State v. Javien Cajujuan Pegeese , 387 Wis. 2d 119 ( 2019 )

2019 WI 60
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP741-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Javien Cajujuan Pegeese,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 383 Wis. 2d 601,918 N.W.2d 127
(2018 – unpublished)
OPINION FILED: May 31, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 10, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Rock
JUDGE: Richard T. Werner & John M. Wood
JUSTICES:
CONCURRED: DALLET, J. concurs, joined by A.W. BRADLEY, J.
(opinion filed).
DISSENTED:
NOT PARTICIPATING: ABRAHAMSON, J. did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Thomas B. Aquino, assistant state public defender.
There was an oral argument by Thomas B. Aquino.
For the plaintiff-respondent, there was a brief filed by
Aaron R. O’neil, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general of Wisconsin. There
was an oral argument by Aaron R. O’neil.
2019 WI 60
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP741-CR
(L.C. No. 2015CF1244)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. MAY 31, 2019
Javien Cajujuan Pegeese, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished, per curiam decision of the court of appeals, State
v. Pegeese, No. 2017AP741–CR, unpublished slip op. (Wis. Ct.
App. Jun. 21, 2018), affirming the circuit court's1 order denying
Javien Cajujuan Pegeese's ("Pegeese") postconviction motion to
withdraw his guilty plea. Pegeese claims that the circuit
1The Honorable Richard T. Werner initially presided,
accepting Pegeese's guilty plea and sentencing him. On
November 17, 2016, the matter was transferred to the Honorable
John M. Wood, who presided over proceedings regarding Pegeese's
postconviction motion to withdraw his guilty plea.
No. 2017AP741-CR
court's plea colloquy was defective under Wis. Stat. § 971.08
(2015–16)2 and State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12
(1986), because the circuit court failed to sufficiently
explain, and Pegeese did not understand, the constitutional
rights he would be waiving by entering a plea. As a result of
the claimed defects, Pegeese argues that he did not knowingly,
intelligently, and voluntarily enter his plea. Pegeese seeks to
withdraw his plea and asks that this court remand to the circuit
court for an evidentiary hearing under Bangert. Pegeese also
requests that this court exercise its superintending authority
to require circuit courts to, at every plea colloquy, verbally
advise a defendant of each individual constitutional right being
waived and verify that a defendant understands the waiver of
each right.
¶2 The State asserts that the circuit court's plea
colloquy was not defective because a "Plea Questionnaire/Waiver
of Rights" form ("Form CR-227"), completed by Pegeese with
counsel prior to the colloquy, expressly listed each
constitutional right Pegeese waived and required Pegeese to
indicate next to each right that he knew and understood the
right he was waiving. The State asserts that the in-court
colloquy otherwise ensured that Pegeese was knowingly,
intelligently, and voluntarily waiving his constitutional
rights. The State therefore argues that Pegeese has not met his
2All subsequent references to the Wisconsin Statutes are to
the 2015–16 version, unless otherwise indicated.
2
No. 2017AP741-CR
burden to show that he is entitled to a Bangert hearing, and
that this court should not exercise its superintending
authority, as Pegeese proposes, that circuit courts be required
to personally advise defendants of each constitutional right
being waived.
¶3 The circuit court's colloquy with Pegeese verified
that the constitutional rights at issue were contained in
Form CR-227, that Pegeese completed and signed the form with
counsel, and that he wanted no further time to discuss matters
with his lawyer. The colloquy further verified that Pegeese
comprehended the contents of the form, and he and his lawyer
acknowledged that he understood each constitutional right he was
waiving by pleading guilty. The circuit court concluded that
Pegeese was "freely, knowingly[,] and intelligently" entering
his plea.3
¶4 We conclude that Pegeese has not met his burden to
demonstrate that the plea colloquy was defective so as to
3
We note that the transcript from the plea hearing reflects
that the circuit court used the phrase "freely, knowingly[,] and
intelligently" in describing Pegeese's plea. Form CR-227 uses a
slightly different phrase in the section titled "Attorney's
Statement," where the defendant's attorney states that the
defendant "is making this plea freely, voluntarily, and
intelligently." Neither phrase is inconsistent with the
"knowingly, voluntarily, and intelligently" language this court
used in State v. Bangert, 131 Wis. 2d 246, 251–52, 389 N.W.2d 12
(1986), and this court has more recently used the phrase
"knowingly, intelligently, and voluntarily" in numerous cases.
