the defendant alleges that he did not understand that the court was not bound, the defendant is entitled to an evidentiary hearing on a motion to withdraw the plea. State v. Hampton,
2004 WI 107,
274 Wis. 2d 379,
683 N.W.2d 14,
01-0509.
971.08 Annotation
The strategic decision by defense counsel to forego an objection to the state's breach of a plea agreement without consulting the defendant was tantamount to entering a renegotiated plea agreement without the defendant's knowledge or consent. On that basis, defense counsel's performance was deficient, and, because counsel's deficient performance involved a breach of a plea agreement, the defendant was automatically prejudiced. State v. Sprang,
2004 WI App 121,
274 Wis. 2d 784,
683 N.W.2d 522,
03-2240.
971.08 Annotation
At sentencing, pertinent factors relating to the defendant's character and behavioral pattern cannot be immunized by a plea agreement between the defendant and the state. A plea agreement that does not allow the sentencing court to be apprised of relevant information is void as against public policy. The fact that the prosecutor's comments were compelling and delivered by strong words does not transform the commentary into a plea bargain violation. State v. Jackson,
2004 WI App 132,
274 Wis. 2d 692,
685 N.W.2d 839,
03-1805.
971.08 Annotation
A prosecutor may not make comments that suggest the prosecutor believes the disposition he or she is recommending pursuant to a plea agreement is insufficient, but may provide relevant negative information including information that has come to light after a plea agreement has been reached. A prosecutor can assert that a recommendation is appropriate and at the same time argue that the circumstances were so severe that the court should impose no less than the recommended sentence. State v. Liukonen,
2004 WI App 157,
276 Wis. 2d 64,
686 N.W.2d 689,
03-1539. See also State v. Bokenyi,
2014 WI 61,
355 Wis. 2d 28,
848 N.W.2d 759,
12-2557.
971.08 Annotation
A plea agreement that leads a defendant to believe that a material advantage or right has been preserved when, in fact, it cannot legally be obtained produces a plea that is as a matter of law neither knowing nor voluntary and the defendant must be allowed to withdraw the plea. Even if the trial court had rejected the illegal provision at sentencing, it would not have cured the error when the defendant was induced to enter the plea by a promise that the state could never keep. State v. Dawson,
2004 WI App 173,
276 Wis. 2d 418,
688 N.W.2d 12,
03-2116.
971.08 Annotation
When a defendant entered a plea believing the defendant would not be subject to the collateral consequences that actually applied and that belief was based on affirmative, incorrect statements on the record by the defendant's counsel and the prosecutor that were not corrected by the court, the plea was not knowingly and voluntarily entered and could be withdrawn. State v. Brown,
2004 WI App 179,
276 Wis. 2d 559,
687 N.W.2d 543,
03-2915.
971.08 Annotation
Williams, 2003 WI App 116, expressly applies only to direct judicial participation in the plea bargaining process itself. A judge's comments on the strength of the state's case and urging a defendant to carefully consider his or her chances of prevailing at trial are many steps removed from the direct judicial participation in plea negotiations that occurred in
Williams. State v. Hunter,
2005 WI App 5,
278 Wis. 2d 419,
692 N.W.2d 256,
03-2348.
971.08 Annotation
The state is not required to correct a misstated sentence recommendation forcefully or enthusiastically. It is sufficient to promptly acknowledge the mistake of fact and to rectify the error without impairing the integrity of the sentencing process. State v. Bowers,
2005 WI App 72,
280 Wis. 2d 534,
696 N.W.2d 255,
04-1093.
971.08 Annotation
The state was free to recommend consecutive sentences under a plea agreement that contained no provision regarding whether the sentence for the pled-to charges was to run concurrent or consecutive with the sentence entered in another proceeding. State v. Bowers,
2005 WI App 72,
280 Wis. 2d 534,
696 N.W.2d 255,
04-1093.
971.08 Annotation
Wisconsin eliminated parole and good-time credit when it adopted its “truth-in-sentencing" scheme. The lack of parole eligibility and good-time credit are not direct consequences of a plea that a court must inform a defendant of prior to accepting a plea. State v. Plank,
2005 WI App 109,
282 Wis. 2d 522,
699 N.W.2d 235,
04-2280.
971.08 Annotation
A defendant seeking to withdraw a plea of guilty or no contest prior to sentencing must show a fair and just reason for allowing the withdrawal, which is some adequate reason for defendant's change of heart other than the desire to have a trial. A lack of knowledge of sex offender registration or that one is eligible for a ch. 980 commitment are fair and just reasons for withdrawing a guilty plea. Prejudice needed to merit a denial of a plea withdrawal must be significant in order to trump a defendant's fair and just reason. Entitlement to withdraw pleas to some charges does not entitle the defendant to withdraw all guilty pleas. State v. Nelson,
2005 WI App 113,
282 Wis. 2d 502,
701 N.W.2d 32,
04-1954.
971.08 Annotation
The state is free to negotiate away any right it may have to recommend a sentence, but the state does not have a right to make an agreement to stand mute in the face of factual inaccuracies or to withhold relevant factual information from the court. Such an agreement would violate a prosecutor's duty and result in sentences based upon incomplete facts or factual inaccuracies, a notion that is abhorrent to the legal system. State v. Neuaone,
2005 WI App 124,
284 Wis. 2d 473,
700 N.W.2d 298,
04-0196.
971.08 Annotation
A court is not required to conduct an on-the-record colloquy with respect to a defendant's desire to abandon a plea of not guilty by reason of mental disease or defect. Only fundamental constitutional rights warrant this special protection and such a plea falls outside the realm of fundamental rights. State v. Francis,
2005 WI App 161,
285 Wis. 2d 451,
701 N.W.2d 632,
04-1360.
971.08 Annotation
If a defendant makes a prima facie showing that the defendant was not informed of the direct consequences of a plea, the burden shifts to the state to show by clear and convincing evidence that the plea was knowingly, voluntarily, and intelligently entered. The state was required to prove that the defendant knew the correct maximum sentence despite being given erroneous information at every stage of the proceeding. The defendant was not required to show that the misinformation caused the plea. State v. Harden,
2005 WI App 252,
287 Wis. 2d 871,
707 N.W.2d 173,
05-0262.
971.08 Annotation
For purposes of plea withdrawal motions, sentencing, when a deferred prosecution agreement is involved, encompasses the initial disposition of the case after the parties enter the agreement and the agreement is ratified by the trial court and a motion for plea withdrawal after entry of the agreement is subject to the standard for withdrawal of a plea after sentencing. State v. Daley,
2006 WI App 81,
292 Wis. 2d 517,
716 N.W.2d 146,
05-0048.
