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-A defendant wishing to withdraw a guilty plea must show by clear and convincing evidence that the

plea was not knowingly and voluntarily entered and that withdrawal is necessary to prevent manifest
injustice, as indicated when: 1) the defendant was denied effective assistance of counsel; 2) the plea
was not entered or ratified by the defendant or a person authorized to so act in his behalf; 3) the plea
was involuntary or was entered without knowledge of the charge or that the sentence actually imposed
could be imposed; and 4) the defendant did not receive the concessions contemplated by the plea
agreement and the prosecutor failed to seek them as promised in the agreement. Birts v. State, 68 Wis.
2d 389, 228 N.W.2d 351 (1975).

The concept of notice pleading has no application to a postconviction motion challenging a guilty plea.
An allegation that a guilty plea was entered because of misinformation provided by counsel is merely
conclusory. Facts must be alleged that show a reasonable probability that but for counsel's errors the
defendant would have proceeded to trial and that allow the court to meaningfully assess the claim of
prejudice. State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996), 94-3310.

A plea not knowingly and intelligently made violates due process and entitles the defendant to
withdraw the plea. The plea may be involuntary either because the defendant does not have a full
understanding of the charge or the nature of the rights being waived. State v. Van Camp, 213
Wis. 2d 131, 569 N.W.2d 577 (1998), 96-0600.
The test to determine a knowing and intelligent no contest plea is whether the defendant has
made a prima facie showing that the plea was made without the court's conformance with this
section and whether the defendant has properly alleged that he or she in fact did not know or
understand the information that should have been provided. The state must then prove that the
plea was knowingly and intelligently made by clear and convincing evidence. State v. Van
Camp, 213 Wis. 2d 131, 569 N.W.2d 577 (1998), 96-0600.
Intoxication. An intoxicated or a drugged condition of the actor is a defense only if
such condition is involuntarily produced and does one of the following:
(1) Renders the actor incapable of distinguishing between right and wrong in regard to the
alleged criminal act at the time the act is committed.
939.42(2) (2) Negatives the existence of a state of mind essential to the crime.
History: 1987 a. 399; 2013 a. 307.
To be relieved from responsibility for criminal acts, it is not enough for a defendant to establish
that he or she was under the influence of intoxicating beverages; the defendant must establish
that degree of intoxication that means he or she was utterly incapable of forming the intent
requisite to the commission of the crime charged. State v. Guiden, 46 Wis. 2d 328, 174 N.W.2d
488 (1970).
This section does not afford a defense when drugs were taken voluntarily and the facts
demonstrate that there was an intent to kill and conceal the crime. Gibson v. State, 55 Wis. 2d
110, 197 N.W.2d 813 (1972).
939.42

971.08

Pleas of guilty and no contest; withdrawal thereof.

(1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:

(a) Address the defendant personally and determine that the plea is made voluntarily with
understanding of the nature of the charge and the potential punishment if convicted.
(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.
(c) Address the defendant personally and advise the defendant as follows: "If you are not a
citizen of the United States of America, you are advised that a plea of guilty or no contest for the
offense with which you are charged may result in deportation, the exclusion from admission to
this country or the denial of naturalization, under federal law."
(d) Inquire of the district attorney whether he or she has complied with s. 971.095 (2).
971.08(2) (2) If a court fails to advise a defendant as required by sub. (1) (c) and a defendant
later shows that the plea is likely to result in the defendant's deportation, exclusion from
admission to this country or denial of naturalization, the court on the defendant's motion shall
vacate any applicable judgment against the defendant and permit the defendant to withdraw the
plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty
or no contest on any other grounds.
(3) Any plea of guilty which is not accepted by the court or which is subsequently permitted to
be withdrawn shall not be used against the defendant in a subsequent action.
A defendant may not withdraw a guilty plea simply because he or she did not specifically waive all of his
constitutional rights if the record shows that the defendant understood what rights were waived by the
plea. After a guilty plea, the hearing on the factual basis for the plea need not produce competent
evidence that satisfies the criminal burden of proof. Edwards v. State, 51 Wis. 2d 231, 186 N.W.2d 193
(1971).

