State v. Brown, No. 2003AP2662-CR.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtDavid T. Prosser
Citation716 N.W.2d 906,2006 WI 100
Docket NumberNo. 2003AP2662-CR.
Decision Date12 July 2006
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. James E. BROWN, Defendant-Appellant-Petitioner.

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716 N.W.2d 906
2006 WI 100
STATE of Wisconsin, Plaintiff-Respondent,
v.
James E. BROWN, Defendant-Appellant-Petitioner.
No. 2003AP2662-CR.
Supreme Court of Wisconsin.
Argued December 6, 2005.
Decided July 12, 2006.

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For the defendant-appellant-petitioner there were briefs and oral argument by Richard D. Martin, assistant state public defender.

For the plaintiff-respondent the cause was argued by William C. Wolford, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1 DAVID T. PROSSER, J.


This is a review of an unpublished court

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of appeals decision1 affirming the circuit court's denial of James Brown's (Brown) postconviction motion to withdraw his guilty pleas to three felony charges. Brown contends that he did not enter his guilty pleas knowingly, intelligently, and voluntarily. To support this claim, he points to the transcript of the plea hearing and alleges that the circuit court judge failed to follow some of the duties imposed by Wis. Stat. § 971.08 (2001-02)2 and State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986).

¶ 2 This review presents the question whether the circuit court erred by denying Brown's postconviction motion without an evidentiary hearing. A defendant is entitled to an evidentiary hearing on a motion to withdraw a guilty plea when (1) the defendant makes a prima facie showing that the circuit court's plea colloquy did not conform with § 971.08 or other procedures mandated at a plea hearing; and (2) the defendant alleges he did not know or understand the information that should have been provided at the plea hearing. State v. Hampton, 2004 WI 107, ¶ 46, 274 Wis.2d 379, 683 N.W.2d 14; Bangert, 131 Wis.2d at 274, 389 N.W.2d 12. In this case, the parties dispute whether Brown has met these two requirements.

¶ 3 First, Brown contends his guilty plea was not knowing, intelligent, and voluntary because the circuit court (1) failed to enumerate the elements of the charges to which he pleaded guilty; (2) failed to inform him of the constitutional rights he waived by pleading guilty; and (3) failed to adequately explain the potential punishment he faced.

¶ 4 Second, Brown alleges, somewhat indirectly, that he did not understand information that should have been presented at the plea hearing.

¶ 5 Based on the transcript of the plea hearing, we conclude Brown has made a prima facie showing that the circuit court did not fully comply with Wis. Stat. § 971.08 and Bangert. The circuit court did not satisfactorily enumerate, explain, or discuss the facts or elements of the three felonies in a manner that would establish for a reviewing court that Brown understood the nature of the charges to which he pleaded guilty. We further conclude that Brown adequately alleged that he did not understand the nature of the charges to which he pleaded guilty. Finally, we conclude that there were shortcomings with respect to Brown's apparent waiver of constitutional rights.

¶ 6 Accordingly, we reverse the court of appeals and remand to the circuit court for an evidentiary hearing at which the State will have an opportunity to present evidence that Brown understood the nature of the charges to which he pleaded guilty and understood the rights he gave up. See Hampton, 274 Wis.2d 379, ¶ 46, 683 N.W.2d 14. If the State cannot prove by clear and convincing evidence that Brown understood the nature of the charges and the constitutional rights he gave up, the circuit court shall grant Brown's motion to withdraw his guilty pleas.

I. FACTS AND PROCEDURAL HISTORY

¶ 7 The criminal complaint alleges that on July 19, 2001, Brown and two other

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males approached Steven Booth at a Milwaukee hotel where Booth worked. Brown and the other men robbed Booth at gunpoint and forced him into the hotel room where Booth lived with his girlfriend. Booth's girlfriend was sleeping in the room when the men entered. Once in the room, Brown and his friends rummaged through the victims' belongings, forced Booth into the bathroom, and each sexually assaulted Booth's girlfriend. Some of these allegations are in dispute.