See, e.g., State v. Sulla, 2016 WI 46, 369 Wis. 2d 225, 880
N.W.2d 659; State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829
N.W.2d 482.
3
No. 2017AP741-CR
entitle him to the relief requested. We further decline to
exercise our superintending authority to impose a specific
requirement that at a plea hearing circuit courts must
individually recite and specifically address each constitutional
right being waived and then otherwise verify the defendant's
understanding of each constitutional right being waived.
Therefore, we affirm the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶5 On June 24, 2015, the State filed a criminal complaint
charging then-16-year-old Pegeese with armed robbery as a party
to a crime in violation of Wis. Stat. §§ 943.32(2) and 939.05.
The criminal complaint alleged that on April 24, 2015, three
individuals with their faces covered approached a pizza delivery
driver, who was making a delivery to a home. It further alleged
that one of the individuals ordered the delivery driver on the
ground, that another individual brandished a pistol and struck
the delivery driver in the head with the pistol, and that one of
the three stole $168 in cash and a key fob from the delivery
driver's pockets. According to the criminal complaint, police
learned from the owner of the phone that was used to place the
order for the pizza delivery that she overheard Pegeese and
another person talking the next day about how one of them had
"pistol whipped" the delivery driver.
¶6 On August 13, 2015, Pegeese pled guilty to robbery
with threat of force as a party to a crime, in violation of Wis.
4
No. 2017AP741-CR
Stat. §§ 943.32(1)(b) and 939.05. Prior to the plea hearing,
Pegeese completed Form CR-227.4 Specifically, the
"Constitutional Rights" section of Form CR-227 states as
follows:
I understand that by entering this plea, I give up the
following constitutional rights:
I give up my right to a trial.
I give up my right to remain silent and I
understand that my silence could not be used
against me at trial.
I give up my right to testify and present
evidence at trial.
I give up my right to use subpoenas to require
witnesses to come to court and testify for me at
trial.
I give up my right to a jury trial, where all 12
jurors would have to agree that I am either
guilty or not guilty.
I give up my right to confront in court the
people who testify against me and cross-examine
them.
I give up my right to make the State prove me
guilty beyond a reasonable doubt.
I understand the rights that have been checked and
give them up of my own free will.
Waiver of each of these constitutional rights is acknowledged by
marking the box next to each with an "X."
4 Form CR-227 is a single page, two-sided document. Circuit
courts will often attach other documents to the form. The
circuit court here attached a document titled "Elements of
Common Criminal Offenses," which included the elements of the
offense to which Pegeese pled guilty.
5
No. 2017AP741-CR
¶7 In the form, Pegeese confirmed his understanding of
his plea agreement with the State: a joint recommendation of
three years of probation. Pegeese acknowledged that he
understood "the judge is not bound by any plea agreement or
recommendations and may impose the maximum penalty," and that he
understood the maximum penalty he faced was 15 years in prison,
a $50,000 fine, or both. In the "Voluntary Plea" section of the
form, Pegeese acknowledged, "I have decided to enter this plea
of my own free will. I have not been threatened or forced to
enter this plea. No promises have been made to me other than
those contained in the plea agreement."
¶8 Pegeese signed and dated the form, which stated by the
signature block:
I have reviewed and understand this entire document
and any attachments. I have reviewed it with my
attorney (if represented). I have answered all
questions truthfully and either I or my attorney have
checked the boxes. I am asking the court to accept my
plea and find me guilty.
