State v. Hampton
State v. Hampton
Opinion of the Court
¶ 1. Corey Hampton appeals orders denying his motion for plea withdrawal. Hampton contends his plea colloquy was defective because the circuit court failed to personally inform him that the court was not bound by the terms of a plea agreement. Hampton asserts he made a prima facie showing under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and was entitled to an evidentiary hearing on his plea withdrawal motion. He contends the circuit court improperly denied that motion without an evidentiary hearing. We conclude that Hampton made a prima facie showing and that his motion should not have been denied without an evidentiary hearing. We reverse and remand for further proceedings.
Background
¶ 2. Corey Hampton was charged with second-degree sexual assault of a child. Among other things, it was alleged that Hampton penetrated his fifteen-year-old cousin's vagina with his finger and had oral contact with her vagina. This charge carried a potential prison term of twenty years. See Wis. Stat. §§ 939.50(3)(bc) and 948.02(2) (1997-98).
¶ 3. Hampton is an educated man. He has completed six years of education at "UW-M" and has two college degrees. Prior to the plea hearing, Hampton's
I understand that the Judge is not bound to follow any plea agreement or any recommendation made by the District Attorney, my attorney, or any presentence report. I understand that the Judge is free to sentence me to the following . .. maximum possible penalties in this case.
Immediately below this language the questionnaire identifies Hampton's crime and states: "Years: 20" and "Fine: $10,000."
¶ 4. Item fifteen of the plea questionnaire states: "I have read (or have had read to me) this entire questionnaire, and I understand its contents." Item fifteen is followed by a handwritten date and Hampton's signature. In response to questions from the circuit court, Hampton agreed that his counsel read the information in the plea questionnaire to him and that he, Hampton, signed both sides of the form. Hampton's trial counsel signed the questionnaire, attesting that "the defendant acknowledged his understanding of each item in this questionnaire." Although the circuit court engaged in a lengthy plea colloquy, the court did not in any manner personally tell Hampton that it was not bound by the plea agreement.
¶ 5. At Hampton's later sentencing hearing, the circuit court rejected the State's recommended disposition. The court placed Hampton on probation and ordered twelve months' jail time as a condition, in keeping with the agreement. However, instead of an imposed and stayed seven-year prison term, as recommended by the State pursuant to the plea agreement, the court imposed and stayed a twelve-year term. Also,
¶ 6. Hampton later filed a plea withdrawal motion asserting that the circuit court failed to personally advise him it was not bound by the plea agreement sentencing recommendation. The motion also asserted that Hampton did not, at the time of his plea, understand that the court was not bound by the plea agreement sentencing recommendation. Hampton requested an evidentiary hearing to resolve any factual dispute raised by his motion. The circuit court denied the motion without an evidentiary hearing.
¶ 7. The instant case involves an exemplary plea colloquy, with one exception: the circuit court failed to personally inform Hampton that it was not bound by the terms of the negotiated plea agreement. Hampton contends that under State ex rel. White v. Gray, 57 Wis. 2d 17, 203 N.W.2d 638 (1973), and the procedure set forth in Bangert, 131 Wis. 2d 246, this omission was error. Hampton asserts he made a prima facie showing under Bangert, because he alleged the error and also alleged he did not understand that the circuit court was not bound by the plea agreement. Hampton contends that once he made this prima facie showing, he was entitled to an evidentiary hearing. He asserts the circuit court improperly denied his plea withdrawal motion without a hearing. We conclude that Hampton made a prima facie showing and that he was entitled to an evidentiary hearing on his motion.
A. Whether Hampton Made a Prima Facie Showing
¶ 8. Under the burden-shifting framework set forth in Bangert, defendants must make a. prima facie showing that their guilty or no contest pleas were accepted without compliance with Wis. Stat. § 971.08 or another court-mandated duty. Such defendants must also allege that they did not know or understand the information at issue. Bangert, 131 Wis. 2d at 274. Whether a defendant has established a prima facie case presents a question of law, which we review without deference to the trial court's determination. State v. Hansen, 168 Wis. 2d 749, 754-55, 485 N.W.2d 74 (Ct. App. 1992). If a defendant makes this initial showing, the burden shifts to the State to show by clear and
¶ 9. Neither Bangert nor Wis. Stat. § 971.08 says that a court must personally inform a defendant entering a plea that the court is not bound by the terms of á plea agreement. Nonetheless, this task was judicially mandated in Gray, a seminal Wisconsin case requiring that plea agreements be put on the record. In Gray, the court adopted language in the ABA Standards Relating to Pleas of Guilty, stating: " 'If the prosecuting attorney has agreed to seek charge or sentence concessions which 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.'" Gray, 57 Wis. 2d at 24 (quoting ABA Standards Relating to Pleas of Guilty, Approved Draft 1968, § 1.5, at 29 (emphasis added)).
