State v. Bangert, No. 85-1179-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCECI; Bangert's counsel and Zemke informed Judge Cirilli at the plea hearing that Bangert's plea was pursuant to the plea agreement. Immediately after counsel explained the general provisions of the plea agreement, Judge Cirilli undertook a perfuncto
Citation131 Wis.2d 246,389 N.W.2d 12
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Christian R. BANGERT, Defendant-Appellant.
Decision Date24 June 1986
Docket NumberNo. 85-1179-CR

Page 12

389 N.W.2d 12
131 Wis.2d 246
STATE of Wisconsin, Plaintiff-Respondent,
v.
Christian R. BANGERT, Defendant-Appellant.
No. 85-1179-CR.
Supreme Court of Wisconsin.
Argued April 30, 1986.
Opinion Filed June 24, 1986.

Page 16

[131 Wis.2d 250] John E. Tradewell, Asst. State Public Defender, for defendant-appellant.

Daniel J. O'Brien, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

CECI, Justice.

This is a review of an order of the circuit court for Eau Claire county, issued by Arthur A. Cirilli, presiding circuit judge, dated May 28, 1985, which denied the defendant's postconviction motion[131 Wis.2d 251] to withdraw the defendant's plea of no contest to second-degree murder. We granted the state's petition to bypass the court of appeals, pursuant to section 808.05(1), Stats. Because we find no error in the order denying the motion to withdraw, we affirm the decision of the circuit court.

Robert Bolton was a City of Eau Claire police officer. During the early morning hours of October 6, 1982, Officer Bolton was murdered. The defendant, Christian R. Bangert, was charged with one count of first-degree murder, contrary to section 940.01, Stats., in the shooting death of Officer Bolton. He was later charged with an additional count of endangering safety by conduct regardless of life, contrary to section 941.30.

The defendant raises several issues on review, foremost of which is whether he should be allowed as a matter of right to withdraw his no contest plea because the plea hearing record is insufficient to show that he understood the nature of the charge and because the plea colloquy itself was facially insufficient. He also claims that he should be entitled to withdraw his plea because of the state's alleged breaches of the plea bargain agreement. Lastly, he alleges that the circuit court erred by ordering a second change of place of trial, in apparent violation of section 971.22(3), Stats., which generally prohibits a second change of place for a trial and limits the right to move for a change of venue to the defendant.

We hold that although the no contest plea colloquy was insufficient to ascertain the defendant's understanding of the nature of the charges against him, the totality of the circumstances, including the record made at the postconviction hearing on the motion to withdraw, establishes that Bangert's plea of no contest [131 Wis.2d 252] was knowingly, voluntarily, and intelligently entered. Because we adopt a new remedy for prima facie violations of statutorily and judicially mandated plea hearing procedures, we overrule that part of our decision in State v. Cecchini, 124 Wis.2d 200, 211, 368 N.W.2d 830 (1985), which restricted a trial court's review of a defendant's understanding of the nature of a charge to the plea hearing transcript. We also hold that any breaches of the plea bargain agreement by the state were neither material nor significant; the defendant, therefore, is not entitled to withdraw his plea on those grounds. Finally, we hold that the defendant waived any defect in the venue proceedings by virtue of his no contest plea. Even without the effect of the waiver rule, the circuit court committed no error.

Page 17

On December 8, 1982, after he was charged with first-degree murder and endangering safety, Bangert moved the circuit court pursuant to section 971.22, Stats., to change the venue of his trial. The circuit court granted the motion and ordered the trial moved from Eau Claire county to Douglas county. On April 21, 1983, the state moved the circuit court for an order to return the trial to Eau Claire county, based in part on the manpower shortage which the trial would create within the Eau Claire Police Department if the trial were conducted in Douglas county. The defendant opposed the motion. Nevertheless, the circuit court ordered that the trial be returned to Eau Claire county. It contemporaneously ordered, pursuant to section 971.225, that a jury be selected in Douglas county and sequestered for the duration of defendant's trial in Eau Claire.