¶ 8 The criminal complaint charged Brown with first-degree sexual assault by use or threat of use of a dangerous weapon,3 armed burglary,4 and armed robbery.5 Subsequently, the State filed an information that added a charge of kidnapping.6 On all four counts, Brown was named as party to the crime pursuant to Wis. Stat. § 939.05. All four counts were Class B felonies that carried maximum penalties of 60 years. Wis. Stat. § 939.50(3)(b).

¶ 9 At the time of these crimes, Brown was a 17-year-old high-school dropout. He had completed ninth grade but was illiterate and had been diagnosed with reading and mathematics disorders. At the sentencing hearing, Brown's attorney told the court: "Mr. Brown is not a slow reader. He's not a poor reader. He is a nonreader. He's as deficient in this regard as anybody I've ever represented in 20-some years."

¶ 10 At Brown's initial appearance, the court stated the three offenses with which Brown was originally charged and told Brown that each charge carried a maximum penalty of 60 years. In his next court appearance, Brown waived his right to a preliminary hearing. Neither the criminal complaint nor the information was ever read to Brown in court before the plea hearing.

¶ 11 After plea negotiations, Brown pleaded guilty, as a party to the crime, to first-degree sexual assault with a weapon, armed robbery with use of force, and kidnapping, at a hearing before Milwaukee County Circuit Judge Jeffrey Wagner.7 Because of Brown's illiteracy, no plea questionnaire and waiver of rights form was completed. Instead, Brown's attorney, Patrick Earle, advised the circuit court that the requirements for a valid guilty plea, including "the factual basis," would have to be done orally.

¶ 12 Despite this notice, the circuit court never addressed any of the elements of the crimes to which Brown pleaded guilty. The entire exchange between the circuit court and Brown concerning the nature of the charges was as follows:

THE COURT: But we need a signed Guilty Plea Questionnaire and Waiver of Rights form.

MR. EARLE: Okay.8

THE COURT: If I have one, then you can — I mean do you feel comfortable with what you've said to him and gone over the provisions that are contained in that form, right?

MR. EARLE: I've gone over every word.

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THE COURT: All right. Then he can sign the one that he's got.

MR. EARLE: I wasn't able to put all the elements of all three offenses on each one. I started to fill out one and decided I could do it orally with him. So I don't have three for him to sign, just this one. I would have to do three more.

THE COURT: But he understands those elements of the offenses?

MR. EARLE: Yes.

THE COURT: You've gone over those elements with him?

MR. EARLE: Yes.

THE COURT: Okay. Sir, do you understand what you're charged with, the charges against you? The first degree sexual assault while armed; is that correct?

THE DEFENDANT: Yeah.

THE COURT: And the armed robbery, party to a crime?

THE DEFENDANT: Yeah.

THE COURT: And the kidnapping, party to a crime?

THE DEFENDANT: Yeah.

THE COURT: You have read the Complaint or had it read to you?

THE DEFENDANT: Yeah.

THE COURT: So you understand it?

THE DEFENDANT: Yes.

....

THE COURT: You understand the charges to which you're pleading to?

THE DEFENDANT: Yeah.

....

THE COURT: And you've gone over the elements with your lawyer, right?

THE DEFENDANT: Yeah.

THE COURT: And, Counsel, you've gone over those elements specific with him as to each one of those counts?

MR. EARLE: Yes.

THE COURT: And he appeared to understand those elements the State would have to prove?

MR. EARLE: Yes.

¶ 13 After accepting Brown's guilty pleas, the circuit court added:

THE COURT: Now, you've gone over the concept of party to a crime with your lawyer, also, right?

THE DEFENDANT: Yeah.

THE COURT: You understand that also?

THE DEFENDANT: Yeah.

¶ 14 Next, the circuit court reviewed the constitutional rights Brown waived by pleading guilty, including the right to a trial; the right to a jury and a unanimous verdict; the right not to incriminate himself; the right to testify and present evidence; the right to subpoena witnesses; the right to confront witnesses; and the right to make the State prove the elements of each count beyond a reasonable doubt. Additionally, the circuit court explained that each charge carried a maximum sentence of 60 years.

