State v. Cecchini

Decision Date10 June 1985
Docket NumberNo. 84-615-CR,84-615-CR
Citation368 N.W.2d 830,124 Wis.2d 200
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Phillip CECCHINI, Defendant-Appellant.
CourtWisconsin Supreme Court

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.


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.

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.

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 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?

"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 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 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.

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 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 v. State, 43 Wis.2d 661, 170 N.W.2d 713 (1969). The Ernst court held that trial courts are required to do the following prior to accepting a plea of guilty or no contest:

" '1. To determine the extent of the defendant's education and general comprehension.

" '2. To establish the accused's understanding of the nature of the crime with which he is charged and the range of punishments which it carries.

" '3. To ascertain whether any promises or threats have been made to him in connection with his appearance, his refusal of counsel, and his proposed plea of guilty.

" '4. To alert the accused to the possibility that a lawyer may discover defenses or mitigating circumstances which would not be apparent to a layman such as the accused.

" '5. To make sure that the defendant understands that if a pauper, counsel will be provided at no expense to him.' " Id. at 674, 170 N.W.2d 713 (quoting State ex rel. Burnett v. Burke, 22 Wis.2d 486, 494, 126 N.W.2d 91 (1964)). (Emphasis added.)

Ernst adopted a sixth standard as mandated by Federal Rule of Criminal Procedure 11 and McCarthy which required trial courts to personally determine that a factual basis existed to support the plea. Ernst, 43 Wis.2d at 674, 170 N.W.2d 713. Portions of the Ernst standards have been codified in sec. 971.08, Stats., which provides in part:

"(1) Before the court accepts a plea of guilty or no contest, it shall:

"(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted; and

"(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged."

Section 971.08, was modeled after F.R.Cr.P. 11. See Sec. 971.08, Comment 1969.

A guilty plea may be withdrawn as a matter of right when the plea fails to meet the constitutional due process standard of a knowing and voluntary relinquishment of specifically stated constitutional rights. Bartelt, 112 Wis.2d at 474-75, 480, 334 N.W.2d 91. "Thus, the plea proceedings themselves must be constitutionally acceptable or the plea may be withdrawn as a matter of right." Id. at 480, 334 N.W.2d 91. The trial court's determination that a guilty plea may not be withdrawn as a matter of right because it was taken under constitutionally acceptable circumstances is a question of law which may be reviewed without deference to the circuit court. State v. Denter, 121 Wis.2d 118, 122, 357 N.W.2d 555 (1984).

In the instant case, the trial court denied Cecchini's postconviction motion to withdraw his plea of no contest despite its failure to have elicited any statement from the defendant regarding his understanding of the nature of the charge at the plea hearing. The court of appeals certified the issue in this case because of perceived uncertainties as to which portions of the record it was permitted to consider in determining whether the trial court properly denied the defendant's motion to withdraw his plea. In other words, the court of appeals was unsure as to how much of...

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