*1 Plaintiff-Respondent, State of Wisconsin,
v. D. Andrae Howell, Defendant-Appellant-Petitioner.
Supreme Court No. 2005AP731-CR. argument Oral March
Decided
June
358 defendant-appellant-petitioner there were For the by argument Henak, Ellen assistant oral briefs and public state defender. argued plaintiff-respondent
For cause attorney general, Freimuth, with James M. assistant attorney Hollen, on J.B. Van the brief was whom general. is a ABRAHAMSON, S. C.J. This SHIRLEY appeals published of the court of
review a decision affirming judgment of the Circuit Court for and order Judge.1 County, DiMotto, The cir- Jean W. Milwaukee hearing, evidentiary An- denied, cuit court without postconviction his motion to withdraw drae D. Howell's holding plea colloquy, complaint, guilty plea, sentencing sufficiently that Howell demonstrated abetting aiding his cousin that he was understood injury, Joseph Sharp degree Stat. in first reckless Wis. 940.23(l)(a) (2003-04),2 § was a and that there suffi- plea. support cient factual basis 1 Howell, 2dWis. 722 App 296 State v. WI N.W.2d 567. are to the 2003-04 statutes All references to Wisconsin otherwise indicated. version unless
¶ 2. The issue on review is limited to whether the failing evidentiary circuit court erred in to hold an plea. on Howell's motion to withdraw his More specifically, the issue is whether Howell's motion to guilty plea purposes grant- withdraw satisfies, his for (1) ing evidentiary hearing, requirements an Bangert Bangert, cases, line of State v. 131 246, Wis. 2d (2) (1986); Nelson/Bentley 274, 389 12 N.W.2d line of cases, State, Nelson v. 54 Wis. 2d 195 629 N.W.2d (1972), Bentley, and State v. Wis. 2d 548 N.W.2d (3) (1996); or both lines of cases. areWe not asked to decide, and do decide, whether the circuit court ultimately grant deny should Howell's motion to guilty plea. withdraw his application 3. This case involves the of our
well-developed granting case law on a circuit court's evidentiary hearing on a defendant's motion to with- guilty plea. draw a disagreement
¶ 4. Confusion and abound about papers present Bangert whether Howell's motion a or a Nelson/Bentley original motion. In the State's brief to appeals, analyzed the court of plea- counsel Howell's Bangert withdrawal claim in a framework. In the supplemental appeals State's brief to the court of response petition the State's to Howell's for review, adopted major- appeals' counsel the view of the court of ity alleged Nelson/Bentley that Howell had claim. suggests
¶ 5. Counsel for the State in this court upon analysis further and reflection, Howell's plea-withdrawal motion exhibits features of both Bangert Nelson/Bentley motion and a motion, in "dual-purpose alleges effect motion." The motion misunderstanding problems Howell's occurring was a result of plea colloquy.
both within and outside the appeals did not review The court *10 Bangert that motion because it concluded motion as plea colloquy alleged was not that Howell had appeals dissenting judge in court of The defective. Bangert motion motion to be a Howell's considered colloquy. describing plea a defective Howell ¶ forth, we hold that For the reasons set evidentiary Bangert an is entitled under regarding guilty plea. As his motion to withdraw his prima required by Bangert, facie the motion makes colloquy plea showing did not circuit court's that the judicially § man- 971.08 and with Wis. Stat. conform allegation procedures that How- and includes the dated that should understand information ell did not know or keeping colloquy.3 provided plea In at have been plea Bangert, hear- the record at the we examine with ing; and conversa- about facts we do not confabulate stay A defendant's record. We focused. tions not on the Bangert evidentiary hearing right cannot under to an by assert- the court or the State either be circumvented defendant, ing the record as a whole based on colloquy, plea despite a constitu- entered defective tionally plea. sound analyzing under motion In part
Nelson/Bentley, of the motion conclude that the we Nelson/Bentley motion raises could be considered namely Bangert, legal claim under issue as the the same knowing, intelligent, and volun- not that the was concept tary Howell misunderstood because pre- evidentiary liability. party-to-a-crime matter Nelson/Bentley portion motion, of the in the sented 3 594, Brown, 2, 2d 716 100, 293 Wis. 2006 WI State v. 107, 46, 274 Hampton, 2004 WI (citing State v. 906 N.W.2d 246, 2d 14; Bangert, 131 Wis. v. 683 N.W.2d State 2dWis. (1986)). N.W.2d namely party-to-a-crime that Howell misunderstood liability attorney, based on conversations with his will likely Bangert hearing. be addressed at the Conse- quently, validity need not we assess of Howell's NelsonIBentley claim. Howell's motion entitles him to evidentiary hearing Bangert under on the issue of knowing, intelligent, whether his tary. and volun- ¶ 9. We thus hold that Howell's motion warrants evidentiary hearing Bangert him an under to determine guilty plea whether he can withdraw his it because was knowing, intelligent, voluntary. The burden is on evidentiary hearing the State at the in the instant case Bangert prove convincing on the motion to clear and *11 knowing, intelligent, evidence that Howell's voluntary. and Accordingly,
¶ 10. we reverse the decision of the appeals court of and remand the cause to the circuit evidentiary hearing Bangert court for an under to determine whether Howell is entitled to withdraw his guilty plea.
HH briefly ¶ 11. We summarize the facts here. We plea colloquy discuss the and Howell's motion when we legal relating Bangert examine the issues to and NelsonIBentley. February
¶ 8, 2004, 12. On Marcus Pearson was shot twice while seated in his vehicle. defendant, The along Kimberly Howell, Andrae D. with his sister Joseph Sharp, allegedly his had cousin driven to the April, dating sister, scene to find another who was alleged Pearson. vehicle, Pearson Howell exited his rifle, a brandished and shot him. charged degree
¶ Howell with first State 13. 940.23(l)(a).4 § injury On the under Wis. Stat. reckless Sharp allegedly originally trial, for admitted date set Sharp, Howell, not shot the Howell's trial counsel adjourn- requested an trial counsel victim. Howell's light allegedly information. ment in of this hearing, At next the State moved party-to-a-crime liability, the information to add amend theory might at the trial show that that evidence on Sharp, and that Howell, was the shooter Howell place people putting where the victim" "assisted party A to a crime is could someone else. he be shot directly statutorily person commits defined as "a who "intentionally person aids and abets crime"; a who party person crime; of a who "is the commission" conspiracy to commit it."5Milwaukee to a with another Judge County J. al- Circuit Court Richard Sankovitz amendment.6 lowed the day information was 15. On the same guilty being party plea to
amended, Howell entered a injury. Judge degree Sanko- reckless the crime of first colloquy,accepted plea, conducted the vitz charged. of the offense convicted Howell County proceeding, At a later Milwaukee Judge Howell to Jean DiMotto sentenced Circuit Court years years' imprisonment of initial with seven fourteen supervision. years of extended incarceration and seven *12 4 charge first incorrectly states that the The information safety under Wis. Stat. degree recklessly endangering 941.30(1). §
5 § 939.05(1),(2)(b). Stat. Wis. 6 constructively charge only was appears It that modifier; neither party-to-a-crime to include amended reflects this amend the information in the record complaint nor ment. postconviction Thereafter, Howell filed plea pursuant guilty
motion to withdraw his to Wis. § arguing 809.30, Stat. that his was not entered knowingly, intelligently, voluntarily and because he party-to-a-crime concept failed to understand the of liability degree injury. for first reckless Judge court, 18. The circuit Jean DiMotto, indicating ruling without she whether was under the Bangert Nelson/Bentley cases, or line of denied Howell's evidentiary hearing. motion without The circuit "[t]he plea conjunction court ruled in that with the complaint is more than sufficient to establish that the party defendant as a in acted a crime the offense perpetrated against Marcus Pearson and de- that the aiding fendant intentionally assisting he understood that was his cousin facilitating his cousin in offense, commission of not whether or he realized weapon" (emphasis cousin his would utilize the in original). appeal, appeals 19. On court of affirmed the judgment holding
circuit order, court's Nelson/Bentley challenge Howell's motion raised a only conclusory allega- motion contained "subject meaningful tions that were not assessment light in of the record." petitioned appeals
¶ 20. of Howell court for a rehearing light Hampton, v. 107, State 2004 WI appeals 274 Wis. 2d 14. The court N.W.2d original opinion withdrew its unanimous to address the alleged inconsistency between its decision and this Hampton.7 court's decision Upon rehearing, appeals ¶ 21. court once again held that Howell entitled to an eviden-
7Howell, 296 Wis. 2d ¶ 10. *13 guilty plea. tiary hearing his his to withdraw on motion appeals "Howell's motion of determined that The court plea colloquy was defective assert that his did not "8 Bangert. meaning The court of of State u. within applied Nelson/Bentley appeals to motion and Howell's only again included conclu- held that Howell's motion sory to eviden- did entitle him an statements that not rejected tiary appeals hearing. The court require argument Hampton a more than does conclusory postconviction in a motion to statement alleges guilty he a when the defendant withdraw charged. crime the nature of the misunderstood Judge Dykman Appeals Charles Court concluding a dissented, that Howell had fact raised alleged Bangert him facts to entitle claim and sufficient evidentiary hearing. Judge Dykman also con- to an applied Bangert Hampton both cluded (that non-Bangert Nelson/Bentley) and that is, to claims sufficiently alleged Hampton, a mis- had under Howell evidentiary hearing understanding on to warrant the motion.
