Chapter 971

971.04 Annotation The defendant waived the statutory right to be in the same courtroom as the presiding judge because the defendant appeared in a courtroom with both the defendant's attorney and the prosecuting attorney; through videoconferencing, the judge was able to see, speak to, and hear the defendant, and the defendant was able to see, speak to, and hear the judge; the judge explained that videoconferencing would be used for the plea hearing if the defendant chose to enter a plea that day; and the defendant expressly consented to the use of videoconferencing for the plea hearing. State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 817 N.W.2d 848, 10-2273.

971.04 Annotation The circuit court’s decision to exclude the defendant from in-chambers meetings with jurors during the trial regarding possible bias did not violate the statutory right under sub. (1) (c) to be present during voir dire. Voir dire is a preliminary examination of whether an individual can serve on a jury. In this case, the trial had already commenced and the jurors had already been selected when the bias issue arose. State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d 126, 11-0394.

971.04 Annotation While Soto, 2012 WI 93, describes what a circuit court should do to establish a valid waiver of the defendant’s right to be present at the defendant’s plea hearing when the defendant appears by videoconferencing or similar technology, is in a courtroom, and is in the same room as the defendant’s attorney, more is required when the defendant appears by telephone, from prison, and is physically separated from counsel. Under these circumstances, a valid waiver of the defendant’s right to be present must be predicated upon a colloquy that unambiguously informs the defendant he or she has a right to be physically present for the plea hearing in the same courtroom as the presiding judge. The court must specifically inquire, as often and in whatever manner is necessary under the circumstances, whether the defendant is able to hear and understand the court and the other participants. State v. Anderson, 2017 WI App 17, 374 Wis. 2d 372, 896 N.W.2d 364, 15-2611.

971.04 Annotation In a case in which a defendant asserts the defendant did not validly waive the right to be present at a plea hearing, once the defendant has shown that the circuit court’s waiver colloquy was deficient and has asserted that the defendant did not understand the right to appear in person at the plea hearing, the burden should shift to the state to prove by clear and convincing evidence that the defendant did, in fact, knowingly, voluntarily, and intelligently waive the defendant’s right to be present. State v. Anderson, 2017 WI App 17, 374 Wis. 2d 372, 896 N.W.2d 364, 15-2611.

971.04 Annotation Sub. (3) sets forth a way that a defendant can forfeit the right to be present at trial: by leaving after the jury has been sworn. The statute does not limit a defendant’s ability to waive the right to be present and does not purport to set forth the exclusive manner in which a defendant can relinquish the right to be present. Sub. (3) was created to attend to the situation in which a defendant absconds, not when an obstreperous defendant seeks to delay and disrupt proceedings through the defendant’s own actions. State v. Washington, 2018 WI 3, 379 Wis. 2d 58, 905 N.W.2d 380, 16-0238.

971.04 Annotation Similar to the constitutional right to be present, a defendant may waive the defendant’s statutory right to be present at certain proceedings enumerated in sub. (1). Waiver can be either express or by conduct. Determining whether there is waiver by conduct presents a fact intensive inquiry. State v. Washington, 2018 WI 3, 379 Wis. 2d 58, 905 N.W.2d 380, 16-0238.

971.05 971.05 Arraignment. If the defendant is charged with a felony, the arraignment may be in the trial court or the court which conducted the preliminary examination or accepted the defendant’s waiver of the preliminary examination. If the defendant is charged with a misdemeanor, the arraignment may be in the trial court or the court which conducted the initial appearance. The arraignment shall be conducted in the following manner:

971.05(1) (1) The arraignment shall be in open court.

971.05(2) (2) If the defendant appears for arraignment without counsel, the court shall advise the defendant of the defendant’s right to counsel as provided in s. 970.02.

971.05(3) (3) The district attorney shall deliver to the defendant a copy of the information in felony cases and in all cases shall read the information or complaint to the defendant unless the defendant waives such reading. Thereupon the court shall ask for the defendant’s plea.

971.05(4) (4) The defendant then shall plead unless in accordance with s. 971.31 the defendant has filed a motion which requires determination before the entry of a plea. The court may extend the time for the filing of such motion.

971.05 History History: 1979 c. 291; 1987 a. 74; 1993 a. 486.

971.05 Annotation When, through oversight, an arraignment is not held, it may be conducted after both parties have rested during the trial. Bies v. State, 53 Wis. 2d 322, 193 N.W.2d 46 (1972).

971.06 971.06 Pleas.

971.06(1) (1) A defendant charged with a criminal offense may plead as follows:

971.06(1)(a) (a) Guilty.