¶ 10. It can be argued that because the Gray "personally inform" requirement is a duty neither imposed by Wis. Stat. § 971.08, nor expressly imposed by Bangert, the failure to comply with Gray does not fall under the Bangert methodology. The proposition is debatable, but ultimately unpersuasive.
¶ 11. In Bangert, the supreme court states: "Nor do we discard the general duties of the trial court prior to accepting a plea of guilty or no contest." Bangert, 131 Wis. 2d at 261. The court goes on to say "[t]hose duties are" and then lists duties found in Ernst v. State, 43 Wis. 2d 661, 674, 170 N.W.2d 713 (1969). Bangert, 131 Wis. 2d at 261-62. Later, the Bangert court specifies requirements: "(a) the procedures set forth in sec. 971.08(1); (b) the additional procedures which we now
¶ 12. It appears the State agrees with the general notion that the Gray requirement survives and is enforced by Bangert. In the context of discussing Bangert requirements, the State's brief says: "The Wisconsin Supreme Court has imposed additional duties on the court, including [duties specified in Bangert and] that the [plea] agreement is not binding on the court." As support for this legal proposition the State cites to Bangert and that part oí McQuay which relies on Gray. See McQuay, 154 Wis. 2d. at 128.
¶ 13. What the State, does dispute is whether a court must personally inform a defendant that it is not bound by the terms of a plea agreement. However, the
¶ 14. We observe that the requirement that courts "personally" provide the information at issue here stands in contrast to other plea colloquy duties which specify that courts must "personally" make a determination or make an inquiry. E.g., Bangert, 131 Wis. 2d at 262 ("personally ascertain whether a factual basis exists to support the plea"). Bangert and subsequent cases explain that the method of complying with requirements to "personally" make determinations and inquiries varies from case to case and may include reliance on documents or portions of the record predating the plea hearing. See id. at 267-69; State v. Moederndorfer, 141 Wis. 2d 823, 826-27, 416 N.W.2d 627 (Ct. App. 1987). Similarly, we observe that the "personally inform" requirement at issue here is an exception, not the rule. In general, a circuit court may ascertain a defendant's knowledge through a combination of questions and reference to the record or to a prior communication. See Bangert, 131 Wis. 2d at 267-68; see also State v. Brandt, 226 Wis. 2d 610, 619-20, 594 N.W.2d 759 (1999); Hansen, 168 Wis. 2d at 754; Moederndorfer, 141 Wis. 2d at 827-28. Indeed, our research discloses just one other decision plainly stating that a court must personally provide particular information to a defendant during a plea colloquy. See State v. Douangmala, 2002 WI 62, ¶ 31, 253 Wis. 2d 173, 646 N.W.2d 1 (construing the directive in Wis. Stat. § 971.08(l)(c) to advise of deportation consequences).
¶ 16. As an alternative argument, the State contends that the circuit court met its duty to personally inform Hampton that it was not bound by the negotiated recommendation when the court informed Hampton that the potential maximum penalty for his crime was twenty years. We agree with Hampton, however, that the maximum penalty information could be understood to simply mean that Hampton faced a potential twenty-year sentence if he did not follow through with the plea agreement. To the extent the State is arguing that Gray and subsequent cases do not require magic words, we agree. Nonetheless, the problem here is that the circuit court did not personally convey to Hampton in any manner that it could reject the plea agreement sentencing recommendation. In the context of the plea
¶ 17. Applying the above principles here, we conclude that Hampton made a prima facie showing. Hampton asserted in his plea withdrawal motion that the "trial court failed to inform him that it was not bound by the State's recommendation," and the plea colloquy supports that assertion. Hampton also alleged that he was actually unaware that the court could deviate from the plea agreement sentencing recommendation.