II guilty more than confession 23. "A is acts; it did accused various which admits that the By guilty pleading noor con- . .. ."9 itself a conviction important constitu- crime, test defendant waives against rights, including privilege self- tional right jury right trial, to a incrimination, the 8Id., original). (emphasis 9¶ (1969). Alabama, 238, 242 Boykin 395 U.S. v. confront one's accusers.10 Under United States Con- *14 stitution, a no guilty plea or contest be "must affirma- tively shown to knowing, be and intelligent, volun- tary."11 24. To warrant an evidentiary hearing
¶ on a postconviction motion to a plea withdraw of or guilty no contest, the defendant must the satisfy requirements of Bangert Nelson/Bentley.
HHHHHH 25. We analyze first ¶ motion under Bangert. Bangert 26. and its progeny govern
¶ the circuit court A plea at colloquies. circuit court must address defendants personally and fulfill several set duties forth in § judicial Wis. Stat. 971.0812 and mandates ensure 10 243; Hampton, Id at 274 2dWis. 22. 11 Brown, 2dWis. § Wisconsin 971.08 provides: Stat. guilty contest; Pleas
971.08 of and no withdrawal thereof. (1) accepts plea contest, guilty Before the court of or no it shall following: do all of (a) personally plea Address the defendant and determine that voluntarily understanding is made charge with of the nature of the potential punishment and the if convicted. (b) inquiry Make such as satisfies it that the defendant fact charged. committed crime (c) personally Address the defendant and advise the defendant as you "If America, follows: are not citizen of the United States of you plea guilty are advised that a of noor contest for the offense you charged may deportation, with are which result in the exclusion country naturalization, from admission to this or the denial of under federal law." constitutionally guilty plea or no contest that purpose to inform the duties is these sound.13 charges, to ascertain the of the of the nature defendant understanding charge, of the ensure defendant's rights aware of the constitutional that the defendant is being legal purpose sense, of the "In a waived.14 intelligent plea, voluntary colloquy as is to assure a taking pleas."15 fairness as fundamental well Bangert may in- A A defendant Motion. Bangert only by alleging circuit court voke Bangert colloquy A duties.16 fulfill its failed to (1) evidentiary if motion warrants [the] showing prima "a makes motion *15 facie (d) complied attorney he Inquire whether or she has of the district 971.095(2). with s. (l)(c) (2) by required a defendant as sub. If a court fails advise plea likely in the is to result the later shows that a defendant country deportation, to this exclusion from admission defendant's naturalization, the motion of the court on defendant's or denial against any applicable judgment the defendant shall vacate plea. plea permit the and enter another to withdraw the defendant plea ability to of This does not limit the withdraw subsection any grounds. guilty no on other or contest (3) by accepted Any plea guilty the court or which which is subsequently permitted not be used to he withdrawn shall subsequent against action. the in a defendant 13 Brown, in on duties recently commented these The court only duties 594, will describe those 2d 34-36. We 293 Wis. ¶¶ are discussed the review. remainder relevant instant Brown.
14 Bangert, 131 Wis. 2d at 267. 15 sense, 379, practical Hampton, 274 Wis. 2d 44. "In a ¶ eliminating finality promote by is to colloquy of the purpose Id. grounds for withdrawal." plea one of the 16 Brown, 594, Wis. 2d 36. ¶ 293
367 without accepted trial court's conformance § with mandatory [Wis. Stat.] 971.08 other proce- (2) if dures,"17 and the motion in fact the alleges defendant did not know or understand the information that should have been at the provided plea colloquy.18 28. The for motion are requirements Bangert
¶ relaxed relatively because source of the defendant's misunderstanding, plea colloquy defect, be should clear from transcript of the hearing at which the plea was taken. We less from the require in a allegations Bangert motion because the circuit court bears the responsibility preventing failures in the collo- quy.19 29. If the defendant's motion meets both prongs Bangert, the State has the burden to prove at the
17 Bangert, Hampton, 2d Wis. at 274. In explained we that "the defendant must point specific to a defect in the plea which constitutes an error the court. The defen satisfy merely dant will not this burden by alleging that 'the plea colloquy was defective' or 'the court failed to conform to mandatory during its duties colloquy.' The defendant allegations must make specific Hampton, . . . ." 2d 274 Wis. 18 Bangert, Hampton, See also Wis. 2d at 46. A Bangert claim, essence, 2d Wis. "argues *16 colloquy plea conducted the trial at hearing court the was constitutionally insufficient to ascertain [the defendant's] un derstanding of the charge nature of the [the defendant's] knowledge of rights which constitutional waiving." he was Bangert, 131 2dWis. at 255. 19 Bangert "requires something less to support allegation defendant's understanding of his at the time of plea [because] court can head off the problem with a sufficient plea colloquy." Hampton, 379, 274 Wis. 2d 65. ¶
368 plea knowing, evidentiary hearing intelli- voluntary.20 gent, and Appellate This
¶ Review. 30. Standard postconviction motion to with- a decides whether court Bangert plea guilty entitles under or no contest draw evidentiary hearing independently of a defendant to benefiting appeals but circuit court and court analyses.21 their from reviewing aas
¶ A court first determines 31. motion "has a defendant's of law whether matter pointed plea colloquy that estab- in the to deficiencies § manda- 971.08 other of Wis. Stat. lish violation reviewing hearing."22 tory plea court duties at a defendant of law whether then as a matter determines sufficiently alleged not know or under- that he did "has provided at have been information that should stand hearing . . . ."23 Bangert ¶ Howell and Motion. 32. agree be Howell's motion should court that State this They disagree, Bangert. however, considered under evidentiaiy to an Howell the motion entitles whether Bangert. hearing under allegations are
¶ that his Howell contends evidentiary under him an to entitle sufficient namely Bangert, did not deter- the circuit court voluntarily under- with was made mine that 20 131 2d at 274-75. Bangert, Wis.
21Brown, 594, 2d 293 Wis. v. Brown, 594, 21; State see also 293 Wis. 2d Lackershire, 25, 23, 2d 418. 301 Wis. 734 N.W.2d 2007 WI 2d Brown, (citing Bentley, 201 Wis. 2d 21¶ 293 Wis. 310). at
standing charge; clarify of the nature did not party-to-a-crime liability what entailed; and did not misleading during correct statements the State made plea colloquy party-to-a-crime liability. about He party- result, asserts that as a he did not understand liability plea knowing to-a-crime such that his was not voluntary. Bangert 34. The State contends that Howell's plea colloquy motion fails because the was not defective. plea colloquy adequately The State asserts that the accurately liability informed Howell of his criminal as party an aider and abettor to a crime.
¶ 35. Relevant to the instant review are two Bangert plea colloquy. duties of circuit court at the [circuit]
¶ 36. One, "the court must address the personally [establish defendant and. .. understanding defendant's of the nature of the crime charged range punishments with which he is and the of by entering subjecting to which he is himself [circuit] . . . ."24Two, "the court must address the personally [ascertain personally defendant and ... support whether a factual basis exists ... ."25 Duty ¶ to Establish Understand- Defendant's ing. duty We first examine the circuit court's to estab- understanding lish the defendant's of the nature of the Brown, crime. In State v. 55, 2006 WI 293 recognized Wis. 2d 594, 716 N.W.2d court party-to-a-crime liability needed to be addressed during plea colloquy. circuit court 24 Id., (citing Bangert, 262; 131 Wis. 2d at Wis. Stat. 971.08(1)(a)). § (citing Id. Bangert, 262; 131 Wis. 2d at Wis. Stat. 971.08(1)(b)). § *18 by the as evidenced ¶ case, instant In the 38. only engaged in limited the circuit court record, regarding the exploration Howell understood whether liability an aider and abettor. as of his criminal nature portions of the the relevant We examine plea colloquy, transcript namely of the the record, colloquy plea was defective. We whether the determine colloquy whether first to determine the examine the nature of the Howell of informed the circuit court charge court ascertained the circuit and then whether charge.26 understanding of the nature the Howell's charge permitting to the the amendment ’40. In begin- party-to-a-crime at the modifier the to include ning hearing, circuit court characterized the of the assisting liability party-to-a-crime instant case as in the place putting where he could be people in a in the victim following engaged the then in circuit court shot. exchange and Howell: trial counsel with that the be fair to state it THE COURT: Would prospect the comprises to the information amendment might that Mr. Howell the evidence show at trial that people he trigger, but that assisted the pull didn't by be shot where he could place the in a putting victim somebody else? That's a correct statement. COUNSEL]:
[DEFENSE Howell, you agree with that? Mr. do COURT: THE Yes, Your Honor. THE DEFENDANT: added.) (Emphasis "char Bangert, the court at 267. In 131 Wis. 2d Bangert, inform a defendant duty to first obligation as a
acterize[d] this or, alternatively, to first ascertain charge of the the nature the information about accurate possesses defendant that then ascertain charge. The court must nature of charge Id. of the ...." understanding of the nature defendant's Later plea colloquy, circuit court described if how Howell went to trial the State would have to prove Howell shot the victim or assisted person who victim, shot what knowing person was doing. The circuit court addressed Howell as follows: you
THE COURT: you Do understand that before can guilty be found the State would be required prove February that on 8th year of this someone great caused [Pearson], bodily harm to The State would have to prove that [shot whoever did this Pearson] did it criminally they reckless conduct. That means that were *19 engaged in conduct that the person knew at the time to create a substantial and unreasonable risk of death or great bodily Pearson, harm to Mr. and was aware that they creating were such risk. The State would have prove that the person him, who shot shot him in circumstances which showed utter disregard for human life. And then the State prove would have to either that you person were the did things who all those you or that intentionally assisted doing someone else who was those things, knowing they doing. what were you Do understand what the State would have to prove?
