¶ 1. Sеan Daley appeals a judgment of conviction for second-degree recklessly endangering safety and misdemeanor disorderly conduct, as well as an order denying his motion for plea withdrawal. Daley argues that the deferred prosecution agreement that resulted in his conviction was statutorily infirm and the conviction therefore cannot be *522 maintained. He also contends that he should have been allowed to withdraw his plea. We disagree and affirm the judgment and order.
Background
¶ 2. According to the August 3, 2001 complaint, Daley was arrested for reсklessly endangering safety after pointing a loaded gun at his girlfriend. The disorderly conduct charge was added because he was swearing at his girlfriend and throwing her belongings outside. On February 7, 2002, Daley pled not guilty.
¶ 3. Negotiations with the State led to a deferred prosecution agreement in whiсh Daley would plead no contest to the two charges, but the case would be suspended and entry of the judgment of conviction would be stayed. If Daley complied with the agreement, the State would move to dismiss the charges. On January 13, 2003, the trial court approved the agreement, Daley entered his new plea, and filed a plea questionnaire and waiver of rights form. Pursuant to the agreement, the trial court did not enter a judgment of conviction upon Daley's plea but suspended proceedings.
¶ 4. In August 2003, the State petitioned for termination of thе deferred prosecution agreement after Daley allegedly engaged in further criminal activity, including another domestic incident, contrary to the agreement's terms. At the hearing in May 2004, the court found that Daley violated the agreement and, after revoking the agreemеnt, found Daley guilty of the two initial charges. Sentencing was scheduled for a later date.
¶ 5. On July 14, 2004, Daley moved to "vacate" his no contest plea, but the court denied the motion. On August 27, Daley moved to vacate the finding of guilt, *523 but the court denied that motion too. At the sentencing hearing, thе court withheld sentence and gave Daley three years' probation on each count with the probation terms running concurrently. Daley appeals.
Discussion
Deferred Prosecution Agreement
¶ 6. Daley's first argument on appeal is that the deferred prosecution agreement fails to comply with Wis. Stat. § 971.37.
1
Whether the agreement conforms to the statute presents us with a statutory interpretation question, which we review de novo.
See State v. DeLain,
¶ 7. Daley argues the agreement violates Wis. Stat. § 971.37(4), which states, in relevant part, "Mon-sent to a deferred prosecution under this section is not an admission of guilt and the consent may not be admitted in evidence in a trial for the crime ...." He argues "the statute would be rendered meaningless if a deferred prosecution agreement cannot be construed as an admission of guilt [but] at the same time an agreement may require an admission оf guilt." We disagree.
¶ 8. The language of Wis. Stat. § 971.37(4) plainly means that should a deferred prosecution agreement be revoked, the defendant's willingness to enter the agreement may not be admitted at trial as evidence of guilt. Put another way, a deferred prosecution agreement *524 may not be used to demonstrate a defendant's consciousness of guilt. When a deferred prosecution agreement requires a defendant to enter a plea as a condition, it is the plea itself and not the agreement that constitutes the acknowledgemеnt of guilt. Indeed, if the agreement is dissolved, the plea remains.
. ¶ 9. Daley implies that requiring a plea is not allowed because it is not specifically authorized in Wis. Stat. § 971.37. However, the legislature plainly contemplated that parties would negotiate appropriatе conditions in a deferred prosecution agreement commensurate with the individual facts of each case. While § 971.37(lm)(b) specifies certain components that shall be in a deferred prosecution agreement, there is no indication these are to be the solе components. Indeed, § 971.37(lm)(c)l indicates that the agreement may require payment of the domestic abuse surcharge. This indicates the legislature never intended § 971.37(lm)(b) to be exclusive. 2
¶ 10. Daley also contends the agreement violated Wis. Stat. § 971.37(2), which states, "The written agree *525 ment shall bе terminated and the prosecution may resume upon written notice by either the person or the district attorney to the other prior to completion of the period of the agreement." He contends this section means the State is not allowed "to obtain a conviction in the event that the agreement is terminated.... [T]he process of conviction must occur subsequent to the resumption of the prosecution, not as a direct result of the resumption of the prosecution."
¶ 11. We point out first that whenever a deferred prosеcution agreement is revoked and a conviction results, that conviction is both subsequent to and a direct result of the resumption of the prosecution. If prosecution had not resumed, the charge would have been dismissed. See Wis. Stat. § 971.37(3).
¶ 12. More importantly, however, we conclude that prosecution in this case did resume. Prosecution of Daley's case was suspended after the court ascertained his plea was knowing, intelligent, and voluntary but before the court accepted the plea and used it to adjudicate Daley guilty. When the deferred prosecution agreement was revoked, prosecution resumed and the court continued where the case left off, accepting the plea, finding Daley guilty, and entering the judgment of conviction.
¶ 13. Contrary to Daley's argument that it is bad policy to allow the State to require a plea as part of a deferred prosecution agreement, such policy is actually quite efficient. Requiring a plea allows the State to avoid trial but still allows the defendant to avoid the conviction if he or she complies with the agreement. In that sеnse, it provides an even greater benefit to a defendant than a traditional plea agreement, provided the defendant fulfills the agreement's terms.