B. Whether the Circuit Court Properly Denied
Hampton's Plea Withdrawal Motion Without an Evidentiary Hearing
¶ 18. The circuit court did not address whether Hampton made a prima facie showing. Indeed, as discussed below, the circuit court's reason for denying Hampton's plea withdrawal motion is not transparent. Regardless, it is Hampton's contention that the circuit court could not deny his motion without an evidentiary hearing because he presented a prima facie case under Bangert and he requested a hearing. We agree.
¶ 19. The State asks us to apply State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996). We understand the State to be arguing that, under the approach used in Bentley, Hampton was not entitled to a hearing because the record conclusively demonstrated that Hampton was not entitled to relief. The State contends that the allegations in Hampton's plea withdrawal motion are conclusory and the record shows (1) that the disputed
¶ 20. Hampton responds that Bentley does not apply because the defendant in Bentley sought plea withdrawal based on ineffective assistance of counsel and, therefore, bore the burden of showing both ineffective assistance and the need for an evidentiary hearing. See id. at 311-12. In contrast, under Bangert, once a defendant makes a prima facie showing, the burden shifts to the State. See Bangert, 131 Wis. 2d at 274. Hampton contends that once he made a prima facie showing of a deficient colloquy, he was entitled to an evidentiary hearing on the issue of his actual understanding, regardless whether he made any additional factual allegations and regardless whether there was evidence in the existing record tending to show that he did understand.
¶ 21. We agree with Hampton's description of the differing burdens and conclude that the burden-shifting scheme imposed by Bangert is inconsistent with the
¶ 22. It is understandable that the State, and perhaps some circuit courts, are inclined to apply Bentley to plea withdrawal cases such as this. In Bentley, the defendant alleged that his trial counsel gave him wrong information and that, absent this wrong information, he would have pled differently. Bentley, 201 Wis. 2d at 316. The Bentley court held that in order for defendant Bentley to earn the right to an evidentiary hearing, he needed to allege facts which, if true, would entitle him to relief. Id. at 313-18. Under Bentley, a circuit court has discretion to deny a postconviction motion without an evidentiary hearing "if the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief." Id. at 309-10 (citation omitted). In effect, Bentley requires written allegations showing that there is a reason to hold an evidentiary hearing and that the defendant is not simply on a fishing expedition. We understand the temptation of busy trial
When Hampton told the court that he and his attorney had gone over the form together, that trial counsel had read it to him, and that he had signed the form after he went over it with his lawyer, the court presumes this information to be true. His signature is intended to acknowledge his understanding of the form and its contents and conclusively advises the court of same. The court relies on a defendant's assertions when he is questioned about his understanding of the form, and subsequent claims that the form or its contents were really not understood simply renders the plea proceeding meaningless.
Hampton's current claims are belied by the record in this case, and a hearing to ascertain whether the defendant really understood the form and its contents, after having represented that he did, simply defeats the purpose of the plea proceeding and the reason for filling out the forms and signing them. Hampton would have the court find that his signature on' the bottom of the form, in reality, means nothing — until an evidentiary hearing can be held to determine if his acknowledgment is a true acknowledgment or a false acknowledgment of his understanding. The defendant's signature on the bottom of the form must be held to mean what*473 it represents, and subsequent claims that "I really didn't know what the form said" completely undermine the finality of guilty pleas.
¶ 24. The circuit court's comments may be read at least two ways. First, that a defendant should never be able to contradict his or her attestation of understanding as evidenced by his or her signature on a plea questionnaire. If this is what the circuit court meant, the error is obvious. While a plea questionnaire may be used as evidence that a defendant actually understood a particular piece of information contained in the questionnaire, a signed questionnaire does not conclusively establish actual knowledge and understanding. In plea withdrawal proceedings, defendants may present evidence showing that, despite their signature on a plea questionnaire, they entered a plea without understanding some piece of information in the questionnaire. See, e.g., State v. Bollig, 2000 WI 6, ¶¶ 4-5, 52-55, 232 Wis. 2d 561, 605 N.W.2d 199 (signed plea questionnaire was not conclusive evidence that defendant understood elements of crime listed in questionnaire).
