State v. Hampton, 01-0509-CR.

• Decision Date: 27 November 2002
• Docket Number: No. 01-0509-CR.,01-0509-CR.
• Citation: 655 N.W.2d 131,259 Wis.2d 455,2002 WI App 293
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Corey J. HAMPTON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

259 Wis.2d 455

2002 WI App 293

655 N.W.2d 131

STATE of Wisconsin, Plaintiff-Respondent,¹ v. Corey J. HAMPTON, Defendant-Appellant.

No. 01-0509-CR.

Court of Appeals of Wisconsin.

Submitted on briefs September 12, 2001.

Decided November 27, 2002.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Melinda A. Swartz, assistant state public defender of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joanne F. Kloppenburg, assistant attorney general, and James E. Doyle, attorney general.

Before Dykman, Roggensack and Lundsten, JJ.

¶ 1. LUNDSTEN, J.

Corey Hampton appeals orders denying his motion for plea withdrawal. Hampton contends his plea colloquy was defective because the circuit court failed to personally inform him that the court was not bound by the terms of a plea agreement. Hampton asserts he made a prima facie showing under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and was entitled to an evidentiary hearing on his plea withdrawal motion. He contends the circuit court improperly denied that motion without an evidentiary hearing. We conclude that Hampton made a prima facie showing and that his motion should not have been denied without an evidentiary hearing. We reverse and remand for further proceedings.

Background

¶ 2. Corey Hampton was charged with second-degree sexual assault of a child. Among other things, it was alleged that Hampton penetrated his fifteen-year-old cousin's vagina with his finger and had oral contact with her vagina. This charge carried a potential prison term of twenty years. See WIS. STAT. §§ 939.50(3)(bc) and 948.02(2) (1997-98).² Hampton entered an Alford plea pursuant to an agreement in which the State agreed (1) to recommend an imposed and stayed prison term of seven years, and (2) to recommend seven years' probation with nine to twelve months' jail time as a condition.

¶ 3. Hampton is an educated man. He has completed six years of education at "UW-M" and has two college degrees. Prior to the plea hearing, Hampton's attorney reviewed a two-page plea questionnaire with Hampton. Item ten on that questionnaire states:

I understand that the Judge is not bound to follow any plea agreement or any recommendation made by the District Attorney, my attorney, or any presentence report. I understand that the Judge is free to sentence me to the following . . . maximum possible penalties in this case.

Immediately below this language the questionnaire identifies Hampton's crime and states: "Years: 20" and "Fine: $10,000."

¶ 4. Item fifteen of the plea questionnaire states: "I have read (or have had read to me) this entire questionnaire, and I understand its contents." Item fifteen is followed by a handwritten date and Hampton's signature. In response to questions from the circuit court, Hampton agreed that his counsel read the information in the plea questionnaire to him and that he, Hampton, signed both sides of the form. Hampton's trial counsel signed the questionnaire, attesting that "the defendant acknowledged his understanding of each item in this questionnaire." Although the circuit court engaged in a lengthy plea colloquy, the court did not in any manner personally tell Hampton that it was not bound by the plea agreement.

¶ 5. At Hampton's later sentencing hearing, the circuit court rejected the State's recommended disposition. The court placed Hampton on probation and ordered twelve months' jail time as a condition, in keeping with the agreement. However, instead of an imposed and stayed seven-year prison term, as recommended by the State pursuant to the plea agreement, the court imposed and stayed a twelve-year term. Also, the probationary period imposed was twelve years, rather than the recommended seven-year period.

¶ 6. Hampton later filed a plea withdrawal motion asserting that the circuit court failed to personally advise him it was not bound by the plea agreement sentencing recommendation. The motion also asserted that Hampton did not, at the time of his plea, understand that the court was not bound by the plea agreement sentencing recommendation. Hampton requested an evidentiary hearing to resolve any factual dispute raised by his motion. The circuit court denied the motion without an evidentiary hearing.³

Discussion

¶ 7. The instant case involves an exemplary plea colloquy, with one exception: the circuit court failed to personally inform Hampton that it was not bound by the terms of the negotiated plea agreement. Hampton contends that under State ex rel. White v. Gray, 57 Wis. 2d 17, 203 N.W.2d 638 (1973), and the procedure set forth in Bangert, 131 Wis. 2d 246, this omission was error. Hampton asserts he made a prima facie showing under Bangert, because he alleged the error and also alleged he did not understand that the circuit court was not bound by the plea agreement. Hampton contends that once he made this prima facie showing, he was entitled to an evidentiary hearing. He asserts the circuit court improperly denied his plea withdrawal motion without a hearing. We conclude that Hampton made a prima facie showing and that he was entitled to an evidentiary hearing on his motion.