THE DEFENDANT: Yes. added.)
(Emphasis 42. When prompted by court, the circuit State, in describing the nature Howell's criminal liability as a party crime, explained that Howell was the shooter, with observed the shooter with the gun as they got car, out of the and would have approached the victim in this situation. This part the colloquy reads as follows: So, to trial what are if the case came COURT:
THE far as Mr. prove could as that the State possibilities two shooting? in the involvement be, Judge, possibilities The two would STATE]: [THE shooter, have that, one, which would he the actual testimony; other is what actual been victim's and position His and I have discussed. counsel defense was be that his cousin to the court will argument his him, him he there with observed and the shooter car would have got out and gun they as with victim in this situation. approached the — may accept I those Are facts THE COURT: those facts as true? that stipulate to We would
DEFENSE COUNSEL: Mr. upon facts which those are the factual basis and me as Is that guilt to well. has indicated his Howell correct? Yes.
THE DEFENDANT: necessarily So, Howell, you're not Mr. COURT: THE you Pearson; are Mr. you shot agreeing that and that your there cousin went agreeing you you doing so approached Mr. Pearson you ? shooting him your assisted cousin DEFENDANT: Yes. THE *20 added.)
(Emphasis court, State, circuit the the Although ¶ factual bases discussing trial were counsel Howell's colloquy of the plea charged, parts crime these for the to inform Howell obligation on the court's bearing have charge. nature of the of the col- contends motion Howell's
¶ presence his mere belief that reinforced loquy were sufficient shooting failure to stop and his make a him to a crime. party Howell asserts in his motion that he "never would have had pled guilty he realized that his mere was not presence enough because he maintains he is innocent and did not even know there was a Mr. gun until Sharp gun raised the up to shoot." 45. To demonstrate the circuit court failed
to explain party-to-a-crime liability one adequately, need only compare the circuit court's plea colloquy with jury instruction pattern explaining liability of person who aids and abets the commission of a crime. 46. Wisconsin Jury Instruction —Criminal (2005) states in part as follows: person intentionally
A aids and abets the commission of when, acting a crime knowledge with or belief that person committing another is or intends to commit a (he) (she) crime, knowingly either: person crime; assists the who commits the or ready is willing person assist and the who willingness commits crime knows of the assist.
To intentionally aid degree and abet [first reckless injury], the defendant must person know that another committing is or intends to commit of [first the crime degree injury] reckless purpose and have the to assist the commission of that crime.
However, (he) (she) a person does not aid if and abet only bystander spectator nothing and does to assist commission of crime.27 47. The circuit court's curt explanation aiding and abetting falls far short of jury this instruction and
27 The final sentence of the instruction is to be used "if (2005). supported the evidence." Wis JI —Criminal 400 *21 informing any Howell about the means of other of liability. criminal nature of his stating Simply would have to ¶ that the State 48. "intentionally prove or assisted" that Howell "assisted" explain aider to Howell not sufficient to the shooter generally liability, party-to-a-crime either and abettor injury. degree of first reckless in the context or explain how Howell had been did not circuit court approached party the if he "would have to a crime putting people the had or if he "assisted victim" place short, he In the where could be shot." victim in abetting descriptions aiding and of the circuit court's aspect liability party-to-a-crime not amount do charge. explanation This court cannot clear of the speculate Howell, about what information should not may off the counsel, have shared and the circuit court hearing. plea record before nothing Accordingly, in the we conclude that colloquy received cor- that Howell demonstrates charge from other sources. about this rect information satisfy Bangert, the circuit court should To only proper had the that Howell established have informa- he also that understood information but quoted colloquy above in the instant case tion. The nature that Howell understood failed to establish charge. ascer- has recommended 51. This court charge, understanding a circuit of a tain a defendant's charge might the nature summarize court might reading jury ask defendant's instructions, explanation to the defendant or her counsel about his or to summarize ask the defendant and explanation, counsel might or other to the record refer understanding of nature defendant's evidence of the *22 charge.28 encourage of the We circuit courts to use these "[e]ach or similar methods because method enables accuracy court to ascertain the of the defendant's knowledge; gives each method substantive content to a understanding."29 defendant's The circuit court did not any employ suggested any of these methods or other understanding suitable method to ascertain Howell's of party-to-a-crime liability.
¶ 52. The circuit court did not establish Howell's understanding relayed of the information it to Howell by personally questioning asking him. Rather than understanding, Howell to summarize his the circuit questions required simple "yes" court asked him that responses. "no" explained Bangert, "[a] 53. As we defendant's response
mere affirmative that he understands the na- charge, establishing knowledge ture of the without his of charge, the nature of perfunctory submits more to a procedure rather than the constitutional standard affirmatively voluntarily that intelligently be shown to be arid By referring simply
made."30 to Howell's asking only "assistance" in the crime and Howell for single response, appro- word the circuit court did not priately understanding. ascertain Howell's A defendant point expressed [have] knowledge must "at some his charge" satisfy requirement the nature of the § Wis. Stat. 971.08.31
28Bangert,
268; Brown,
31Bangert,
¶ that, with Howell 55. We thus colloquy plea defective in was record, the strated of the to inform Howell circuit court failed that charge Howell's to ascertain of the and failed nature party-to-a-crime understanding of nature of the charge. Duty turn Basis. We
¶ to Ascertain Factual plea colloquy, alleged in second defect now to the duty namely in its failed the circuit court that charged crime to for factual basis establish the guilty plea.33 support Brown, 293 Wis. 2d to the individual defendant. plea colloquy a however, a circuit colloquy, 594, "customizing plea 58. In the defendant's affir- merely record 'do more than court must Id., (quoting Bangert, 131 understanding.'" 58¶ mation 267). at 2dWis. 32 268). Bangert, 131 2d at Id. Wis. (quoting Brown, 594, 971.08(1)(b); 2d 293 Wis. § Stat. Wis. whether sufficient court to ascertain duty of the circuit alleges
¶ 57. Howell's motion the circuit court failed to establish sufficient factual basis for plea by alleging satisfy party- that his conduct did not liability proper to-a-crime understanding and that if he had had the pled guilty
he never would have because party degree he was not a to the crime first reckless injury. recognizes party-to-a-crime The State liabil- ity aspect charged is an of the factual basis of the crime participation when the defendant disavows direct in the requirement crime and discusses the factual basis its brief. A58. circuit court's failure fulfill the Wis. 971.08(l)(b) § requirement
Stat.
factual basis
entitles
Bangert procedure, according
the defendant to the
although
Bangert
"applying
procedure
our
law,
case
satisfy
requirement
for failure to
the factual basis
is an
Lackershire,
awkward fit." State v.
2007 WI
explained
N.W.2d
378 underlying crime conduct constituted the the whether guilty.35 pled which the defendant light in ¶ of our recent decision In emphasize opportunity Lackershire, the we use this ensuring importance it is satisfied of a circuit court's by the crime in fact committed the defendant plea colloquy.36 inquiry engaging in at sufficient factual ¶ discussion of the The circuit court's by following alleged actions is limited basis putting people in in the victim "he assisted Howell: that by somebody place else"; that shot he could be where "intentionally some- assisted he either shot Pearson knowing doing things, those what who was one else [Sharp], they doing"; with that "he was there were they got gun out of the car and him as with observed approached situation";37 in the victim this have would Sharp and that "went there Howell and and that [he] by doing approached [Howell] so Mr. Pearson and shooting [his] in him." cousin assisted role in details about Howell's 61. No additional plea colloquy part appear charged in in the crime counsel to allowed defense the circuit court because stipulate in the for the existed that a factual basis complaint. May I as true facts stated accept
THE COURT: complaint? 35 23, Lackershire, 74, 46, 734 N.W.2d v. 2007 WI State 2d 418. 301 Wis. 36 23, Lackershire, 734 N.W.2d 2007 State v. WI 971.08(1). 418; § 2d Wis. Stat. Wis. response to the circuit prosecutor Statement
court. *25 stipulate
[DEFENSE We would COUNSEL]: to the factual basis for the in the complaint with the understanding party as to a crime. complaint
¶ 62. Because the was not amended to party-to-a-crime liability reflect the factual basis for guilty plea aiding abetting Howell’s the crime complaint. was absent from the Thus, defense counsel's stipulation complaint to the factual basis duty person- insufficient to fulfill the circuit court's ally ascertain that a factual basis exists for the crime charged. complaint simply The states that Pearson "personally observed the above-named defendant [Howell] approaching point him armed a rifle, with this rifle at him and shoot him." information is even less informative charged similarly the crime about does not reflect party-to-a-crime liability. Even if Howell's counsel stipulated preliminary to the facts elicited at the hear- ing, testimony provide is insufficient to a factual plea.38 for the basis inquire 64. The circuit court did not into how Sharp, "approaching"
Howell "assisted" how the victim alleged assistance, constituted or how either action was sufficient to establish that Howell aided and abetted Sharp shooting. Sharp in the That Howell observed subject party- awith firearm does not alone Howell to liability. inquire to-a-crime The circuit court did not knowledge Sharp's into about intentions 38At preliminary hearing, only Pearson was the witness and he testified that Howell was the actual shooter. There is no discussion of Sharp's involvement or how Howell and Sharp testimony why interacted. There is also no as to Pearson was at shooting the location of the and thus no indication that Howell arranged for Pearson to be there. *26 circuit the firearm. The first observed
when Howell inquire procured into who the firearm did not court also brought circuit court to the Nor did the it scene. requisite for had the intent whether Howell determine party-to-a-crime liability. explained "[p]robing
¶ Brown, we that 65. In necessary, they help always questions may but be understanding they help to and a defendant's ensure complete colloquy plea Here, record."39 the the questions than it about what more answers raises actually Sharp, happened regarding Howell, and Pear- shooting. day the of the son on charge light the In of the late amendment to 66. liability adding party-to-a-crime an accom- and without complaint, change panying the in the factual basis § pursuant 971.08 and court, to Wis. Stat. circuit deeper probed Bangert, that there to ensure should have plea was now factual basis for the that a sufficient may theory not have that Howell been on based only It was the shooter. and instead assisted shooter important court to determine at for the circuit provided colloquy and whether what assistance Howell requisite provided intent, with the assistance was that prelimi- complaint, especially and information, since the liability. nary hearing abettor not address aider and did repeat in Lackershire: comments our We obligation "[T]he court establish that the circuit helps that ensure factual basis sufficient intelligent. knowing The factual defendant's is 'protects requirement in the is a defendant who basis understanding voluntarily pleading position with realizing charge without of the but of the nature charge.' actually ... fall within does not his conduct 39Brown, 2d 293 Wis.
