State v. Hansen, 91-2298-CR
| Decision Date | 29 April 1992 |
| Docket Number | No. 91-2298-CR,91-2298-CR |
| Citation | 485 N.W.2d 74,168 Wis.2d 749 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Daniel J. HANSEN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Keith A. Findley, Asst. State Public Defender.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen. and Maureen McGlynn Flanagan, Asst. Atty. Gen.
Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.
Daniel J. Hansen appeals from a judgment convicting him of attempted escape and an order denying his postconviction motion seeking to withdraw his no contest plea. The issue on appeal is whether Hansen established a prima facie showing that his plea hearing was inadequate. We conclude that Hansen met this burden. We reverse the postconviction order and remand for further proceedings.
The plea hearing was conducted before Reserve Judge Gilbert Geraghty. 1 On July 12, 1990, pursuant to a plea bargain, Hansen entered a no contest plea to a charge of attempted escape from the Racine county jail. At that time, Hansen, who was represented by Attorney Eric Guttenberg, provided the trial court with a signed "Guilty/No Contest Plea Questionnaire and Waiver of Rights" form. See State v. Moederndorfer, 141 Wis.2d 823, 416 N.W.2d 627 (Ct.App.1987). Attorney Guttenberg had also signed the form.
Judge Geraghty conducted the following colloquy with Hansen concerning the plea:
Judge Geraghty then found Hansen guilty of the charge and ordered a presentence report.
Postconviction, Hansen sought to withdraw his no contest plea. These proceedings were conducted before the Hon. Gerald P. Ptacek. At the postconviction hearing, based upon the transcript of the plea hearing before Judge Geraghty, Hansen asked the trial court to rule that he had met his prima facie burden to show that his plea was not taken in accord with State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986), and sec. 971.08, Stats. The court ruled that Hansen had not made such a showing. The hearing continued and, at its conclusion, Judge Ptacek denied Hansen's motion. Hansen appeals.
The state first argues that Hansen is collaterally estopped from raising his claim that he did not understand the constitutional rights he was waiving. The state bases this argument upon our decision in a previous case involving Hansen. 2 In that case, we rejected a similar claim related to a different charge to which Hansen had pled no contest one week earlier, July 5, 1990.
We reject the state's collateral estoppel argument. Collateral estoppel applies "where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged." State ex rel. Flowers v. DHSS, 81 Wis.2d 376, 387, 260 N.W.2d 727, 734 (1978) (emphasis in original; citation omitted). Here, we deal with a different plea hearing than that which we reviewed in the previous appeal. Even assuming that the substance of the plea colloquies in the two cases are similar, the nuances and dynamics of the personal exchanges between the judge and the defendant on the different dates might have varied. In addition, despite any superficial similarity, the physical and mental conditions of the defendant in the separate proceedings might also have differed. Finally, the state points to no case where the doctrine of collateral estoppel has been invoked against a criminal defendant to preclude postconviction relief. 3
We thus move to the merits of Hansen's contention that the plea hearing was inadequate. Section 971.08(1), Stats., requires the trial court at a plea hearing to undertake a personal colloquy with the defendant to assure, inter alia, that the plea is voluntarily and knowingly made. 4 See also Bangert, 131 Wis.2d at 270-72, 389 N.W.2d at 24-25. This function can be performed by a detailed colloquy between the defendant and the judge, or by referring to some portion of the record or communication between the defendant and his lawyer which exhibits the defendant's knowledge of the rights he or she relinquishes. See id. at 274-75, 389 N.W.2d at 26.
Where a defendant makes a prima facie showing that his plea was accepted without compliance with the procedures set out in Bangert and sec. 971.08, Stats., and where such defendant further alleges that he did not know or understand the information which should have been provided at the plea hearing, the burden shifts to the state to show by clear and convincing evidence that the plea was knowingly and voluntarily entered. 5 Moederndorfer, 141 Wis.2d at 830, 416 N.W.2d at 630-31. 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. Id. at 831, 416 N.W.2d at 631.
Here, Judge Geraghty's personal colloquy with Hansen did not include any discussion as to the constitutional rights which Hansen was waiving. Instead, the colloquy was limited to whether Hansen had gone over the Moederndorfer form with his attorney before he signed it and whether Hansen understood the form. We conclude that such limited personal colloquy is not the substantive kind of personal exchange between the trial court and the defendant which Bangert, sec. 971.08, Stats., and Moederndorfer require.
While our approval of the Moederndorfer form certainly lessened the extent and degree of the colloquy otherwise required between the trial court and the defendant, it was not intended to eliminate the need for the court to make a record demonstrating the defendant's understanding that the plea results in the waiver of the applicable constitutional rights. The record made in Moederndorfer is demonstrative. Although the personal colloquy there was also brief, it nonetheless established the defendant's understanding that, by entering the plea, he was giving up the rights detailed in the form. Moederndorfer, 141 Wis.2d at...
To continue reading
Request your trial
-
State v. Cajujuan Pegeese
...courts are not to rely entirely on the form in a plea colloquy. Nearly five years after Moederndorfer, in State v. Hansen, 168 Wis. 2d 749, 755–56, 485 N.W.2d 74 (Ct. App. 1992), the court of appeals concluded that the circuit court's complete reliance on a plea questionnaire and waiver of ......
-
State v. Hoppe
...is completely silent on these matters. ¶ 35 Our view of the plea colloquy in the present case comports with State v. Hansen, 168 Wis.2d 749, 485 N.W.2d 74 (Ct. App.1992). ¶ 36 In Hansen, the circuit court conducted a colloquy with Hansen that proceeded in relevant part as THE COURT: Mr. Han......
-
State v. Hampton, 01-0509-CR.
...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 evi......
-
State v. Gray, 97-1754-CR
...have established a prima facie showing that the proper procedures were not followed at his plea hearing. See State v. Hansen, 168 Wis.2d 749, 756, 485 N.W.2d 74, 77 (Ct.App.1992). However, Gray only suggests that he did not understand the intent to harm element--a nonexistent element of the......
-
Plea colloquy found inadequate by the Wisconsin Supreme Court.
...said. It said this analysis was consistent with a prior Court of Appeals' opinion finding a plea colloquy inadequate. (State v. Hansen, 168 Wis.2d 749, 485 N.W.2d 74 (Ct. App.1992).) The colloquy in the present case was longer than in Hansen, but the court still found it to be lacking in As......