State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: Where a charge dismissed by the plea bargain arguably lacks factual basis, but the defendant receives the full benefit of the plea agreement as to the counts of conviction, an argument in favor of plea-withdrawal on the basis of an “illusory” plea bargain isn’t supported:
¶69 Denk contends that § 961.573(3) does not criminalize possession of paraphernalia related to personal use. …
¶70 Neither this court nor the court of appeals has previously interpreted the proper scope of Wis. Stat. § 961.573(3) in this context, and we need not do so today. Our analysis instead focuses on whether Denk received the benefit of the bargain even if it is uncertain whether he could have been convicted of felony possession of paraphernalia.
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¶72 When a prosecutor induces a plea based on a promise that is legally unenforceable, a manifest injustice occurs. …
¶73 Additionally, in some situations, a mistaken understanding of the law can result in manifest injustice. …
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¶75 In each of those cases, the dispute involved the charge to which the defendant actually pled. Likewise, in each of those cases, the consequence for which the defendant had bargained when he entered the plea to the charge was a legal impossibility. However, the defendant failed to understand the inevitable consequences of his plea to that charge, thus rendering his plea to the charge unknowing and involuntary.
¶76 In contrast, Denk did not plead to the charge in question, rather, his argument relates to his understanding of the charge that was dismissed. …
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¶78 Unlike the cases upon which Denk relies, this was not a plea based on an illusory promise, but rather it was a plea where the promise was realized. At sentencing, Denk received the benefits of his bargain. He avoided exposure to a substantial period of incarceration. As agreed, the State dismissed the three charges and argued for a withheld sentence, three years probation, and six months in jail. The judge sentenced consistent with the State’s argument, except Denk received only five months in jail as a condition of probation. Thus, we determine that Denk failed to meet his burden of showing a manifest injustice, entitling him to a plea withdrawal.
