July 15, 2013 – An 18-year-old defendant pleaded guilty to attempted murder of two police officers, then moved to withdraw his guilty pleas after sentencing. Recently, the Wisconsin Supreme Court said Julius Burton cannot withdraw the pleas.
In June 2009, two police officers stopped Burton for riding his bicycle on the sidewalk in Milwaukee, an ordinance violation. Burton had initially kept riding despite police demands for him to stop, but the officers eventually caught him.
While resisting arrest, Burton pulled out a gun and shot both officers, one in the face from a distance of six inches away, destroying the officer’s left eye and causing other damage. Neither officer was killed, but Burton later confessed to shooting them.
The state charged Burton on two counts of attempted first-degree intentional homicide. Upon an initial mental health inquiry, Burton was found competent to stand trial.
But defense counsel entered pleas of not guilty by reason of mental disease or defect, noting that Burton had a history of mental disease, including schizophrenia. Expert doctors on both sides disagreed about Burton’s mental capacity at the time of the crime.
The state offered a plea deal: 50 years in prison. Both sides were still free to offer aggravating or mitigating circumstances at sentencing. Burton took the deal, withdrawing his insanity plea, and the circuit court judge performed a full plea colloquy.
At sentencing, the court imposed a 40-year prison term with 20 years of extended supervision. Burton’s postconviction lawyer filed a motion to withdraw the plea, claiming Burton’s defense counsel was ineffective, and the court’s plea colloquy was insufficient.
Specifically, postconviction counsel said defense counsel did not advise Burton on the possibility of entering a bifurcated plea to pursue a separate trial on his mental capacity, and the court did not advise him of a right to a bifurcated jury trial on the insanity issue.
In State v. Burton, 2013 WI 61 (July 10, 2013), unanimous supreme court ruled that Burton’s defense counsel was not ineffective and the plea colloquy was sufficient.
The supreme court noted that the postconviction motion did not plead sufficient facts that defense counsel failed to advise Burton on the bifurcated plea issue.
“The absence of record evidence in this situation is not enough,” wrote Justice David Prosser. “A defendant must affirmatively plead facts that, if true, would constitute deficient performance of counsel.”
The court also upheld the plea colloquy:
“The circuit court’s inquiry not only followed standard procedure, but also asked whether Burton was knowingly, intelligently, and voluntarily withdrawing his NGI plea and giving up the right to present an insanity defense,” Prosser wrote.
Insanity pleas are not a fundamental right, the court noted, and “it is not essential to conduct an extensive colloquy about NGI procedure before a defendant withdraws his plea of guilty by reason of mental disease of defect.”
However, the court urged circuit courts to conduct a colloquy on the bifurcated insanity plea (NGI plea) and trial option to avoid future plea withdrawal claims on this point.