971.06(1)(b) (b) Not guilty.

971.06(1)(c) (c) No contest, subject to the approval of the court.

971.06(1)(d) (d) Not guilty by reason of mental disease or defect. This plea may be joined with a plea of not guilty. If it is not so joined, this plea admits that but for lack of mental capacity the defendant committed all the essential elements of the offense charged in the indictment, information or complaint.

971.06(2) (2) If a defendant stands mute or refuses to plead, the court shall direct the entry of a plea of not guilty on the defendant’s behalf.

971.06(3) (3) At the time a defendant enters a plea, the court may not require the defendant to disclose his or her citizenship status.

971.06 History History: 1985 a. 252; 1993 a. 486.

971.06 Annotation Inaccurate legal advice renders a plea an uninformed one and can compromise the voluntariness of the plea. State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992).

971.06 Annotation The decision to plead guilty is personal to the defendant. A defendant’s attorney cannot renegotiate a plea agreement without the defendant’s knowledge and consent. State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992).

971.06 Annotation Whether to grant a defendant’s motion to change a plea is within the court’s discretion. State v. Kazee, 192 Wis. 2d 213, 531 N.W.2d 332 (Ct. App. 1995).

971.06 Annotation The decision to withdraw a not guilty by reason of mental defect plea belongs to the defendant and not counsel. State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388 (Ct. App. 1999), 97-3217.

971.06 Annotation If a defendant enters a plea of not guilty by reason of mental disease or defect under sub. (1) (d) without an accompanying not-guilty plea, the defendant waives the constitutional right to a trial as to the guilt phase and admits that the defendant committed the criminal act. State v. Fugere, 2018 WI App 24, 381 Wis. 2d 142, 911 N.W.2d 127, 16-2258.

971.07 971.07 Multiple defendants. Defendants who are jointly charged may be arraigned separately or together, in the discretion of the court.

971.08 971.08 Pleas of guilty and no contest; withdrawal thereof.

971.08(1) (1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:

971.08(1)(a) (a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.

971.08(1)(b) (b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.

971.08(1)(c) (c) Address the defendant personally and advise the defendant as follows: “If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.”

971.08(1)(d) (d) Inquire of the district attorney whether he or she has complied with s. 971.095 (2).

971.08(2) (2) If a court fails to advise a defendant as required by sub. (1) (c) and a defendant later shows that the plea is likely to result in the defendant’s deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant’s motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.

971.08(3) (3) Any plea of guilty which is not accepted by the court or which is subsequently permitted to be withdrawn shall not be used against the defendant in a subsequent action.

971.08 History History: 1983 a. 219; 1985 a. 252; 1997 a. 181.

971.08 Annotation A court can consider a defendant’s record of juvenile offenses at a hearing on the defendant’s guilty pleas prior to sentencing. McKnight v. State, 49 Wis. 2d 623, 182 N.W.2d 291 (1971).

971.08 Annotation When a plea agreement contemplates the nonprosecution of uncharged offenses, the details of the plea agreement should be made a matter of record, whether it involves a recommendation of sentencing, a reduced charge, a nolle prosequi of charges, or “read ins” with an agreement of immunity. A “read-in” agreement made after conviction or as part of a post-plea-of-guilty hearing to determine the voluntariness and accuracy of the plea should be a part of the sentencing hearing and made a matter of record. Austin v. State, 49 Wis. 2d 727, 183 N.W.2d 56 (1971).

971.08 Annotation A defendant may not withdraw a guilty plea simply because the defendant did not specifically waive all of the defendant’s constitutional rights if the record shows that the defendant understood what rights were waived by the plea. After a guilty plea, the hearing on the factual basis for the plea need not produce competent evidence that satisfies the criminal burden of proof. Edwards v. State, 51 Wis. 2d 231, 186 N.W.2d 193 (1971).

971.08 Annotation It is sufficient for a court to inform a defendant charged with several offenses of the maximum penalty that could be imposed for each. Burkhalter v. State, 52 Wis. 2d 413, 190 N.W.2d 502 (1971).

971.08 Annotation A desire to avoid a possible life sentence by pleading guilty to a lesser charge does not alone render a plea involuntary. A claimed inability to remember does not require refusal of the plea if the evidence is clear that the defendant committed the crime. State v. Herro, 53 Wis. 2d 211, 191 N.W.2d 889 (1971).