The charges were never tried to a jury. Bangert pleaded no contest to the reduced charge of second-[131 Wis.2d 253] degree murder on May 25, 1983; the endangering safety charge was dismissed in consideration of his plea.

Bangert's no contest plea arose out of an agreement between the state and Bangert. The agreement was expressed in a letter from Bangert's defense counsel to then Eau Claire County District Attorney Rodney Zemke. The agreement included a provision whereby "you would not directly or indirectly mention the word maximum" in connection with the sentencing recommendation for Bangert. The letter also included the following provision: "[Y]ou are agreeing as to the future not to oppose any parole requests from Mr. Bangert."

Bangert's counsel and Zemke informed Judge Cirilli at the plea hearing that Bangert's plea was pursuant to the plea agreement. Immediately after counsel explained the general provisions of the plea agreement, Judge Cirilli undertook a perfunctory colloquy with the defendant in order to ascertain that the defendant understood that he was pleading no contest to a charge of second-degree murder and that the defendant was so pleading without any threats or promises. After Bangert's counsel affirmed that he had advised Bangert of the constitutional rights which Bangert was waiving, Judge Cirilli accepted Bangert's plea. On July 13, 1983, the circuit court sentenced Bangert to a maximum term of twenty years in prison. The record does not disclose that the trial court ever discussed the nature of the charge with the defendant.

On April 9, 1984, Bangert filed a postconviction motion to withdraw his no contest plea, pursuant to [131 Wis.2d 254] sections 974.02 and 809.30, Stats. 1 The circuit court denied the motion without a hearing. The court of appeals reversed and ordered the circuit court to hold an evidentiary hearing on the motion to withdraw.

An evidentiary hearing was held on February 12, 1985. The circuit court thereafter made findings of fact and conclusions of law. Among the conclusions were that the state did not materially breach the provisions of the plea agreement to the detriment of the defendant and that the defendant knowingly, voluntarily, and intelligently entered his no contest plea at the time of the plea hearing. The court concluded that the entire record demonstrated that the defendant was aware of his constitutional rights at the time the plea was entered, and, therefore, he knowingly and voluntarily waived them. On May 28, 1985, the circuit court denied the defendant's motion to withdraw his no contest plea.

Page 18

[131 Wis.2d 255] I.

Bangert does not expressly assert that his no contest plea was unknowingly, involuntarily, or unintelligently made or that he did not understand the nature of the charge at the time he entered his no contest plea. Rather, he argues that the colloquy conducted by the trial court at the plea hearing was constitutionally insufficient to ascertain his understanding of the nature of the charge and his knowledge of which constitutional rights he was waiving. He also submits that, pursuant to State v. Cecchini, 124 Wis.2d 200, 368 N.W.2d 830 (1985), and McAllister v. State, 54 Wis.2d 224, 194 N.W.2d 639 (1972), the circuit court in considering a motion to withdraw a plea is limited to reviewing the plea hearing record in ascertaining the voluntariness of a defendant's plea. The circuit court erred, he concludes, when it reviewed the totality of the record to determine the voluntariness of Bangert's plea.

The state responds that the Federal Constitution does not mandate any particular procedures on state courts to ensure that a plea is made voluntarily, with understanding of the nature of the charge. Rather, the procedures that a state court should follow in accepting a guilty or no contest plea are governed by section 971.08, Stats., or by rules enunciated by this court pursuant to this court's supervisory powers over lower state courts. The state asks us to reformulate the foundation of the law of this jurisdiction with respect to the taking of guilty or no contest pleas, dating from Ernst v. State, 43 Wis.2d 661, 170 N.W.2d 713 (1969), through State v. Minniecheske, 127 Wis.2d 234, 378 N.W.2d 283 (1985). Specifically, the state urges us to modify the holding of Cecchini which states that a trial court violates[131 Wis.2d 256] a defendant's right to due process when it fails to ascertain the defendant's understanding of the nature of the charge on the record at the plea hearing. Cecchini, 124 Wis.2d at 201, 368 N.W.2d 830.