*526 Plea Withdrawal
¶ 14. The standard for evaluating a plea withdrawal motion depends on whether the motion comes before or after the defendant has been sentenced. Prior to sentencing, a defendant's motion "should be freely allowed if the defendant presents a 'fair and just reason' to justify the withdrawal."
State v. Timblin,
¶ 15. Although the parties have not so suggested in their briefs — indeed, they argued the case under the presentence standard — there is a question as to whether Daley's motion was before or after sentencing. This presents a question of law.
State v. Barney,
¶ 16. It is true that sentencing, as it is commonly understood, did not occur until after the trial court denied the motion for plea withdrawal, revoked the deferred prosecution agreement, and entered the judgment of conviction against Daley based on his underlying no contest plea. However, prior case law compels the *527 conclusion that "sentencing," when a deferred prosecution agreement is involved, encompasses the initial disposition of the case after the parties enter the agreement and the agreеment is ratified by the trial court. See id. at 354.
¶ 17. In Barney, the defendant pled guilty to second-degree sexual assault of a child. Under the plea agreement, however, Barney would not be immediately convicted of the assault but would be subject to a two-year "diversion agreement." Id. at 349. While Barney does not spеcify the statutory authority for the diversion agreement, it was arguably the deferred prosecution agreement statute in effect at the time because: (1) entry of the agreement preceded the actual judgment of conviction and deferred the judgment's entry, pending Barney's satisfactory completion of the agreement; and (2) if Barney completed the agreement, the charge would be dismissed with prejudice. Both conditions are present in Daley's agreement.
¶ 18. In
Barney,
Barney's motion to withdraw his plea came only after the State had moved to revoke the diversion agreement. Barney thus knew when he sought withdrawal of his plea that he was facing a stiffer punishment for the felony offense than he originally contemplated when he entered the guilty plea. The higher burden of the "manifest injustice" standard is thus appropriаte, since it is a deterrent to "defendants testing the waters for possible punishments" and acting out of " 'disappointment in the eventual punishment imposed.'" [State v.] Nawrocke, 193 Wis. 2d [373] at 379-80, 534 N.W.2d [624] at 626 [Ct. App. 1995] (quoted source omitted).
We conclude that the court's acceptance and or *528 dered implementation of the diversion agreement constituted "sentencing" for purрoses of determining the standard to be applied in deciding Barney's motion to withdraw his guilty plea.. ..
... ”[M]anifest injustice" is the appropriate standard by which we must measure Barney's request to withdraw his plea following the approval and implementation of the diversion agreement.
The same rationale applies here: acceptance and ordered implementation of the deferred prosecution agreement constitutes sentencing for purposes of determining which standard to apply. We thus apply the manifest injustice stаndard in reviewing Daley's motion for plea withdrawal.
¶ 19. We would normally be reluctant to decide a case on an argument the parties have not briefed. However, the "fair and just reason" standard for plea withdrawal is a more lenient standard than "manifest injustice." Becausе we are not convinced that Daley would have succeeded under the lower standard, he cannot prevail under the higher standard. Indeed, manifest injustice "is rooted in concepts of constitutional dimensions" and "requires the showing of a serious flaw in the fundamental integrity of thе plea."
State v. Krieger,
¶ 20. Here, Daley's motion asserted only his belief of his own innocence as a basis for the withdrawal. Daley also raised other issues at the motion hearing through an untitled "exhibit" filed with the trial court, contending he was dissatisfied with his attorney and that he felt he had no option but to tаke the plea *529 agreement. None of this, however, rises to the level of manifest injustice. 3 The court determined that Daley offered "too little, too late," and for the reasons that follow, we agree.
¶ 21. First, an assertion of innocence is an important factor, but it is nоt dispositive.
State v. Leitner,
¶ 22. Second, the court noted that during the plea colloquy it inquired whether Daley was satisfied with his representation. He indicated he was satisfied and did not request new counsel.
See State v. Morse,
¶ 23. Third, when Daley indicated some hesitation and reluctance to enter the plea, the court told Daley it was not trying to "steamroll" him and offеred to *530 adjourn the plea hearing. Daley declined, instead indicating he wanted to "get it over with."
¶ 24. Finally, the court noted that at no time between January 2003, when the deferred prosecution agreement was entered, and May 2004, when the agreement was revoked, did Daley seеk to withdraw his plea. Rather, he waited until he faced the possibility of a prison sentence to cry foul. The court is entitled to consider such a delay in its determination.
Cf. Leitner,
By the Court. — Judgment and order affirmed.
Notes
All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
This case is not similar to
State v. Dawson,
Although this is by no means an exhaustive list, examples of manifest injustice include the following:
(1) ineffective assistance of counsel; (2) the defendant did not personally enter or ratify the plea; (3) the plea was involuntary; (4) the prosecutor failed to fulfill the plea agreemеnt; (5) the defendant did not receive the concessions tentatively or fully concurred in by the court, and the defendant did not reaffirm the plea after being told that the court no longer concurred in the agreement; and, (6) the court had agreed that the defendant could withdraw the plea if the court deviated from the plea agreement.
State v. Krieger,