A defendant's failure to realize conduct to pleads guilty she which does not fall within the offense charged incompatible plea being 'knowing' with the "40 'intelligent.'
¶ 68. We thus conclude that Howell's motion sat- prong Bangert by making prima isfies the first facie plea colloquy demonstration that the was defective in establishing understanding of the nature his liability party criminal as a ato crime and in establish- *27 ing charged. a factual basis for the crime
¶
postcon-
69. We further conclude that Howell's
prong Bangert.
viction motion satisfies the second
It
alleges
plea
knowingly, intelligently,
that the
was not
voluntarily
entered. Howell's motion states that
guilty
party-to-a-crime
Howell "believed that he was
as
simply
stop
occurring";
for failure to
the crime from
being guilty
party
that he "did not know that
as
to a
required
presence
crime
more than his
and his failure
stop
shooting";
to act
the
and that he "never would
pled guilty
presence
have
had he realized that his mere
enough...."
was not
short,
In
Howell's motion suffi-
ciently alleges that he in fact did not
know under-
provided
stand the information that should have been
plea hearing
support
guilty plea.
the
at
his
Bangert
¶ 70.
In a
motion, a circuit court and a
reviewing
only
court examine
whether "a defendant is
evidentiary hearing
entitled to an
when the court errs
plea hearing."41
at a
The State cannot circumvent a
right
evidentiary hearing
defendant's
to an
under
40
Lackershire,
State v.
74,
35,
WI
N.W.2d
(internal
omitted).
42 added). Brown, 594, (emphasis 40 293 2d Wis. 270). Id., Bangert, at (quoting 32¶ (quoting Boykin, Id., at 278-79 Bangert (quoting 33¶ 243-44)). at 395 U.S.
IV moving inquiry, namely ¶ 72. Before our second Nelson/Bentley, whether Howell's motion satisfies we briefly ability must discuss a defendant's to invoke both Bangert Nelson/Bentley and in the same motion. Bangert Nelson/Bentley
¶ 73. A Dual and Mo- may Bangert tion. A defendant invoke both and Nelson/Bentley single postconviction in a motion to with- guilty plea Nelson/Bentley draw a or no contest.45 Bangert, although different, are not inconsistent. Both requests evidentiary hearing involve for an on a motion plea guilty a withdraw or no contest. In both the making showing defendant has the burden of in the plea justify evidentiary motion to withdraw the hearing.46 Bangert Nelson/Bentley
¶ 74. The motions, applicable however, are to different factual circum- Bangert A stances.47 defendant invokes when the colloquy defective; is defendant invokes Nelson/Bentley alleges when the defendant that some plea colloquy, factor extrinsic to like ineffective 45Brown, Brown, 293 Wis. 2d 42. In explained: we purpose is, When the defendant files a dual motion —that Bangert [Nelson/Bentley] motion combined with a motion that alleges problem ineffective assistance of counsel or some other affecting plea hearing that is extrinsic to the record —the ruling evidentiary court should make an initial on whether an hearing required and, is, it if what the will address. Id.
46Hampton, 274 Wis. 2d 56 (discussing the similari brought ties motions Bangert under and Nelson/Bentley).
47Id.
384
plea
coercion,
a
in-
renders
of counsel
assistance
allega-
purpose"
include
A
motion would
firm.48 "dual
allegations
colloquy
plea
some
of
of a defective
tions
again
plea
injustice
infirm. We
that renders
other
may
Bangert and
a
include both
that
defendant
state
Nelson/Bentley
single
withdraw a
claims in a
motion to
guilty
or no contest.
Nelson/Bentley
To
Motion.
entitle
75. A
evidentiary
under
to
defendant
"allegeQ
Nelson/Bentley,
which,
facts
defendant must
How-
the defendant to relief....
true,
if
would entitle
allege
facts
his
ever, if
fails
sufficient
the defendant
only
presents
question
fact, or
to raise a
motion
conclusively
conclusionary allegations, or if the record
the defendant
is not entitled
that
demonstrates
legal
may in
of its
relief,
trial court
the exercise
hearing."49
deny
A
the motion without
discretion
higher
Nelson/Bentley
must meet a
motion
defendant's
Bangert
pleading
If
motion.50 the
for
than a
standard
48Brown,
at 311
594,
Bentley, 201 Wis. 2d
2d
293 Wis.
(ineffective
counsel);
Basley,
App
2006 WI
State v.
assistance
(coercion
232,
by defense
9,
298
2d
Bangert and Hampton: Bangert specific allegations [in a defendant must make during plea colloquy point did the court motion] "at such as no by plea bargain explain and was free hound that it was not sentencing addi- disregard prosecutor's recommendation." In tion, allege understand that he did not fact the defendant must agreement because the court was not bound
defendant's motion and the record fail to meet these a circuit court in requirements, may its discretion grant or an deny evidentiary hearing. words, In a other defendant first must allege
sufficient, nonconclusory facts his motion if that, true, would entitle him If to relief. the to defendant fails meet the pleading requirements, the circuit in its court discretion nevertheless may grant deny or an eviden- tiary If the hearing. defendant meets pleading requirements, circuit court then must look to the record. A77. well-pled complaint may be denied with-
out an evidentiary if the record as a whole conclusively demonstrates that relief is not war- ranted.51 Unless the record conclusively demonstrates information/explanation provided. was not We think motion of passes this Bentley: nature test Nelson and a motion to which, true, alleges withdraw a that would entitle the facts if allegation that did not defendant relief. defendant is, admittedly, conclusory; understand allegation but the raises a
question perhaps requires and law that resolution. of fact added). Hampton, 379, (emphasis Wis. 2d 57¶ 274 disagree We with language Howell's claim that this renders unnecessary "non-conclusory" requirement Nelson/Bentley First, Hampton test. Bangert case, awas change thus did not Nelson/Bentley the law of the line of cases. Second, language does not "non-conclusory" eliminate the requirement of Nelson/Bentley; rather, explains it that certain conclusory acceptable Bangert statements are See cases. also Goyette, State v. n.8, App WI ¶ 17 2dWis. 722 N.W.2d731 (citing passage explaining this that "the Bangert second prong by conclusory is satisfied allegation that understand"). the defendant did not know or 51The Nelson postconviction court addressed a motion guilty plea pursuant withdraw a 974.06, § to Wis. Stat. which governs brought collateral attacks after the for appeal time has relief, the circuit is entitled to no that the defendant grant evidentiary hearing. If an the record must court conclusively the defendant is not demonstrates in its discretion relief, then the circuit court entitled to may grant evidentiary deny hearing.52 the motion and the provides "[u]nless This expired. statute conclusively person show that the and records the action files grant . relief, prompt the court shall.. is entitled to no 974.06(3)(c). § hearing." Wis. Stat. *31 to post- The court extended the Nelson test other Bentley including guilty those pleas, motions to withdraw conviction (Rule) § § to 809.30 and 974.02. brought pursuant Wis. Stat. court, recognizing between Bentley although the difference The motion, § that "our standard §a and a 974.06 announced 974.02 Bentley, 2d 310. The 201 Wis. at of review is dictated Nelson." a "the test the same for direct Bentley explained court that is guilty a a challenge on motion to withdraw to the conviction challenge §to 974.06." Id. at pursuant as for a collateral omitted). (internal citations 310 n.6 as follows: Bentley interpreted The court Nelson "If which would entitle the alleges on its motion defendant face facts an no and must hold relief, to the circuit court has discretion Nelson, 310, citing hearing." Bentley, 201 Wis. 2d at evidentiary added). test phrasing In the Nelson (emphasis 2d at 497 Wis. evidentiary an way, interpreted be to make Bentley might this sufficient, hearing mandatory motion contains whenever the facts, as a whole would nonconclusory even if the record constitutionally plea was that the defendant's demonstrate however, Bentley, of Nelson and interpretation Such an sound. Nelson/Bentley is of interpretation is not The correct correct. a mandatory if the record as evidentiary not hearing is defendant is not entitled conclusively, demonstrates that whole nonconclusory alleges relief, if motion sufficient to even facts. colloquy not fore does An and accurate adequate recently ex challenge. appeals of a court Bentley close good and incorrect that a simply State is plained "[t]he concededly complies with one that plea colloquy, sufficient Appellate ¶ 78. Standard of Review. Under reviewing Nelson/Bentley, a court a determines as mat- independently law, ter of of the circuit court and court appeals benefiting analyses, but from their whether guilty plea defendant's motion to withdraw a "on its face alleges facts which would entitle the defendant conclusively relief,"53and whether the record demon- strates that the defendant is entitled to no relief. reviewing
¶ 79. A
court
reviews
circuit court's
deny
grant
exercise
discretion to
its
when as a matter of law the defendant's motion
fails
allege
entitling
sufficient facts
the defendant to relief or
presents only conelusory allegations, or
record,
as a
conclusively
law,
matter of
demonstrates the defendant
entitled
relief.