Pegeese's attorney also signed the form, acknowledging that he
discussed the form with Pegeese, believed Pegeese understood the
form and the plea agreement, and that Pegeese was pleading
"freely, voluntarily, and intelligently."
¶9 During the August 13 plea hearing, the circuit court
conducted the following plea colloquy with Pegeese:
THE COURT: Have you had enough time to talk to
[your attorney] Mr. Hoag about your cases?
THE DEFENDANT: Yes, sir.
6
No. 2017AP741-CR
THE COURT: Has he answered all the questions
you've had?
THE DEFENDANT: Yes, sir.
THE COURT: Do you need more time to talk with
him today?
THE DEFENDANT: No, sir.
THE COURT: Are you satisfied with his
representation?
THE DEFENDANT: Yes, sir.
THE COURT: You have provided me today with a
Plea Agreement and Waiver of Rights document; correct?
THE DEFENDANT: Yes, sir.
THE COURT: That's your signature on the back
side?
THE DEFENDANT: Yes, sir.
THE COURT: Did you read that document before you
signed it?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand all the statements
made in that document?
THE DEFENDANT: Yes, sir.
THE COURT: Any questions about anything in that
document?
THE DEFENDANT: No, sir.
THE COURT: Mr. Hoag, you reviewed the Plea
Questionnaire with him?
MR. HOAG: I read it to him, Your Honor.
THE COURT: Do you believe he understands it?
MR. HOAG: I do.
7
No. 2017AP741-CR
THE COURT: Mr. Pageese [sic], do you understand
the Constitutional Rights you give up when you enter a
plea today?
THE DEFENDANT: Yes, sir.
THE COURT: Any questions about those rights?
THE DEFENDANT: No sir.
¶10 After confirming again with Pegeese's attorney that
Pegeese's plea was given "freely, knowingly[,] and
intelligently," the circuit court accepted the plea and
specifically found that Pegeese's plea was "freely, knowingly[,]
and intelligently made." The circuit court withheld sentence,
and instead put Pegeese on probation for three years consistent
with the parties' joint recommendation.
¶11 On December 12, 2016, Pegeese filed a motion for
postconviction relief pursuant to Wis. Stat. § (Rule)
809.30(2)(h), seeking withdrawal of his guilty plea. Pegeese
argued that the circuit court's plea colloquy was
constitutionally deficient because the circuit court failed to
properly ensure on the record that Pegeese fully understood all
of the constitutional rights he was waiving when he entered his
guilty plea. Specifically, Pegeese asserted that despite
completing Form CR-227, consulting with counsel, and engaging in
the plea colloquy with the circuit court, he did not understand
his constitutional rights to "(1) remain silent or testify, (2)
use subpoenas to require witnesses to testify, (3) have a jury
trial where all 12 jurors have to agree on guilt, (4) confront
and cross-examine people who testify against him, and (5) make
the [S]tate prove him guilty beyond a reasonable doubt." As a
8
No. 2017AP741-CR
result, Pegeese sought to withdraw his plea and requested an
evidentiary hearing pursuant to Bangert.
