COURT OF APPEALS DECISION DATED AND FILED November 5, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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 IV |
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State of
Plaintiff-Respondent, v. Charles L. Stands,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Dykman, P.J., Vergeront and Higginbotham, JJ.
¶1 PER CURIAM. Charles Stands appeals judgments
convicting him of operating with a prohibited alcohol content, fifth offense or
more, and obstructing an officer. He
also appeals an order denying postconviction relief. The issues are whether the court erred by
denying his postconviction motion to withdraw his pleas without an evidentiary
hearing, and whether the court should have barred consideration of a prior OWI
conviction. We conclude that the court’s
plea colloquy did not comport with the standards for ensuring a knowing and
voluntary plea. We therefore reverse the
judgment of conviction and the order denying postconviction relief, and remand
for a hearing at which the State shall have the burden of proving that the
defendant entered knowing, intelligent, and voluntary pleas notwithstanding
defects in the plea colloquy.
¶2 The charges the State filed against Stands included operating with a prohibited alcohol concentration (PAC) as a fifth or greater offense. In support the complaint listed five prior convictions for operating while intoxicated or with a prohibited alcohol content. Stands collaterally attacked two of those convictions, alleging that during those proceedings he did not validly waive his right to counsel. The court granted relief with regard to one of the proceedings, leaving him with four prior convictions for sentencing purposes. He subsequently entered a no contest plea to the charges of operating with a PAC and obstructing an officer. In exchange for the plea, the State agreed to recommend no incarceration on the obstructing charge.
¶3 At the plea hearing the court did not inform Stands of the maximum penalties that he faced, or that it was not bound by the plea agreement on sentencing and could sentence him up to the maximum. However, the court did engage in the following exchange with Stands:
THE COURT: I’m looking at a form entitled Plea Questionnaire and Waiver of Rights which your attorney just handed to me. Did you sign that form?
THE DEFENDANT: Yes, sir.
THE COURT: Did you have enough time to read it and go over it before you signed it?
THE DEFEDANT: Yes, sir.
THE COURT: Is there anything in that form that you do not understand?
THE DEFENDANT: No, sir.
The plea questionnaire referred to in the colloquy explained the maximum penalties, and advised Stands that the judge was not bound by the plea agreement and could impose the maximum penalties listed. The court also did not explain to Stands at the plea hearing that his pleas might result in deportation if he were not a citizen.
¶4 Stands subsequently filed a postconviction motion to withdraw his plea on grounds the circuit court: (1) did not personally inform him at the plea hearing that it was not bound by the plea agreement and could sentence Stands up to the maximum penalties for his offenses; and (2) did not advise him that his pleas could result in deportation if he were not a citizen of this country. The circuit court denied the motion without requiring the State to show that Stands understood the information that the court omitted from the plea colloquy, because Stands’ plea questionnaire form contained the missing information, and Stands did not allege nor show that his pleas to the charges were likely to result in deportation.
¶5 Among the mandatory duties the circuit court must perform
during the plea colloquy are ensuring that the defendant understands the range
of punishments available to the court, and the fact that the court is not bound
by the terms of any plea agreement, including recommendations from the
prosecutor. Hoppe, 317
A circuit court may not, however, rely entirely on the Plea Questionnaire/Waiver of Rights Form as a substitute for a substantive in-court plea colloquy. Although a circuit court may refer to and use a Plea Questionnaire/Waiver of Rights Form at the plea hearing, the plea hearing transcript must demonstrate that the circuit court used a substantive colloquy to satisfy each of the duties listed in Brown. The point of the substantive in-court plea colloquy is to ensure that the defendant's guilty plea comports with the constitutional requirements for a knowing, intelligent, and voluntary plea.
¶6 The circuit court did not sufficiently ensure during the plea
colloquy that Stands understood the maximum penalties or that the court was not
bound by the plea agreement and could sentence Stands up to the maximum. The plea hearing transcript is completely
silent on those matters. To ensure
Stands’ understanding of them, the trial court relied completely on the plea
questionnaire. The supreme court has
made clear in Hoppe that such complete reliance on the questionnaire makes
for an inadequate plea colloquy. The
circuit court must use a substantive colloquy to satisfy each of its
duties.
¶7 Stands does not have grounds to withdraw his plea based on
the circuit court’s failure to advise him on the deportation consequences of
his pleas. A defendant claiming the
right to withdraw a plea on those grounds must show that the plea is likely to
result in deportation. State
v. Douangmala, 2002 WI 62, ¶23, 253
¶8 Stands’ brief identifies the third issue on appeal as whether the trial court properly counted four rather than three of his prior convictions for sentencing purposes. However, he provides no argument on the issue. In fact, he states that in ruling on the issue the trial court “did assess the situation correctly.” Because he fails to argue any grounds for reversal based on this issue, we need not address it.
¶9 We conclude that Stands has made a prima facie showing for
plea withdrawal. We therefore reverse
the judgment of conviction and order denying postconviction relief. We remand for further proceedings to permit
the State to satisfy its burden to show that Lange’s plea was knowingly and
voluntarily entered. If the State
satisfies its burden, the circuit court shall reinstate the judgment of
conviction. However, if the State fails
in meeting its burden, the judgment of conviction shall remain reversed, and
the State may reinstate the original charges against Stands. See
State
v. Lange, 2003 WI App 2, ¶47, 259
By the Court.—Judgment and order reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.