State v. Van Camp

Citation213 Wis.2d 131,569 N.W.2d 577
Decision Date23 October 1997
Docket NumberNos. 96-0600-C,96-1509-CR,s. 96-0600-C
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Gerald J. VAN CAMP, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there were briefs by Robert R. Henak and Shellow, Shellow & Glynn, S.C., Milwaukee and oral argument by Robert R. Henak.

For the plaintiff-respondent the cause was argued by Maureen McGlynn Flanagan, Assistant Attorney General, with whom on the brief was James E. Doyle, Assistant Attorney General.

¶1 DONALD W. STEINMETZ, Justice

The issues in this case are: (1) whether the State established by clear and convincing evidence that the defendant's no contest plea was voluntarily, knowingly, and intelligently entered; and (2) whether the circuit court's prediction as to the probable outcome upon trial and its concern for the victim's feelings are relevant considerations in determining whether withdrawal of a no contest plea is required under State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986).

¶2 This is a review of an unpublished decision of the court of appeals, State v. Van Camp, Nos. 96-0600-CR & 96-1509-CR, unpublished slip op., 1996 WL 688886 (Wis.Ct.App. Dec. 3, 1996) which affirmed the Circuit Court for Eau Claire County, Eric J. Wahl, Judge, denying Van Camp's motion for postconviction relief under Wis. Stat. § 974.06 (1995-96). 1 We reverse and remand the case to the trial court with the direction that Van Camp be permitted to withdraw his plea of no contest.

¶3 On September 7, 1994, the State filed a criminal complaint charging one count of kidnapping as party to a crime against Gerald Van Camp, a man 62 years old, with a fourth-grade education, an IQ of 84, and no prior arrests. The charge was based upon the claim that Van Camp and a friend drove to the Eau Claire home of Ronald Geurts and forced him to accompany them in Van Camp's automobile for approximately three hours of abuse, all under the mistaken belief that Geurts was seeing Van Camp's ex-girlfriend.

¶4 The State filed an information reflecting this charge and subsequently amended it adding one count of false imprisonment in violation of Wis. Stats. § 940.30. 2 Van Camp initially pled not guilty to both charges, and the matter was set for a two-day trial to commence on April 18, 1995.

¶5 On the first day of trial, the State presented its entire case. After the jury left for the day, the prosecutor presented to Van Camp's defense counsel, Attorney Owen R. Williams, an offer for a plea agreement. Attorney Williams agreed to recommend the State's offer to his client.

¶6 The next morning counsel for both parties informed the court that they had reached an agreement. Attorney Williams explained to the court that Van Camp had agreed to enter a plea of no contest to the false imprisonment count and that the State agreed to dismiss the kidnapping count. Both parties agreed that the kidnapping charge would be read in for purposes of sentencing.

¶7 After a brief colloquy, during which the court determined that Van Camp in fact said he would plead no contest to false imprisonment, that no threats or promises were made, and that he understood that the court could impose "the maximum sentence," the court accepted Van Camp's plea. After the prosecutor noted "some ... reticence" on the part of Van Camp, the court also discussed the necessary elements and factual basis for the plea.

¶8 The court withheld sentence and placed Van Camp on probation for a period of three years, with the condition that he serve nine months jail time with Huber privileges for work and counseling.

¶9 By timely motion, Van Camp sought to withdraw his no contest plea on the grounds of manifest injustice and as a matter of right on the grounds that the plea was not freely, voluntarily and knowingly entered. He also sought to withdraw that plea as the result of ineffective assistance of trial counsel. 3 Following an evidentiary hearing, the circuit court denied the motion.

¶10 At the postconviction hearing, the prosecutor conceded that the plea colloquy was inadequate, and that Van Camp had made a prima facie case under State v. Bangert. The State then called defendant's counsel, Attorney Williams, to testify in an attempt to show that Van Camp voluntarily, knowingly, and intelligently entered his plea.

¶11 Attorney Williams testified that Van Camp initially declined the State's offer, but that he eventually was able to overcome his client's reluctance to plead. Attorney Williams testified that he did not recall discussing Van Camp's constitutional rights with Van Camp at the time of the plea, nor did he go through a guilty plea questionnaire and waiver of rights form with Van Camp. He claimed, however, to have gone through a litany of rights with Van Camp when they first met some seven months prior to the plea.

¶12 The court stated in conclusory terms its belief that "Mr. Van Camp entered his plea knowingly and voluntarily" and that "the Bangert test was met." The court explained that this did not constitute a finding that Van Camp knew any particular fact or right, but rather, that he generally knew what he was doing. The trial judge stated, "That does not mean that he necessarily understood every nuance of what this all meant or that what exactly a read-in could do or how that would reflect, but overall, he entered it knowingly and voluntarily."

¶13 The question of whether a defendant may withdraw a plea is ordinarily for the discretion of the trial court. See State v. Rock, 92 Wis.2d 554, 559, 285 N.W.2d 739 (1979). We will not disturb the trial court's decision unless it has erroneously exercised its discretion. See id. When a defendant establishes a denial of a relevant constitutional right, however, withdrawal of the plea is a matter of right. See Bangert, 131 Wis.2d at 283, 389 N.W.2d 12; State v. Bartelt, 112 Wis.2d 467, 480, 334 N.W.2d 91 (1983). The trial court reviewing the motion to withdraw in such instance has no discretion in the matter. See Bangert, 131 Wis.2d at 283, 389 N.W.2d 12 (citing Rock, 92 Wis.2d at 559, 285 N.W.2d 739).