971.08 Annotation The proceedings following a plea of guilty were not designed to establish a prima facie case, but to establish the voluntariness of the plea and the factual basis therefor. If the defendant denies an element of the crime after pleading guilty, the court is required to reject the plea and set the case for trial and is not obliged to dismiss the action because of refusal to accept the guilty plea. Johnson v. State, 53 Wis. 2d 787, 193 N.W.2d 659 (1972).

971.08 Annotation A hearing on a motion to withdraw a guilty plea is to be liberally granted if the motion is made prior to sentencing; it is discretionary if made thereafter and need not be granted if the record refutes the allegations. The defendant must raise a substantial issue of fact. Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972).

971.08 Annotation If there is strong evidence of guilt, a conviction will be sustained even against a defendant who, having pleaded guilty, nonetheless denies the factual basis for guilt. State v. Chabonian, 55 Wis. 2d 723, 201 N.W.2d 25 (1972).

971.08 Annotation A plea bargain that contemplates special concessions to another person requires careful scrutiny by the court. If the prosecuting attorney has agreed to seek charge or sentence concessions that must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. The bargain must also be reviewed to determine whether it is in the public interest. State ex rel. White v. Gray, 57 Wis. 2d 17, 203 N.W.2d 638 (1973).

971.08 Annotation A court has inherent power to refuse to accept a plea of guilty and may dismiss the charge on the motion of the district attorney in order to allow prosecution on a second complaint. State v. Waldman, 57 Wis. 2d 234, 203 N.W.2d 691 (1973).

971.08 Annotation It is not error for the court to accept a guilty plea before hearing the factual basis for the plea if a sufficient basis is ultimately presented. Staver v. State, 58 Wis. 2d 726, 206 N.W.2d 623 (1973).

971.08 Annotation The fact that a defendant pled guilty with the understanding that his wife would be given probation on another charge did not necessarily render the plea involuntary. Seybold v. State, 61 Wis. 2d 227, 212 N.W.2d 146 (1973).

971.08 Annotation The defendant’s religious beliefs regarding the merits of confessing one’s wrongdoing and desire to mollify the defendant's family or give in to their desires were self-imposed coercive elements and did not vitiate the voluntary nature of the defendant’s guilty plea. Craker v. State, 66 Wis. 2d 222, 223 N.W.2d 872 (1974).

971.08 Annotation A defendant wishing to withdraw a guilty plea must show by clear and convincing evidence that the plea was not knowingly and voluntarily entered and that withdrawal is necessary to prevent manifest injustice, as indicated when: 1) the defendant was denied effective assistance of counsel; 2) the plea was not entered or ratified by the defendant or a person authorized to so act in the defendant’s behalf; 3) the plea was involuntary or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; and 4) the defendant did not receive the concessions contemplated by the plea agreement and the prosecutor failed to seek them as promised in the agreement. Birts v. State, 68 Wis. 2d 389, 228 N.W.2d 351 (1975).

971.08 Annotation As required by Ernst, 43 Wis. 2d 661 (1969), and sub. (1) (b), prior to accepting a guilty plea, the trial court must establish that the conduct that the defendant admits constitutes the offense charged or an included offense to which the defendant has pleaded guilty. If the plea is made under a plea bargain, the court need not probe as deeply in determining whether the facts would sustain the charge as it would were the plea not negotiated. Broadie v. State, 68 Wis. 2d 420, 228 N.W.2d 687 (1975).

971.08 Annotation The trial court did not abuse its discretion by failing to inquire into the effect a tranquilizer had on the defendant’s competence to enter a plea. Jones v. State, 71 Wis. 2d 750, 238 N.W.2d 741 (1976).

971.08 Annotation A plea bargain agreement by law enforcement officials not to reveal relevant and pertinent information to the sentencing judge was unenforceable as being against public policy. Grant v. State, 73 Wis. 2d 441, 243 N.W.2d 186 (1976).

971.08 Annotation Withdrawal of a guilty plea prior to sentencing is not an absolute right but should be freely allowed when a fair and just reason for doing so is presented. Dudrey v. State, 74 Wis. 2d 480, 247 N.W.2d 105 (1976).

971.08 Annotation A guilty plea cannot be withdrawn on grounds that probation conditions are more onerous than expected. Garski v. State, 75 Wis. 2d 62, 248 N.W.2d 425 (1977).

971.08 Annotation A plea of guilty admits the facts charged but does not raise the issue of the statute of limitations because the time of the commencement of the action does not appear on the information. State v. Pohlhammer, 78 Wis. 2d 516, 254 N.W.2d 478 (1977).

