May 29, 2009 – When accepting a guilty plea, the judge must do more than check to see if the defendant read and understood the standard form used to enter the plea.

The Wisconsin Supreme Court said in State v. Hoppe, 2009 WI 41, that the judge should have inquired more deeply into Christopher Hoppe’s understanding of his plea and its ramifications   when he plead guilty to 12 counts of possessing child pornography.

However, the justices rejected Hoppe’s motion to withdraw his guilty plea, holding that the record ultimately demonstrated that the plea was knowingly, intelligently, and voluntarily entered.

A proper plea colloquy

The court explained that during a proper plea colloquy, the judge must personally address the defendant and:

• Determine the defendant’s education and general comprehension of the issues at the hearing
  
• Ascertain whether any promises, agreements, or threats were made to induce the plea, the defendant’s appearance at the hearing, or the decision to forgo an attorney
  
• Alert the defendant to the possibility that an attorney might discover defenses or mitigating circumstances not apparent to one untrained in the law
  
• Ensure a poor defendant knows an attorney will be appointed at no cost
  
• Establish the defendant’s understanding of the nature of the crime and the range of punishments
  
• Find whether a factual basis exists to support the plea
  
• Inform the defendant of the constitutional rights waived by a guilty plea and verify the defendant understands this consequence
  
• Establish that the defendant understands the court is not bound by the terms of any plea agreement, including recommendations from the district attorney
  
• Notify the defendant of the direct consequences of a plea
  
• Advise the defendant of the risk of deportation, denial of naturalization, or exclusion from admission to this country if the defendant is not a United States citizen

A plea questionnaire and 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, the justices said. “A completed form can therefore be a very useful instrument to help ensure a knowing, intelligent, and voluntary plea,” the court said.

“The plea colloquy cannot, however, be reduced to determining whether the defendant has read and filled out the form,” the court continued, insisting on a personal, in-court, on-the-record exchange between the judge and the defendant.

At the Wisconsin Court of Appeals, Hoppe’s plea colloquy was deemed sufficient based, in part, on   State v. Moederndorfer, 141 Wis. 2d 823 (Ct. App. 1987).

In Moederndorfer, a judge did not read each of the waived constitutional rights to the defendant to confirm the defendant’s understanding, but referred to a three-page waiver provided to the defendant listing them. Moederndorfer held that a circuit court may “specifically refer to some portion of the record or communication between defense counsel and [the] defendant which affirmatively exhibits [the] defendant’s knowledge of the constitutional rights he will be waiving” and then “ascertain whether the defendant understands he will be waiving certain constitutional rights by virtue of his guilty or no contest plea.”

The supreme court said that the court of appeals misunderstood Moederndorfer.

“Moederndorfer does not support the position that so long as the circuit court ascertains that the defendant generally understands the Plea Questionnaire/Waiver of Rights Form, the contents of that Form may be viewed as intrinsic to the plea colloquy,” the court said.

“[T]he Moederndorfer decision is properly interpreted to mean that although use of the Plea Questionnaire/Waiver of Rights Form ‘lessen[s] the extent and degree of the colloquy otherwise required between the trial court and the defendant,’ the Form is not ‘intended to eliminate the need for the court to make a record demonstrating the defendant’s understanding’ of the particular information contained therein,” the court continued.

A valid plea

After concluding that the plea colloquy was deficient, the court explained that the burden shifts to the state to prove by clear and convincing evidence that the plea was knowingly, intelligently, and voluntarily entered.

For this analysis, the court assumed without deciding the truth of Hoppe’s allegations of coercion and promises of leniency by his attorneys and his assertions of ignorance regarding the potential severity of his sentence and his constitutional rights.

The state is entitled to satisfy its burden with evidence outside of the plea hearing record, the court noted. An evidentiary hearing called to consider Hoppe’s claims yielded testimony from Hoppe and one of his attorneys sufficient to support a conclusion that the plea was validly entered despite defects in the plea colloquy, the court held.

An allegation of a defect extrinsic to the plea colloquy, such as ineffective assistance of counsel, shifts the burden of proof back to the defendant, the court noted. Reviewing the available record, the justices concluded that Hoppe did not meet this burden.