¶12 On March 31, 2017, the circuit court denied Pegeese's
motion for postconviction relief. The circuit court noted that
the plea colloquy in Pegeese's case was "almost identical" to
the plea colloquy that occurred in State v. Moederndorfer, 141
Wis. 2d 823, 416 N.W.2d 627 (Ct. App. 1987), where the court of
appeals concluded that the plea colloquy was not
constitutionally defective. The circuit court determined that a
hearing was not necessary as both Pegeese and his counsel stated
at the plea hearing that they went through the plea
questionnaire, and Pegeese stated that he did not need more time
to talk with his attorney. The circuit court noted that Pegeese
had not attached an affidavit to support his assertions. The
circuit court concluded that based on the record, which included
both the plea colloquy and Form CR-227, Pegeese had not met his
burden to establish there was a deficiency in the plea hearing
so as to entitle him to a Bangert hearing. The circuit court
noted that it specifically asked Pegeese on the record if he
read Form CR-227 and understood it, and further ensured that
Pegeese understood the constitutional rights he was waiving by
pleading guilty. The reviewing circuit court further explained
as follows:
The Plea Questionnaire, Waiver of Rights form is
not . . . a substitute for sufficient and adequate
plea colloquy. It is a tool to be used to ascertain
whether or not the defendant understands what he is
doing by entering a plea. And I believe that's
exactly what [the judge who took the plea] did in this
9
No. 2017AP741-CR
particular case. He used that plea colloquy as a tool
to have this conversation on the record with the
defendant. [The judge who took the plea] asked, Did
you have any questions about those Constitutional
Rights? And the defendant said, No, he had no
questions.
As a result, the circuit court denied Pegeese's motion for
postconviction relief and concluded that no Bangert hearing was
necessary.
¶13 Pegeese appealed the circuit court's denial of his
motion to withdraw his plea, asserting the same arguments he
made before the circuit court. On June 21, 2018, the court of
appeals issued an unpublished, per curiam decision affirming the
circuit court. Pegeese, No. 2017AP741-CR, unpublished slip op.,
¶1. Specifically, the court of appeals concluded that "the plea
colloquy here was adequate as to the constitutional rights. The
[circuit] court properly used the plea questionnaire form to
establish context about those rights, and then asked Pegeese
directly whether he understood the rights that he was waiving by
pleading guilty." Id., ¶17.
¶14 Pegeese petitioned this court for review, and we
granted his petition.
II. STANDARD OF REVIEW
¶15 We must determine whether the circuit court's plea
colloquy was sufficient and whether an evidentiary hearing is
required. "'When a defendant seeks to withdraw a guilty plea
after sentencing, he must prove, by clear and convincing
evidence, that a refusal to allow withdrawal of the plea would
result in "manifest injustice."'" State v. Taylor, 2013 WI 34,
10
No. 2017AP741-CR
¶24, 347 Wis. 2d 30, 829 N.W.2d 482 (quoting State v. Brown,
2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906). A defendant
may show manifest injustice by proving "that his plea was not
entered knowingly, intelligently, and voluntarily." Id. (citing
Brown, 293 Wis. 2d 30, ¶18).
¶16 Where a defendant does not enter his plea knowingly,
intelligently, and voluntarily, his fundamental due process
rights are violated such that the defendant is entitled to
withdraw his plea. Id., ¶25 (citing State v. Cross, 2010 WI 70,
¶14, 326 Wis. 2d 492, 786 N.W.2d 64). Whether a defendant
entered his plea knowingly, intelligently, and voluntarily is a
question of constitutional fact that this court reviews de novo.
Id. (citing Cross, 326 Wis. 2d 492, ¶14). "In making this
determination, this court accepts the circuit court's findings
of historical or evidentiary facts unless they are clearly
erroneous." Id. (quoting Cross, 326 Wis. 2d 492, ¶14).
¶17 Whether Pegeese has shown that the plea colloquy was
deficient such that Wis. Stat. § 971.08 or another mandatory
plea hearing requirement was violated is a question of law that
this court reviews independently. Id., ¶26 (citing Brown, 293
Wis. 2d 594, ¶21).
III. ANALYSIS
¶18 Pegeese contends that he should be allowed to withdraw
his plea because he did not understand the constitutional rights
he was waiving when he entered his plea. He argues that the
circuit court did not sufficiently explain or verify that he
understood——and in fact he did not understand——the
11
No. 2017AP741-CR
constitutional rights he waived by entering a plea. Pegeese
asserts that the plea questionnaire alone is insufficient, and
that the plea colloquy here was deficient because the circuit
court failed to individually review and specifically address
each constitutional right and verify that he knew he would be
waiving each right. Pegeese argues that he is thus entitled to
a remand for a Bangert hearing. In addition, Pegeese asserts
that this court should exercise its superintending authority to
"adopt a clear rule that the plea judge has a duty to inform and
verify that the defendant understands each constitutional right
waived by the plea."