¶ 25. A second interpretation of the circuit court's comments is that the court did not find Hampton's new contrary assertion to be credible. If this is the court's meaning, the error is twofold. First, for the reasons set forth in ¶¶ 21-22 of this opinion, Hampton was not obligated to summarize in his plea withdrawal motion the evidence he might present at the requested hearing. Thus, any credibility finding by the court was made without Hampton's full explanation, or at least without affording Hampton his right to present a full explanation if he chose to do so. Second, the circuit court's procedure runs contrary to the general rule that cred
¶ 26. Accordingly, we remand for an evidentiary hearing on the question whether Hampton understood, at the time of his plea, that his sentencing court would not be bound by the recommended sentence contained in the plea agreement. We do not suggest that the circuit court must give any particular weight to Hampton's live testimony, should he decide to testify. The circuit court is free to disbelieve Hampton, even if the only contrary evidence is the evidence relied on by the State thus far, including Hampton's education and the signed plea questionnaire. We only hold that because Hampton made a prima facie showing under Bangert, and requested an evidentiary hearing to resolve factual disputes, it was error to resolve the credibility issue without giving Hampton an opportunity to present evidence.
Conclusion
¶ 27. For the above reasons, we reverse the order denying Hampton's plea withdrawal motion without an evidentiary hearing. Hampton's motion is reinstated and the matter is remanded to give Hampton an oppor
By the Court. — Judgment and orders reversed and cause remanded with directions.
All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
The underlying facts in this case are more complex than our "Background" factual summary suggests, but none of the additional complexities bear on any issue on appeal. For example, the plea agreement gave Hampton a choice of options and we have only recited the option he ultimately chose at sentencing. Also, Hampton's plea withdrawal request was made twice before two judges. Judge Mel Flanagan, who presided over Hampton's plea hearing, rejected Hampton's first plea withdrawal motion without a hearing. Hampton appealed Judge Flanagan's decision and, after obtaining new counsel, voluntarily dismissed his appeal, returned to the trial court, and filed a second plea withdrawal motion. This motion was heard by Judge Dennis E Moroney. Judge Moroney rejected Hampton's second motion, also without a hearing. Although technically this appeal is taken from both Judge Flanagan's order and Judge Moroney's order, we only address Judge Moroney's order. Neither Hampton nor the State suggests that the issues in this case are affected by the fact that Hampton made two plea withdrawal motions or that two different judges rejected the motions. Plainly, Judge Moroney's order deals with the same topic and supersedes Judge Flanagan's order. Because we are not presented with any challenges relating to these "complicating" facts, we ignore them for the sake of clarity in this opinion.
In his reply brief before this court, Hampton says he alleged in his postconviction motion that "when going over the questionnaire his trial attorney did not explain to him that the court was not bound by the negotiations." It is true that Hampton's postconviction memorandum makes this factual assertion, but the more specific supporting affidavit, sworn to by postconviction counsel, does not back up this assertion. The affidavit states only that Hampton would testify: "He did not read the guilty plea questionnaire himself. His attorney briefly explained the form to him."
The dissent states that this majority opinion "refuses to apply [Levesque v. State, 63 Wis. 2d 412, 217 N.W.2d 317 (1974)]." Levesque, however, predates Bangert's "new approach" to handling the particular type of plea withdrawal argument made by Hampton. See State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986). At the time Levesque was decided, there was no procedure akin to the burden shifting imposed by Bangert. The pleading burden imposed on defendants in Levesque (and subsequently refined in State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996)) is not inherently incompatible with burden shifting. But for the reasons in ¶¶ 18-21 of this opinion, we conclude it is incompatible with the specific burden-shifting scheme imposed by Bangert. At the same time, we readily acknowledge that Bangert does not apply to all plea withdrawal requests. For example, Bangert does not apply to plea withdrawal requests based on alleged ineffective assistance of counsel, exemplified by Bentley. More generally, Bangert does not apply unless the defendant asserts a defective plea colloquy.
Dissenting Opinion
¶ 28. (dissenting). The majority opinion concludes that Hampton made a prima facie showing that his plea was not knowing, voluntary and intelligent because the circuit court did not personally tell him during its colloquy that it was not bound by the plea agreement, notwithstanding Hampton's signing a plea questionnaire that his trial lawyer had read to him that represented to the court that he knew that the circuit court was not bound.
Standard of Review.