A. Whether Hampton Made a Prima Facie Showing

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¶ 8. Under the burden-shifting framework set forth in Bangert, defendants must make a prima facie showing that their guilty or no contest pleas were accepted without compliance with WIS. STAT. § 971.08 or another court-mandated duty. Such defendants must also allege that they did not know or understand the information at issue. Bangert, 131 Wis. 2d at 274. Whether a defendant has established a prima facie case presents a question of law, which we review without deference to the trial court's determination. State v. Hansen, 168 Wis. 2d 749, 754-55, 485 N.W.2d 74 (Ct. App. 1992). If a defendant makes this initial showing, the burden shifts to the State to show by clear and convincing evidence that the plea was knowingly and voluntarily entered. Bangert, 131 Wis. 2d at 274-75.

¶ 9. Neither Bangert nor WIS. STAT. § 971.08 says that a court must personally inform a defendant entering a plea that the court is not bound by the terms of a plea agreement. Nonetheless, this task was judicially mandated in Gray, a seminal Wisconsin case requiring that plea agreements be put on the record. In Gray, the court adopted language in the ABA STANDARDS RELATING TO PLEAS OF GUILTY, stating: "`If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court.'" Gray, 57 Wis. 2d at 24 (quoting ABA STANDARDS RELATING TO PLEAS OF GUILTY, Approved Draft 1968, § 1.5, at 29 (emphasis added)).

¶ 10. It can be argued that because the Gray "personally inform" requirement is a duty neither imposed by WIS. STAT. § 971.08, nor expressly imposed by Bangert, the failure to comply with Gray does not fall under the Bangert methodology. The proposition is debatable, but ultimately unpersuasive.

¶ 11. In Bangert, the supreme court states: "Nor do we discard the general duties of the trial court prior to accepting a plea of guilty or no contest." Bangert, 131 Wis. 2d at 261. The court goes on to say "[t]hose duties are" and then lists duties found in Ernst v. State, 43 Wis. 2d 661, 674, 170 N.W.2d 713 (1969). Bangert, 131 Wis. 2d at 261-62. Later, the Bangert court specifies requirements: "(a) the procedures set forth in sec. 971.08(1); (b) the additional procedures which we now make mandatory; and (c) those procedures already enumerated and mandated in Ernst." Id. at 272-73. Because the Bangert decision lists required duties and does not mention the Gray requirement, the question arises whether the supreme court intended to abandon the Gray requirement. We conclude the answer is no because the supreme court has reiterated the Gray requirement in at least two post-Bangert decisions: State v. McQuay, 154 Wis. 2d 116, 128, 452 N.W.2d 377 (1990) ("[W]hen a plea agreement contemplates charge or sentence concessions which must be approved by the court, the court must personally advise the defendant that the agreement is in no way binding on the court." (Emphasis added.)), and State v. Comstock, 168 Wis. 2d 915, 928 n.11, 485 N.W.2d 354 (1992) ("The court must personally advise the defendant that the [plea] agreement is in no way binding on the court." (Emphasis added.)). Accordingly, we conclude that circuit courts must personally inform defendants that courts are not bound by plea agreement terms, and further conclude that this requirement is subject to review under the Bangert analysis.

¶ 12. It appears the State agrees with the general notion that the Gray requirement survives and is enforced by Bangert. In the context of discussing Bangert requirements, the State's brief says: "The Wisconsin Supreme Court has imposed additional duties on the court, including [duties specified in Bangert and] that the [plea] agreement is not binding on the court." As support for this legal proposition the State cites to Bangert and that part of McQuay which relies on Gray. See McQuay, 154 Wis. 2d at 128.

¶ 13. What the State does dispute is whether a court must personally inform a defendant that it is not bound by the terms of a plea agreement. However, the State's view that a court need not personally provide this information runs contrary to the plain language of Gray, McQuay, and Comstock. Each of these cases unambiguously specifies that a court must "personally" provide this information.

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¶ 14. We observe that the requirement that courts "personally" provide the information at issue here stands in contrast to other plea colloquy duties which specify that courts must "personally" make a determination or make an inquiry. E.g., Bangert, 131 Wis. 2d at 262 ("personally ascertain whether a factual basis exists to...