Bangert violation in Wisconsin

2025See Bangert, 131 Wis. 2d at 274 ; Jipson, 267 Wis. 2d 467, ¶¶9, 13 (noting that courts have crafted the purpose of the sexual contact to be an element of the offense of sexual assault of a child). ¶14 Neither the circuit court nor the State on appeal dispute that Suscha has established that a Bangert violation occurred because Suscha was not advised of the definition of “sexual contact” prior to entering his plea.

2025See Bangert, 131 Wis. 2d at 274 ; Jipson, 267 Wis. 2d 467, ¶¶9, 13 (noting that courts have crafted the purpose of the sexual contact to be an element of the offense of sexual assault of a child). ¶14 Neither the circuit court nor the State on appeal dispute that Suscha has established that a Bangert violation occurred because Suscha was not advised of the definition of “sexual contact” prior to entering his plea.

2025Bangert violation ¶13 “When a defendant seeks to withdraw a guilty plea after sentencing, he [or she] must prove, by clear and convincing evidence, that a refusal to allow withdrawal of the plea would result in ‘manifest injustice.’” State v. Brown, 2006 WI 100, ¶18 , 293 Wis. 2d 594 , 716 N.W.2d 906 (citation omitted).

2025Bangert violation ¶13 “When a defendant seeks to withdraw a guilty plea after sentencing, he [or she] must prove, by clear and convincing evidence, that a refusal to allow withdrawal of the plea would result in ‘manifest injustice.’” State v. Brown, 2006 WI 100, ¶18 , 293 Wis. 2d 594 , 716 N.W.2d 906 (citation omitted).

2025Unlike a Bangert claim, which alleges a defect in the plea colloquy and relies on information “in the record,” Brown, 293 Wis. 2d 594, ¶64 (emphasis omitted), a Bentley claim seeks to establish a manifest injustice by proving “that some factor extrinsic to the plea colloquy ... renders a plea infirm.” Howell, 301 Wis. 2d 350, ¶74 .

2025Unlike a Bangert claim, which alleges a defect in the plea colloquy and relies on information “in the record,” Brown, 293 Wis. 2d 594, ¶64 (emphasis omitted), a Bentley claim seeks to establish a manifest injustice by proving “that some factor extrinsic to the plea colloquy ... renders a plea infirm.” Howell, 301 Wis. 2d 350, ¶74 .

2026Taylor, 347 Wis. 2d 30, ¶32 . ¶18 However, “in some cases, ‘small deviations’ from the Bangert line of cases do not amount to a Bangert violation.” Taylor, 347 Wis. 2d 30 , ¶33 8 No. 2024AP2150-CR (citation omitted).

2026Taylor, 347 Wis. 2d 30, ¶32 . ¶18 However, “in some cases, ‘small deviations’ from the Bangert line of cases do not amount to a Bangert violation.” Taylor, 347 Wis. 2d 30 , ¶33 8 No. 2024AP2150-CR (citation omitted).

2023See Steven H., 233 Wis. 2d 344, ¶42 (explaining that at a Bangert hearing "a court may examine the entire record, not merely one proceeding, and look at the totality of the circumstances to determine" whether the plea was constitutionally sufficient).

2023See Steven H., 233 Wis. 2d 344, ¶42 (explaining that at a Bangert hearing "a court may examine the entire record, not merely one proceeding, and look at the totality of the circumstances to determine" whether the plea was constitutionally sufficient).

2026Given the facts presented, the court held that the circuit court’s misstatement 10 No. 2024AP2150-CR of the maximum penalty during the plea hearing amounted to an “insubstantial defect[]” because “a defendant can be said to understand the range of punishments as required by § 971.08 and Bangert when the maximum sentence communicated to the defendant is higher, but not substantially higher, than the actual allowable sentence.” Cross, 326 Wis. 2d 492, ¶¶32, 38 . ¶24 According to our state supreme court, this conclusion “accords with common sense; not all small deviations from the requirements in

2026Given the facts presented, the court held that the circuit court’s misstatement 10 No. 2024AP2150-CR of the maximum penalty during the plea hearing amounted to an “insubstantial defect[]” because “a defendant can be said to understand the range of punishments as required by § 971.08 and Bangert when the maximum sentence communicated to the defendant is higher, but not substantially higher, than the actual allowable sentence.” Cross, 326 Wis. 2d 492, ¶¶32, 38 . ¶24 According to our state supreme court, this conclusion “accords with common sense; not all small deviations from the requirements in

2020In this case, however, the State’s response brief addressed the viability of a potential ineffective assistance claim, and so we choose to decide Hollenquest’s argument on its merits. 10 See State v. Bentley, 201 Wis. 2d 303 , 548 N.W.2d 50 (1996), and Nelson v. State, 54 Wis. 2d 489 , 195 N.W.2d 629 (1972). 11 Although Hollenquest did not rely on the Nelson/Bentley line of cases in his postconviction motion, we note that a circuit court’s findings related to a Bangert motion are applicable to a Nelson/Bentley claim.

