971.04 Annotation
If court is put on notice that accused has language difficulty, court must make factual determination whether interpreter is necessary; if so, accused must be made aware of right to interpreter, at public cost if accused is indigent. Waiver of right must be made voluntarily in open court on record. State v. Neave, 117 W (2d) 359, 344 NW (2d) 181 (1984).
971.04 Annotation
Sub. (2) allows entry of plea to misdemeanor by attorney without defendant being present, but for guilty or no contest plea all requirements of 971.08 except attendance must be met. State v. Krause, 161 W (2d) 919, 469 NW (2d) 241 (Ct. App. 1991).
971.04 Annotation
Sub. (1) does not encompass a postconviction evidentiary hearing. State v. Vennemann, 180 W (2d) 81, 508 NW (2d) 404 (1993).
971.04 Annotation
A defendant present at the beginning of jury selection is not "present at the beginning of the trial" under sub. (3). State v. Dwyer, 181 W (2d) 826, 512 NW (2d) 533 (Ct. App. 1994).
971.04 Annotation
A defendant's presence is required during all proceedings when the jury is being selected, including in camera voir dire. However, failure to allow the the defendant's presence may be harmless error. State v. David J.K. 190 W (2d) 726, 528 NW (2d) 434 (Ct. App. 1994).
971.04 Annotation
The beginning of the trial under sub. (3) occurs when jeopardy attaches; when the jury is sworn. State v. Miller, 197 W (2d) 518, 541 NW (2d) 153 (Ct. App. 1995).
971.04 Annotation
An accused has the right to be present at trial, but the right may be waived by misconduct or consent. A formal on-the-record waiver is favored, but not required. State v. Divanovic, 200 W (2d) 210, 546 NW (2d) 501 (Ct. App. 1996).
971.04 Annotation
A defendant may not be sentenced in absentia. The right to be present for sentencing may not be waived. State v. Koopmans, 210 W (2d) 671, 563 NW (2d) 528 (1997).
971.04 Annotation
Koopmans does not require rejecting the harmless error test for all violations of this section. State v. Peterson, 220 W (2d) 474, 584 NW (2d) 144 (Ct. App. 1998).
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 Annotation
Where through oversight, an arraignment was not held, it may be conducted after both parties had rested during the trial. Bies v. State, 53 W (2d) 322, 193 NW (2d) 46.
971.06(1)(1) A defendant charged with a criminal offense may plead as follows:
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 W (2d) 129, 496 NW (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 W (2d) 129, 496 NW (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 W (2d) 213, 531 NW (2d) 332 (Ct. App. 1995).
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(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 Annotation
A court can consider defendant's record of juvenile offenses at a hearing on his guilty pleas prior to sentencing. McKnight v. State, 49 W (2d) 623, 182 NW (2d) 291.
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, and 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 W (2d) 727, 183 NW (2d) 56.
971.08 Annotation
A defendant may not withdraw a guilty plea simply because he did not specifically waive all of his constitutional rights, if the record shows he understood what rights he was waiving by the plea. After a plea of guilty the hearing as to the factual basis for the plea need not produce competent evidence which will satisfy the criminal burden of proof. Edwards v. State, 51 W (2d) 231, 186 NW (2d) 193.
971.08 Annotation
It is sufficient for a court to inform a defendant charged with several offenses of the maximum penalty which could be imposed for each. The phrase "in connection with his appearance" as it appears in the guilty plea guidelines of the Burnett and Ernst cases should be deleted. Burkhalter v. State, 52 W (2d) 413, 190 NW (2d) 502.
971.08 Annotation
A desire to avoid a possible life sentence by pleading guilty to a lesser charge does not alone render the plea involuntary. A claimed inability to remember does not require refusal of the plea where the evidence is clear that defendant committed the crime. State v. Herro, 53 W (2d) 211, 191 NW (2d) 889.
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; hence 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 not obliged to dismiss the action because of refusal to accept the guilty plea. Johnson v. State, 53 W (2d) 787, 193 NW (2d) 659.
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 sentence; it is discretionary if made thereafter and need not be granted if the record refutes the allegations. Defendant must raise a substantial issue of fact. Nelson v. State, 54 W (2d) 489, 195 NW (2d) 629.
971.08 Annotation
When 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 W (2d) 723, 201 NW (2d) 25.
971.08 Annotation
A plea bargain which contemplates special concessions to another person requires careful scrutiny by the court. It must also be reviewed as to whether it is in the public interest. State ex rel. White v. Gray, 57 W (2d) 17, 203 NW (2d) 638.