¶19 The State argues that the plea colloquy with Pegeese
was sufficient and that the circuit court appropriately
incorporated Form CR-227 into the colloquy. The State asserts
that Pegeese has not met his burden, and that his plea was
entered knowingly, intelligently, and voluntarily. The State
urges this court to decline Pegeese's invitation to impose on
circuit courts the additional duty when taking a plea, to
independently review and specifically address the constitutional
rights being waived. Alternatively, the State avers that even
if the circuit court's plea colloquy was deficient, the circuit
court's error was harmless such that Pegeese still would not be
entitled to a Bangert hearing.
¶20 We conclude that Pegeese has not demonstrated the
right to a Bangert hearing as the circuit court's plea colloquy
and use of the plea questionnaire sufficiently explained and
verified that Pegeese did understand the constitutional rights
12
No. 2017AP741-CR
he was waiving so as to fulfill the requirements of Wis. Stat.
§ 971.08 and Bangert. Accordingly, we need not reach the issue
of harmless error. We further decline to exercise our
superintending authority to impose a specific requirement that
circuit courts individually recite each constitutional right and
then otherwise verify the defendant's understanding that those
rights are waived.
A. Plea Colloquy Requirements
¶21 It has long been recognized that under the Due Process
Clause, a defendant's guilty or no contest plea must be
knowingly, intelligently, and voluntarily entered. State v.
Bollig, 2000 WI 6, ¶15, 232 Wis. 2d 561, 605 N.W.2d 199 (citing
Boykin v. Alabama, 395 U.S. 238, 242 (1969)); Bangert, 131
Wis. 2d at 257. Wisconsin imposes certain statutory and common
law duties on circuit courts to ensure that a defendant's plea
is given knowingly, intelligently, and voluntarily. See Taylor,
347 Wis. 2d 30, ¶¶30–31.
¶22 Wisconsin Stat. § 971.08 sets forth mandatory
requirements that must be met before the circuit court may
accept a defendant's guilty or no contest plea. Section 971.08
"is not a constitutional imperative," but rather is a procedural
statute "designed to assist the trial court in making the
constitutionally required determination that a defendant's plea
is voluntary." Bangert, 131 Wis. 2d at 261. Among other
things, circuit courts must "[a]ddress the defendant personally
and determine that the plea is made voluntarily with
13
No. 2017AP741-CR
understanding of the nature of the charge and the potential
punishment if convicted."5 § 971.08(1)(a).
¶23 This court has recognized that circuit courts have a
number of duties at a plea hearing to ensure that a defendant's
5 Wisconsin Stat. § 971.08 states in full as follows:
(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).
(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.
14
No. 2017AP741-CR
guilty or no contest plea is knowing, intelligent, and
voluntary, which include conducting a colloquy to:
(1) Determine the extent of the defendant's
education and general comprehension so as to assess
the defendant's capacity to understand the issues at
the hearing;
(2) Ascertain whether any promises, agreements,
or threats were made in connection with the
defendant's anticipated plea, his appearance at the
hearing, or any decision to forgo an attorney;
(3) Alert the defendant to the possibility that
an attorney may discover defenses or mitigating
circumstances that would not be apparent to a layman
such as the defendant;
(4) Ensure the defendant understands that if he
is indigent and cannot afford an attorney, an attorney
will be provided at no expense to him;
(5) Establish the defendant's understanding of
the nature of the crime with which he is charged and
the range of punishments to which he is subjecting
himself by entering a plea;
(6) Ascertain personally whether a factual basis
exists to support the plea;
(7) Inform the defendant of the constitutional
rights he waives by entering a plea and verify that
the defendant understands he is giving up these
rights;
(8) Establish personally that the defendant
understands that the court is not bound by the terms
of any plea agreement, including recommendations from
the district attorney, in every case where there has
been a plea agreement;
(9) Notify the defendant of the direct
consequences of his plea; and
(10) Advise the defendant that "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
15
No. 2017AP741-CR
offense [or offenses] with which you are charged may
result in deportation, the exclusion from admission to
this country or the denial of naturalization, under
federal law," as provided in Wis. Stat.
