Trial counsel’s failure to disclose officer’s mental health issues before plea wasn’t prejudicial

State v. Jacqueline A. Ziriax Anderson, 2018AP2410-CR, District 3, 2/11/20 (one-judge decision; ineligible for publication); case activity (including briefs)

The state offered Anderson a deal: plead to OWI 2nd and it would recommend the minimum mandatory penalties. The state made that offer because the arresting officer had resigned from the department due to some “mental health issues” and the prosecutor apparently wasn’t eager to call him as a witness. Anderson’s lawyer found this out immediately before Anderson entered her plea—but didn’t tell Anderson. She learned about it afterward. (¶¶3-4, 8-11). While trial counsel performed deficiently by failing to tell Anderson that information before she pled, that doesn’t entitle her to plea withdrawal because she fails to show she would have insisted on going to trial if trial counsel would have told her, as required by State v. Bentley, 201 Wis. 2d 303, 312, 548 N.W.2d 50 (1996).

¶27     In this case, the circuit court acknowledged Ziriax Anderson’s testimony that she would not have entered a no-contest plea had she been aware of [Officer] Jents’ resignation and mental health issues. However, the court rejected her testimony to that effect for several reasons. First, the court noted that contrary to Ziriax Anderson’s assertion, the record did not show that Jents was unavailable for trial; it merely showed that the State wanted to avoid calling him to testify if possible. Second, the court observed that Jents’ resignation and mental health status were not relevant to the elements of the offense, likely would have been inadmissible at trial, and therefore would not have made it more likely that Ziriax Anderson would have been acquitted. Third, the court relied on Ziriax Anderson’s testimony that she chose to enter a plea because doing so would allow her to appeal the court’s denial of her suppression motion sooner than she could have if she had gone to trial. In light of these factors, the court did not err by rejecting Ziriax Anderson’s testimony that she would not have entered a no-contest plea had she known that the State’s plea offer was motivated by Jents’ resignation and mental health issues.

As to that suppression motion, the court of appeals affirms the denial of it because Jents’s testimony at the suppression hearing showed he had reasonable suspicion Anderson committed no less than three traffic violations: failing to stop at a flaming flashing red light, § 346.39(1); failure to yield, § 346.46(1); and failing to operate on the right half of the roadway, § 346.05(1). (¶¶3-7, 18-22). Part of Anderson’s argument for plea withdrawal is that, had she known of Jents’s issues, she would have insisted on reopening the suppression hearing on the theory Jents’s mental health threw his credibility and competency into doubt. That goes nowhere: “The suppression hearing, however, took place two and one-half months before the incident that led to Jents’[s] resignation. Ziriax Anderson does not cite any evidence that Jents was not competent at the time of the suppression hearing, and any argument to that effect is therefore purely speculative.” (¶29).