A hearing on a motion to withdraw a guilty plea is to be liberally granted if the motion is made prior to
sentencing; it is discretionary if made thereafter and need not be granted if the record refutes the
allegations. The defendant must raise a substantial issue of fact. Nelson v. State, 54 Wis. 2d 489, 195
N.W.2d 629 (1972).

A defendant wishing to withdraw a guilty plea must show by clear and convincing evidence that the plea
was not knowingly and voluntarily entered and that withdrawal is necessary to prevent manifest
injustice, as indicated when: 1) the defendant was denied effective assistance of counsel; 2) the plea
was not entered or ratified by the defendant or a person authorized to so act in his behalf; 3) the plea
was involuntary or was entered without knowledge of the charge or that the sentence actually imposed
could be imposed; and 4) the defendant did not receive the concessions contemplated by the plea
agreement and the prosecutor failed to seek them as promised in the agreement. Birts v. State, 68 Wis.
2d 389, 228 N.W.2d 351 (1975).

Sub. (2) does not deprive the court of jurisdiction to consider an untimely motion. State v. Lee, 88 Wis.
2d 239, 276 N.W.2d 268 (1979).

A guilty plea, made knowingly and voluntarily, waives all nonjurisdictional defects and defenses,
including alleged violations of constitutional rights, prior to the appeal. State v. Aniton, 183 Wis. 2d 125,
515 N.W.2d 302 (Ct. App. 1994).

After conviction and sentencing, a defendant seeking to withdraw a plea must demonstrate by clear and
convincing evidence that withdrawal is required to correct a manifest injustice. When the defendant
accepted a plea offer believing that he was reducing his maximum sentence exposure and the maximum
sentence communicated to the defendant was substantially higher than the actual allowable sentence,
the burden was on the state to demonstrate that the defendant's plea was nonetheless knowing,
voluntary, and intelligent. State v. Dillard, 2013 WI App 108, 350 Wis. 2d 331, 838 N.W.2d 112, 12-2044.

Deciding whether to reject a plea agreement is squarely within the court's authority; to hold otherwise
would permit encroachment by the executive branch into the realm that has historically been that of the
judicial branch. Consideration of the views of the prosecutor as well as the defense attorney enter into
that determination. Authority vests in the circuit court to determine what pleas are in the public interest
without permitting the court to intrude on the authority of the prosecutor to decide what charges to file
or whether to file charges in the first instance. Factors to be considered by the court are discussed. State
v. Conger, 2010 WI 56, 325 Wis. 2d 664, 797 N.W.2d 341, 08-0755.

A circuit court may not rely entirely on the Plea Questionnaire/Waiver of Rights Form as a substitute for
a substantive in-court plea colloquy. The Plea Questionnaire/Waiver of Rights Form provides a
defendant and counsel the opportunity to review together a written statement of the information a
defendant should know before entering a guilty plea. A completed Form can be a very useful instrument
to help ensure a knowing, intelligent, and voluntary plea. The plea colloquy cannot, however, be
reduced to determining whether the defendant has read and filled out the Form. State v. Christopher S.
Hoppe, 2009 WI 41, 317 Wis. 2d 161, 765 N.W.2d 794, 07-0905.

In State v. Harper, 57 Wis.2d 543, 557, 205 N.W.2d 1 (1973), this court adopted a standard for assessing
counsel's performance: "Effective representation is not to be equated, as some accused believe, with a
not-guilty verdict. But the representation must be equal to that which the ordinarily prudent lawyer,
skilled and versed in criminal law, would give to clients who had privately retained his services." A
defendant "is not entitled to the ideal, perfect defense or the best defense but only to one which under
all the facts gives him reasonably effective representation." The contention of the defendant that Ragatz
should have conducted the defense differently[1] does not establish that Ragatz was ineffective. The
question presented is whether there was a basis in reason for Ragatz's actions. Weatherall v. State, 73
Wis. 2d 22, 28, 242 N.W.2d 220 (1976).

6 The remedy for a defendant who has been given an excessive sentence is set forth in Wis. Stat.
973.13. Pursuant to 973.13, a court may, in its discretion, commute the excessive portion of a

sentence without reopening the entire sentencing process, if the sentencing court's original intent is not
frustrated. See State v. Church, 2003 WI 74, 26, 262 Wis. 2d 678, 665 N.W.2d 141.

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