Dudrey v. State, 75--358--CR

• Decision Date: 30 November 1976
• Docket Number: No. 75--358--CR,75--358--CR
• Citation: 74 Wis.2d 480,247 N.W.2d 105
• Parties: John DUDREY, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 105

247 N.W.2d 105

74 Wis.2d 480

John DUDREY, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75--358--CR.

Supreme Court of Wisconsin.

Submitted on briefs Nov. 5, 1976.

Decided Nov. 30, 1976.

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.

Bronson, C. La Follette, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., for defendant in error.

HANLEY, Justice.

The sole issue on this appeal is whether the trial judge abused his discretion in denying defendant's motion to withdraw the guilty plea.

The withdrawal of guilty pleas before the imposition of sentence has been most recently considered by this court in State v. McKnight, 65 Wis.2d 582, 223 N.W.2d 550 (1974), and Libke v. State, 60 Wis.2d 121, 208 N.W.2d 331 (1973). In those cases the court applied the legal standard found in sec. 2.1(b) of the American Bar Association, Standards Relating to Pleas of Guilty (approved draft 1968). Under this standard, leave to withdraw a guilty plea should be freely granted prior to sentencing where there is a fair and just reason for doing so presented by the defendant. This court has also emphasized, however, that the withdrawal of a guilty plea is not an absolute right, but is a determination addressed to the sound discretion of the trial court and will be reversed only for an abuse of that discretion. State v. McKnight, supra, 65 Wis.2d at 592--93, 223 N.W.2d at 556.

This rule for withdrawal of a guilty plea prior to sentencing is, of course, contrasted with the rule for post-sentence withdrawal where the defendant must show the withdrawal is necessary to correct a manifest injustice. State v. Reppin, 35 Wis.2d 377, 151 N.W.2d 9 (1967).

In the instant case, defendant claims he misunderstood the plea bargain and that this is a fair and just reason for withdrawal of his plea. He further argues the trial court did not apply the correct standard to his motion. Upon these claims, defendant contends that the trial court abused its discretion in denying his motion for withdrawal of the guilty plea. We do not agree.

First, as to whether the correct standard was applied, the trial court denied defendant's motion for withdrawal upon a finding that 'the defendant fully understood the nature of the negotiated plea and the nature of the proceedings at that time.' Rather than an application of an incorrect standard, this language indicates the trial court's disbelief in the claim that he misunderstood the plea bargain. The trial court obviously disbelieved defendant's contention, and in effect found that no reason was offered for withdrawal of the guilty plea. Thus, the record does not show the trial court applied an incorrect standard in denying defendant's motion.

On the basis of this record, we find the trial judge did not abuse his discretion by finding that defendant understood the plea negotiation at the time he entered his guilty plea. The discussions at the time the plea was entered are not ambiguous as to where the defendant's two year sentence was to be served. Immediately prior to the entry of the guilty plea the following discussion took place:

'MR. TILL (Defense Counsel): May it please the Court, we are pleading guilty based on the plea negotiations of the District Attorney's office.

'MR. CIRILLI (District Attorney): The negotiated plea was that in the event Mr. Dudrey is brought back for sentencing that the State will recommend not more than two years imprisonment, and that the sentence will run concurrent with any parole and probation revocations.

'THE COURT: Any sentence?

'MR. CIRILLI: Yes.

'THE COURT: Other than parole?

'MR. CIRILLI: Your Honor, the defendant is presently on parole, or on supervision to the Department of Probation and Parole. Now, of course, while on their supervision, if he violates the law they have the right to revoke the supervision, and my recommendation is two years in Waupun, that that run concurrent with any sentence that is imposed.

'THE COURT: Is that you understanding?

'DEFENDANT: That is my understanding.'

The trial court then proceeded to examine the defendant as mandated by this court in Ernst v. State, 43 Wis.2d 661, 170 N.W.2d 713 (1969). During the examination the trial judge inquired of the defendant:

'Q. What is your understanding, now, as to the negotiated plea made by your attorney with the District Attorney? What's the District Attorney going to recommend, as far as you are concerned, on your plea of guilty?

'A. That my two years would run concurrent with the Department of Parole.

'Q. That is if you are sentenced to the State Prison, right?

'A. Yes.'

The record of this examination also makes clear defendant understood that the negotiations had no effect upon potential confinement at Central State Hospital for treatment under the Sex Crimes Act. The trial judge explained completely the procedure for this type of commitment and informed defendant that such a commitment could perhaps be extended for his entire life. Defendant assured the court that he understood the nature of this commitment. Defendant's counsel further stated he believed defendant understood the nature and implications of his plea of guilty.

The district attorney then presented the factual basis for the plea, and defendant stated he agreed with the facts so presented. The plea was accepted, and defendant was committed for a presentence examination under the Sex Crimes Act.

Defendant's testimony at the hearing on the motion for withdrawal of the guilty plea does not amount to more than an assertion that he misunderstood the plea bargain. Although a misunderstanding of the consequences of a guilty plea is a ground for withdrawal, it must...