2020In this case, however, the State’s response brief addressed the viability of a potential ineffective assistance claim, and so we choose to decide Hollenquest’s argument on its merits. 10 See State v. Bentley, 201 Wis. 2d 303 , 548 N.W.2d 50 (1996), and Nelson v. State, 54 Wis. 2d 489 , 195 N.W.2d 629 (1972). 11 Although Hollenquest did not rely on the Nelson/Bentley line of cases in his postconviction motion, we note that a circuit court’s findings related to a Bangert motion are applicable to a Nelson/Bentley claim.

2024In our review, “we accept the circuit court’s findings of historical and evidentiary fact unless they are clearly erroneous” and “[w]e independently determine whether those facts demonstrate that the [parent’s] plea was knowing, intelligent, and voluntary.” See State v. Hoppe, 2009 WI 41, ¶ 45 , 317 Wis. 2d 161 , 765 N.W.2d 794 . 5 No. 2024AP597 ¶14 In our previous decision, we concluded that Nico made a prima facie case for plea withdrawal.4 Nico urges us to apply the law of the case, which would mean that the question before us is whether the State met its burden in the evidentiary hearing,

2024In our review, “we accept the circuit court’s findings of historical and evidentiary fact unless they are clearly erroneous” and “[w]e independently determine whether those facts demonstrate that the [parent’s] plea was knowing, intelligent, and voluntary.” See State v. Hoppe, 2009 WI 41, ¶ 45 , 317 Wis. 2d 161 , 765 N.W.2d 794 . 5 No. 2024AP597 ¶14 In our previous decision, we concluded that Nico made a prima facie case for plea withdrawal.4 Nico urges us to apply the law of the case, which would mean that the question before us is whether the State met its burden in the evidentiary hearing,

2018Hampton, 274 Wis. 2d 379, ¶72 . ¶57 The court reiterated this point in State v. Howell, 2007 WI 75, ¶70 , 301 Wis. 2d 350 , 734 N.W.2d 48 : In a Bangert motion, a circuit court and a reviewing court examine only whether "a defendant is entitled to an evidentiary hearing when the court errs at a plea hearing." The State cannot circumvent a defendant's right to an evidentiary hearing under Bangert by arguing that based on the record as a whole the defendant, despite the defective plea colloquy, entered a constitutionally sound plea.

2013Hampton, 274 Wis. 2d 379 , ¶¶57- 59. ¶82 This court is firmly committed to the principle that when a defendant files a motion showing a prima facie Bangert violation and the requisite claim that he lacked understanding because of a deficiency in the plea colloquy, he is entitled to a burden-shifting Bangert hearing.

2024At the Bangert hearing, the burden shifts to the State to prove “by clear and convincing evidence that the defendant’s plea, despite the inadequacy of the plea colloquy, was knowing, intelligent, and voluntary.” Pegeese, 387 Wis. 2d 119, ¶27 (citation omitted).

2024At the Bangert hearing, the burden shifts to the State to prove “by clear and convincing evidence that the defendant’s plea, despite the inadequacy of the plea colloquy, was knowing, intelligent, and voluntary.” Pegeese, 387 Wis. 2d 119, ¶27 (citation omitted).

2014Negrete held that when the defendant failed to make "'a pointed showing' of an error in the plea colloquy by reference to the plea colloquy transcript," Negrete, 343 Wis. 2d 1, ¶20 (quoted source omitted), the Bangert test did not apply.

2014Negrete held that when the defendant failed to make "'a pointed showing' of an error in the plea colloquy by reference to the plea colloquy transcript," Negrete, 343 Wis. 2d 1, ¶20 (quoted source omitted), the Bangert test did not apply.

2024DSS v. Therese S., 2008 WI App 159, ¶16 , 314 Wis. 2d 493 , 762 N.W.2d 122 . 6 No. 2024AP597 was only stated as a clear and convincing burden during the initial hearing, Nico’s claim fails. ¶16 Further, we conclude that Nico’s claim fails even if we relied upon our previous determination that a prima facie Bangert violation occurred.

2023See id., ¶17. ¶15 “When a parent alleges a plea was not knowingly and intelligently made, the Bangert analysis applies.”9 Therese S., 314 Wis. 2d 493, ¶6 .

2026Binding precedent dictates that no evidentiary hearing is required on a defendant’s Bangert motion where, despite the defendant making a prima facie showing that the court’s plea colloquy was defective: (1) the record demonstrates that the defendant knew the “potential punishment” and was given the sentence the circuit court described, see State v. Finley, 2016 WI 63, ¶81 , 370 Wis. 2d 402 , 882 N.W.2d 761 ; and (2) the defendant “was not affected by” an “insubstantial defect[]” in the plea colloquy, see State v. Johnson, 2012 WI App 21, ¶12 , 339 Wis. 2d 421 , 811 N.W.2d 441 (alteration in or

2026Binding precedent dictates that no evidentiary hearing is required on a defendant’s Bangert motion where, despite the defendant making a prima facie showing that the court’s plea colloquy was defective: (1) the record demonstrates that the defendant knew the “potential punishment” and was given the sentence the circuit court described, see State v. Finley, 2016 WI 63, ¶81 , 370 Wis. 2d 402 , 882 N.W.2d 761 ; and (2) the defendant “was not affected by” an “insubstantial defect[]” in the plea colloquy, see State v. Johnson, 2012 WI App 21, ¶12 , 339 Wis. 2d 421 , 811 N.W.2d 441 (alteration in or

2021Frazier is correct in observing that a defendant who prevails on a Bangert motion and establishes a denial of a relevant constitutional right in the course of a plea hearing is entitled to plea withdrawal as “a matter of right.” State v. Van Camp, 213 Wis. 2d 131, 139 , 569 N.W.2d 577 (1997) (citing Bangert, 131 Wis. 2d at 283 ).

2021Frazier is correct in observing that a defendant who prevails on a Bangert motion and establishes a denial of a relevant constitutional right in the course of a plea hearing is entitled to plea withdrawal as “a matter of right.” State v. Van Camp, 213 Wis. 2d 131, 139 , 569 N.W.2d 577 (1997) (citing Bangert, 131 Wis. 2d at 283 ).

2006When a defendant files a motion containing a non- Bangert plea withdrawal argument, and requests an evidentiary hearing, the Nelson/Bentley test is used to determine whether a hearing is required. ¶ 17 The Nelson/Bentley test asks whether a motion alleges "facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record [otherwise] conclusively demonstrates that the defendant is not entitled to relief." State v. Allen, 2004 WI 106, ¶ 9 , 274 Wis.2d 568 , 682 N.W.2d 433 (paraphrasing Nelson, 54 Wis.2d at 497 , 195 N.W.2d 629 , and State v. Bentley, 201

2006When a defendant files a motion containing a non- Bangert plea withdrawal argument, and requests an evidentiary hearing, the Nelson/Bentley test is used to determine whether a hearing is required. ¶ 17 The Nelson/Bentley test asks whether a motion alleges "facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record [otherwise] conclusively demonstrates that the defendant is not entitled to relief." State v. Allen, 2004 WI 106, ¶ 9 , 274 Wis.2d 568 , 682 N.W.2d 433 (paraphrasing Nelson, 54 Wis.2d at 497 , 195 N.W.2d 629 , and State v. Bentley, 201

2020In this case, however, the State’s response brief addressed the viability of a potential ineffective assistance claim, and so we choose to decide Hollenquest’s argument on its merits. 10 See State v. Bentley, 201 Wis. 2d 303 , 548 N.W.2d 50 (1996), and Nelson v. State, 54 Wis. 2d 489 , 195 N.W.2d 629 (1972). 11 Although Hollenquest did not rely on the Nelson/Bentley line of cases in his postconviction motion, we note that a circuit court’s findings related to a Bangert motion are applicable to a Nelson/Bentley claim.

2020In this case, however, the State’s response brief addressed the viability of a potential ineffective assistance claim, and so we choose to decide Hollenquest’s argument on its merits. 10 See State v. Bentley, 201 Wis. 2d 303 , 548 N.W.2d 50 (1996), and Nelson v. State, 54 Wis. 2d 489 , 195 N.W.2d 629 (1972). 11 Although Hollenquest did not rely on the Nelson/Bentley line of cases in his postconviction motion, we note that a circuit court’s findings related to a Bangert motion are applicable to a Nelson/Bentley claim.

2025When addressing a Bangert violation, “[t]he State may utilize the entire record to demonstrate [a defendant’s] knowledge of the nature of his [or her] offense and of the constitutional rights he [or she] was waiving.” State v. Bollig, 2000 WI 6, ¶53 , 232 Wis. 2d 561 , 605 N.W.2d 199 ; see also Brown, 293 Wis. 2d 594, ¶40 (discussing the evidence available to the State). ¶19 First, the State’s two other-acts motions in this case generally defined “sexual contact.” Within both motions, the State explained, “At trial, the State must prove, in part, that [Simmons] intentionally had sexual contact

2025When addressing a Bangert violation, “[t]he State may utilize the entire record to demonstrate [a defendant’s] knowledge of the nature of his [or her] offense and of the constitutional rights he [or she] was waiving.” State v. Bollig, 2000 WI 6, ¶53 , 232 Wis. 2d 561 , 605 N.W.2d 199 ; see also Brown, 293 Wis. 2d 594, ¶40 (discussing the evidence available to the State). ¶19 First, the State’s two other-acts motions in this case generally defined “sexual contact.” Within both motions, the State explained, “At trial, the State must prove, in part, that [Simmons] intentionally had sexual contact

2024State v. Jensen, 2021 WI 27, ¶13 , 396 Wis. 2d 196 , 957 N.W.2d 244 (discussing that under the law of the case rule, courts must “adhere to an appellate court’s ruling on a legal issue ‘in all subsequent proceedings in the trial court or on later appeal[,]’” unless a “‘controlling authority has made a contrary decision of the law’ on the same issue”). ¶15 However, since this case was remanded and the evidentiary hearing was held, the Wisconsin Supreme Court clarified that references to “trial rights” in the plea colloquy alone did not establish a prima facie Bangert violation.

2024State v. Jensen, 2021 WI 27, ¶13 , 396 Wis. 2d 196 , 957 N.W.2d 244 (discussing that under the law of the case rule, courts must “adhere to an appellate court’s ruling on a legal issue ‘in all subsequent proceedings in the trial court or on later appeal[,]’” unless a “‘controlling authority has made a contrary decision of the law’ on the same issue”). ¶15 However, since this case was remanded and the evidentiary hearing was held, the Wisconsin Supreme Court clarified that references to “trial rights” in the plea colloquy alone did not establish a prima facie Bangert violation.

2021Kimberly M.W., 181 Wis. 2d at 892 .

2021Kimberly M.W., 181 Wis. 2d at 892 .

1998Rodriguez also questions the continuing validity of Baeza , claiming that in later cases — State v. Issa, 186 Wis. 2d 199 , 519 N.W.2d 741 (Ct. App. 1994); Chavez and Lopez —we rejected our ruling in Baeza "that the two-part Bangert inquiry" did not apply to the deportation notice requirement of § 971.08(l)(c), STATS.

1998Rodriguez also questions the continuing validity of Baeza , claiming that in later cases — State v. Issa, 186 Wis. 2d 199 , 519 N.W.2d 741 (Ct. App. 1994); Chavez and Lopez —we rejected our ruling in Baeza "that the two-part Bangert inquiry" did not apply to the deportation notice requirement of § 971.08(l)(c), STATS.

2026Id. at 696, 701 . ¶31 Nevertheless, this court upheld the defendant’s plea and conviction because the record, including the transcript from the Bangert hearing, revealed that the defendant “knew about the presumptive minimum sentence despite the flaws in the colloquy.” Mohr, 201 Wis. 2d at 698, 702 .

2026Id. at 696, 701 . ¶31 Nevertheless, this court upheld the defendant’s plea and conviction because the record, including the transcript from the Bangert hearing, revealed that the defendant “knew about the presumptive minimum sentence despite the flaws in the colloquy.” Mohr, 201 Wis. 2d at 698, 702 .

2025See Bangert, 131 Wis. 2d at 274 ; Jipson, 267 Wis. 2d 467, ¶¶9, 13 (noting that courts have crafted the purpose of the sexual contact to be an element of the offense of sexual assault of a child). ¶14 Neither the circuit court nor the State on appeal dispute that Suscha has established that a Bangert violation occurred because Suscha was not advised of the definition of “sexual contact” prior to entering his plea.

2025See Bangert, 131 Wis. 2d at 274 ; Jipson, 267 Wis. 2d 467, ¶¶9, 13 (noting that courts have crafted the purpose of the sexual contact to be an element of the offense of sexual assault of a child). ¶14 Neither the circuit court nor the State on appeal dispute that Suscha has established that a Bangert violation occurred because Suscha was not advised of the definition of “sexual contact” prior to entering his plea.