§ 971.08(1)(c).
Taylor, 347 Wis. 2d 30, ¶31 (quoting Brown, 293 Wis. 2d 594,
¶35).
B. Standards For Plea Withdrawal Post-Sentencing
¶24 Here, Pegeese brings a post-sentencing challenge to
his guilty plea. See State v. Booth, 142 Wis. 2d 232, 237, 418
N.W.2d 20 (Ct. App. 1987) ("[W]e conclude that the withholding
of sentence and the imposition of probation . . . are
functionally equivalent to sentencing for determining the
appropriateness of plea withdrawal."). As noted previously, to
withdraw a plea after sentencing, the defendant must show by
clear and convincing evidence that refusing to allow him to
withdraw his plea would result in a "manifest injustice."
Taylor, 347 Wis. 2d 30, ¶24. Wisconsin courts have delineated
the following circumstances where a manifest injustice occurs
such that a plea may be withdrawn post-sentencing:
(1) ineffective assistance of counsel; (2) the
defendant did not personally enter or ratify the plea;
(3) the plea was involuntary; (4) the prosecutor
failed to fulfill the plea agreement; (5) the
defendant did not receive the concessions tentatively
or fully concurred in by the court, and the defendant
did not reaffirm the plea after being told that the
court no longer concurred in the agreement; and, (6)
the court had agreed that the defendant could withdraw
the plea if the court deviated from the plea
agreement.
16
No. 2017AP741-CR
State v. Daley, 2006 WI App 81, ¶20 n.3, 292 Wis. 2d 517, 716
N.W.2d 146 (quoting State v. Krieger, 163 Wis. 2d 241, 251 n.6,
471 N.W.2d 599 (Ct. App. 1991)).
¶25 In support of his claim for plea withdrawal, Pegeese
asserts that manifest injustice resulted because he did not
understand the constitutional rights he waived and his plea was
unknowing, unintelligent, and involuntary. Where a defendant
seeks to withdraw a guilty or no contest plea post-sentencing
due to a claimed error in the plea colloquy, the proper analysis
has two steps. Taylor, 347 Wis. 2d 30, ¶27. We first
"determine if the defendant should be allowed to withdraw the
plea because the circuit court violated its duty under Wis.
Stat. § 971.08 or other court-mandated duty." Id. Second, we
"determine, if necessary, whether the failure to withdraw the
plea would otherwise result in a manifest injustice." Id.
¶26 Defendants such as Pegeese who move to withdraw a plea
based on a defective plea colloquy have the initial burden to
meet a two-prong test: (1) the defendant must "make a prima
facie showing of a violation of Wis. Stat. § 971.08 or other
court-mandated duty"; and (2) the defendant must "allege that
the defendant did not, in fact, know or understand the
information that should have been provided during the plea
colloquy." Id., ¶32 (citing Bangert, 131 Wis. 2d at 274). In
order to make a prima facie showing, the defendant may not rely
on conclusory allegations. Id. The defendant "must point to
deficiencies in the plea hearing transcript" to meet his initial
burden. Id. If the defendant fails to meet his initial burden,
17
No. 2017AP741-CR
then the circuit court must deny the defendant's plea withdrawal
motion. See id.