¶ 15 Based on the colloquy, the circuit court accepted Brown's guilty pleas. At the subsequent sentencing hearing, Brown was sentenced to 25 years initial confinement and 25 years extended supervision by Circuit Judge M. Joseph Donald.9

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¶ 16 After sentencing, Brown timely filed a postconviction motion under Wis. Stat. § 809.30, seeking to withdraw his guilty pleas on the basis that the pleas were not knowing, intelligent, and voluntary. The motion alleged that the elements of the offenses were not recited or discussed, that the record failed to demonstrate Brown understood the elements of the charges or the constitutional rights he was waiving, and that the record lacked an accurate and complete recitation of the potential penalties or the possibility of consecutive sentences. The motion also alleged indirectly that Brown did not understand the information that should have been presented at the plea hearing.

¶ 17 Judge Wagner denied Brown's motion without an evidentiary hearing, finding that the plea colloquy met the requirements of both Wis. Stat. § 971.08 and Bangert. The court of appeals summarily affirmed, and we granted Brown's petition for review.

II. STANDARD OF REVIEW

¶ 18 When a defendant seeks to withdraw a guilty plea after sentencing, he must prove, by clear and convincing evidence, that...

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227 practice notes
  • State v. Cain, No. 2010AP1599–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2012
    ...defendant's plea was knowingly, intelligently, and voluntarily made. Cross, 326 Wis.2d 492, ¶ 16, 786 N.W.2d 64 (citing State v. Brown, 2006 WI 100, ¶ 25, 293 Wis.2d 594, 716 N.W.2d 906);see also Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In addition to......
  • State v. Kelty, No. 2003AP3055-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 12, 2006
    ...to challenge whether a plea is knowing, intelligent, and voluntary by pointing to errors in the plea colloquy pursuant to State v. Brown, 2006 WI 100, ___ Wis.2d ___, 716 N.W.2d 906, Page 889 WL 1899833 and State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986); (2) to claim the ineffective......
  • State v. Lopez, No. 2011AP2733–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 7, 2014
    ...has supplemented the plea requirements of Wis. Stat. § 971.08 and mandated an extensive, time-consuming plea colloquy, State v. Brown, 2006 WI 100, ¶ 35, 293 Wis.2d 594, 716 N.W.2d 906;State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986), to reinforce a defendant's understanding of the ci......
  • State v. Straszkowski, No. 2006AP-64-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 19, 2008
    ...a defendant is entitled to withdraw the plea as a matter of right because such a plea violates fundamental due process." State v. Brown, 2006 WI 100, ¶ 19, 293 Wis.2d 594, 716 N.W.2d 906 (citation and internal quotation marks 4. In the present case, the defendant does not assert that the pl......
  • Request a trial to view additional results
225 cases
  • State v. Cain, No. 2010AP1599–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2012
    ...defendant's plea was knowingly, intelligently, and voluntarily made. Cross, 326 Wis.2d 492, ¶ 16, 786 N.W.2d 64 (citing State v. Brown, 2006 WI 100, ¶ 25, 293 Wis.2d 594, 716 N.W.2d 906);see also Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In addition to......
  • State v. Kelty, No. 2003AP3055-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 12, 2006
    ...to challenge whether a plea is knowing, intelligent, and voluntary by pointing to errors in the plea colloquy pursuant to State v. Brown, 2006 WI 100, ___ Wis.2d ___, 716 N.W.2d 906, Page 889 WL 1899833 and State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986); (2) to claim the ineffective......
  • State v. Lopez, No. 2011AP2733–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 7, 2014
    ...has supplemented the plea requirements of Wis. Stat. § 971.08 and mandated an extensive, time-consuming plea colloquy, State v. Brown, 2006 WI 100, ¶ 35, 293 Wis.2d 594, 716 N.W.2d 906;State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986), to reinforce a defendant's understanding of the ci......
  • State v. Straszkowski, No. 2006AP-64-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 19, 2008
    ...a defendant is entitled to withdraw the plea as a matter of right because such a plea violates fundamental due process." State v. Brown, 2006 WI 100, ¶ 19, 293 Wis.2d 594, 716 N.W.2d 906 (citation and internal quotation marks 4. In the present case, the defendant does not assert that the pl......
  • Request a trial to view additional results

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