A. Constitutional Standard and Statutory Procedure

We begin our analysis by noting that the law concerning the acceptance of guilty or no contest pleas relates to two different points in the plea-taking process: the initial plea hearing and, when applicable, the postconviction motion to withdraw. The law relating to such matters may be discussed in terms of what the Constitution requires, what relevant statutes require, and what additional rules may be necessary to ensure that a plea is voluntarily and intelligently made.

In Cecchini, that defendant brought a section 974.06 motion to withdraw his no contest plea on the claim that he did not understand the elements of the crime at the time the plea was accepted. We reiterated at that time that " 'the plea proceedings themselves must be constitutionally acceptable or the plea may be withdrawn as a matter of right.' " Cecchini, 124 Wis.2d at 206, 368 N.W.2d 830 (quoting State v. Bartelt, 112 Wis.2d 467, 480, 334 N.W.2d 91 (1983)). Implicit in that statement is the conclusion that the procedures used to accept a guilty or no contest plea are themselves constitutionally mandated. E.g., Bartelt, 112 Wis.2d at 480, 334 N.W.2d 91 ("[T]he plea proceedings themselves must be constitutionally acceptable or the plea may be...

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1131 practice notes
  • State v. Romero-Georgana, No. 2012AP55.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 23, 2014
    ...his claims earlier, we say that because we can see no other reason for failing to bring the present claim earlier. 11.State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). 12. Although our analysis in this section focuses on the sufficiency of the underlying ineffective assistance of coun......
  • State v. Cain, No. 2010AP1599–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2012
    ...except in situations where those findings are contrary to the great weight and clear preponderance of the evidence. State v. Bangert, 131 Wis.2d 246, 283–84, 389 N.W.2d 12 (1986) (citing State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457 (1984)). Therefore, “we must ensure that the circuit......
  • State v. Balliette, No. 2009AP472.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 19, 2011
    ...an allegedly defective plea colloquy in which a motion homes in on the court transcript. Id., ¶¶ 50–65. See also State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). ¶ 55 In a Bangert-type case, the defendant points to a specific deficiency in the plea colloquy and asserts that he lacked......
  • State v. Gordon, No. 01-1679-CR.
    • United States
    • Wisconsin Supreme Court
    • June 27, 2003
    ...a reasonable doubt.") (citations omitted). 37. Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (citations omitted). 38. State v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986) (citing Boykin v. Alabama, 395 U.S. 238, 242 39. See, e.g., Boykin, 395 U.S. at 242-43 (extending Carnley v. Cochr......
  • Request a trial to view additional results
1131 cases
  • State v. Romero-Georgana, No. 2012AP55.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 23, 2014
    ...his claims earlier, we say that because we can see no other reason for failing to bring the present claim earlier. 11.State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). 12. Although our analysis in this section focuses on the sufficiency of the underlying ineffective assistance of coun......
  • State v. Cain, No. 2010AP1599–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2012
    ...except in situations where those findings are contrary to the great weight and clear preponderance of the evidence. State v. Bangert, 131 Wis.2d 246, 283–84, 389 N.W.2d 12 (1986) (citing State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457 (1984)). Therefore, “we must ensure that the circuit......
  • State v. Balliette, No. 2009AP472.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 19, 2011
    ...an allegedly defective plea colloquy in which a motion homes in on the court transcript. Id., ¶¶ 50–65. See also State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). ¶ 55 In a Bangert-type case, the defendant points to a specific deficiency in the plea colloquy and asserts that he lacked......
  • State v. Gordon, No. 01-1679-CR.
    • United States
    • Wisconsin Supreme Court
    • June 27, 2003
    ...a reasonable doubt.") (citations omitted). 37. Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (citations omitted). 38. State v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986) (citing Boykin v. Alabama, 395 U.S. 238, 242 39. See, e.g., Boykin, 395 U.S. at 242-43 (extending Carnley v. Cochr......
  • Request a trial to view additional results

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