¶27 When a defendant successfully meets both prongs, then
that defendant is entitled to an evidentiary hearing, also known
as a "Bangert hearing." Id. If a Bangert hearing occurs, the
burden of proof shifts to the State to show "by clear and
convincing evidence that the defendant's plea, despite the
inadequacy of the plea colloquy, was knowing, intelligent, and
voluntary." Id. (citing Bangert, 131 Wis. 2d at 274). In
attempting to meet its burden, "[t]he State may use 'any
evidence' to prove that the defendant's plea was knowing,
intelligent, and voluntary, including any documents in the
record and testimony of the defendant or defendant's counsel."
Id. (citing Bangert, 131 Wis. 2d at 274–75). If the State fails
to meet its burden at the Bangert hearing, then the defendant is
entitled to withdraw his guilty or no contest plea. See id.
C. Application Of Legal Principles
¶28 We now analyze whether Pegeese has made a prima facie
showing that the circuit court violated a statutory or common
law duty in conducting the plea colloquy.6 We begin with the
plea colloquy itself. Pegeese claims that the plea colloquy was
deficient because the circuit court violated its duty to "inform
6 Neither party disputes that Pegeese meets his burden as to
the second prong under Bangert, as he alleges that he failed to
know or understand the constitutional rights he was waiving by
entering a guilty plea. Accordingly, the focus of our analysis
is on the first prong.
18
No. 2017AP741-CR
the defendant of the constitutional rights he waives by entering
a plea and verify that the defendant understands he is giving up
these rights". See Taylor, 347 Wis. 2d 30, ¶31.
¶29 However, the issue Pegeese raises is not necessarily a
novel one. Wisconsin courts have considered the extent to which
a circuit court may rely on a plea questionnaire. We now
examine those cases.
¶30 In Moederndorfer the court of appeals concluded that
Moederndorfer was not entitled to a Bangert hearing even though
the circuit court relied in part on a form instead of
specifically addressing each constitutional right individually.
Moederndorfer, 141 Wis. 2d at 831. Shortly before the plea
hearing, Moederndorfer completed a three-page "waiver of rights"
form with his lawyer. Id. The form detailed each
constitutional right being waived, and Moederndorfer initialed
next to each. Id. at 827. At the plea hearing, the State
entered the form as an exhibit, and the circuit court
specifically referred to the form during the plea colloquy with
Moederndorfer. Id. The following exchange occurred during the
plea colloquy:
THE COURT: By entering that plea of guilty,
Mr. Moederndorfer, you give up rights, and these
rights have been detailed in this three-page waiver of
rights form. Your attorney has filed this on your
behalf. Have you read this three-page form? You will
have to answer out loud, sir.
THE DEFENDANT: Yes.
THE COURT: Have you read it this morning?
19
No. 2017AP741-CR
THE DEFENDANT: Yes.
THE COURT: In fact, you have read it within the
last 15 minutes, I understand?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand what is in these
three pages, Mr. Moederndorfer?
THE DEFENDANT: Yes.
THE COURT: Has [your attorney] assisted you in
understanding what is in these three pages?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions of me as to
what is in these three pages?
THE DEFENDANT: No.
THE COURT: Mr. Moederndorfer, is this your
signature on Page 3 of this form?
THE DEFENDANT: Yes.
THE COURT: Are these your initials in the
columns of each of these three pages?
THE DEFENDANT: That's correct.
THE COURT: And these initials signify that you
have read each of the paragraphs and that you
understand them before you placed your initials on
them, is that correct?
THE DEFENDANT: Yes, Your Honor, on each and
every one.
Id. at 828 n.1. The circuit court accepted the guilty plea and
sentenced Moederndorfer. Id. at 825–26.
¶31 Moederndorfer subsequently moved to withdraw his plea,
and the circuit court denied Moederndorfer's motion. Id. at
826. The court of appeals affirmed the circuit court, holding
20
No. 2017AP741-CR
that [Moederndorfer] did not meet his prima facie
burden [under Bangert] of showing that the plea
hearing record was defective. The record
affirmatively demonstrates that [Moederndorfer]
understood the constitutional rights he waived and
understood the nature of the charge of burglary when
he entered the plea of guilty.