971.08 Annotation
A court has inherent power to refuse to accept a plea of guilty and may dismiss the charge on motion of the district attorney in order to allow prosecution on a 2nd complaint. State v. Waldman, 57 W (2d) 234, 203 NW (2d) 691.
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 W (2d) 726.
971.08 Annotation
The fact that defendant pled guilty with the understanding that his wife would be given probation on another charge does not necessarily render the plea involuntary. Seybold v. State, 61 W (2d) 227, 212 NW (2d) 146.
971.08 Annotation
The defendant's religious beliefs regarding the merits of confessing one's wrongdoing and his desire to mollify his family or give in to their desires are self-imposed coercive elements and do not vitiate the voluntary nature of the defendant's guilty plea. Craker v. State, 66 W (2d) 222, 223 NW (2d) 872.
971.08 Annotation
A defendant wishing to withdraw 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 may be indicated in situations where (1) defendant was denied effective assistance of counsel; (2) the plea was not entered or ratified by defendant or a person authorized to so act in his 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) defendant did not receive the concessions contemplated by the plea agreement and the prosecutor failed to seek them as promised therein. Birts v. State, 68 W (2d) 389, 228 NW (2d) 351.
971.08 Annotation
As required by Ernst v. State, 43 W (2d) 661 and (1) (b), prior to accepting a guilty plea, the trial court must establish that the conduct defendant admits constitutes the offense charged or an offense included therein to which defendant has pleaded guilty; but where the plea is made pursuant to 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 nonnegotiated. Broadie v. State, 68 W (2d) 420, 228 NW (2d) 687.
971.08 Annotation
Trial court did not abuse discretion by failing to inquire into the effect tranquilizer had on defendant's competence to enter plea. Jones v. State, 71 W (2d) 750, 238 NW (2d) 741.
971.08 Annotation
Withdrawal of 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 W (2d) 480, 247 NW (2d) 105.
971.08 Annotation
Guilty plea cannot be withdrawn on grounds that probation conditions were more onerous than expected. Garski v. State, 75 W (2d) 62, 248 NW (2d) 425.
971.08 Annotation
See note to 939.74, citing State v. Pohlhammer, 78 W (2d) 516, 254 NW (2d) 478.
971.08 Annotation
While courts have no duty to secure informed waivers of possible statutory defenses, under unique facts of case, defendant was entitled to withdraw guilty plea to charge barred by statute of limitations. State v. Pohlhammer, 82 W (2d) 1, 260 NW (2d) 678.
971.08 Annotation
Sub. (2) does not deprive court of jurisdiction to consider untimely motion. State v. Lee, 88 W (2d) 239, 276 NW (2d) 268 (1979).
971.08 Annotation
See note to Art. I, sec. 8, citing State ex rel. Skinkis v. Treffert, 90 W (2d) 528, 280 NW (2d) 316 (Ct. App. 1979).
971.08 Annotation
See note to Art. I, sec. 7, citing State v. Rock, 92 W (2d) 554, 285 NW (2d) 739 (1979).
971.08 Annotation
Absent abuse of discretion in doing so, prosecutor may withdraw plea bargain offer at any time prior to action by defendant in detrimental reliance on the offer. State v. Beckes, 100 W (2d) 1, 300 NW (2d) 871 (Ct. App. 1980).
971.08 Annotation
Trial court did not err in refusing to allow defendant to withdraw guilty plea accompanied by protestations of innocence. State v. Johnson, 105 W (2d) 657, 314 NW (2d) 897 (Ct. App. 1981).
971.08 Annotation
Conditional guilty pleas are not to be accepted and will not be given effect, except as provided by statute. State v. Riekkoff, 112 W (2d) 119, 332 NW (2d) 744 (1983).
971.08 Annotation
See note to Art. I, sec. 7, citing State v. Ludwig, 124 W (2d) 600, 369 NW (2d) 722 (1985).
971.08 Annotation
Where defendant offered plea of no contest but refused to waive constitutional rights or to answer judge's questions, judge should have set trial date and refused further discussion of no contest plea. State v. Minniecheske, 127 W (2d) 234, 378 NW (2d) 283 (1985).
971.08 Annotation
Due process does not require that record of plea hearing demonstrate defendant's understanding of nature of charge at time of plea. State v. Carter, 131 W (2d) 69, 389 NW (2d) 1 (1986).
