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  • WisBar News
    June 14, 2016

    Supreme Court: Evidentiary Hearing Not Required to Deny Plea Withdrawal Motion

    Joe Forward

    Supreme Court chamber in Wisconsin State Capitol

    June 14, 2016 – A circuit court properly denied a plea withdrawal motion without an evidentiary hearing, even though the defendant argued that he did not enter to plea knowingly, intelligently, and voluntarily, the Wisconsin Supreme Court ruled today.

    The state charged Richard Sulla on burglary and arson-related charges. He ultimately pleaded no contest to armed burglary and burglary.

    The other two counts, conspiracy to commit arson and driving a vehicle without owner consent, were dismissed but read into the record for purposes of sentencing.

    A judge for the Jefferson County Circuit Court accepted the plea after Sulla signed the plea questionnaire and a plea colloquy was conducted. The court then sentenced Sulla 10 years in prison, followed by nine years of extended supervision.

    Sulla filed a post-conviction motion for relief, arguing that he didn’t understand that read-in charges, although dismissed, could be considered in determining his sentence. The circuit court denied Sulla’s motion without holding an evidentiary hearing.

    The court of appeals reversed, concluding that Sulla was entitled to an evidentiary hearing before his motion could be denied. The state appealed.

    But in State v. Sulla, 2016 WI 46 (June 14, 2016), the Wisconsin Supreme Court unanimously reversed the appeals court, concluding that the circuit court had discretion to deny Sulla’s plea withdrawal motion without an evidentiary hearing.

    The court noted that an evidentiary hearing is required only if the defendant alleges facts that, if true, “would entitle the defendant to relief.” But if the “record conclusively demonstrates that the defendant is not entitled to relief,” no hearing is required.

    “The record in this case … conclusively demonstrates that Sulla is not entitled to relief because he was correctly informed of and understood the effect of the read-in charges at sentencing,” wrote Justice Michael Gableman in the majority opinion.

    Specifically, the majority found evidence that Sulla’s attorney and the court informed Sulla that the dismissed read-in charges could still be considered at the sentencing.

    The majority also noted that the plea questionnaire Sulla signed provides an explanation of how read-in offenses will be considered at sentencing.

    It also rejected the appeals court’s rationale that the read-in concept is potentially confusing for defendants, and Sulla alleged that he misunderstood the read-in concept.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Justice Gableman said the court of appeals failed to consider recent Wisconsin Supreme Court decisions that he said resolved “potential inconsistencies” presented by two cases, Nelson and Bentley, on evidentiary hearings in the plea withdrawal context.

    “Had the court of appeals been so inclined, it could have read and applied these cases, and a costly, time-consuming appeal to this court could have been avoided,” he wrote.

    Gableman said the supreme court has already clarified that circuit courts have discretion to deny plea withdrawal motions without conducting an evidentiary hearing and in this case, the circuit court properly used that discretion to deny Sulla’s motion.


    Justice Ann Walsh Bradley wrote a concurring opinion, joined by Justice Shirley Abrahamson. They agreed with the majority opinion that the postconviction court exercised proper discretion to deny Sulla’s plea withdrawal motion.

    But Justice A.W. Bradley noted that read-in offenses do have the potential to confuse defendants, and judges and lawyers should ensure defendants fully understand.

    “Given the potential for confusion and the uncertainties detailed below, I urge circuit courts and counsel to make additional efforts to guarantee that defendants understand all the consequences of read-in charges. …” Justice A.W. Bradley wrote.

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