¶14 A plea of no contest that is not voluntarily, knowingly, and intelligently entered violates fundamental due process. See Bangert, 131 Wis.2d at 257, 389 N.W.2d 12 (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)). A plea may be involuntary either because the defendant does not have a complete understanding of the charge or because he or she does not understand the nature of the constitutional rights he or she is waiving. See Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 2258 n. 13, 49 L.Ed.2d 108 (1976).

¶15 On appellate review, the issue of whether Van Camp's plea was voluntarily, knowingly, and intelligently entered is a question of constitutional fact. See Bangert, 131 Wis.2d at 283, 389 N.W.2d 12; (citing Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985)(holding that voluntariness of a confession is not an issue of fact, but is a legal question requiring independent factual determination)). We review constitutional questions independent of the conclusion of the lower courts. See id. at 283, 389 N.W.2d 12; see also State v. Kywanda F., 200 Wis.2d 26, 42, 546 N.W.2d 440 (1996). We will not upset the circuit court's findings of evidentiary or historical facts unless they are clearly erroneous. See State v. Turner, 136 Wis.2d 333, 343-44, 401 N.W.2d 827 (1987); see also Wis. Stat. § (Rule) 805.17(2).

¶16 Applying this standard to the case at bar, and upon review of the entire record, we conclude that Van Camp did not enter his plea voluntarily, knowingly, and intelligently.

¶17 Under the procedure this court established in Bangert, we employ a two-step process to determine whether a defendant voluntarily, knowingly, and intelligently entered a plea of no contest. We must first determine (1) whether the defendant has made a prima facie showing that his plea was accepted without the trial court's conformance with Wis. Stat. § 971.08, 4 and other mandatory duties imposed by this court, and (2) whether he has properly alleged that he in fact did not know or understand the information which should have been provided at the plea hearing. See Bangert, 131 Wis.2d at 274, 389 N.W.2d 12. If the defendant meets this initial burden, the burden then shifts to the State, and we must determine whether the State has demonstrated by clear and convincing evidence that the defendant's plea was voluntarily, knowingly, and intelligently entered at the time the court accepts the plea, despite the inadequacy of the record. See id.

¶18 To meet his initial burden under Bangert, the defendant must satisfy two threshold requirements. First, he must make a prima facie showing that his plea was accepted without the trial court's conformance with Wis. Stat. § 971.08, or other mandatory duties imposed by this court. See Bangert, 131 Wis.2d at 274, 389 N.W.2d 12. Second, the defendant must properly allege that he in fact did not know or understand the information which should have been provided at the plea hearing. See id. Van Camp met this burden.

¶19 Both the State and the defendant agree that the plea colloquy was woefully inadequate. The plea hearing transcript does not demonstrate a personal , voluntary waiver of Van Camp's constitutional rights, and it fails to show he knew or understood the potential punishment he faced by entering his plea.

¶20 The trial court failed to conform with the mandatory duties imposed by this court. In Bangert we explained that "[a] person must know and understand that constitutional rights are waived by the plea in order for the plea to be voluntarily and intelligently made." Id. at 270, 389 N.W.2d 12 (citing Edwards v. State, 51 Wis.2d 231, 234, 186 N.W.2d 193 (1971)). Invoking our supervisory powers, we there held that when accepting a plea of no...

To continue reading

Request your trial
157 cases
  • State v. Trochinski, 00-2545-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 30, 2002
    ...at the plea hearing. Bangert, 131 Wis. 2d at 274; see also Bollig, 2000 WI 6, ¶ 48; Brandt 226 Wis. 2d at 618; State v. Van Camp, 213 Wis. 2d 131, 140-141, 569 N.W.2d 577 (1997). Even after establishing a prima facie case, however, Trochinski would not automatically be allowed to withdraw h......
  • State v. Jenkins, 2005AP302-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 12, 2007
    ...constitutional right, withdrawal of the plea is a matter of right and the court has no discretion in the matter. State v. Van Camp, 213 Wis.2d 131, 139, 569 N.W.2d 577 (1997). 10. The second and sixth duties have been codified. § 63, ch. 255, Laws of 1969. Wisconsin Stat. § 971.08(1)(a) and......
  • State v. Chamblis, 2012AP2782–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 12, 2015
    ...the nature of both the charge to which the defendant is pleading and the constitutional rights he or she is waiving. State v. Van Camp, 213 Wis.2d 131, 139–40, 569 N.W.2d 577 (1997). In this case, however, we are concerned with the constitutional requirement that defendants understand the “......
  • State v. Finley, 2014AP2488–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 12, 2016
    ...plea as a matter of right because such a plea ‘violates fundamental due process.’ 882 N.W.2d 781 ”) (quoting Van Camp, 213 Wis.2d at 139, 569 N.W.2d 577 ); see also Cross, 326 Wis.2d 492, ¶ 20, 786 N.W.2d 64 (“If the State cannot meet its burden [of proving by clear and convincing evidence ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT