Wis. Stat. § 971.04

971.04 Defendant to be present. (1) Except as provided test for all violations of this section. State v. Peterson, 220 Wis. 2d 474, 584 N.W.2d 144 (Ct. App. 1998), 97-3294. in subs. (2) and (3), the defendant shall be present personally or Deprivation of the right to be present and to have counsel present at jury selection as provided under s. 967.08: is subject to a harmless error analysis; there is a thin line between when reversal is warranted and when it is not. That a juror’s subjective bias is generally ascertained (a) At the arraignment; by that person’s responses at voir dire and that the interplay between potential jurors (b) At trial; and a defendant is both immediate and continuous are factors that weigh against finding harmless error. State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. (c) During voir dire of the trial jury; 1999), 98-1091. (d) At any evidentiary hearing; A violation of sub. (1) does not automatically translate into a constitutional viola- tion. The entry of a plea from jail by closed circuit television, while a violation of (e) At any view by the jury; the statute, does not violate due process absent a showing of coercion, threat, or other unfairness. State v. Peters, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d (f) When the jury returns its verdict; 655, 99-1940. (g) At the pronouncement of judgment and the imposition of Reversed on other grounds. 2001 WI 74, 244 Wis. 2d 470, 628 N.W.2d 797, 99- 1940. sentence; The correction of a clerical error in the sentence portion of a written judgment to (h) At any other proceeding when ordered by the court. reflect accurately an oral pronouncement of sentence is not the pronouncement or imposition of a sentence under sub. (1) (g) and does not mandate the offender’s pres- (2) A defendant charged with a misdemeanor may authorize ence when the error is corrected. State v. Prihoda, 2000 WI 123, 239 Wis. 2d 244, his or her attorney in writing to act on his or her behalf in any 618 N.W.2d 857, 98-2263. Excusing and deferring prospective jurors under s. 756.03 is one component of a manner, with leave of the court, and be excused from attendance circuit judge’s obligation to administer the jury system. The judge may delegate the at any or all proceedings. authority to the clerk of circuit court under s. 756.03 (3). Thus, the process of decid-

2023-24 Wisconsin Statutes updated through 2025 Wis. Act 137 and through all Supreme Court Orders and Controlled Sub- stances Board Orders filed before and in effect on May 13, 2026. Published and certified under s. 35.18. Changes effective after May 13, 2026, are designated by NOTES. (Published 5-13-26)

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ing upon excuses or deferrals may be handled administratively, need not be handled s. 971.31 the defendant has filed a motion which requires deter- by a judge, in court, or with the prospective juror present in person, and may take place well in advance of a particular trial. The defendant’s presence cannot be re- mination before the entry of a plea. The court may extend the quired when the judge or clerk is acting in an administrative capacity. State v. Grib- time for the filing of such motion. ble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488, 00-1821. History: 1979 c. 291; 1987 a. 74; 1993 a. 486. Although it was error for the court to interview potential jurors outside of the When, through oversight, an arraignment is not held, it may be conducted after presence of the prosecution, defendant, and defense counsel, the error was harmless both parties have rested during the trial. Bies v. State, 53 Wis. 2d 322, 193 N.W.2d when there was no showing that it contributed to the defendant’s conviction. State v. 46 (1972). Tulley, 2001 WI App 236, 248 Wis. 2d 505, 635 N.W.2d 807, 00-3084. A court’s order that the defendant not look at the victim during the victim’s state- ment to the court because, the trial court said, “I just don’t want him intimidating 971.06 Pleas. (1) A defendant charged with a criminal of- her,” did not deprive the defendant of a statutory right under this section or a due fense may plead as follows: process right to be present at sentencing. State v. Payette, 2008 WI App 106, 313 Wis. 2d 39, 756 N.W.2d 423, 07-1192. (a) Guilty. Sub. (1) (g) provides a criminal defendant the statutory right to be in the same (b) Not guilty. courtroom as the presiding judge when a plea hearing is held and the court accepts the plea and pronounces judgment. A defendant may waive, but not forfeit, the right (c) No contest, subject to the approval of the court. to be in the same courtroom as the presiding judge. State v. Soto, 2012 WI 93, 343 (d) Not guilty by reason of mental disease or defect. This plea Wis. 2d 43, 817 N.W.2d 848, 10-2273. The defendant waived the statutory right to be in the same courtroom as the pre- may be joined with a plea of not guilty. If it is not so joined, this siding judge because the defendant appeared in a courtroom with both the defen- plea admits that but for lack of mental capacity the defendant dant's attorney and the prosecuting attorney; through videoconferencing, the judge committed all the essential elements of the offense charged in the was able to see, speak to, and hear the defendant, and the defendant was able to see, speak to, and hear the judge; the judge explained that videoconferencing would be indictment, information or complaint. used for the plea hearing if the defendant chose to enter a plea that day; and the de- (2) If a defendant stands mute or refuses to plead, the court fendant expressly consented to the use of videoconferencing for the plea hearing. State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 817 N.W.2d 848, 10-2273. shall direct the entry of a plea of not guilty on the defendant’s The circuit court’s decision to exclude the defendant from in-chambers meetings behalf. with jurors during the trial regarding possible bias did not violate the statutory right under sub. (1) (c) to be present during voir dire. Voir dire is a preliminary examina- (3) At the time a defendant enters a plea, the court may not re- tion of whether an individual can serve on a jury. In this case, the trial had already quire the defendant to disclose his or her citizenship status. commenced and the jurors had already been selected when the bias issue arose. History: 1985 a. 252; 1993 a. 486. State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d 126, 11-0394. Inaccurate legal advice renders a plea an uninformed one and can compromise the While Soto, 2012 WI 93, describes what a circuit court should do to establish a voluntariness of the plea. State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. valid waiver of the defendant’s right to be present at the defendant’s plea hearing App. 1992). when the defendant appears by videoconferencing or similar technology, is in a The decision to plead guilty is personal to the defendant. A defendant’s attorney courtroom, and is in the same room as the defendant’s attorney, more is required cannot renegotiate a plea agreement without the defendant’s knowledge and consent. when the defendant appears by telephone, from prison, and is physically separated State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992). from counsel. Under these circumstances, a valid waiver of the defendant’s right to Whether to grant a defendant’s motion to change a plea is within the court’s dis- be present must be predicated upon a colloquy that unambiguously informs the de- cretion. State v. Kazee, 192 Wis. 2d 213, 531 N.W.2d 332 (Ct. App. 1995). fendant he or she has a right to be physically present for the plea hearing in the same The decision to withdraw a not guilty by reason of mental defect plea belongs to courtroom as the presiding judge. The court must specifically inquire, as often and the defendant and not counsel. State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388 in whatever manner is necessary under the circumstances, whether the defendant is (Ct. App. 1999), 97-3217. able to hear and understand the court and the other participants. State v. Anderson, If a defendant enters a plea of not guilty by reason of mental disease or defect un- 2017 WI App 17, 374 Wis. 2d 372, 896 N.W.2d 364, 15-2611. der sub. (1) (d) without an accompanying not-guilty plea, the defendant waives the In a case in which a defendant asserts the defendant did not validly waive the right constitutional right to a trial as to the guilt phase and admits that the defendant com- to be present at a plea hearing, once the defendant has shown that the circuit court’s mitted the criminal act. State v. Fugere, 2018 WI App 24, 381 Wis. 2d 142, 911 waiver colloquy was deficient and has asserted that the defendant did not understand N.W.2d 127, 16-2258. the right to appear in person at the plea hearing, the burden should shift to the state to prove by clear and convincing evidence that the defendant did, in fact, knowingly, voluntarily, and intelligently waive the defendant’s right to be present. State v. An- 971.07 Multiple defendants. Defendants who are jointly derson, 2017 WI App 17, 374 Wis. 2d 372, 896 N.W.2d 364, 15-2611. charged may be arraigned separately or together, in the discretion Sub. (3) sets forth a way that a defendant can forfeit the right to be present at trial: of the court. by leaving after the jury has been sworn. The statute does not limit a defendant’s ability to waive the right to be present and does not purport to set forth the exclusive manner in which a defendant can relinquish the right to be present. Sub. (3) was cre- 971.08 Pleas of guilty and no contest; withdrawal ated to attend to the situation in which a defendant absconds, not when an obstreper- thereof. (1) Before the court accepts a plea of guilty or no con- ous defendant seeks to delay and disrupt proceedings through the defendant’s own actions. State v. Washington, 2018 WI 3, 379 Wis. 2d 58, 905 N.W.2d 380, 16- test, it shall do all of the following: 0238. (a) Address the defendant personally and determine that the Similar to the constitutional right to be present, a defendant may waive the defen- dant’s statutory right to be present at certain proceedings enumerated in sub. (1). plea is made voluntarily with understanding of the nature of the Waiver can be either express or by conduct. Determining whether there is waiver by charge and the potential punishment if convicted. conduct presents a fact intensive inquiry. State v. Washington, 2018 WI 3, 379 Wis. 2d 58, 905 N.W.2d 380, 16-0238. (b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged. 971.05 Arraignment. If the defendant is charged with a (c) Address the defendant personally and advise the defendant felony, the arraignment may be in the trial court or the court as follows: “If you are not a citizen of the United States of Amer- which conducted the preliminary examination or accepted the de- ica, you are advised that a plea of guilty or no contest for the of- fendant’s waiver of the preliminary examination. If the defendant fense with which you are charged may result in deportation, the is charged with a misdemeanor, the arraignment may be in the exclusion from admission to this country or the denial of natural- trial court or the court which conducted the initial appearance. ization, under federal law.” The arraignment shall be conducted in the following manner: (d) Inquire of the district attorney whether he or she has com- (1) The arraignment shall be in open court. plied with s. 971.095 (2). (2) If the defendant appears for arraignment without counsel, (2) If a court fails to advise a defendant as required by sub. (1) the court shall advise the defendant of the defendant’s right to (c) and a defendant later shows that the plea is likely to result in counsel as provided in s. 970.02. the defendant’s deportation, exclusion from admission to this (3) The district attorney shall deliver to the defendant a copy country or denial of naturalization, the court on the defendant’s of the information in felony cases and in all cases shall read the motion shall vacate any applicable judgment against the defen- information or complaint to the defendant unless the defendant dant and permit the defendant to withdraw the plea and enter an- waives such reading. Thereupon the court shall ask for the defen- other plea. This subsection does not limit the ability to withdraw dant’s plea. a plea of guilty or no contest on any other grounds. (4) The defendant then shall plead unless in accordance with (3) Any plea of guilty which is not accepted by the court or

2023-24 Wisconsin Statutes updated through 2025 Wis. Act 137 and through all Supreme Court Orders and Controlled Sub- stances Board Orders filed before and in effect on May 13, 2026. Published and certified under s. 35.18. Changes effective after May 13, 2026, are designated by NOTES. (Published 5-13-26)

971.08 PROCEEDINGS BEFORE AND AT TRIAL

which is subsequently permitted to be withdrawn shall not be While courts have no duty to secure informed waivers of possible statutory de- fenses, under the unique facts of this case, the defendant was entitled to withdraw a used against the defendant in a subsequent action. guilty plea to a charge barred by the statute of limitations. State v. Pohlhammer, 82 History: 1983 a. 219; 1985 a. 252; 1997 a. 181. Wis. 2d 1, 260 N.W.2d 678 (1978). A court can consider a defendant’s record of juvenile offenses at a hearing on the Sub. (2) does not deprive the court of jurisdiction to consider an untimely motion. defendant’s guilty pleas prior to sentencing. McKnight v. State, 49 Wis. 2d 623, 182 State v. Lee, 88 Wis. 2d 239, 276 N.W.2d 268 (1979). N.W.2d 291 (1971). Trial courts do not have subject matter jurisdiction to convict defendants under When a plea agreement contemplates the nonprosecution of uncharged offenses, unconstitutionally vague statutes. The right to raise the issue on appeal cannot be the details of the plea agreement should be made a matter of record, whether it in- waived, regardless of a guilty plea. State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, volves a recommendation of sentencing, a reduced charge, a nolle prosequi of 280 N.W.2d 316 (Ct. App. 1979). charges, or “read ins” with an agreement of immunity. A “read-in” agreement made Discussing withdrawal of a guilty plea on the grounds of ineffective representa- after conviction or as part of a post-plea-of-guilty hearing to determine the volun- tion by trial counsel. State v. Rock, 92 Wis. 2d 554, 285 N.W.2d 739 (1979). tariness and accuracy of the plea should be a part of the sentencing hearing and Absent abuse of discretion in doing so, a prosecutor may withdraw a plea bargain made a matter of record. Austin v. State, 49 Wis. 2d 727, 183 N.W.2d 56 (1971). offer at any time prior to an action by the defendant in detrimental reliance on the of- A defendant may not withdraw a guilty plea simply because the defendant did not fer. State v. Beckes, 100 Wis. 2d 1, 300 N.W.2d 871 (Ct. App. 1980). specifically waive all of the defendant’s constitutional rights if the record shows that The trial court did not err in refusing to allow the defendant to withdraw a guilty the defendant understood what rights were waived by the plea. After a guilty plea, plea accompanied by protestations of innocence. State v. Johnson, 105 Wis. 2d 657, the hearing on the factual basis for the plea need not produce competent evidence 314 N.W.2d 897 (Ct. App. 1981). that satisfies the criminal burden of proof. Edwards v. State, 51 Wis. 2d 231, 186 A prosecutor is relieved from the terms of a plea agreement if it is judicially deter- N.W.2d 193 (1971). mined that the defendant has materially breached its conditions. State v. Rivest, 106 It is sufficient for a court to inform a defendant charged with several offenses of Wis. 2d 406, 316 N.W.2d 395 (1982). the maximum penalty that could be imposed for each. Burkhalter v. State, 52 Wis. Except as provided by statute, conditional guilty pleas are not to be accepted and 2d 413, 190 N.W.2d 502 (1971). will not be given effect. State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983). A desire to avoid a possible life sentence by pleading guilty to a lesser charge does Effective assistance of counsel was denied when the defense attorney did not not alone render a plea involuntary. A claimed inability to remember does not re- properly inform the client of the personal right to accept a plea offer. State v. Lud- quire refusal of the plea if the evidence is clear that the defendant committed the wig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985). crime. State v. Herro, 53 Wis. 2d 211, 191 N.W.2d 889 (1971). When the defendant offered a plea of no contest but refused to waive any constitu- The proceedings following a plea of guilty were not designed to establish a prima tional rights or to answer the judge’s questions, the judge should have set a trial date facie case, but to establish the voluntariness of the plea and the factual basis therefor. and refused any further discussion of the no contest plea. State v. Minniecheske, If the defendant denies an element of the crime after pleading guilty, the court is re- 127 Wis. 2d 234, 378 N.W.2d 283 (1985). quired to reject the plea and set the case for trial and is not obliged to dismiss the ac- Due process does not require that the record of a plea hearing demonstrate the de- tion because of refusal to accept the guilty plea. Johnson v. State, 53 Wis. 2d 787, fendant’s understanding of the nature of the charge at the time of the plea. State v. 193 N.W.2d 659 (1972). Carter, 131 Wis. 2d 69, 389 N.W.2d 1 (1986). A hearing on a motion to withdraw a guilty plea is to be liberally granted if the Bangert, 131 Wis. 2d 246 (1986), procedures under this section apply to a defen- motion is made prior to sentencing; it is discretionary if made thereafter and need dant pleading not guilty by reason of mental disease or defect. State v. Shegrud, 131 not be granted if the record refutes the allegations. The defendant must raise a sub- Wis. 2d 133, 389 N.W.2d 7 (1986). But see State v. Fugere, 2018 WI App 24, 381 stantial issue of fact. Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972). Wis. 2d 142, 911 N.W.2d 127, 16-2258. If there is strong evidence of guilt, a conviction will be sustained even against a Failure to comply with this section is not necessarily a constitutional violation. defendant who, having pleaded guilty, nonetheless denies the factual basis for guilt. Discussing procedures mandated for plea hearings and establishing a remedy. State State v. Chabonian, 55 Wis. 2d 723, 201 N.W.2d 25 (1972). v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). A plea bargain that contemplates special concessions to another person requires The withholding of a sentence and imposition of probation, as those terms are careful scrutiny by the court. If the prosecuting attorney has agreed to seek charge used by courts, are functionally equivalent to sentencing for determining the appro- or sentence concessions that must be approved by the court, the court must advise priateness of a plea withdrawal. State v. Booth, 142 Wis. 2d 232, 418 N.W.2d 20 the defendant personally that the recommendations of the prosecuting attorney are (Ct. App. 1987). not binding on the court. The bargain must also be reviewed to determine whether it Section 971.04 (2) allows the entry of a plea to a misdemeanor by an attorney is in the public interest. State ex rel. White v. Gray, 57 Wis. 2d 17, 203 N.W.2d 638 without the defendant being present, but for guilty or no contest pleas all require- (1973). ments of this section except attendance must be met. State v. Krause, 161 Wis. 2d A court has inherent power to refuse to accept a plea of guilty and may dismiss 919, 469 N.W.2d 241 (Ct. App. 1991). the charge on the motion of the district attorney in order to allow prosecution on a A plea agreement to amend a judgment of conviction upon successful completion second complaint. State v. Waldman, 57 Wis. 2d 234, 203 N.W.2d 691 (1973). of probation is not authorized by statute. State v. Hayes, 167 Wis. 2d 423, 481 It is not error for the court to accept a guilty plea before hearing the factual basis N.W.2d 699 (Ct. App. 1992). for the plea if a sufficient basis is ultimately presented. Staver v. State, 58 Wis. 2d The decision to plead guilty is personal to the defendant. A defendant’s attorney 726, 206 N.W.2d 623 (1973). cannot renegotiate a plea agreement without the defendant’s knowledge and consent. The fact that a defendant pled guilty with the understanding that his wife would State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992). be given probation on another charge did not necessarily render the plea involuntary. Failure to comply with sub. (1) (c) is governed by sub. (2); the holding in Bangert, Seybold v. State, 61 Wis. 2d 227, 212 N.W.2d 146 (1973). 131 Wis. 2d 246 (1986), does not apply. Discussing the meaning of “likely” depor- The defendant’s religious beliefs regarding the merits of confessing one’s wrong- tation under sub. (2). State v. Baeza, 174 Wis. 2d 118, 496 N.W.2d 233 (Ct. App. doing and desire to mollify the defendant's family or give in to their desires were 1993). self-imposed coercive elements and did not vitiate the voluntary nature of the defen- When it was undisputed that the defendant was aware of the potential for deporta- dant’s guilty plea. Craker v. State, 66 Wis. 2d 222, 223 N.W.2d 872 (1974). tion when the defendant entered the plea, the failure to advise the defendant pur- A defendant wishing to withdraw a guilty plea must show by clear and convincing suant to this section was harmless error for which the defendant was not entitled to evidence that the plea was not knowingly and voluntarily entered and that with- relief. Legislative history indicates that the legislature sought to alleviate the hard- drawal is necessary to prevent manifest injustice, as indicated when: 1) the defen- ship and unfairness involved when an alien unwittingly pleads guilty or no contest to dant was denied effective assistance of counsel; 2) the plea was not entered or rati- a charge without being informed of the consequences of such a plea. The legislature fied by the defendant or a person authorized to so act in the defendant’s behalf; 3) did not intend a windfall to a defendant who was aware of the deportation conse- the plea was involuntary or was entered without knowledge of the charge or that the quences of the plea. State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. sentence actually imposed could be imposed; and 4) the defendant did not receive 1993). the concessions contemplated by the plea agreement and the prosecutor failed to A conclusory allegation of manifest injustice, unsupported by factual assertions, seek them as promised in the agreement. Birts v. State, 68 Wis. 2d 389, 228 N.W.2d is legally insufficient to entitle a defendant to even a hearing on a motion to with- 351 (1975). draw a guilty plea following sentencing. State v. Washington, 176 Wis. 2d 205, 500 As required by Ernst, 43 Wis. 2d 661 (1969), and sub. (1) (b), prior to accepting N.W.2d 331 (Ct. App. 1993). a guilty plea, the trial court must establish that the conduct that the defendant admits In accepting a negotiated guilty plea for probation, the trial court should, but is constitutes the offense charged or an included offense to which the defendant has not required to, advise the defendant of the potential maximum sentence that may be pleaded guilty. If the plea is made under a plea bargain, the court need not probe as imposed if probation is revoked. State v. James, 176 Wis. 2d 230, 500 N.W.2d 345 deeply in determining whether the facts would sustain the charge as it would were (Ct. App. 1993). the plea not negotiated. Broadie v. State, 68 Wis. 2d 420, 228 N.W.2d 687 (1975). In the context of a plea bargain, sub. (1) (a) is satisfied if the plea is voluntarily The trial court did not abuse its discretion by failing to inquire into the effect a and understandingly made and a factual basis is shown for either the offense pleaded tranquilizer had on the defendant’s competence to enter a plea. Jones v. State, 71 to or to a more serious offense reasonably related to the offense pleaded to. State v. Wis. 2d 750, 238 N.W.2d 741 (1976). Harrell, 182 Wis. 2d 408, 513 N.W.2d 676 (Ct. App. 1994). A plea bargain agreement by law enforcement officials not to reveal relevant and A guilty plea, made knowingly and voluntarily, waives all nonjurisdictional de- pertinent information to the sentencing judge was unenforceable as being against fects and defenses, including alleged violations of constitutional rights, prior to the public policy. Grant v. State, 73 Wis. 2d 441, 243 N.W.2d 186 (1976). appeal. State v. Aniton, 183 Wis. 2d 125, 515 N.W.2d 302 (Ct. App. 1994). Withdrawal of a guilty plea prior to sentencing is not an absolute right but should Sub. (1) (c) requires the trial court to personally advise a defendant regarding de- be freely allowed when a fair and just reason for doing so is presented. Dudrey v. portation, and mere reference to a guilty plea questionnaire does not satisfy that re- State, 74 Wis. 2d 480, 247 N.W.2d 105 (1976). quirement. However, under Chavez, 175 Wis. 2d 366 (1993), before the trial court is A guilty plea cannot be withdrawn on grounds that probation conditions are more required to grant a motion to withdraw a guilty plea, the court must determine onerous than expected. Garski v. State, 75 Wis. 2d 62, 248 N.W.2d 425 (1977). whether, despite the court’s failure to personally advise the defendant, the defendant A plea of guilty admits the facts charged but does not raise the issue of the statute understood the potential deportation consequences of the guilty pleas. State v. Issa, of limitations because the time of the commencement of the action does not appear 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App. 1994). on the information. State v. Pohlhammer, 78 Wis. 2d 516, 254 N.W.2d 478 (1977). A plea agreement is analogous to a contract, and contract law principals are

2023-24 Wisconsin Statutes updated through 2025 Wis. Act 137 and through all Supreme Court Orders and Controlled Sub- stances Board Orders filed before and in effect on May 13, 2026. Published and certified under s. 35.18. Changes effective after May 13, 2026, are designated by NOTES. (Published 5-13-26)

5

drawn upon to interpret an agreement. The state’s enforcement of a penalty provi- rights. There is nothing inherent in the plea that gives the defendant any rights as to sion in the agreement for failure of the defendant to fulfill obligations under the punishment. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 579 N.W.2d 698 agreement did not require an evidentiary hearing to determine a breach when the (1998), 96-2441. breach was obvious and material and did not give the defendant a basis for with- In order for a plea to be knowingly and intelligently made, the defendant must be drawing the plea. State v. Toliver, 187 Wis. 2d 346, 523 N.W.2d 113 (Ct. App. informed of the “direct consequences” of the plea, but due process does not require 1994). informing the defendant of collateral consequences. Direct consequences are defi- An executory plea bargain is without constitutional significance, and a defendant nite, immediate, and largely automatic and do not depend on the defendant’s future has no right to require the performance of the agreement. Upon entry of a plea, due psychological condition. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 579 process requires the defendant’s expectations to be fulfilled. State v. Wills, 187 Wis. N.W.2d 698 (1998), 96-2441. 2d 529, 523 N.W.2d 569 (Ct. App. 1994). The state’s burden of proving that a plea was knowingly and voluntarily made An Alford, 400 U.S. 25 (1970), plea, under which the defendant pleads guilty cannot be proved by a negative inference. There must be some affirmative evidence while either maintaining innocence or not admitting having committed the crime, is of the fact. State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998), acceptable when strong proof of guilt has been shown. State v. Garcia, 192 Wis. 2d 97-3136. 845, 532 N.W.2d 111 (1995). The defendant’s misunderstanding of the defendant’s citizenship status did not A trial court need not advise a defendant of the potential that restitution will be render the plea not voluntarily, knowingly, or intelligently entered. A defendant ordered in accepting a plea under this section. Restitution is primarily rehabilitative, does not have a constitutional right to be informed of the collateral consequences of not punitive, and not “potential punishment” under sub. (1) (a). State v. Dugan, 193 a plea. There is no distinction between lack of awareness and an affirmative misun- Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995). derstanding of a collateral consequence. State v. Rodriguez, 221 Wis. 2d 487, 585 A postconviction motion to withdraw a guilty plea requires showing that a “man- N.W.2d 701 (Ct. App. 1998), 97-3097. ifest injustice” would occur if the motion is denied. A postconviction recantation by Parole eligibility is not a statutorily or constitutionally necessary component of a a witness may constitute new evidence showing a manifest injustice and requiring a valid plea colloquy in a case in which a life sentence is imposed. State v. Byrge, 225 new trial if there is a reasonable probability that a jury would reach a different result. Wis. 2d 702, 594 N.W.2d 388 (Ct. App. 1999), 97-3217. It is error for the judge to determine whether the recantation or the original allega- No manifest injustice entitling a defendant to withdraw a plea occurs when the de- tion is true. State v. McCallum, 198 Wis. 2d 149, 542 N.W.2d 184 (Ct. App. 1995), fendant is not informed of a collateral consequence of the plea. That a conviction would result in the defendant’s permanent prohibition from possessing firearms un- 95-1518. der federal law is a collateral consequence of the plea. A direct consequence must A defendant seeking a postconviction plea withdrawal due to a violation of sub. have an effect on the range of punishment for which the conviction is entered, and (1) (a) must make a prima facie showing that a violation occurred and must also al- the firearms prohibition arises outside of the state court proceedings under which lege that the defendant did not know or understand the information that should have the plea is taken and sentence imposed. State v. Kosina, 226 Wis. 2d 482, 595 been provided. State v. Giebel, 198 Wis. 2d 207, 541 N.W.2d 815 (Ct. App. 1995), N.W.2d 464 (Ct. App. 1999), 98-3421. 94-2225. The trial court did not have an obligation to verify the accuracy of the information The concept of notice pleading has no application to a postconviction motion contained in a guilty plea questionnaire when the court did not rely on the incorrect challenging a guilty plea. An allegation that a guilty plea was entered because of information contained therein in conducting a personal colloquy with the defendant misinformation provided by counsel is merely conclusory. Facts must be alleged to describe the correct elements of the crime and insure that the defendant under- that show a reasonable probability that but for counsel’s errors the defendant would stood the nature of the crimes. State v. Brandt, 226 Wis. 2d 610, 594 N.W.2d 759 have proceeded to trial and that allow the court to meaningfully assess the claim of (1999), 97-1489. prejudice. State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996), 94-3310. It was not fatal to a conviction entered on a plea of no contest that the defendant It is error for a trial court not to inquire whether the defendant has knowledge of did not personally state “I plead no contest” when the totality of the facts, including the presumptive minimum sentence, but the error may be harmless if the defendant a signed guilty plea questionnaire and colloquy with the judge on the record, indi- is otherwise aware of the minimum. State v. Mohr, 201 Wis. 2d 693, 549 N.W.2d cated an intent to plead no contest. State v. Burns, 226 Wis. 2d 762, 594 N.W.2d 799 497 (Ct. App. 1996), 95-2186. (1999), 96-3615. An Alford, 400 U.S. 25 (1970), plea is acceptable only if strong proof of guilt has The purpose of the court inquiry under sub. (1) (b) as to basic facts is to protect a been shown. A plea under an agreement to plead to a related offense to that charged defendant who understands the charge and voluntarily pleads guilty but does not re- that would have been legally impossible for the defendant to have committed could alize that the conduct does not actually fall within the statutory definition of the not satisfy the strong proof requirement. State v. Smith, 202 Wis. 2d 21, 549 charge. The purpose is not to resolve factual disputes about what did or did not hap- N.W.2d 232 (1996), 94-2894. pen; that is for a trial, which the defendant is waiving the right to. State v. Merry- When a plea rests in any significant degree on a promise or agreement of the pros- field, 229 Wis. 2d 52, 598 N.W.2d 251 (Ct. App. 1999), 98-1106. ecutor so that it can be said to be part of the inducement, the promise must be ful- A claim of insufficient factual basis for charging a crime survives a no contest filled. When the state was unable to fulfill its promise, withdrawal of a no contest plea and can be raised in a postconviction motion. State v. Higgs, 230 Wis. 2d 1, 601 plea was in order. State v. Castillo, 205 Wis. 2d 599, 556 N.W.2d 425 (Ct. App. N.W.2d 653 (Ct. App. 1999), 98-1811. 1996), 95-1628. Plea withdrawals before sentencing are subject to a liberal “fair and just” standard Whether a defendant knowingly entered an Alford, 400 U.S. 25 (1970), plea must that facilitates the efficient administration of justice by reducing the number of ap- be determined by the court based on the personal colloquy with the defendant and peals contesting the knowing and voluntariness of pleas. Reasons that have been not whether specific words were used in making the plea. State v. Salentine, 206 considered fair and just are genuine misunderstanding of the plea’s consequences, Wis. 2d 419, 557 N.W.2d 439 (Ct. App. 1996), 95-3494. haste and confusion in entering the pleas, and coercion on the part of trial counsel. One type of manifest injustice that would allow postconviction withdrawal of a State v. Shimek, 230 Wis. 2d 730, 601 N.W.2d 865 (Ct. App. 1999), 99-0291. guilty plea is the failure to establish a sufficient factual basis that the defendant com- Because the state failed to provide the defendant with exculpatory evidence re- mitted the offense. State v. Johnson, 207 Wis. 2d 239, 558 N.W.2d 375 (1997), 95- lated to the defendant's confession to the police and because that failure caused the 0072. defendant to plead guilty, the defendant’s post-sentencing motion to withdraw the guilty plea should have been granted. State v. Sturgeon, 231 Wis. 2d 487, 605 A defendant is automatically prejudiced when the prosecutor materially and sub- N.W.2d 589 (Ct. App. 1999), 98-2885. stantially breaches a plea agreement. New sentencing is required. State v. Smith, The state did not violate the sentencing terms of a plea agreement by failing to re- 207 Wis. 2d 258, 558 N.W.2d 379 (1997), 94-3364. But see State v. Nietzold, 2023 cite the express terms of the sentencing recommendation and by reciting a less than WI 22, 406 Wis. 2d 349, 986 N.W.2d 795, 21-0021. neutral statement of the recommendation. State v. Hanson, 2000 WI App 10, 232 Discussing requirements for accepting a no contest plea. State v. McKee, 212 Wis. 2d 291, 606 N.W.2d 278, 99-0120. Wis. 2d 488, 569 N.W.2d 93 (Ct. App. 1997), 97-0163. A defendant should be freely allowed to withdraw a plea, prior to sentencing, for A plea not knowingly and intelligently made violates due process and entitles the any fair and just reason, unless the prosecution will be substantially prejudiced. The defendant to withdraw the plea. The plea may be involuntary either because the de- state bears the burden of demonstrating substantial prejudice once a defendant has fendant does not have a full understanding of the charge or the nature of the rights offered a fair and just reason for withdrawal of the plea. State v. Bollig, 2000 WI 6, being waived. State v. Van Camp, 213 Wis. 2d 131, 569 N.W.2d 577 (1997), 96- 232 Wis. 2d 561, 605 N.W.2d 199, 98-2196. 0600. If the court fails to establish a factual basis that the defendant admits to the of- The test to determine a knowing and intelligent no contest plea is whether the de- fense pleaded to, manifest injustice justifying withdrawal of a plea exists. A defen- fendant has made a prima facie showing that the plea was made without the court’s dant is not required to personally articulate the specific facts that constitute the ele- conformance with this section and whether the defendant has properly alleged that ments of the crime charged. All that is required is that the factual basis is developed the defendant in fact did not know or understand the information that should have on the record. State v. Thomas, 2000 WI 13, 232 Wis. 2d 714, 605 N.W.2d 836, 97- been provided. The state must then prove that the plea was knowingly and intelli- 2665. gently made by clear and convincing evidence. State v. Van Camp, 213 Wis. 2d 131, If the defendant understands before entering a plea that the trial court will not be 569 N.W.2d 577 (1997), 96-0600. bound by the prosecutor’s sentence recommendation, the trial court’s deviation from The unintentional misstatement of a plea agreement, promptly rectified by the ef- the recommendation does not result in manifest injustice. State v. Williams, 2000 forts of both counsel, did not deny the defendant’s due process right to have the full WI 78, 236 Wis. 2d 293, 613 N.W.2d 132, 99-0752. benefit of a relied upon plea bargain. State v. Knox, 213 Wis. 2d 318, 570 N.W.2d A defendant found guilty following a fair and error-free trial may not then object 599 (Ct. App. 1997), 97-0682. to the trial court’s pretrial rejection of an Alford, 400 U.S. 25 (1970), plea. State v. The court’s acceptance of a guilty plea and order to implement a diversion agree- Williams, 2000 WI App 123, 237 Wis. 2d 591, 614 N.W.2d 11, 99-0812. ment, the successful completion of which would have resulted in dismissal of crim- That a defendant would be subject to a presumptive mandatory release date under inal charges, constituted “sentencing.” The standard to be applied in deciding a mo- s. 302.11 (1g) (am) was a collateral consequence of the defendant’s entry of a plea, tion to withdraw the guilty plea was the “manifest injustice” standard applicable to and the court was not required to inform the defendant of the presumptive manda- such motions after sentence has been entered. State v. Barney, 213 Wis. 2d 344, 570 tory release date for the plea to have been knowingly entered. State v. Yates, 2000 N.W.2d 731 (Ct. App. 1997), 96-3240. WI App 224, 239 Wis. 2d 17, 619 N.W.2d 132, 99-1643. A conviction following an Alford, 400 U.S. 25 (1970), plea does not prevent im- If the circuit court fails to establish a factual basis that the defendant admits to the posing as a condition of probation that the defendant complete a treatment program offense pleaded to, manifest injustice occurs. The inquiry requirement of sub. (1) that requires acknowledging responsibility for the crime that resulted in the convic- (b) allows the judge to establish the factual basis for the plea as the judge sees fit and tion. The imposition of the condition does not violate the defendant’s due process does not require that the judge satisfy the defendant that he or she committed the

2023-24 Wisconsin Statutes updated through 2025 Wis. Act 137 and through all Supreme Court Orders and Controlled Sub- stances Board Orders filed before and in effect on May 13, 2026. Published and certified under s. 35.18. Changes effective after May 13, 2026, are designated by NOTES. (Published 5-13-26)

971.08 PROCEEDINGS BEFORE AND AT TRIAL

crime. A factual basis may be found solely in a stipulation to the facts stated in the dation in the report. State v. Stenseth, 2003 WI App 198, 266 Wis. 2d 959, 669 complaint. State v. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363, 99-0230. N.W.2d 776, 02-3330. Once a court decides to accept a plea agreement, the court cannot reverse its ac- The defendant’s due process rights were violated when the investigating detective ceptance. State v. Terrill, 2001 WI App 70, 242 Wis. 2d 415, 625 N.W.2d 353, 00- in the case gave a sentencing recommendation to the sentencing court, written on 2152. police department letterhead, that undermined the state’s plea-bargained recom- When a plea agreement indicates that a recommendation is to be for concurrent mendation, in effect breaching the plea agreement when the court had also for- sentences and consecutive sentences are recommended, without correction at the warded the letter to the presentence investigation writer to assess and evaluate. State sentencing hearing, there is a material and substantial breach of the agreement. Ab- v. Matson, 2003 WI App 253, 268 Wis. 2d 725, 674 N.W.2d 51, 03-0251. sent an objection, the right to directly appeal is waived and the defendant is entitled The prosecution may discuss negative facts about the defendant in order to justify to a remedy for the breach only if there is ineffective assistance of counsel, the rem- a recommended sentence within the parameters of a plea agreement. A defendant is edy for which is allowing the withdrawal of the plea or specific performance of the entitled to a neutral recitation of the terms of the plea agreement. The prosecutor agreement. State v. Howard, 2001 WI App 137, 246 Wis. 2d 475, 630 N.W.2d 244, may not overtly or covertly convey to the court that a sentence harsher than that rec- 00-2046. ommended is warranted, but the state is not obligated to say something nice or posi- A plea agreement in which the prosecution agreed to make no specific sentencing tive about the defendant in order to avoid breaching a plea agreement. State v. Nay- recommendation was not breached by the prosecutors commenting that the case dihor, 2004 WI 43, 270 Wis. 2d 585, 678 N.W.2d 220, 01-3093. was, “if not the most serious case I’ve handled this year, it is certainly among the top A defendant breached plea agreements entered in previous completed cases for two or three” and “this is one of the most serious non-fatal crimes that I have dealt which the defendant had already served the sentences by collaterally attacking those with.” State v. Richardson, 2001 WI App 152, 246 Wis. 2d 711, 632 N.W.2d 84, 00- convictions in a subsequent case in which they were found invalid for penalty en- 2129. hancement purposes. State v. Deilke, 2004 WI 104, 274 Wis. 2d 595, 682 N.W.2d The clear and convincing evidence and close case rules do not apply in determin- 945, 02-2897. See also State v. Bembenek, 2006 WI App 198, 296 Wis. 2d 422, 724 ing a breach of a plea agreement. Historical facts are reviewed with a clearly erro- N.W.2d 685, 04-1963. neous standard, and whether the state’s conduct was a substantial and material If a court is aware of a plea agreement, the court must advise the defendant per- breach is a question of law. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 sonally that the court is not bound by the terms of that agreement and ascertain that N.W.2d 733, 00-0535. the defendant understands this information. When the defendant shows that the A defendant has a constitutional right to have a negotiated plea bargain enforced, court failed to inform the defendant that the court was not bound by the plea agree- if it was relied on. A prosecutor is not required to enthusiastically advocate for a bar- ment, and the defendant alleges that the defendant did not understand that the court gained for sentence and may inform the court about the character of the defendant, was not bound, the defendant is entitled to an evidentiary hearing on a motion to even if it is negative. The prosecutor may not personalize information presented in withdraw the plea. State v. Hampton, 2004 WI 107, 274 Wis. 2d 379, 683 N.W.2d a way that indicates that the prosecutor has second thoughts about the agreement. 14, 01-0509. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, 00-0535. The strategic decision by defense counsel to forego an objection to the state’s When a defendant repudiates a negotiated plea agreement on the ground that it breach of a plea agreement without consulting the defendant was tantamount to en- contains multiplicitous counts, the defendant materially and substantially breaches tering a renegotiated plea agreement without the defendant’s knowledge or consent. the agreement. When the defendant successfully challenges the plea and a convic- On that basis, defense counsel’s performance was deficient, and, because counsel’s tion on multiplicity grounds and the information has been amended pursuant to a deficient performance involved a breach of a plea agreement, the defendant was au- negotiated plea agreement by which the state made charging concessions, ordinarily tomatically prejudiced. State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 the remedy is to reverse the convictions and sentences, vacate the plea agreement, N.W.2d 522, 03-2240. and reinstate the original information, but a different remedy may be appropriate. At sentencing, pertinent factors relating to a defendant’s character and behavioral State v. Robinson, 2002 WI 9, 249 Wis. 2d 553, 638 N.W.2d 564, 00-2435. pattern cannot be immunized by a plea agreement between the defendant and the Generally, once counsel is appointed, the day-to-day conduct of the defense rests state. A plea agreement that does not allow the sentencing court to be apprised of with the attorney. However, a defense attorney may not as a matter of trial strategy relevant information is void as against public policy. The fact that a prosecutor’s admit a defendant's guilt, contrary to the defendant's not guilty plea, unless the de- comments are compelling and delivered by strong words does not transform the fendant unequivocally understands and consents to the admission. State v. Gordon, commentary into a plea bargain violation. State v. Jackson, 2004 WI App 132, 274 2002 WI App 53, 250 Wis. 2d 702, 641 N.W.2d 183, 01-1679. Wis. 2d 692, 685 N.W.2d 839, 03-1805. A valid plea requires only knowledge of the elements of the offense, not a knowl- A prosecutor may not make comments that suggest the prosecutor believes the edge of the nuances and descriptions of the elements. State v. Trochinski, 2002 WI disposition the prosecutor is recommending pursuant to a plea agreement is insuffi- 56, 253 Wis. 2d 38, 644 N.W.2d 891, 00-2545. cient, but may provide relevant negative information including information that has Once a defendant enters a plea, an evidentiary hearing is necessary to determine come to light after a plea agreement has been reached. A prosecutor can assert that whether a breach of the plea agreement has occurred before the state may be permit- a recommendation is appropriate and at the same time argue that the circumstances ted to withdraw from it. When after entry of the plea and before sentencing the trial were so severe that the court should impose no less than the recommended sentence. court warned that, if the defendant “screwed up” while on bail, the state would be State v. Liukonen, 2004 WI App 157, 276 Wis. 2d 64, 686 N.W.2d 689, 03-1539. free to change its sentencing recommendation, which the defendant acknowledged See also State v. Bokenyi, 2014 WI 61, 355 Wis. 2d 28, 848 N.W.2d 759, 12-2557. and agreed to, there was an amendment of the plea agreement. The state did not A plea agreement that leads a defendant to believe that a material advantage or withdraw from the agreement when, based on the defendant’s subsequent miscon- right has been preserved when, in fact, it cannot legally be obtained produces a plea duct, the state recommended a harsher sentence than originally agreed to. State v. that is as a matter of law neither knowing nor voluntary, and the defendant must be Zuniga, 2002 WI App 233, 257 Wis. 2d 625, 652 N.W.2d 423, 01-2806. allowed to withdraw the plea. Even if the trial court had rejected the illegal provi- In the absence of any attachments to a waiver of rights form or any other evidence sion at sentencing, it would not have cured the error when the defendant was induced in the record demonstrating that the defendant had knowledge of the elements of the to enter the plea by a promise that the state could never keep. State v. Dawson, 2004 offense charged, coupled with the trial court’s failure to ascertain the defendant’s WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12, 03-2116. understanding of the elements during the plea colloquy, the defendant made a prima When the defendant entered a plea believing the defendant would not be subject facie showing that the colloquy failed to meet the requirements of sub. (1) (a) and to the collateral consequences that actually applied and that belief was based on af- Bangert, 131 Wis. 2d 246 (1986). State v. Lange, 2003 WI App 2, 259 Wis. 2d 774, firmative, incorrect statements on the record by the defendant’s counsel and the 656 N.W.2d 480, 01-2584. prosecutor that were not corrected by the court, the plea was not knowingly and vol- When in closing argument counsel concedes guilt on a lesser count in a multiple- untarily entered and could be withdrawn. State v. Brown, 2004 WI App 179, 276 count case, in light of overwhelming evidence on that count and in an effort to gain Wis. 2d 559, 687 N.W.2d 543, 03-2915. credibility and win acquittal on the other charges, the concession is a reasonable tac- Williams, 2003 WI App 116, expressly applies only to direct judicial participation tical decision, and counsel is not deemed to have been constitutionally ineffective by in the plea bargaining process itself. A judge’s comments on the strength of the admitting a client’s guilt contrary to the client’s plea of not guilty. State v. Gordon, state’s case and urging a defendant to carefully consider the defendant's chances of 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, 01-1679. prevailing at trial are many steps removed from the direct judicial participation in The district attorney’s contact with the division of community corrections to plea negotiations that occurred in Williams. State v. Hunter, 2005 WI App 5, 278 complain about a presentence investigation sentence recommendation, which re- Wis. 2d 419, 692 N.W.2d 256, 03-2348. sulted in a change in recommendation from probation to incarceration, breached the The state is not required to correct a misstated sentence recommendation force- plea agreement in which the district attorney’s office agreed to make no sentence fully or enthusiastically. It is sufficient to promptly acknowledge the mistake of fact recommendation. State v. Howland, 2003 WI App 104, 264 Wis. 2d 279, 663 and to rectify the error without impairing the integrity of the sentencing process. N.W.2d 340, 02-2083. State v. Bowers, 2005 WI App 72, 280 Wis. 2d 534, 696 N.W.2d 255, 04-1093. Judicial participation in the bargaining process raises a conclusive presumption The state was free to recommend consecutive sentences under a plea agreement that the plea is involuntary. Judicial participation in plea negotiations before a plea that contained no provision regarding whether the sentence for the pled-to charges agreement has been reached is barred. State v. Williams, 2003 WI App 116, 265 was to run concurrent or consecutive with the sentence entered in another proceed- Wis. 2d 229, 666 N.W.2d 58, 02-1651. ing. State v. Bowers, 2005 WI App 72, 280 Wis. 2d 534, 696 N.W.2d 255, 04-1093. Defendant’s automatic ineligibility for Medicare and Medicaid benefits as the re- Wisconsin eliminated parole and good-time credit when it adopted its “truth-in- sult of a drug trafficking conviction imposed by operation of federal law by a federal sentencing” scheme. The lack of parole eligibility and good-time credit are not di- tribunal was a collateral consequence of the defendant’s guilty plea and was not rect consequences of a plea that a court must inform a defendant of prior to accept- grounds for plea withdrawal. State v. Merten, 2003 WI App 171, 266 Wis. 2d 588, ing a plea. State v. Plank, 2005 WI App 109, 282 Wis. 2d 522, 699 N.W.2d 235, 04- 668 N.W.2d 750, 02-1530. 2280. There was compliance with Bangert, 131 Wis. 2d 246 (1986), as long as there A defendant seeking to withdraw a plea of guilty or no contest prior to sentencing was a record that the defendant was present when rights were given en masse and must show a fair and just reason for allowing the withdrawal, which is some ade- was personally questioned by the court to establish that the defendant understood the quate reason for the defendant’s change of heart other than the desire to have a trial. rights, had no questions, and waived those rights. State v. Stockland, 2003 WI App A lack of knowledge of sex offender registration or that one is eligible for a ch. 980 177, 266 Wis. 2d 549, 668 N.W.2d 810, 02-2129. commitment are fair and just reasons for withdrawing a guilty plea. Prejudice When discussing a plea recommendation, the state may not give a less than neu- needed to merit a denial of a plea withdrawal must be significant in order to trump a tral recitation of the agreement’s terms. Reference to the plea agreement was not defendant’s fair and just reason. Entitlement to withdraw pleas to some charges does less than neutral when the prosecutor agreed with the presentence report that the de- not entitle the defendant to withdraw all guilty pleas. State v. Nelson, 2005 WI App fendant needed to be incarcerated, without commenting on the sentence recommen- 113, 282 Wis. 2d 502, 701 N.W.2d 32, 04-1954.

2023-24 Wisconsin Statutes updated through 2025 Wis. Act 137 and through all Supreme Court Orders and Controlled Sub- stances Board Orders filed before and in effect on May 13, 2026. Published and certified under s. 35.18. Changes effective after May 13, 2026, are designated by NOTES. (Published 5-13-26)

7

The state is free to negotiate away any right it may have to recommend a sentence, tion to withdraw a plea of guilty or no contest. A defendant invokes Bangert when but the state does not have a right to make an agreement to stand mute in the face of the plea colloquy is defective; a defendant invokes Nelson/Bentley when the defen- factual inaccuracies or to withhold relevant factual information from the court. Such dant alleges that some factor extrinsic to the plea colloquy, such as ineffective assis- an agreement would violate a prosecutor’s duty and result in sentences based upon tance of counsel or coercion, renders a plea infirm. State v. Howell, 2007 WI 75, incomplete facts or factual inaccuracies, a notion that is abhorrent to the legal sys- 301 Wis. 2d 350, 734 N.W.2d 48, 05-0731. tem. State v. Neuaone, 2005 WI App 124, 284 Wis. 2d 473, 700 N.W.2d 298, 04- Upon a motion to withdraw a plea before sentencing, the defendant faces three ob- 0196. stacles: 1) the defendant must proffer a fair and just reason for withdrawing the plea; A court is not required to conduct an on-the-record colloquy with respect to a de- 2) the circuit court must find the reason credible; and 3) the defendant must rebut ev- fendant’s desire to abandon a plea of not guilty by reason of mental disease or defect. idence of substantial prejudice to the state. If the defendant does not overcome these Only fundamental constitutional rights warrant this special protection, and such a obstacles in the view of the circuit court and is not permitted to withdraw the plea, plea falls outside the realm of fundamental rights. State v. Francis, 2005 WI App the defendant’s burden to reverse the circuit court on appeal becomes relatively high. 161, 285 Wis. 2d 451, 701 N.W.2d 632, 04-1360. State v. Jenkins, 2007 WI 96, 303 Wis. 2d 157, 736 N.W.2d 24, 05-0302. If a defendant makes a prima facie showing that the defendant was not informed Misinformation as to one charge did not render all the defendant’s pleas under a of the direct consequences of a plea, the burden shifts to the state to show by clear plea agreement unknowing, involuntary, and not intelligently entered. A return of and convincing evidence that the plea was knowingly, voluntarily, and intelligently the parties to pre-plea positions is not the mandated remedy when convictions are entered. The state was required to prove that the defendant knew the correct maxi- based on a negotiated plea agreement and an error later surfaces as to one count. mum sentence despite being given erroneous information at every stage of the pro- The appropriate remedy depends upon the totality of the circumstances and a con- ceeding. The defendant was not required to show that the misinformation caused the sideration of the parties’ interests, a matter committed to the sentencing court’s dis- plea. State v. Harden, 2005 WI App 252, 287 Wis. 2d 871, 707 N.W.2d 173, 05- cretion. State v. Roou, 2007 WI App 193, 305 Wis. 2d 164, 738 N.W.2d 173, 06- 0262. 1574. For purposes of plea withdrawal motions, sentencing, when a deferred prosecu- Circuit courts may not sua sponte vacate fully and fairly entered and accepted tion agreement is involved, encompasses the initial disposition of the case after the pleas. When the state never asked the circuit court to sua sponte vacate a guilty plea, parties enter the agreement and the agreement is ratified by the trial court and a mo- but merely acquiesced in that decision until it filed its motion for reconsideration, tion for plea withdrawal after entry of the agreement is subject to the standard for the state was not judicially estopped from seeking to have the circuit court comply withdrawal of a plea after sentencing. State v. Daley, 2006 WI App 81, 292 Wis. 2d with the law. State v. Rushing, 2007 WI App 227, 305 Wis. 2d 739, 740 N.W.2d 517, 716 N.W.2d 146, 05-0048. 894, 06-3152. Although a circuit court must establish that a defendant understands every ele- Wisconsin’s read-in procedure does not require a defendant to admit guilt of a ment of the charges pled to, the court is not expected to explain every element of ev- read-in charge for purposes of sentencing and does not require a circuit court to ery charge in every case. Bangert, 131 Wis. 2d 246 (1986), allows a court to tailor deem the defendant to admit to the read-in crime for purposes of sentencing. The a plea colloquy to the individual defendant, but in customizing a plea colloquy a cir- terms “admit” or “deemed admitted” should be avoided in referring to a defendant’s cuit court must do more than merely record the defendant’s affirmation of under- agreement to read in a dismissed charge. A court should advise a defendant that it standing. A statement from defense counsel that he or she has reviewed the elements may consider read-in charges when imposing sentence but that the maximum of the charge, without some summary of the elements or detailed description of the penalty of the charged offense will not be increased; that a circuit court may require conversation, cannot constitute an affirmative showing that the nature of the crime a defendant to pay restitution on any read-in charges; and that the state is prohibited has been communicated. State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716 from future prosecution of the read-in charge. A court is not barred from accepting N.W.2d 906, 03-2662. a defendant’s admission of guilt of a read-in charge. State v. Straszkowski, 2008 WI The circuit court properly advised the defendant of the range of punishments as- 65, 310 Wis. 2d 259, 750 N.W.2d 835, 06-0064. sociated with the crimes when the court informed the defendant of the maximum Williams, 2000 WI 78, does not prohibit a trial judge from informing a defendant term of imprisonment that could be imposed. Nothing in sub. (1) (a) or Bangert, that the judge intends to exceed the sentencing recommendation and allowing the 131 Wis. 2d 246 (1986), requires a sentencing court to make the maximum term of defendant to withdraw a plea. State v. Marinez, 2008 WI App 105, 313 Wis. 2d 490, confinement associated with a bifurcated sentence explicit prior to accepting a plea 756 N.W.2d 570, 07-0964. of guilty or no contest. State v. Sutton, 2006 WI App 118, 294 Wis. 2d 330, 718 A circuit court may not rely entirely on the Plea Questionnaire/Waiver of Rights N.W.2d 146, 05-1693. Form as a substitute for a substantive in-court plea colloquy. The form provides a Sub. (2) uses the term “likely” and not “shall,” meaning a defendant need not defendant and counsel the opportunity to review together a written statement of the prove the defendant definitely will be deported as a result of the case in question. information a defendant should know before entering a guilty plea. A completed Even though an earlier conviction sparked an investigation and immigration de- form can be a very useful instrument to help ensure a knowing, intelligent, and vol- tainer, that an additional sexual assault conviction obviously would be included as untary plea. The plea colloquy cannot, however, be reduced to determining whether part of the federal Immigration and Naturalization Service’s information when de- the defendant has read and filled out the form. State v. Hoppe, 2009 WI 41, 317 termining whether to deport the defendant, the defendant had shown that the plea in Wis. 2d 161, 765 N.W.2d 794, 07-0905. this case was likely to result in deportation requiring that the defendant be permitted Courts do not construe plea bargains against the drafter. When language is to withdraw the plea. State v. Bedolla, 2006 WI App 154, 295 Wis. 2d 410, 720 equally capable of two constructions, the construction that would safeguard the pub- N.W.2d 158, 05-2717. lic interests, substantially, must be given preference over that construction that se- A package plea agreement, which is a plea agreement contingent on two or more cures only insufficient or unsubstantial advantages to the public. State v. Wesley, codefendants all entering pleas according to the terms of the agreement, is not invol- 2009 WI App 118, 321 Wis. 2d 151, 772 N.W.2d 232, 08-1338. untary if a defendant felt pressure in the sense of a psychological need to try to help When a plea agreement merely prohibited the state from recommending a partic- the codefendants get the benefit of the package agreement. State v. Goyette, 2006 ular length of sentence, the plea agreement did not curtail the state’s ability to advo- WI App 178, 296 Wis. 2d 359, 722 N.W.2d 731, 04-2211. cate its position that the defendant receive prison time. The state’s recitation of the Compliance with the Bangert, 131 Wis. 2d 246 (1986), requirements does not pre-sentence investigation report’s recommendation for a specific sentence was sim- permit a circuit court to rely on a defendant’s plea colloquy responses to deny the de- ply that, a recitation, and the state’s discussion of the particulars of the crime did not fendant an evidentiary hearing on a properly pled postconviction motion that asserts amount to an endorsement of the report’s recommendation. State v. Duckett, 2010 a non-Bangert reason why the plea was not knowing or voluntary. Under Howell, WI App 44, 324 Wis. 2d 244, 781 N.W.2d 522, 09-0958. 2006 WI App 182, when a defendant convicted on a guilty or no contest plea asserts Deciding whether to reject a plea agreement is squarely within the court’s author- that the responses given during a plea colloquy were false and the defendant pro- ity; to hold otherwise would permit encroachment by the executive branch into the vides non-conclusory information that plausibly explains why the answers were realm that has historically been that of the judicial branch. Consideration of the false, the defendant must be given an evidentiary hearing on the defendant’s plea views of the prosecutor as well as the defense attorney enter into that determination. withdrawal motion. State v. Basley, 2006 WI App 253, 298 Wis. 2d 232, 726 Authority vests in the circuit court to determine what pleas are in the public interest N.W.2d 671, 05-2449. without permitting the court to intrude on the authority of the prosecutor to decide Establishing a sufficient factual basis under sub. (1) (b) requires a showing that what charges to file or whether to file charges in the first instance. Discussing fac- the conduct the defendant admits to constitutes the offense charged. The factual ba- tors to be considered by the court. State v. Conger, 2010 WI 56, 325 Wis. 2d 664, sis requirement protects a defendant who is in the position of pleading voluntarily 797 N.W.2d 341, 08-0755. with an understanding of the nature of the charge but without realizing that the de- Matson, 2003 WI App 253, does not stand for the proposition that law enforce- fendant’s conduct does not actually fall within the charge. When the factual basis re- ment views can never be properly considered by a court. Considering law enforce- lied upon by the court in this case in accepting the defendant’s guilty plea raised a ment representatives’ views as a factor in determining whether to reject the proposed substantial question as to whether the defendant had committed sexual assault of a plea agreement is quite a different matter from allowing law enforcement to slip a child or had herself been the victim of rape, the circuit court was required to make harsher sentencing recommendation to a court while the prosecutor uses a lesser further inquiry to establish a sufficient factual basis to support the plea. State v. sentencing recommendation to procure a plea from the defendant. Here, the consid- Lackershire, 2007 WI 74, 301 Wis. 2d 418, 734 N.W.2d 23, 05-1189. eration of law enforcement’s views was only one factor, of several noted in the To ascertain a defendant’s understanding of a charge, a circuit court might: 1) record, in the circuit court’s decision, and it was not obtained after the prosecution summarize the nature of the charge by reading the jury instructions; 2) ask the de- had secured the defendant’s plea. State v. Conger, 2010 WI 56, 325 Wis. 2d 664, fendant’s counsel about counsel's explanation to the defendant and ask counsel or 797 N.W.2d 341, 08-0755. the defendant to summarize the explanation; or 3) refer to the record or other evi- When a defendant is told that the defendant faces a maximum possible sentence dence of the defendant’s understanding of the nature of the charge. State v. Howell, that is higher, but not substantially higher, than that authorized by law, the circuit 2007 WI 75, 301 Wis. 2d 350, 734 N.W.2d 48, 05-0731. court has not violated the plea colloquy requirements outlined in this section and the A defendant’s affirmative response that the defendant understands the nature of Bangert, 131 Wis. 2d 246 (1986), line of cases and the circuit court has still fulfilled the charge, without establishing the defendant’s knowledge of the nature of the its duty to inform the defendant of the range of punishments. However, when the charge, submits more to a perfunctory procedure rather than to the constitutional difference is significant, or when the defendant is told the sentence is lower than the standard that a plea be affirmatively shown to be voluntarily and intelligently made. amount allowed by law, a defendant’s due process rights are at greater risk, and a A defendant must at some point have expressed the defendant’s knowledge of the na- Bangert violation may be established. State v. Cross, 2010 WI 70, 326 Wis. 2d 492, ture of the charge to satisfy the requirement of this section. State v. Howell, 2007 786 N.W.2d 64, 09-0003. WI 75, 301 Wis. 2d 350, 734 N.W.2d 48, 05-0731. Given the provision’s placement within the statute, the context requires circuit A defendant may invoke both Bangert, 131 Wis. 2d 246 (1986), and Nelson, 54 courts to give the sub. (1) (c) deportation advisement at the plea hearing. The duty Wis. 2d 489 (1972)/Bentley, 201 Wis. 2d 303 (1996), in a single postconviction mo- set forth in sub. (1) (c) is imposed solely on the circuit court. A defendant’s action or

2023-24 Wisconsin Statutes updated through 2025 Wis. Act 137 and through all Supreme Court Orders and Controlled Sub- stances Board Orders filed before and in effect on May 13, 2026. Published and certified under s. 35.18. Changes effective after May 13, 2026, are designated by NOTES. (Published 5-13-26)

971.08 PROCEEDINGS BEFORE AND AT TRIAL

inaction cannot alter that duty. A defendant may neither waive nor forfeit the right to low the victim to make a statement in court or to submit a written statement to be plea withdrawal under sub. (2), which provides a specific remedy when a defendant read in court. Section 972.14 does not specify any particular party to read a victim’s later shows that the plea is likely to result in the defendant’s deportation. State v. statement. The sole limitation on the victim’s statement is that it be relevant to the Vang, 2010 WI App 118, 328 Wis. 2d 251, 789 N.W.2d 115, 09-2162. sentence. If a judge does not ensure compliance with the victims’ rights statutes, the When the circuit court did not inform the defendant that the court was not bound judge can be fined under s. 950.11. A prosecutor’s reference to a victim’s letter will by the plea agreement, the court erred; however, given that the court accepted the not automatically operate as a breach of a plea agreement. In fact, a victim’s wishes plea agreement, the defendant did not demonstrate that withdrawal of the plea was may often come to bear in considering the need to protect the public, and it is incum- necessary to correct a manifest injustice. The defendant was not affected by the de- bent on both the court and the prosecutor to ensure compliance with the victims’ fect in the plea colloquy; in fact, the defendant received the benefit of the plea agree- rights statutes. State v. Bokenyi, 2014 WI 61, 355 Wis. 2d 28, 848 N.W.2d 759, 12- ment when the court accepted the plea, dropping one of two charges. State v. John- 2557. son, 2012 WI App 21, 339 Wis. 2d 421, 811 N.W.2d 441, 11-0348. To withdraw a guilty plea after sentencing, a defendant must show by clear and The pleading requirements for a motion to withdraw a guilty plea under sub. (2) convincing evidence that a refusal to allow withdrawal of the plea would result in when there is no transcript of the plea hearing are those set forth in Bentley, 201 manifest injustice, that is, that there are serious questions affecting the fundamental Wis. 2d 303 (1996). Applying the Bentley-type standard of review, the court inde- integrity of the plea. The defendant has the burden to establish manifest injustice. pendently reviews whether a defendant’s motion alleges sufficient facts that, if true, State v. Dillard, 2014 WI 123, 358 Wis. 2d 543, 859 N.W.2d 44, 12-2044. would entitle the defendant to withdraw his or her plea. State v. Negrete, 2012 WI Under the totality of the circumstances of this case, in which a no-contest plea 92, 343 Wis. 2d 1, 819 N.W.2d 749, 10-1702. was entered to avoid a consequence that was a legal impossibility, the defendant had Inconclusive assertions, such as “I do not recall,” will not support plea withdrawal the right as a matter of law to withdraw the defendant’s no-contest plea on the because the truth or falsity of the defendant’s statement has no bearing on whether ground that it was not entered knowingly, intelligently, and voluntarily. When de- the court actually advised the defendant of the potential immigration consequences ciding whether to accept the state’s plea offer or go to trial, the state, the court, and of the plea. Whether the defendant remembers being told is not the operative fact the defendant’s trial counsel mistakenly advised the defendant that the defendant upon which the right of withdrawal under sub. (2) is based; rather, the operative fact was facing a mandatory sentence of life in prison without the possibility of extended is whether the judge fulfilled the statutory requirement. If the defendant does not al- supervision. The fundamental error of law about the applicability of the persistent lege that the court did not tell the defendant of the potential immigration conse- repeater enhancer to the defendant that pervaded the plea negotiations and sentenc- quences of the plea, the defendant has not met the first element of sub. (2), and the ing rendered the defendant’s plea unknowing, unintelligent, and involuntary. State v. motion to withdraw may be denied without an evidentiary hearing. State v. Negrete, Dillard, 2014 WI 123, 358 Wis. 2d 543, 859 N.W.2d 44, 12-2044. 2012 WI 92, 343 Wis. 2d 1, 819 N.W.2d 749, 10-1702. While a defendant may generally be able to wait until after sentencing to decide Plea bargains should pin down whether a district attorney is agreeing not to pros- whether to allege a deficiency in the plea colloquy, that proposition does not apply ecute a dismissed charge. The term “dismissed outright” should be discontinued. It when a concern about the defendant’s understanding of the plea has been raised leads to misunderstanding. As a general rule, parties may not immunize certain of- prior to sentencing and the defendant specifically elects to proceed with sentencing. fenses from consideration by the court. Rather, the court is expected to utilize the The defendant in this case, after being made aware that the state believed the plea fullest amount of relevant information concerning a defendant’s life and character in agreement allowed the state to make a specific recommendation and that the state fashioning a sentence. It is the responsibility of defense counsel to assure that the intended to do so, waived the right to seek plea withdrawal when the defendant defendant understands and consents to the terms of any plea bargain and appreciates elected to move forward with sentencing. State v. Fortes, 2015 WI App 25, 361 Wis. the authority and independence of the sentencing court. State v. Frey, 2012 WI 99, 2d 249, 862 N.W.2d 154, 14-0714. 343 Wis. 2d 358, 817 N.W.2d 436, 10-2801. Negrete, 2012 WI 92, governs a non-citizen’s motion to withdraw a guilty plea When a good-faith legal error is made at the plea hearing regarding the maximum under sub. (2) based on “likely” deportation. It does not govern “likely” exclusion periods of initial confinement and extended supervision, and when that error is cor- from admission. Under Negrete, the defendant must allege facts demonstrating a rected at the sentencing hearing to the defendant’s benefit, there is no manifest injus- causal nexus between the entry of the guilty plea and the federal government’s likely tice. State v. Lichty, 2012 WI App 126, 344 Wis. 2d 733, 823 N.W.2d 830, 11-2873. institution of deportation proceedings. Sub. (2) does not require a showing that the The defendant’s plea colloquy was not defective when the trial court did not ex- federal government has taken steps to exclude the defendant from admission. In this plain party to a crime liability during the plea hearing. Party to a crime liability in- case, the text of the federal statute and the necessity that the defendant take affirma- cludes situations in which the defendant directly commits the crime, and the defen- tive steps to leave the country in order to actually be excluded from admission satis- dant directly committed the robbery in question. Therefore, an explanation of party fied the “likely” test. State v. Valadez, 2016 WI 4, 366 Wis. 2d 332, 874 N.W.2d to a crime liability in this case would have been superfluous. State v. Brown, 2012 514, 14-0678. WI App 139, 345 Wis. 2d 333, 824 N.W.2d 916, 12-0236. When a plea agreement is silent regarding concurrent or consecutive sentences, The felony or misdemeanor designation of a charge is not part of the “nature of the defendant has not bargained for the state’s promise to refrain from recommend- the charge” under sub. (1). Accordingly, a circuit court accepting a plea is not re- ing the sentences be served consecutively. Whether a sentence recommendation in- quired to specifically inform the defendant of the applicable designation. The term volves four charges or one charge in addition to a sentence already being served, a “nature of the charge” refers to the elements of the offense in relation to the facts as- recommendation of consecutive sentences has the same effect on the defendant. sociated with that charge. A circuit court’s plea colloquy duties related to the “na- State v. Tourville, 2016 WI 17, 367 Wis. 2d 285, 876 N.W.2d 735, 14-1248. ture of the charge” can be satisfied by summarizing the elements of the crime The Nelson, 54 Wis. 2d 489 (1972)/Bentley, 201 Wis. 2d 303 (1996), test has two charged by reading from the appropriate jury instructions or from the applicable prongs: 1) if a motion to withdraw a guilty plea after judgment and sentence alleges statute. State v. Robles, 2013 WI App 76, 348 Wis. 2d 325, 833 N.W.2d 184, 12- facts that, if true, would entitle the defendant to relief, the trial court must hold an 0307. evidentiary hearing; and 2) if the defendant fails to allege sufficient facts in the de- A court is not required to inform a defendant during a plea colloquy that the de- fendant’s motion to raise a question of fact, or presents only conclusory allegations, fendant may plead guilty to a crime and still have a jury trial on the issue of mental or if the record conclusively demonstrates that the defendant is not entitled to relief, responsibility. Because neither the federal or state constitutions confers a right to an the trial court may in the exercise of its legal discretion deny the motion without a insanity defense, a court has no obligation to personally address a defendant in re- hearing. The correct interpretation of this test is that an evidentiary hearing is not gard to the withdrawal of a not guilty by reason of mental disease or defect plea, al- mandatory if the record as a whole conclusively demonstrates that the defendant is though it is the better practice to do so. State v. Burton, 2013 WI 61, 349 Wis. 2d 1, not entitled to relief, even if the motion alleges sufficient nonconclusory facts. State 832 N.W.2d 611, 11-0450. v. Sulla, 2016 WI 46, 369 Wis. 2d 225, 880 N.W.2d 659, 13-2316. The state did not breach a plea agreement when two police officers, one of whom The phrase “potential punishment” in sub. (1) (a) has not been defined in the the defendant shot during the execution of a search warrant, requested during the statutes or the case law. In analyzing whether a defendant was correctly advised of sentencing hearing that the sentencing court impose the maximum sentence. The the potential punishment, cases have looked to the maximum statutory penalty, that police officers were not speaking to the court as investigating officers, but as victims is, the maximum sentence provided for by statute. Providing a glossary of terms to of a crime, which they had a right to do. In Wisconsin, every crime victim has the assist readers and the courts in using and understanding the correct terminology for right to make a statement to the court at disposition. State v. Stewart, 2013 WI App discussing the duty of circuit courts to advise a defendant of the potential punish- 86, 349 Wis. 2d 385, 836 N.W.2d 456, 12-1457. ment before accepting a plea. State v. Finley, 2016 WI 63, 370 Wis. 2d 402, 882 The defendant was not entitled to withdraw the defendant's guilty plea when the N.W.2d 761, 14-2488. trial court, in providing the defendant the immigration warning pursuant to sub. (1) When, during the plea colloquy, the court erroneously informed the defendant (c), did not state the statutory language verbatim, but instead gave a warning that that the maximum statutory penalty the defendant faced if convicted was lower than substantially complied with the statute and included very slight linguistic differ- the maximum actually allowed by law, and the state failed to prove that the defen- ences that in no way altered the meaning of the warning. State v. Mursal, 2013 WI dant knew the potential punishment the defendant faced at the time the defendant App 125, 351 Wis. 2d 180, 839 N.W.2d 173, 12-2775. entered the plea, the defendant’s plea was not entered knowingly, intelligently, and The defendant breached the plea agreement when the defendant was charged with voluntarily, and the defendant was entitled to withdraw the plea. Under those cir- new crimes and the agreement provided that the state reserved the right to withdraw cumstances, the defect could not be remedied by reducing the sentence to the maxi- from the agreement if the defendant committed any new or additional crime pending mum the defendant was informed and believed the defendant could receive instead sentencing. The circuit court’s decision to hold the defendant to the plea and allow of letting the defendant withdraw the plea. State v. Finley, 2016 WI 63, 370 Wis. 2d the state to make a recommendation at sentencing, when the state had agreed not to 402, 882 N.W.2d 761, 14-2488. make a recommendation under the agreement, was an appropriate exercise of dis- Sub. (2) is subject to harmless error analysis under ss. 805.18 and 971.26. cretion in crafting a remedy for the breach. State v. Reed, 2013 WI App 132, 351 Douangmala, 2002 WI 62, was objectively wrong because it failed to properly con- Wis. 2d 517, 839 N.W.2d 877, 12-2191. sider the harmless error statutes, ss. 805.18 and 971.26, and is thus overruled. The Under Padilla, 559 U.S. 356 (2010), counsel’s failure to advise a defendant con- mandatory “shall” in sub. (2) did not control when both of the harmless error sav- cerning clear deportation consequences of a plea bargain is prejudicial if the defen- ings statutes also use the mandatory “shall” language. This section and ss. 805.18 dant shows that a decision to reject the plea bargain would have been rational under and 971.26 are most comprehensibly harmonized by applying harmless error analy- the circumstances. The defendant is not required to show that there would be a dif- sis. All of the relevant statutes use “shall,” and, accordingly, none is “more manda- ferent outcome or that the defendant had real and viable challenges to the underlying tory” than any other. State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504, 904 veracity of the conviction. State v. Mendez, 2014 WI App 57, 354 Wis. 2d 88, 847 N.W.2d 773, 15-2041. N.W.2d 895, 13-1862. See also State v. Shata, 2015 WI 74, 364 Wis. 2d 63, 868 The defendant’s guilty plea to second-degree sexual assault of a child was not N.W.2d 93, 13-1437. knowing, intelligent, and voluntary because the defendant was incorrectly informed Under s. 972.14 (3) (a), if a victim wants to make a statement, the court shall al- that the defendant faced a potential sentence of 100 years if convicted of both first-

2023-24 Wisconsin Statutes updated through 2025 Wis. Act 137 and through all Supreme Court Orders and Controlled Sub- stances Board Orders filed before and in effect on May 13, 2026. Published and certified under s. 35.18. Changes effective after May 13, 2026, are designated by NOTES. (Published 5-13-26)

9

degree and second-degree sexual assault. Because second-degree sexual assault was a felony. United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 a lesser-included offense to first-degree sexual assault, the defendant could not have (1982). lawfully been convicted of both offenses. Thus, the defendant was not truly aware of The defendant’s acceptance of the prosecutor’s proposed plea bargain did not bar the direct consequences of the plea and was entitled to withdraw it. State v. Douglas, the prosecutor from withdrawing the offer. Mabry v. Johnson, 467 U.S. 504, 104 S. 2018 WI App 12, 380 Wis. 2d 159, 908 N.W.2d 466, 16-1865. Ct. 2543, 81 L. Ed. 2d 437 (1984). The requirements established under Bangert, 131 Wis. 2d 246 (1986), and its When the defendant knowingly entered a guilty plea and the state’s evidence sup- progeny for a valid plea apply only to the guilt phase of a defendant’s plea of not ported a conviction, the conviction was valid even though the defendant gave testi- guilty by reason of mental disease or defect (NGI). Although a circuit court must mony inconsistent with the plea. Hansen v. Mathews, 424 F.2d 1205 (1970). correctly advise a defendant pleading NGI of the maximum term of imprisonment Following a guilty plea, the defendant could not raise a speedy trial issue. United the defendant faces, the court need not advise the defendant of the potential range of States v. Gaertner, 583 F.2d 308 (1978). civil commitment the defendant will face if found not mentally responsible for the Guilty Pleas in Wisconsin. Bishop. 58 MLR 631 (1975). defendant’s crimes. State v. Fugere, 2018 WI App 24, 381 Wis. 2d 142, 911 N.W.2d Criminal Law—Pleas of Guilty—Plea Bargaining—The American Bar Associa- 127, 16-2258. tion’s Standards on Criminal Justice and Wis. Stat. Section 971.08. 1971 WLR 583. Lifetime global positioning system (GPS) tracking is not a punishment such that The Immigration Consequence of a Plea. Odrcic. Wis. Law. May 2018. due process requires a defendant be informed of it before entering a plea of guilty. Neither the intent nor effect of lifetime GPS tracking is punitive. Consequently, the defendant in this case was not entitled to withdraw the defendant's plea because the 971.09 Plea of guilty to offenses committed in several circuit court was not required to inform the defendant that the guilty plea would sub- counties. (1) Any person who admits that he or she has com- ject the defendant to lifetime GPS tracking. State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, 16-0740. mitted crimes in the county in which he or she is in custody and The intent-effects test is the proper test used to determine whether a sanction rises also in another county in this state may apply to the district attor- to the level of punishment such that due process requires a defendant be informed of ney of the county in which he or she is in custody to be charged it before entering a plea of guilty. Under the intent-effects test, the court first looks to the statute’s primary function, intent. Determining whether the legislature in- with those crimes so that the person may plead guilty and be sen- tended a statute to be punitive is primarily a matter of statutory construction. The tenced for them in the county of custody. The application shall court also considers whether the effect of the statute is penal or regulatory in charac- contain a description of all admitted crimes and the name of the ter. To aid its determination of the effect, the court applies the seven factors set out in Mendoza-Martinez, 372 U.S. 144 (1963): 1) whether the sanction involves an af- county in which each was committed. firmative disability or restraint; 2) whether the sanction has historically been re- (2) Upon receipt of the application the district attorney shall garded as a punishment; 3) whether the sanction comes into play only on a finding of scienter; 4) whether the sanction’s operation will promote the traditional aims of prepare an information charging all the admitted crimes and nam- punishment—retribution and deterrence; 5) whether the behavior to which the sanc- ing in each count the county where each was committed. The dis- tion applies is already a crime; 6) whether an alternative purpose to which the sanc- trict attorney shall send a copy of the information to the district tion may rationally be connected is assignable for it; and 7) whether the sanction ap- pears excessive in relation to the alternative purpose assigned. State v. Muldrow, attorney of each other county in which the defendant admits he or 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, 16-0740. she committed crimes, together with a statement that the defen- A circuit court is not required at the guilt phase to inform a defendant who has pled not guilty by reason of mental disease or defect (NGI) of the maximum possi- dant has applied to plead guilty in the county of custody. Upon ble term of civil commitment because: 1) a defendant who prevails at the responsi- receipt of the information and statement, the district attorney of bility phase of the NGI proceeding has proven an affirmative defense in a civil pro- the other county may execute a consent in writing allowing the ceeding, avoiding incarceration, and is not waiving any constitutional rights by so proceeding in that defense; and 2) an NGI commitment is not punishment but, defendant to enter a plea of guilty in the county of custody, to the rather, is a collateral consequence to one who successfully mounts an NGI defense crime charged in the information and committed in the other to criminal charges. State v. Fugere, 2019 WI 33, 386 Wis. 2d 76, 924 N.W.2d 469, county, and send it to the district attorney who prepared the 16-2258. A circuit court may utilize a waiver of rights form for a defendant who is pleading information. guilty, but the use of that form does not otherwise eliminate the circuit court’s plea (3) The district attorney shall file the information in any court colloquy duties. While a circuit court must exercise great care when conducting a plea colloquy so as to best ensure that a defendant is knowingly, intelligently, and of the district attorney’s county having jurisdiction to try or ac- voluntarily entering a plea, a formalistic recitation of the constitutional rights being cept a plea of guilty to the most serious crime alleged therein as waived is not required. State v. Pegeese, 2019 WI 60, 387 Wis. 2d 119, 928 N.W.2d 590, 17-0741. to which, if alleged to have been committed in another county, the Because Wisconsin does not permit conditional guilty pleas in the federal form, district attorney of that county has executed a consent as provided “stipulated trials,” which ultimately have the same effect, are also not permissible. in sub. (2). The defendant then may enter a plea of guilty to all State v. Beyer, 2021 WI 59, 397 Wis. 2d 616, 960 N.W.2d 408, 19-1983. When a defendant seeks to withdraw a plea after sentencing, the defendant bears offenses alleged to have been committed in the county where the the heavy burden to show by clear and convincing evidence that withdrawal is neces- court is located and to all offenses alleged to have been commit- sary to correct a manifest injustice. One way in which a manifest injustice occurs is ted in other counties as to which the district attorney has executed by a circuit court failing to establish a factual basis that constitutes the offense to which the defendant pled. A factual basis exists if an inculpatory inference can be a consent under sub. (2). Before entering a plea of guilty, the de- drawn from the complaint or facts admitted to by the defendant even though it may fendant shall waive in writing any right to be tried in the county conflict with an exculpatory inference elsewhere in the record. State v. Chentis, 2022 WI App 4, 400 Wis. 2d 441, 969 N.W.2d 482, 20-1699. where the crime was committed. The district attorney of the Courts have generally held that a prosecutor’s material breach of a plea agreement county where the crime was committed need not be present when may be cured if the prosecutor unequivocally retracts the error. In this case, when the plea is made but the district attorney’s written consent shall the prosecutor initially recommended a specific term of imprisonment despite the state’s agreement not to do so, but then retracted and corrected the mistake upon be- be filed with the court. ing made aware of the error, the prosecutor cured the breach of the plea agreement. (4) Thereupon the court shall enter such judgment, the same State v. Nietzold, 2023 WI 22, 406 Wis. 2d 349, 986 N.W.2d 795, 21-0021. While the facts giving rise to an attempted cure of a breach of a plea agreement as though all the crimes charged were alleged to have been com- may be found by the circuit court, whether those facts cure the breach—meaning mitted in the county where the court is located, whether or not the there is no longer a material breach entitling an accused to a remedy—is a question court has jurisdiction to try all those crimes to which the defen- of law. State v. Nietzold, 2023 WI 22, 406 Wis. 2d 349, 986 N.W.2d 795, 21-0021. A defendant is not entitled to withdraw a guilty plea whenever the defendant is dant has pleaded guilty under this section. provided misinformation about the law. Rather, courts address the issue under the (5) The county where the plea is made shall pay the costs of totality of the circumstances. The totality of the circumstances includes whether the misinformation provided to the defendant in part induced the defendant’s decision to prosecution if the defendant does not pay them, and is entitled to enter the plea. State v. Hailes, 2023 WI App 29, 408 Wis. 2d 465, 992 N.W.2d 835, retain fees for receiving and paying to the state any fine which 21-1339. Under Cross, 2010 WI 70, a defendant can be said to understand the range of pun- may be paid by the defendant. The clerk where the plea is made ishments as required by this section and Bangert, 131 Wis. 2d 246 (1986), when the shall file a copy of the judgment of conviction with the clerk in maximum sentence communicated to the defendant is higher, but not substantially each county where a crime covered by the plea was committed. higher, than the actual allowable sentence. In this case, although it was counsel who provided the incorrect information to the defendant, rather than the circuit court, the The district attorney shall then move to dismiss any charges cov- 46-year sentence communicated to the defendant was higher, but not substantially ered by the plea of guilty, which are pending against the defen- higher, than the 40-year maximum statutory penalty the defendant actually faced. dant in the district attorney’s county, and the same shall there- The defendant understood the potential punishment, and the plea was knowing, in- telligent, and voluntary. State v. Gomolla, 2024 WI App 13, 411 Wis. 2d 239, 4 upon be dismissed. N.W.3d 610, 22-0199. History: 1979 c. 31; 1993 a. 486. When the accused rejected a plea bargain on a misdemeanor charge and instead It was not error for the court to accept a plea before an amended complaint was requested a jury trial, the prosecutor did not act vindictively in raising the charge to filed when the defendant waived the late filing and was not prejudiced thereby. Fail-

2023-24 Wisconsin Statutes updated through 2025 Wis. Act 137 and through all Supreme Court Orders and Controlled Sub- stances Board Orders filed before and in effect on May 13, 2026. Published and certified under s. 35.18. Changes effective after May 13, 2026, are designated by NOTES. (Published 5-13-26)

971.09 PROCEEDINGS BEFORE AND AT TRIAL

ure to prepare an amended information prior to obtaining consents by the district at- own motion or the motion of any party, if the ends of justice torneys involved did not invalidate the conviction when the consents were actually obtained and the defendant waived the defect. Failure to dismiss the charges in one served by taking action outweigh the best interest of the public of the counties did not deprive the court of jurisdiction. Failure of a district attorney and the defendant in a speedy trial. A continuance shall not be to specifically consent to one offense did not invalidate the procedure when the error granted under this paragraph unless the court sets forth, in the was clerical. Peterson v. State, 54 Wis. 2d 370, 195 N.W.2d 837 (1972). Although the statute requires a plea of guilty to both the primary case and the record of the case, either orally or in writing, its reasons for find- case being consolidated, it is a logical extension to allow the defendant to ask for the ing that the ends of justice served by the granting of the continu- consolidation of a case from another county to which a guilty plea has been entered ance outweigh the best interests of the public and the defendant in with a case in which guilt was found by the court. State v. Rachwal, 159 Wis. 2d 494, 465 N.W.2d 490 (1991). a speedy trial. In a consolidated case, amendment of the charges from another county is not per- (b) The factors, among others, which the court shall consider missible. When amendment of those charges occurs after consolidation, the original trial court retains jurisdiction. If the original charge does not have the identical ele- in determining whether to grant a continuance under par. (a) are: ments of the amended charge, double jeopardy does not prevent prosecution of the 1. Whether the failure to grant the continuance in the pro- original charge in the original county although a guilty plea was entered to the amended charge in the other court. State v. Dillon, 187 Wis. 2d 39, 522 N.W.2d 530 ceeding would be likely to make a continuation of the proceeding (Ct. App. 1994). impossible or result in a miscarriage of justice. 2. Whether the case taken as a whole is so unusual and so