971.08 Annotation While courts have no duty to secure informed waivers of possible statutory defenses, under the unique facts of this case, the defendant was entitled to withdraw a guilty plea to a charge barred by the statute of limitations. State v. Pohlhammer, 82 Wis. 2d 1, 260 N.W.2d 678 (1978).

971.08 Annotation Sub. (2) does not deprive the court of jurisdiction to consider an untimely motion. State v. Lee, 88 Wis. 2d 239, 276 N.W.2d 268 (1979).

971.08 Annotation Trial courts do not have subject matter jurisdiction to convict defendants under unconstitutionally vague statutes. The right to raise the issue on appeal cannot be waived, regardless of a guilty plea. State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979).

971.08 Annotation Discussing withdrawal of a guilty plea on the grounds of ineffective representation by trial counsel. State v. Rock, 92 Wis. 2d 554, 285 N.W.2d 739 (1979).

971.08 Annotation Absent abuse of discretion in doing so, a prosecutor may withdraw a plea bargain offer at any time prior to an action by the defendant in detrimental reliance on the offer. State v. Beckes, 100 Wis. 2d 1, 300 N.W.2d 871 (Ct. App. 1980).

971.08 Annotation The trial court did not err in refusing to allow the defendant to withdraw a guilty plea accompanied by protestations of innocence. State v. Johnson, 105 Wis. 2d 657, 314 N.W.2d 897 (Ct. App. 1981).

971.08 Annotation A prosecutor is relieved from the terms of a plea agreement if it is judicially determined that the defendant has materially breached its conditions. State v. Rivest, 106 Wis. 2d 406, 316 N.W.2d 395 (1982).

971.08 Annotation Except as provided by statute, conditional guilty pleas are not to be accepted and will not be given effect. State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983).

971.08 Annotation Effective assistance of counsel was denied when the defense attorney did not properly inform the client of the personal right to accept a plea offer. State v. Ludwig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985).

971.08 Annotation When the defendant offered a plea of no contest but refused to waive any constitutional rights or to answer the judge’s questions, the judge should have set a trial date and refused any further discussion of the no contest plea. State v. Minniecheske, 127 Wis. 2d 234, 378 N.W.2d 283 (1985).

971.08 Annotation Due process does not require that the record of a plea hearing demonstrate the defendant’s understanding of the nature of the charge at the time of the plea. State v. Carter, 131 Wis. 2d 69, 389 N.W.2d 1 (1986).

971.08 Annotation Bangert, 131 Wis. 2d 246 (1986), procedures under this section apply to a defendant pleading not guilty by reason of mental disease or defect. State v. Shegrud, 131 Wis. 2d 133, 389 N.W.2d 7 (1986). But see State v. Fugere, 2018 WI App 24, 381 Wis. 2d 142, 911 N.W.2d 127, 16-2258.

971.08 Annotation Failure to comply with this section is not necessarily a constitutional violation. Discussing procedures mandated for plea hearings and establishing a remedy. State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).

971.08 Annotation The withholding of a sentence and imposition of probation, as those terms are used by courts, are functionally equivalent to sentencing for determining the appropriateness of a plea withdrawal. State v. Booth, 142 Wis. 2d 232, 418 N.W.2d 20 (Ct. App. 1987).

971.08 Annotation Section 971.04 (2) allows the entry of a plea to a misdemeanor by an attorney without the defendant being present, but for guilty or no contest pleas all requirements of this section except attendance must be met. State v. Krause, 161 Wis. 2d 919, 469 N.W.2d 241 (Ct. App. 1991).

971.08 Annotation A plea agreement to amend a judgment of conviction upon successful completion of probation is not authorized by statute. State v. Hayes, 167 Wis. 2d 423, 481 N.W.2d 699 (Ct. App. 1992).

971.08 Annotation The decision to plead guilty is personal to the defendant. A defendant’s attorney cannot renegotiate a plea agreement without the defendant’s knowledge and consent. State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992).

971.08 Annotation Failure to comply with sub. (1) (c) is governed by sub. (2); the holding in Bangert, 131 Wis. 2d 246 (1986), does not apply. Discussing the meaning of “likely” deportation under sub. (2). State v. Baeza, 174 Wis. 2d 118, 496 N.W.2d 233 (Ct. App. 1993).

971.08 Annotation When it was undisputed that the defendant was aware of the potential for deportation when the defendant entered the plea, the failure to advise the defendant pursuant to this section was harmless error for which the defendant was not entitled to relief. Legislative history indicates that the legislature sought to alleviate the hardship and unfairness involved when an alien unwittingly pleads guilty or no contest to a charge without being informed of the consequences of such a plea. The legislature did not intend a windfall to a defendant who was aware of the deportation consequences of the plea. State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993).