This review determines whether
erroneously
the circuit court
exercised its discretion.54
Nelson/Bentley
¶ 80. Howell's
Motion. We be-
gin by observing that Howell's motion itself did not
clearly distinguish
Bangert
between the claims
under
plea colloquy
a defective
and the claims under
*32
Nelson/Bentley
problems
plea
of
extrinsic to the
collo-
quy.
generally alleged
Rather, Howell's motion
that he
requirements of Bangert,
deny
can be relied on to
an eviden-
tiary
for a defendant who seeks to
or
withdraw his
her
plea on
-Bangert grounds.
non
The
premise
entire
of a
Nelson/Bentley plea withdrawal motion
something
is that
not
apparent
plea
may
from the
colloquy
guilty
have rendered a
or
no contest plea
Basley,
253,
infirm." State v.
15,
2006 WI App
232,
298 Wis. 2d
2dWis.
whether plea guilty under are sufficient withdraw evidentiary Nelson/Bentley to an hear- to entitle Howell appropriately ing. fall under of Howell's claims Several Nelson/Bentley they problems other because relate plea colloquy. part of Howell's a That than defective Nelson/Bentley might mo- be considered motion that legal Bangert claim, issue as his tion raises the same intelligent, knowing, namely not that his voluntary the nature of because he misunderstood liability. party-to-a-crime that between June 82. The motion asserts colloquy,
original Howell trial, and the date of party- spoke the amended trial counsel about with his charge, conversation, as result of the to-a-crime misunderstanding developed about what was Howell being party necessary to the for him to convicted of be evidentiary degree injury. reckless crime of first namely Nelson/Bentley claim, Howell's matter under liability party-to-a-crime that Howell misunderstood attorney, likely will be with because of conversations his Bangert Bangert hearing. At the at the addressed may present hearing, evi- the State Howell both to demonstrate whether to the record dence extrinsic concept party-to-a- properly understood Howell plea colloquy. liability despite Con- the defective crime validity sequently, do assess the we need not and Nelson/Bentley allegations line of under the cases. *33 recognize that, 83. We under other circum- may analyze
stances, a have court defendant's dual purpose Bangert motion under both the and the Nelson/Bentley to determine an standards whether evi- dentiary hearing is warranted on those claims hearing. nature of the already having recognized sum, In that evidentiary hearing
Howell is entitled an under Bangert knowing, intelligent, on whether his voluntary because Howell misunderstood na- party-to-a-crime liability, ture we need not determine allegations whether Howell has made sufficient under Nelson/Bentley evidentiary hearing to warrant an un- Nelson/Bentley. allegations der in his motion are Bangert sufficient under to entitle Howell to the relief sought, evidentiary hearing is, that that will address properly whether Howell understood the nature of party-to-a-crime liability.
¶ 85. We need no do, however, write further. We point out that were we to consider Howell's motion aas Nelson/Bentley Bangert rather motion than as a mo- tion, we have would to determine whether as a matter conclusively of law the record demonstrates that How- Although ell is entitled to no relief. the statements sentencing give pause, made trial counsel at conclusively the record as a whole does not demonstrate Howell entitled to no relief. ^ ‡ For forth, reasons set we hold that Bangert evidentiary Howell is entitled under to an hearing regarding guilty his motion to withdraw his plea. required by Bangert, prima As the motion makes showing plea colloquy facie that the circuit court's did § judicially not conform with Stat. Wis. 971.08 and procedures allegation mandated and includes the *34 information that did not know or understand Howell provided plea colloquy.55 at the should have been analyzing under ¶ In Howell's motion part NelsonIBentley, the motion we conclude that of the NelsonIBentley & motion raises could be considered namely Bangert, legal issue claim under as the same knowing, intelligent, and volun- was not that his tary concept Howell misunderstood the because evidentiary pre- liability. party-to-a-crime matter NelsonIBentley portion motion, of the sented namely party-to-a-crime that Howell misunderstood attorney, liability will on with his based conversations Bangert hearing. likely Conse- be addressed at the validity quently, of Howell's we need not assess Nelson/Bentley him to motion entitles claim. Howell's Bangert evidentiary hearing the issue of an on under knowing, intelligent, volun- and whether his was tary. warrants
¶ thus hold that Howell's motion 88. We Bangert evidentiary hearing determine under guilty plea it was he can his because whether withdraw voluntary. intelligent, knowing, is on The burden not evidentiary case in the instant at the State convincing prove Bangert clear and on motion to intelligent, knowing, plea evidence that Howell's voluntary. and Accordingly, of the
¶ reverse the decision we appeals circuit to the and remand cause court of Bangert evidentiary hearing under for an court his entitled to withdraw whether Howell is determine guilty plea. 55 Brown, (citing Hampton, 594, 293 Wis. 2d 274). Bangert, 131 Wis. 46; 2d at
Wis. 2d
By appeals the Court.—The decision of the court of is reversed the cause remanded. (dissenting). Judges WILCOX, E J. 90. JON
justices umpires, pinch are Nonetheless, hitters.1 majority in this case takes their second at-bat this term for a defendant that failed to make a motion alleging pursuant lack of a factual basis to Wis. Stat. 971.08(1)(b). § Lackershire, See State v. 2007 WI *35 734 23, 301 418. N.W.2d Wis. 2d Previously, plea-withdrawal procedure ¶ 91. the empowered alleging defendants to make a a motion how plea-taking satisfy plea colloquy duty. court a failed to permitted That motion the defendants to have the allegation directly. court deal with their judges considering ¶ Now, 92. defendants' mo- obligation tions have added be on lookout for questions flags substantial and red in the record. That by role to be used fulfilled defendants and their counsel.
¶ 93. Because I conclude defendants and defense judges spot are still counsel better suited than questions plea colloquy, respectfully a substantial I dissent. Roberts, Jr., Chief Justice John G. as nominee to be the States,
Chief of the Justice following United stated the in his opening statement:
Judges law, way and Justices are of the servants not the other Judges umpires. Umpires rules, around. are like don't make the they apply umpire them. judge They The role of an and a is critical. everybody plays rules, make sure a but it is limited role. Nobody game umpire. ever went to a ball to see the Roberts, Hearing on the Nomination John G. Confirmation States, Jr. to be Justice the United Cong. 109th 109-158 Chief (2005). HH judge colloquy, During plea a circuit court "[m]ake the duties is to One of a number of duties. has inquiry in fact the defendant it that as satisfies such charged." Stat. Wis. crime committed 971.08(l)(b). § referred to this as The court has requirement. Thomas, WI 13, State v. factual basis If a defendant 2d 605 N.W.2d 14, 232 Wis. 971.08(1)(b) § satisfy failed to its that a court believes allege may obligation, in a motion that failure he or she plea. his or her to withdraw alleged a motion that never made 95. Howell satisfy plea-taking the factual failed to court requirement. al- motion, in his Howell Rather,
basis had leged what the state "he failed to understand party guilty of the prove to a crime him to find as allega- injury." degree charge reckless of first obligation factual from the distinct tion arises out of 971.08(l)(b). § requirement out of It arises basis 971.08(1)(a) § duty plea-taking Wis. Stat. court's under *36 personally "[a]ddress determine and defendant the understanding voluntarily plea with is made that the potential punishment charge and the nature of the the if convicted." majority here ascribes Nevertheless, the allegation factual basis the an that motion
Howell's Majority accepted by insufficient. circuit court was majority of Howell's op., in the face does this 57. The majority spends pages argument. dis- While own 971.08(1)(b) requirement, § cussing factual basis Actually, to the court. do in his brief did not so Howell 971.08(l)(b) appears § in his never even a reference to brief.
393 II alleged judge ¶ 97. Howell never that plea satisfy require- took his failed to the factual basis stepping Nevertheless, ment. court in this is on judge reviewing Howell's behalf. It concludes that the finding Howell's withdrawal motion erred not plea-taking judge satisfy did not 971.08(l)(b) § requirement. Appellate factual basis recognize judges humbly courts that fail to when are applying engaging the rules, rather than in the work properly proper left the advocates, undermine the judiciary. role of the forgoing respectfully
¶ 98. For the I reasons, dis- sent.