971.08 Annotation
Bangert procedures under this section apply to defendant pleading not guilty by reason of mental disease or defect. State v. Shegrud, 131 W (2d) 133, 389 NW (2d) 7 (1986).
971.08 Annotation
Failure to comply with this section is not necessarily a constitutional violation. Procedures mandated for plea hearing. Remedy established. State v. Bangert, 131 W (2d) 246, 389 NW (2d) 12 (1986).
971.08 Annotation
Withholding of sentence and imposition of probation, as those terms are used by courts, are functionally equivalent to sentencing for determining appropriateness of plea withdrawal. State v. Booth, 142 W (2d) 232, 418 NW (2d) 20 (Ct. App. 1987).
971.08 Annotation
See note to 971.04 citing State v. Krause, 161 W (2d) 919, 469 NW (2d) 241 (Ct. App. 1991).
971.08 Annotation
Failure to comply with sub. (1) (c) is governed by sub. (2); holding in Bangert does not apply. Meaning of "likely" deportation under sub. (2) discussed. State v. Beaza, 174 W (2d) 118, 496 NW (2d) 156 (Ct. App. 1993).
971.08 Annotation
Where alien defendant was aware of the likelihood of deportation when a plea was entered, the court's failure to comply with sub. (1) was not grounds for withdrawal of the plea. State v. Chavez, 175 W (2d) 366, 498 NW (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 W (2d) 205, NW (2d) (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 which may be imposed if probation is revoked. State v. James, 176 W (2d) 230, NW (2d) (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 W (2d) 408, 513 NW (2d) 700 (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 W (2d) 125, 515 NW (2d) 302 (Ct. App. 1994).
971.08 Annotation
An Alford plea in which the defendant pleads guilty while either maintaining innocence or not admitting having committed the crime is acceptable where strong proof of guilt has been shown. State v. Garcia, 192 W (2d) 845, 532 NW (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 W (2d) 610, 534 NW (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 W (2d) 149, 542 NW (2d) 184 (Ct. App. 1995).
971.08 Annotation
A defendant seeking a post conviction 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 he or she did not know or understand the information which should have been provided. State v. Geibel, 198 W (2d) 207, 541 NW (2d) 815 (Ct. App. 1995).
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 which show a reasonable probability that but for counsel's errors the defendant would have proceeded to trial and which allow the court to meaningfully assess the claim of prejudice. State v. Bentley, 201 W (2d) 303, 548 NW (2d) 50 (1996).
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 W (2d) 690, 549 NW (2d) 497 (Ct. App. 1996).
971.08 Annotation
An Alford plea is acceptable only where strong proof of guilt has been shown. A plea under an agreement to plead to a related offense to that charged which would have been legally impossible for the defendant to have committed could not satisfy the strong proof requirement. State v. Smith, 202 W (2d) 21, 549 NW (2d) 232 (1996).
971.08 Annotation
When a plea rests in any significant degree on a promise or agreement of the prosecutor, so it can be said to be part of the inducement, the promise must be fulfilled. Where the state was unable to fulfill its promise withdrawal of a no contest plea was in order. State v. Castillo, 205 W (2d) 592, 556 NW (2d) 428 (Ct. App. 1996).
971.08 Annotation
One type of manifest injustice which would allow postconviction withdrawal of a guilty plea is the failure to establish a sufficient factual basis that the defendant committed the offense. State v. Johnson, 207 W (2d) 240, 558 NW (2d) 375 (1997).
971.08 Annotation
Whether a defendant knowingly entered an Alford plea must be determined by the court based on the personal colloquy with the defendant and not whether specific words were used in making the plea. State v. Salentine, 206 W (2d) 418, 557 NW (2d) 439 (Ct. App. 1996).
971.08 Annotation
A conviction following an Alford plea, does not prevent imposing as a condition of probation that the defendant complete a treatment program that requires acknowledging responsibility for the crime which resulted in the conviction. The imposition of the condition does not violate the defendant's due process rights. There is nothing inherent in the plea that gives the defendant any rights as to punishment. State ex rel. Warren v. Schwarz, 219 W (2d) 616, 579 NW (2d) 698 (1998).
971.08 Annotation
In order for a plea to be knowingly and intelligently informed the defendant must be informed of the "direct consequences" of the plea, but due process does not require informing the defendant of collateral consequences. Direct consequences are definite, immediate and largely automatic and do not depend on the defendant's future psychological condition. State ex rel. Warren v. Schwarz, 219 W (2d) 616, 579 NW (2d) 698 (1998).