971.08 Annotation A conclusory allegation of manifest injustice, unsupported by factual assertions, is legally insufficient to entitle a defendant to even a hearing on a motion to withdraw a guilty plea following sentencing. State v. Washington, 176 Wis. 2d 205, 500 N.W.2d 331 (Ct. App. 1993).

971.08 Annotation In accepting a negotiated guilty plea for probation, the trial court should, but is not required to, advise the defendant of the potential maximum sentence that may be imposed if probation is revoked. State v. James, 176 Wis. 2d 230, 500 N.W.2d 345 (Ct. App. 1993).

971.08 Annotation In the context of a plea bargain, sub. (1) (a) is satisfied if the plea is voluntarily and understandingly made and a factual basis is shown for either the offense pleaded to or to a more serious offense reasonably related to the offense pleaded to. State v. Harrell, 182 Wis. 2d 408, 513 N.W.2d 676 (Ct. App. 1994).

971.08 Annotation A guilty plea, made knowingly and voluntarily, waives all nonjurisdictional defects and defenses, including alleged violations of constitutional rights, prior to the appeal. State v. Aniton, 183 Wis. 2d 125, 515 N.W.2d 302 (Ct. App. 1994).

971.08 Annotation Sub. (1) (c) requires the trial court to personally advise a defendant regarding deportation, and mere reference to a guilty plea questionnaire does not satisfy that requirement. However, under Chavez, 175 Wis. 2d 366 (1993), before the trial court is required to grant a motion to withdraw a guilty plea, the court must determine whether, despite the court’s failure to personally advise the defendant, the defendant understood the potential deportation consequences of the guilty pleas. State v. Issa, 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App. 1994).

971.08 Annotation A plea agreement is analogous to a contract, and contract law principals are drawn upon to interpret an agreement. The state’s enforcement of a penalty provision in the agreement for failure of the defendant to fulfill obligations under the agreement did not require an evidentiary hearing to determine a breach when the breach was obvious and material and did not give the defendant a basis for withdrawing the plea. State v. Toliver, 187 Wis. 2d 346, 523 N.W.2d 113 (Ct. App. 1994).

971.08 Annotation An executory plea bargain is without constitutional significance, and a defendant has no right to require the performance of the agreement. Upon entry of a plea, due process requires the defendant’s expectations to be fulfilled. State v. Wills, 187 Wis. 2d 529, 523 N.W.2d 569 (Ct. App. 1994).

971.08 Annotation An Alford, 400 U.S. 25 (1970), plea, under which the defendant pleads guilty while either maintaining innocence or not admitting having committed the crime, is acceptable when strong proof of guilt has been shown. State v. Garcia, 192 Wis. 2d 845, 532 N.W.2d 111 (1995).

971.08 Annotation A trial court need not advise a defendant of the potential that restitution will be ordered in accepting a plea under this section. Restitution is primarily rehabilitative, not punitive, and not “potential punishment” under sub. (1) (a). State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995).

971.08 Annotation A postconviction motion to withdraw a guilty plea requires showing that a “manifest injustice” would occur if the motion is denied. A postconviction recantation by a witness may constitute new evidence showing a manifest injustice and requiring a new trial if there is a reasonable probability that a jury would reach a different result. It is error for the judge to determine whether the recantation or the original allegation is true. State v. McCallum, 198 Wis. 2d 149, 542 N.W.2d 184 (Ct. App. 1995), 95-1518.

971.08 Annotation A defendant seeking a postconviction plea withdrawal due to a violation of sub. (1) (a) must make a prima facie showing that a violation occurred and must also allege that the defendant did not know or understand the information that should have been provided. State v. Giebel, 198 Wis. 2d 207, 541 N.W.2d 815 (Ct. App. 1995), 94-2225.

971.08 Annotation The concept of notice pleading has no application to a postconviction motion challenging a guilty plea. An allegation that a guilty plea was entered because of misinformation provided by counsel is merely conclusory. Facts must be alleged that show a reasonable probability that but for counsel’s errors the defendant would have proceeded to trial and that allow the court to meaningfully assess the claim of prejudice. State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996), 94-3310.

971.08 Annotation It is error for a trial court not to inquire whether the defendant has knowledge of the presumptive minimum sentence, but the error may be harmless if the defendant is otherwise aware of the minimum. State v. Mohr, 201 Wis. 2d 693, 549 N.W.2d 497 (Ct. App. 1996), 95-2186.