¶ 99. I am authorized to state that Justices DAVID T. PROSSER and DRAKE PATIENCE join opinion. ROGGENSACK this {dissenting). ¶ 100. T. PROSSER, DAVID J. given world will end if not Andrae Howell eviden- tiary hearing plea. on his motion to withdraw his But justice the administration of in Wisconsin courts will awarding Bangert1 hearing, because, suffer Howell a majority responsibility judges adds a new for in a plea colloquy, fudges Bangert the distinction between -Bangert motions non motions for withdrawal, unfairly proof evidentiary shifts the burden of at the gives credibility State, to the to wholly allegations per unsubstantiated that another injured son, Howell, shot and Marcus Pearson. For respectfully reasons, these I dissent. (1986). Bangert, State v. 2d Wis. 389 N.W.2d
I July D. en- ¶ 12, 2004, Andrae Howell 101. On charge first-degree guilty to the of tered injury, party He as a to the crime. was sen- reckless August 31, on 2004. tenced
¶ 2, more than six months 2005, 102. On March plea. His moved to withdraw his sentence, after Howell by an court without was denied circuit motion hearing. evidentiary was affirmed This decision August appeals scholarly opinion 31, on in a court 2006. appeals
¶ re- decision is now 103. The court to the court versed, and the cause remanded circuit Bangert evidentiary to under determine "for guilty plea." entitled withdraw his whether Howell is Majority op., ¶ at the "The burden is on State 89. evidentiary prove by hearing... clear and convinc- knowing, ing plea was intelli- evidence that Howell's voluntary." gent, ¶ Id., and making decision, the court In this second- judges
guesses and on of several does so the work extremely grounds. flimsy beginning. go
¶ 105. Let us back to the Sunday, February 8, Marcus 2004, 106. On sitting in his car on the street Pearson, then It Drive in Milwaukee. was about near 3124 West Oriole approached Suddenly, rifle, a man Pearson with noon. pointed fracturing right rifle, him, and shot his leg. finger right Pearson succeeded lower middle immediately driving past shooter, headed off, hospital. February filed a 12, 2004, the State 107. On alleging against complaint Howell, then criminal February 8 incident. in the he was the shooter *38 February County 20, 2004, 108. On Milwaukee Audrey presided Court Commissioner Y. Brooks at a preliminary only examination at which.Pearson was the sitting witness. Pearson testified that while he was in appeared car, driver's seat of his Howell on the couch, sidewalk near a discarded about 30 to 35 feet away. "Dray"—for Pearson said he had known Howell— years, "Dray" about four and that him shot with a rifle. right through "The first shot came the windshield. ... I mean the cracked," windshield he A said. second shot through away. went the car door as Pearson drove On cross-examination Pearson was if asked he was certain person that Howell was the who "Positive," shot him. he answered. "Looked dead at him. He looked dead at me."
¶ 109. After Howell was bound over for trial, the gave attorney State defense Michael Backes the Infor- mation, an "offer" letter, and, to use words, Backes's discovery." "sizeable amounts of County 110. On 2, 2004, March Milwaukee Cir- Judge scheduling cuit Richard J. Sankovitz held a pretrial May conference. He set a final conference for 17 jury scheduling and a trial for June 9. This conference present. was off the record. The defendant was not year ¶ 111. A earlier, on March 2003, Andrae felony. April Howell was convicted aof On 15, 2003, he year was sentenced to one of confinement in the Wis- stayed consin State Prison, but this sentence was placed probation years. he was on for three Thus, on February probation. 8, 2004, Howell was on On April probation 27, 2004, about revoked response shooting, to the Pearson and he was sentenced prison. repeatedly Howell's status is alluded into transcript case, record of this but there is no or written probation proceedings decision from the revocation the record. Attorney represented at the Backes Howell
February preliminary hearing July plea. and the hearings represented at between these He Howell two during may represented Thus, have Howell he dates. any probation In The record does not tell us. revocation. familiar with event, however, Backes would have been probation had been revoked. the fact that Howell's Dodge brought had to from the Correctional Howell be *39 May for and for the June Institution the hearing. hearing, getting talk At the June 9 there was appropriate clothes for the trial. Howell May pretrial 113. On there was final off court went back on conference the record. Then the presence part, in in the the record. The court said Howell: are The parties
The know who their witnesses .... may or two that defense indicated there be a witness and the trial needs to be interviewed between now in this is that Mr. Howell was case .... date defense scene, at shooter. The State present but not the that off record it had advised Mr. Howell indicated if the be proceedings at the of the that case can outset in the charge on Informa- resolved was issued be, trial, tion, if the case went to that... it would but charges. .. filing the State be additional would degree inten- [namely] first attempted one count being one count of tional homicide while armed and possession in of a firearm. felon added.) Attorney replied (Emphasis he had Backes morning with Mr. Howell this "reviewed that issue again and he understands." trial, date of On June scheduled conversations with that there had been
court indicated record, said: On the court previously counsel off the record. "[A] had not Mr. Backes has witness that
contact with seems to have surfaced here today has information that Mr. Backes needs to explore." Attorney Backes then responded:
MR. BACKES: I've been informed that the State is
going to charges only amend up- ward but also to expand the limits of liability my by including client party to a crime.
My defense of the case has been the allegation that he's the shooter. My theory whole that I've I'm come—that prepared try including providing clothes to show that he was not the shooter, my all efforts preparation for trial are meaningless somewhat at point. this There's a whole theory. new course, addition, Of party we've been trying to find is now here I did talk to him prepared and he's testify certainly and that is a factor... THE COURT: Would the party to a crime wrinkle
also mean that possibility there's a *40 that the case won't even be tried? MR. BACKES: That is a possibility especially Ias
review what [Sharp] Mr. will be testi- fying to. added.)
(Emphasis Assistant District Attorney Kenneth Berg then interjected:
MR. BERG: by The statement Mr. [Sharp]... who
is the here[,] witness who's was also freely given to Mr. Backes in the state- gave ment he police. to the I under- stand that apparently this case will be adjourned, but I want the Court to know that fully we are prepared try to the case. amend they if don't want to Well... BACKES:
MR. crime, party to a charges to include recon- happy I'd be more than to now my position. sider a to a crime is much Party THE COURT: of a enough It be surprise. might adjournment, surprise to warrant an Howell, Mr. when but I don't think at the he looks ultimate resolution by case, surprised should be so goes if it down gets how it resolved a to a crime. party as here are a bunch witnesses There its put to the State on who came see they're today and I know that case the fact by virtue of disappointed being tried, but case that the isn't given development this where hold- theory a State has different for ing you liable on evidence seem be accounted doesn't for case, quite it's your in the defense abe won't even possible that there I that it's and think trial this case Mr. Backes you to let and better charges digest change in the this you whether the case and decide upon intent trial. really are at scheduling trial than Rather going I'm to do is set what point this you Mr. date so status can talk about the case Backes you want you decide whether can try you want trial or whether way. in a different the case resolve *41 added.) (Emphasis July parties appeared plea. 115. On for question first the court asked was: "Have there negotiations?" Attorney Berg
been Assistant District responded negotiations. there had been The State amending charge party was to add to a crime. pursuing charges. Berg However, it other said entering he understood that the defendant would be "a guilty. of other than not Both sides will free be argue sentencing." attorney agreed at Defense Backes summary negotiations. to the State's
II ¶ 116. The above stated facts constitute the record plea colloquy. of this case at the start of the The record any police report, any does not include the statements of witnesses, defendant, the statement of the or a tran- script any or documentation from the revocation probation. However, all these documents would attorney. have been available to the defendant and his multiple The record makes clear that the defendant had opportunities over several months to confer with his attorney, digest developments, plot strategy. Attorney "Joseph" Backes referred to as early February preliminary hearing, as 20 in but the nothing Joseph Sharp (except record tells us about defendant) say might he was a cousin or what he May as a witness. The clerk on noted 17 that the State intended to call ten witnesses, the defense, five. We do Joseph Sharp not know whether witness, was a State defense witness, was not listed aas witness. We do parties negotiation. know that the were continual reading ¶ 118. A fair of the record is that Howell planned against specific charge to defend that he substantially was the shooter. This defense was under- charge mined, however, when the State broadened the by adding party party to a crime, for to a crime would *42 shooter, he were not the Howell, even if have ensnared if he assisted knowingly the crime or to plan he conspired if theory" Attorney that The "whole new another shooter. crime, allegation to a party referred to was Backes is no evidence There was the shooter. Sharp that Joseph did not that Howell this point suggesting in the record at with the confrontation in about know advance anything by shooting. the surprised or that he was Pearson HH HH H-4 following passages appear selected plea colloquy: the the any objection to Is there
THE COURT: to information? amendment No. BACKES: MR. fair to state that it be
THE COURT: Would information amendment at that comprises prospect might show evidence trial pull didn't Mr. Howell he assisted trigger, but in a the victim putting people he he shot place where could somebody else? correct statement. That's a
MR. BACKES: Howell, agree you with Mr. do THE COURT: that? Yes, Honor. Your DEFENDANT:
THE objection So, no there is THE COURT: amendment? No, Honor. Your
THE DEFENDANT: Howell, THE I'm going grant COURT: Mr. the State's motion to amend the information in this case. You're charged being with a party now degree to the crime first reck- injury. you less Do understand that? Yes,
THE DEFENDANT: Your Honor. *43 added.)
