COURT OF APPEALS DECISION DATED AND FILED June 12, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Kenneth G. Gering,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Higginbotham, P.J., Dykman and Vergeront, JJ.
¶1 PER CURIAM. Kenneth Gering appeals from an order denying his petition for writ of coram nobis. We affirm.
¶2 Gering is attempting to use coram nobis, instead of Wis. Stat. § 974.06 (2005-06),[1] to withdraw his plea in this 1993 case because he is no longer confined pursuant to this judgment of conviction. His petition seeks to withdraw his no-contest plea on several grounds, mainly relating to whether it was entered knowingly, voluntarily, and intelligently. The circuit court denied the petition on the ground of laches.
¶3 On appeal, the State argues that coram nobis is not available
to Gering because he could have raised these issues under Wis. Stat. § 974.06 while that remedy
was still available to him. This
argument is inconsistent with our discussion and conclusion in State
v. Heimermann, 205
¶4 We
ordered supplemental briefing on whether coram nobis is an available remedy to
reach the specific substantive issues that Gering is attempting to raise. The purposes of the writ of coram nobis have
been described in Heimermann and other cases.
¶5 Of
the several claims that Gering made, the State argues that only one of them
relates to a “fact” that can be reached under the above standard. We agree.
Gering claims that the circuit court was provided with incorrect
information on the plea questionnaire and during the plea colloquy as to
whether Gering had previously been committed or received treatment for mental
or emotional problems. Gering asserts
that the form said he had not, but in fact he had been committed and undergone
counseling. This is a factual
issue.
¶6 However,
we see nothing of consequence about this alleged error because Gering fails to
show that this lack of correct information was relevant. The only time that information would be
relevant would be if he was entering a plea of not guilty by reason of mental
disease or defect, which did not happen here.
We note that Gering is not arguing that he did not understand the plea
proceedings because he was mentally incompetent at the time of the plea
colloquy.
¶7 As
to the remainder of Gering’s claims, we conclude they are legal issues, not
factual ones. These claims relate to whether
the court concluded a proper plea colloquy with respect to the rights he was
waiving with his plea, the elements of the charge, and the potential
penalty. As we discussed above, coram
nobis is available to raise only factual issues, not legal ones.
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.