State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶59 To earn a Bangert evidentiary hearing, a defendant must satisfy a second obligation. In addition to making a prima facie case that the circuit court erred in the plea colloquy, a defendant must allege he did not enter a knowing, intelligent, and voluntary plea because he did not know or understand information that should have been provided at the plea hearing. …
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¶62 We share the State’s concern that this motion does not allege directly that the defendant did not know or understand certain information that should have been provided or addressed at the plea hearing. A defendant is not required to submit a sworn affidavit to the court, but he is required to plead in his motion that he did not know or understand some aspect of his plea that is related to a deficiency in the plea colloquy.
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¶66 In this case, defense counsel persuasively documented deficiencies in the plea hearing transcript, but the motion did not allege directly that the defendant did not understand the nature of the charges against him. Counsel explained his decision not to submit an affidavit from the defendant or himself, but he did not explain why the defendant could not plead that he did not understand the nature of the charges. We are required to infer such an allegation from the totality of the motion. In this case, we accept counsel’s representations that the defendant lacked understanding about the charges and that the defendant’s “testimony will make this clear beyond dispute.”
¶67 In the ordinary case, defense counsel should plead with greater particularity a defendant’s lack of understanding. A defendant must identify deficiencies in the plea colloquy, state what he did not understand, and connect his lack of understanding to the deficiencies. See Hampton, 274 Wis. 2d 379, ¶57; State v. Giebel, 198 Wis. 2d 207, 217, 541 N.W.2d 815 (Ct. App. 1995). This procedure should prove fair to both parties.
The quoted language disturbs, in its suggestion of a requirement to “connect his lack of understanding to the deficiencies.” Neither case cited supports that proposition. In fact, Hampton, ¶57, stands for just the opposite; and Giebel merely says that the defendant failed to allege he didn’t know or understand the omitted information, hence fell short of his pleading requirement. If that were all, it might be enough to ascribe the phrase to a bout of imprecision. But that characterization is bit tougher to make given the court’s repetitive usage, “a defendant must allege he did not enter a knowing, intelligent, and voluntary plea because he did not know or understand information that should have been provided at the plea hearing,” which includes stress on “because.” And yet … the court upholds Brown’s motion which did not itself make any such connection between ignorance of omitted information and decision to plead guilty. Moreover it simply isn’t conceivable that the court would cite without any explanation authorities that undermined rather than supported the principle. It is even less conceivable that the court overrule its own relatively recent decision, Hampton, in such a manner. Note, too, that Bangert(which is, after all, now being “revitalized,” ¶58) requires no such connection. Take similar account as well of State v. Kenneth V. Harden, 2005 WI App 252, ¶5 (“While some language in Bartelt was subsequently withdrawn in Bangert, [1] the holding that a defendant need not show that the misinformation ‘caused’ the plea has never been withdrawn. The precedent is binding on this court.”) Best then, not to make much of the language, potentially worrisome though it might be.