(Emphasis language [How- 120. When the court used "that place ell] people putting in assisted in victim a where by somebody likely he could responding else," be shot the court was something parties to had said to the court language implies off the record about offense. The helped up" attorney that Howell "set the victim. Howell's agreed and Howell himself that the court's statement was correct. shooting
¶ 121. The notion that the Pearson was up" strongly implied subsequent a "set sentencing hearing by was at the Attorney Berg:
Assistant District always Mr. Pearson wondered.... This one of determining exactly these cases where all of the levels of responsibility is difficult clearly because there were people girlfriend including a of his him go who wanted to to that [on Drive]. location Oriole very accurately goes
He he to very has indicated specific to young lady location meet a who he's had a relationship location, with. And at that the location that this can from Complaint, nearly Court see he's killed. His car was at shot numerous He is hit times. twice. If this rendition of the facts was shared point plea hearing, with the court at some before it perfect suggest would have made sense for the to court people putting that Howell "assisted the victim in a place by somebody where he could be shot else." explained the court colloquy, in the Later a crime. to party extra element with the the offense before you that Do understand THE COURT: guilty the State you can be found that to required prove be would year 8th this February on bodily great someone caused M-A-R-C-U-S, Marcus, to harm The Pearson, P-E-A-R-S-O-N. that prove have State would by crimi- did it did this whoever That nally conduct. reckless they engaged that were means knew at person that the conduct substantial time create death risk of and unreasonable Mr. Pear- bodily harm to great they son, and aware creating a risk. such were prove would have State him, shot shot person who which in circumstances him disregard for hu- utter showed *44 the State life. And then man that prove either would have to who did all you person were the you things intention- those who someone else ally assisted things, knowing doing those was doing. they were what you understand what Do to prove? would have State Yes. THE DEFENDANT: added.) by the explanations These alternative
(Emphasis intention- "you crime, including to a party court of things doing those else who was someone ally assisted [reckless injury], what knowing were are they doing," close analogue to Wis JI —Criminal 400. See majority op., 124. Then the court went into the facts: May
THE COURT: I accept as true the facts complaint? stated in the MR. BACKES: stipulate Wewould to the factual basis com- for
plaint with the understanding party as to a crime. So, THE COURT: if the case came to trial what
are the possibilities two that the prove State could as far as Mr. Howell's involvement in the shooting?
MR. possibilities be, BERG: The two would
Judge, that, one, he is the actual shooter, which would have been the victim's actual testimony; the other is what coun- defense sel and I have discussed. His position argument and his to the court will be that his cousin was the shooter and he there him, with observed him with the gun they as got out the car and approached would have the vic- tim this situation. THE COURT: Are those may facts—or accept I
those facts as true? MR. BACKES: stipulate Wewould to that factual
basis and those are the facts upon which Mr. Howell has indi- guilt cated his to me as well. Is *45 that correct?
404 Yes. THE DEFENDANT: So, Howell, you're Mr. not neces-
THE COURT: you
sarily that Mr. agreeing shot Pearson; you agreeing that are you your and went that cousin you approached there by doing you so Mr. Pearson and shooting your assisted cousin him? Yes.
THE DEFENDANT: added.) part colloquy, (Emphasis In of the defense this stipulates facts, to the and the defendant counsel twice agrees Attorney set him. The Assistant District with theory his had he knew cousin own out Howell's gun they got as an alternative to car, out of the as theory confirmed Howell that Howell was shooter. sentencing.2 theory personal at allocution in his this pled "guilty" offense. He said to the 125. Howell voluntarily. making plead guilty his decision to he was attorney that Howell was he said was satisfied His freely intelligently. entering his
IV majority has that Howell concludes plea. Bangert to withdraw his motion made a successful may Bangert, his to withdraw move defendant Under plea procedures in Wis. Stat. outlined when § other court-mandated are not undertaken 971.08 v. State are not followed. at the duties Hampton, 379, 2d 683 Wis. 2004 WI upon the defendant rests 14. The burden N.W.2d he knowing that get there "I out of stated: did Howell added.) gun." (Emphasis had *46 pointed showing plea accepted make a that was conformity without the court's with the statute or other mandatory procedures. Bangert, State v. 2dWis. (1986). 246, 274, 389 N.W.2d When the defendant's 971.08(1)(a) § motion shows a violation of Wis. Stat. or (b) mandatory alleges or other duties and that he in fact not did know or understand the information that provided plea hearing, should have been at the by burden shifts to the State to show clear and convinc ing plea knowing, evidence that defendant's was intelligent, voluntary. Hampton, 274 Wis. 379, 2d ¶ 46. pointed showing
¶ pointing A 127. means to er- or in rors omissions record to show a defect. "To evidentiary hearing upon obtain an based defects in the plea colloquy, rely plea the defendant will on the hear- ing point Id., ¶ record." 47. The defendant to a must specific plea hearing transcript defect in the con- that ¶ Id., stitutes an error the court. 57.
¶ plea colloquy are There elements of the always present, must be such as the waiver of rights. enumerated constitutional There are other ele- employed necessary. ments that are Id., ¶ as explanation inquiry colloquy omission an or from the explanation inquiry not a defect unless was mandatory of the because facts. plea 129. Howell filed a motion to withdraw his
on March 2005. His motion consisted of 17 numbered paragraphs accompanied by an affidavit from his attor- ney. Only paragraphs, two of the 5 and deal with alleged plea colloquy. Nothing defects in the in the accompanying affidavit identifies defect in the colloquy. Paragraphs 5 and 6 read as follows:
5. The in colloquy this case was brief. The Court allowed the state to amend information to Transcript modifier. See "party to a crime" add the that the amendment at 2. The Court noted 7/12/04 might able to show that occurring the state be because putting the victim a people Mr. Howell "assisted by somebody else." Id. The he could be shot place where that the Mr. Howell understood ascertained that Court object. being and that he did information was added Mr. Howell of the Court also informed Id. at 3. The *47 "the State would injury of reckless that elements did person that the who prove [he was] to either have intentionally assisted things [he] or that all those things, knowing doing those who was someone else 5-6. these they doing." Id. at None were what failing to act to simply indicated whether statements guilty to be assistance the crime was prevent sufficient to party as a crime. param- the in did not understand Mr. Howell 6. fact that liability. He believed he party-to-a-crime eters of to stop party-to-a-crime simply guilty was as for failure 3g-3h. 2-3 occurring. Affidavit at ¶¶ the See crime from Moreover, posi- took the state at the the involve- of Mr. Howell's possibilities that the tion two that, or the shooter as that he was ment were either the "his cousin was shooter position, Mr. was gun him, the observed him with and was there with he approached have they got out the car and would as at Transcript of this the situation." victim 7/12/05 Mr. Howell's belief reinforced The statement state's mere was sufficient. presence added.) (Emphasis 5 is that passage paragraph The critical simply whether indicated of these statements
"[n]one sufficient assis- the crime was act to failing prevent to effect, In Howell a crime." to guilty party to be as tance at that being to explain the court's failure claims a a to party does not make person scene of a crime colloquy, crime, is a defect in the a defect that solely judge's was fault. jury is, 131. There in the instructions a state- may "[A]person
ment that a court use in certain cases: (he) only bystander does aid or abet if ... or spectator nothing and does assist commission of a crime." Wis JI —Criminal 400 EXAMPLE. in- plain, however, structions make that this sentence is to supported (emphasis be read the evidence." Id. "if added). Judge In case, this Sankovitz had no reason claiming presence believe that Howell was mere at the prior knowledge going scene with no of what happen acknowledged to Pearson. Howell as correct "putting place victim in he where could be shot." acknowledged seeing gun got He as he out of a car. impose Judge duty This evidence did not on Sankovitz a give inquiry explanation to make that would rule out purely innocent conduct. might argue
¶ 132. One that evidence outside the plea colloquy plea colloquy created after *48 misunderstanding, basis a for claim of but would -Bangert make Howell's a motion non motion. See Hampton, Nothing ¶ 379, 274 Wis. 2d 61. in the record plea colloquy of the or the record before the colloquy compels suggests or even that the circuit court required inquiry majority to make the the now demands. To hold the failure to make such an inquiry Bangert justified was a violation is not the precedent, opens many and, facts as otherwise suffi- plea colloquies cient to new attack.
¶ 133. The circuit court's discussion of the eviden- tiary for basis the offense is also not First, defective. longstanding there ais rule that when there is á negotiated plea, case, as in this the circuit court need go length not to the same to determine whether the
408 charge is as it would when there sustain the facts would negotiated plea. Trochinski, 56, 2002 WI State v. See no (Abrahamson, 891 n.2, 38, 253 2d 644 N.W.2d 43 Wis. dissenting); Smith, 21, 27, 2d 549 State v. 202 Wis. C.J., (1996); State, 420, v. 68 Wis. 2d Broadie 232 N.W.2d (1975); State, v. 57 Wilson 423-24, 228 N.W.2d (1973). 508, 513, 2d 204 N.W.2d Wis. negotiations
¶ 134. This case involved extensive unwavering testimony despite victim, from the and, plea while enter a allowed the defendant State disavowing that he was the shooter. pled "no have Second, the defendant could agreeing accept plea, a or entered an
contest"
Alford
simultaneously maintaining
inno-
his
conviction while
§
Alford,
North Carolina v.
971.06;
cence. See Wis. Stat.
(1970).