¶ 29. We independently review whether a plea was knowingly, voluntarily and intelligently entered as a question of constitutional fact. State v. Bollig, 2000 WI 6, ¶ 13, 232 Wis. 2d 561, 605 N.W.2d 199. As part of that analysis, we begin by determining whether a defendant made a prima facie case sufficient to show that the circuit court violated Wis. Stat. § 971.08 (1999-2000), as interpreted by the Wisconsin Supreme Court or this court. If we conclude that the defendant made a prima facie case, we examine the motion and supporting affidavits to determine whether, as a matter of law, a hearing is required. State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50, 53 (1996). However, if the motion fails to allege sufficient evidentiary facts which
Sufficiency of Hampton's Pleadings.
¶ 30. I agree that the circuit court did not directly bring up the effect of Hampton's plea bargain in relation to the sentence it could impose for his crime, before accepting his plea. I also agree that it is the obligation of the circuit court to assess whether Hampton understands that the circuit court is not bound to follow the plea agreement in its sentencing decision. However, in order to have the right to an evidentiary hearing on his motion, Hampton was required to state those facts in his petition, which if proved to be true, would entitle him to withdraw his plea. The supreme court has consistently held that conclusory allegations are insufficient to require a hearing on a postconviction motion for plea withdrawal. Bentley, 201 Wis. 2d at 313, 548 N.W.2d at 54 (citing Levesque v. State, 63 Wis. 2d 412, 217 N.W.2d 317 (1974)). As the supreme court explained in Levesque, "[a] statement of ultimate facts which may be sufficient to sustain a complaint against a demurrer is not sufficient for a petition for postconviction relief, a petition to withdraw a plea or a motion for a new trial." Levesque, 63 Wis. 2d at 422, 217 N.W.2d at 322.
¶ 31. In Levesque, a defendant who sought to withdraw his guilty plea was denied an evidentiary hearing. His motion provided:
(1) Levesque's conduct did not constitute burglary as defined in sec. 943.10(l)(a), Stats.; (2) the court did not adequately ascertain the defendant understood the nature of the offense charged; and (3) Levesque at the*478 time of the arraignment was not able to understand the proceedings against him due to a mental disease or a mental defect.
Id. at 418, 217 N.W.2d at 320. The court's opinion addressed only the third contention, Levesque's purported lack of understanding due to a mental disease or defect. The court concluded that the motion was insufficient to require a hearing because Levesque had not alleged evidentiary facts to support his assertion that he did not understand. Id. The court explained that he had alleged only "legal grounds" for his motion, id., or "ultimate facts." Id. at 422, 217 N.W.2d at 322. As was explained again in Bentley, motions to withdraw a plea after sentencing cannot rely on conclusory allegations, hoping to supplement them with evidentiary facts at a subsequent hearing. Bentley, 201 Wis. 2d at 313, 548 N.W.2d at 54.
¶ 32. Here the only affidavit to support Hampton's motion is the hearsay statement of his attorney attesting to what Hampton would say if he were called at a hearing. It states in relevant part that:
3.a. At the time he entered his Alford plea, he did not know that the court was not bound by the State's recommendation and was free to sentence him to whatever sentence it deemed appropriate.
b. Had he known that the court was not bound by the State's recommendation, he would not have pled guilty but would have asserted his right to a jury trial.
¶ 33. Aside from the obvious evidentiary problems with providing a hearsay statement to the circuit court, the allegations made on Hampton's behalf are conclusory, self-serving statements, facially insufficient to require the circuit court to hold a hearing. In my
The plea questionnaire states:
10. I understand that the Judge is not bound to follow any plea agreement or any recommendation made by the District Attorney, my attorney, or any presentence report. I understand that the Judge is free to sentence me to the following minimum (if applicable) and maximum possible penalties in this case.
It then lists the penalty for the crime charged, second degree sexual assault, as 20 years in prison and a $10,000 fine. Additionally, his trial attorney attested on the form that he had discussed and explained the contents of the questionnaire to Hampton and that Hampton acknowledged his understanding of each item in the questionnaire.
I have significant doubts about the majority's analysis of the manner in which a circuit court must undertake its obligation to assess whether the defendant knew it was not bound by the plea agreement. However, because I would affirm the circuit court even if I were to conclude that the court's colloquy with Hampton was inadequate, I do not address this issue.
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent, v. Corey J. Hampton, Defendant-Appellant
- Cited By
- 5 cases
- Status
- Published