368 N.W.2d 830 (Wis. 1985), 84-615-CR, State v. Cecchini

Docket Nº:84-615-CR.
Citation:368 N.W.2d 830, 124 Wis.2d 200
Opinion Judge:The opinion of the court was delivered by: Bablitch
Party Name:STATE of Wisconsin, Plaintiff-Respondent, v. Phillip CECCHINI, Defendant-Appellant.
Attorney:For the defendant-appellant there were briefs by Arthur B. Nathan and Nathan Law Office, S.c., Racine, and oral argument by Mr. Nathan.
Case Date:June 10, 1985
Court:Supreme Court of Wisconsin
 
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Page 830

368 N.W.2d 830 (Wis. 1985)

124 Wis.2d 200

STATE of Wisconsin, Plaintiff-Respondent,

v.

Phillip CECCHINI, Defendant-Appellant.

No. 84-615-CR.

Supreme Court of Wisconsin.

June 10, 1985

Argued Jan. 31, 1985.

Page 831

[124 Wis.2d 201] Arthur B. Nathan, Racine (argued), for defendant-appellant; Nathan Law Office, S.C., Racine, on briefs.

John J. Glinski, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on briefs.

WILLIAM A. BABLITCH, Justice.

Phillip Lee Cecchini (Cecchini) appeals an order of the circuit court denying his motion to withdraw his plea of no contest. We hold that prior to accepting a plea of guilty or no contest, the trial court must ascertain that the defendant understands the nature of the charge, and that this must be done on the record at the plea hearing. Because the trial court failed to do so in this case, the plea was involuntary and unknowing and in violation of the defendant's right to due process. Accordingly, we reverse the trial court's denial of postconviction relief and remand to the trial court with directions that Cecchini be permitted to withdraw his plea of no contest.

[124 Wis.2d 202] The record shows that on October 10, 1983, Cecchini was charged with two traffic offenses: fleeing an officer and operating without a motorcycle endorsement. He was also charged with the felony of endangering safety by conduct regardless of life, contrary to sec. 941.30, Stats., set forth in full below. 1 This charge was based on the presence of a passenger on the back seat of the motorcycle during a high-speed chase.

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Following a preliminary hearing, Cecchini was bound over for trial on the endangering safety charge. Thereafter, the State of Wisconsin (State) agreed to drop charges for the two traffic offenses in exchange for Cecchini's plea of no contest to the felony charge of endangering safety. A brief colloquy, which is quoted here in its entirety, took place at the plea hearing.

"THE COURT: Mr. Cecchini, if you enter a plea of guilty or no contest to this charge, you're giving up your right to have the State prove that you're guilty beyond a reasonable doubt and have a jury determine whether or not you're innocent or guilty.

"You have an opportunity to challenge the evidence against you which includes bringing motions to suppress it and asking questions of witnesses that would testify against you to test their truthfulness. You give up that opportunity if you're going to admit your guilt.

"You, also, forfeit your right to present your own evidence, your own testimony and witnesses at trial. And you forfeit your right to remain silent. You have a right not to be convicted by your own words. Do you understand all that?

"THE DEFENDANT: Yes.

"THE COURT: Okay, do you have any questions of me or Miss Vishny at this time?

"THE DEFENDANT: No, I don't.

"THE COURT: Have you had a chance to talk this over with your lawyer?

[124 Wis.2d 203] "THE DEFENDANT: Yes, I have.

"THE COURT: How far have you gone in school?

"THE DEFENDANT: Twelfth grade.

"THE COURT: Do you feel pressured in any way into entering a plea of guilty or no contest to this charge?

"THE DEFENDANT: No, I don't.

"THE COURT: Okay, the maximum penalty is a $10,000 fine or five years in prison or both. I could give you up to the maximum amount of time and fine. Do you understand that?

"THE DEFENDANT: Yes, I do.

"THE COURT: Okay. Now, they allege that on October 10, 1983 you endangered another's safety by conduct imminently dangerous to another and evincing a depraved mind regardless of human life and that you endangered the safety of Brian Czuper. And how do you plead to that charge?

"THE DEFENDANT: No contest.

"THE COURT: I will accept the plea as knowingly, intelligently and voluntarily made.

"....

"THE COURT: Okay, based upon that stipulation and a reading of that document, the Court will--or the transcript of the preliminary hearing, the Court will find there is a sufficient factual basis for a finding of guilt. The Court will find you guilty."

This perfunctory colloquy represents the entire discussion the trial court had with Cecchini before accepting his plea of no contest. As is evident from the foregoing, there is nothing in the plea hearing transcript that indicates that Cecchini was either informed of or understood the nature of the charge. The record is completely devoid of any description of the charge, or any advisement as to the essential elements of the offense.

Following a presentence investigation, Cecchini was sentenced to three months in jail with Huber privileges. His driver's license was revoked for a one year period.

The defendant subsequently moved the trial court for postconviction relief under sec. 974.06, Stats. The motion[124 Wis.2d 204] was brought to withdraw the plea of no contest on the claim that Cecchini did not understand the elements of the crime at the time the plea was entered and accepted. Cecchini argued, first, that the plea was improperly accepted because the trial court had not established, on the record at the time the plea was entered, that he understood the elements of the offense with which he was charged. Second, he argued that the facts did not support the guilty plea to the charge of endangering safety.

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The trial court rejected both of these arguments and the defendant subsequently appealed to the court of appeals. The court of appeals certified this case to this court for disposition of the first issue only. 2 121 Wis.2d 710, 362 N.W.2d 428.

The issue certified is whether the trial court abused its discretion in denying Cecchini's postconviction motion to withdraw his no contest plea because of the failure of the trial court to ascertain on the record at the plea hearing that Cecchini understood the nature of the charge prior to accepting his plea.

This court has held that in order for a guilty plea to meet constitutional, due process requirements, the defendant must knowingly and voluntarily, with full understanding of the consequences, waive his or her specifically stated constitutional rights. State v. Bartelt, 112 Wis.2d 467, 474-75, 478, 334 N.W.2d 91 (1983). Included among these rights are the right against self-incrimination, the right to confront witnesses and the right to cross-examine them. Id. at 475, 334 N.W.2d 91; Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). The defendant must [124 Wis.2d 205] also be informed about the potential punishment he or she faces upon conviction. Bartelt, 112 Wis.2d at 475, 334 N.W.2d 91.

This court, in accordance with the mandate of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), and Boykin, has also held that in accepting a guilty plea, the trial court must personally establish on the record that the defendant's plea was voluntarily and knowingly made. McAllister v. State, 54 Wis.2d 224, 230, 194 N.W.2d 639 (1972); Hatcher v. State, 83 Wis.2d 559, 563, 266 N.W.2d 320 (1978) (citing Ernst...

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