"guilty"
pled
with the full
When he
¶ 137. In term, the short it shifts burden proof long to the State. In the term, it a new adds responsibility judges plea colloquies; for circuit judges anticipate is, it directs and foreclose a by asking questions defendant's theoretical defenses require that will rule out those defenses. This will judges circuit to elicit more facts and more admissions from which, defendants in turn, will take additional especially entering time. Some defendants, defendants may pleas, questions they no contest now asked be unwilling forthrightly, public, are to answer on record. Bentley-type
¶ 138. motions for withdrawal carry stringent pleading requirements more than Bangert-type motions. There are several reasons for Bentley-type usually First, this difference. motions de pend on facts outside the record. To ask a circuit court evidentiary to examine facts outside the record in an particularized requires motion with sufficient supporting undertaking. Hampton, facts to warrant the Wis. 2d Bentley-type Second, motions do not shift proof. the burden of retains defendant the burden showing injustice by convincing a manifest clear and *50 re- Id., ¶¶ Thus, the defendant 60, 63. is evidence. specific by pleading quired put on the table to his cards prove explain- and he will at the of what details injustice. up ing proof The will add manifest the to how pleading the defendant's ultimate burden mirrors hearing. proof at the capac- Bentley-type has Third, a motion the variety claiming
ity of reasons for to cover a wide knowing, intelligent, plea and was not the defendant's may voluntary. Bentley-type claim that A motion well type judge not the of error that made some error but the by following judge could have avoided type script. colloquy's The latter outline or established judge Bangert-type A follows the is error. who of error automatically script plea colloquy have the does not Bentley-type "virtually Id., error. eliminate" means to ¶ 65. analysis present applies If to one this motion is a
case, that Howell's it becomes obvious significance allegations Bentley-type in motion. consistently based outside motion are Howell's example, On motion "3. states: record. For prior approximately month to the 2004, 9, June Joseph Sharp cousin, came case, Mr. Howell's in this jury and indicated that he was trial date court on the person in this case." Howell shot the victim the points who (which transcript quoted June this dissent and does substantiate earlier this Attorney allegation) of what she Henak's affidavit allegedly testify. told Howell Howell would believes Attorney "Joseph Sharp came to court Henak Attorney victim." that he shot the Backes confessed to motion continued: 142. The Howell and Mr. 9,2004, [Backes] trial counsel 4. After June "party to a light of the the case Howell discussed conversations, crime" upon addition. Based these Mr. guilty Howell he party believed that as to a crime if he prevent was there and did not it. He believed that his failure prevent shooting was sufficient assis- tance in case.
¶ 143. These are classic "outside the record" alle- *51 gations. plea colloquy- There no much record, is less the supports allegations. They record, that these are text- examples requiring Bentley analysis Bentley book and procedure.
¶ 144. Even if one were to believe that these allegations evidentiary were to sufficient warrant an hearing, one should be reluctant to shift the of burden proof required, to the State. The State should not be on straighten many allegations facts, these to out Howell's prove knowing, intelligent, to that Howell's voluntary. and saying, In motion, his Howell is essence, in (1) (2) Joseph Sharp,
that: cousin, his shooter; is the his Kimberly, Sharp may sister, who drove to the scene, be (3) party only a to the crime; Howell's involvement was riding along (knowing nothing in a car about an immi- (4) shooting); attorney nent his led him to believe that stop Sharp gun failure to once Howell saw made him (5) guilty party attorney agreed as to a crime; his plea, though attorney previously even had (6) Sharp's shooting; received confession to the his attorney repeatedly misrepresented Howell's involve- getting gun shooting, attorney's ment in for the in argument sentencing Putting to the court. the burden soap opera likely on the State to sort out this is require testimony family from Howell's members, who may rights against assert constitutional self- attorney, incrimination, and Howell's Michael Backes. alleged Howell has not ineffective counsel, assistance of of ineffective assis- has overtones Howell's motion but Attorney position Backes of counsel. tance many clarify raised Howell's motion. issues factual explicit ineffective assis- of an However, in the absence in view of this court's claim and tance counsel 2d Meeks, 104, Wis. v. 2003 WI in State decision scope Attorney Backes's 859, the 794, 666 N.W.2d dispute. subject testimony may If of fierce be the Bentley- properly as a motion were assessed Howell's type maintain burden motion, Howell would family attorney put proof, his and he have to would box. members the witness
VI County Judge Jean W Circuit Milwaukee prompt, in a incisive Howell's motion DiMotto denied hearing. evidentiary opinion Her without written ruling grounds Howell was auto- on is reversed matically he established to a because entitled *52 Bangert violations. Judge my is decision view, In DiMotto's 147. defending Judge However, defensible.
sound and what a new of of raises a set issues DiMotto's decision -Bangert, Bentley-type plead in a non defendant must evidentiary hearing, lati- and what earn an motion to reviewing allegations judge in in a circuit has tude non-jBangert, Bentley-type motions. State, 497-98, 489, 2d In v. 54 Wis. Nelson (1972), the court stated:
195 N.W.2d judgment guilty plea after a to withdraw a [I]f motion true, which, if would entitle alleges facts sentence and relief, must hold an to the trial court defendant However, fails to if the defendant evidentiary hearing. a question to motion raise allege facts his sufficient fact, presents only conclusionary allegations, or if conclusively the record demonstrates the defen- relief, dant is not entitled to trial may court in the legal deny exercise itsof discretion the motion without hearing. a It upon is incumbent to trial court form independent judgment its a after review the record pleadings support and to its decision written opinion. Bentley employed In the court all the lan-
guage in
formulation,
the Nelson
but
it
a
created
two-part test which
a
necessitated mixed
standard
appellate
Bentley,
review. See
If the motion alleges on its face facts which would relief, entitle the defendant the circuit court has no discretion and must hold evidentiary hearing. alleges which, Whether motion if true, facts would entitle a defendant to relief question is a of law that we review de novo. (citation omitted). uncoupled
Id. at 310 The court also ("It the last sentence in the Nelson test is incumbent upon independent judgment the trial court to form its record") appeared after a review of the to limit the prong" circuit court's review of the record to "the second permitted it where exercise discretion. Id. at 318-19. years ago
¶ 150. Two Love, State v. 2005 WI (Prosser, ¶¶ 68-73, 284 Wis. 2d 111, 700 N.W.2d62 dissenting), explain J., I tried to the internal inconsis tency perceived Bentley I in the decision. The inconsis tency appears powerless is that the circuit court to be deny requested evidentiary hearing when there is properly pleaded though motion, even the circuit court *53 compelling key has evidence from the record that allegations in the motion are not true.
414 suppose illustrate, that a defendant To shooting guilty his brother to enters Bentley- post-sentencing The defendant's Milwaukee. plea alleges type in rich detail this to withdraw motion brother, bin his and that Laden shot bin that Osama if mother kill the defendant's threatened to Laden shooting. guilty plead to his brother's did defendant pleading 'h;' and one that "the five 'w's' contains If this why, how," v. where, when, see State who, what, is, 568, ¶ 23, 682 N.W.2d Allen, WI 106, 274 Wis. 2d 2004 appears to to have no discretion the circuit court allegations your Defendant, true, were "Yes,Mr. if rule: you hearing, based on the but would be entitled your allegations are not true."3 I that record find majority opinion credit, the corrects To its ("A majority op., ¶ festering problem. 77 well- See this evidentiary complaint may an pled denied be without conclusively demon- if as whole the record warranted."). para- The third that relief is not strates majority opinion graph reads: footnote 51 of the as Nelson follows: Bentley interpreted court "If entitle alleges which would on its the motion facts face no circuit has discretion relief, the court defendant Bentley, evidentiary hearing." 201 and must hold Nelson, (empha- at citing 54 Wis. 2d 2d at Wis. shooter, that is the Joseph Sharp that allegations attorney, Sharp and that Sharp confessed to Howell's trial, carry same favorably testify at Howell's prepared are no There reliability hypothetical. as the bin Laden indicia Kimberly, or Howell, or Sharp, affidavits from personal stuff the State takes this There is no assertion Backes. Sharp. is no evidence There seriously prosecuted and has in the face of the be believed allegations these should other material colloquy and at the statements defendant's the record. *54 added). way, Bentley the Nelson test this sis In phrasing might interpreted evidentiary be to make hearing an mandatory sufficient, whenever the motion contains nonconclusory facts, if even the record aas whole would demonstrate that the defendant's was constitution- ally sound. Such an snABentley, Nelson interpretation however, is not The interpretation correct. correct Nelson/Bentley evidentiary is that an is not mandatory if the a conclusively record as whole demon- relief, strates that defendant is not entitled to even if the alleges motion nonconclusory sufficient facts.
Majority 77 n. 51. op., ¶ 153. The majority's clarification of the Bentley
opinion restores to the circuit court the "to form ability its independent judgment [on a Bentley withdrawal motion] after review of the [entire] record and plead- Nelson, 54 Wis. ings." 2d at 498. The problem here if that the circuit court, again, once has the ability review the entire in record evaluating Bentley-type motion to withdraw there is plea, in ample evidence this record Judge sustain DiMotto's well written opinion.
VI 154. The majority opinion summarizes facts: 8, 2004, February
On Marcus Pearson was shot twice while seated his vehicle. defendant, Andrae Howell, D. along with his Kimberly sister and his Joseph Sharp, allegedly cousin had driven the scene sister, to find another April, who dating Pearson. alleged Pearson Howell exited his bran- vehicle, rifle, dished a and shot him. charged The State degree Howell with reckless first
injury On originally .... the date trial, set for Sharp Sharp, trial counsel allegedly admitted to Howell's trial counsel Howell, shot the victim. adjournment allegedly light of this requested information.
Majority op. are ¶¶ The underlined statements 12-13. *55 testimony from the supported or documents sworn simply Howell’s ver- are The other statements record. give it is mistake I believe of the "facts." sion Sharp Joseph of Marcus as the shooter credence support any evidence to sworn Pearson without accusation. respectfully I dissent. reasons, For these JON that Justices I authorized state am ROGGENSACK PATIENCE DRAKE E.WILCOX join this dissent.