Id. at 831–32.
¶32 The court of appeals rejected Moederndorfer's argument
that the circuit court improperly relied upon the waiver of
rights form and noted that in fact, defendants may be more
likely to understand the rights being waived by reading a form
"in an unhurried atmosphere, as opposed to reliance upon oral
colloquy in a supercharged courtroom setting." Id. at 828. The
court of appeals further explained:
A trial court can accurately assess a defendant's
understanding of what he or she has read by making a
record that the defendant had sufficient time prior to
the hearing to review the form, had an opportunity to
discuss the form with counsel, had read each
paragraph, and had understood each one.
Id. The court of appeals reasoned that the circuit court
expressly referenced the form on the record and inquired
specifically as to whether Moederndorfer completed the form,
whether Moederndorfer's attorney assisted him in completing the
form, and whether Moederndorfer understood each of the
paragraphs in the form. Id. at 828–30. The court of appeals
therefore concluded that the plea colloquy satisfied the
requirements of Wis. Stat. § 971.08 and Bangert.
¶33 While a waiver of rights form may be used, circuit
courts are not to rely entirely on the form in a plea colloquy.
Nearly five years after Moederndorfer, in State v. Hansen, 168
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No. 2017AP741-CR
Wis. 2d 749, 755–56, 485 N.W.2d 74 (Ct. App. 1992), the court of
appeals concluded that the circuit court's complete reliance on
a plea questionnaire and waiver of rights form rendered the plea
colloquy defective. In Hansen the circuit court only asked
Hansen if he went over the form with his attorney and understood
the form when he signed it, unlike in Moederndorfer where the
circuit court specifically asked whether Moederndorfer
understood the constitutional rights he was waiving. Id. at
752, 755–56. The court of appeals thus clarified as follows:
Here, [the circuit court's] personal colloquy with
Hansen did not include any discussion as to the
constitutional rights which Hansen was waiving.
Instead, the colloquy was limited to whether Hansen
had gone over the Moederndorfer form with his attorney
before he signed it and whether Hansen understood the
form. We conclude that such limited personal colloquy
is not the substantive kind of personal exchange
between the trial court and the defendant which
Bangert, [Wis. Stat. § 971.08], and Moederndorfer
require.
Hansen, 168 Wis. 2d at 755.
¶34 The court of appeals explained that while
Moederndorfer's approval of the form "certainly lessened the
extent and degree of the colloquy otherwise required between the
trial court and the defendant, it was not intended to eliminate
the need for the court to make a record demonstrating the
defendant's understanding that the plea results in the waiver of
the applicable constitutional rights." Id. at 755–56. The
court of appeals concluded that Hansen's plea colloquy was
defective because it established only that Hansen had read and
understood the form, but failed to establish that Hansen
22
No. 2017AP741-CR
"understood that by entering his no contest plea he was waiving
his applicable constitutional rights." Id. at 756; see also
State v. Hampton, 2004 WI 107, ¶¶14–17, 66–73, 274 Wis. 2d 379,
683 N.W.2d 14 (holding that circuit courts must specifically
inquire as to whether defendants understand the circuit court is
not bound by a plea agreement sentence recommendation, and that
simply asking defendants whether they understand a waiver of
rights form is not sufficient).
¶35 Since Moederndorfer and Hansen, this court has
examined both cases and concluded that they exist in harmony,
stating as follows:
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 circuit court in Moederndorfer used
substantive colloquy during the plea hearing to
establish Moederndorfer's understanding of the
information that Moederndorfer claimed on appeal not
to understand. As the court of appeals explained in
Hansen, the 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.
State v. Hoppe, 2009 WI 41, ¶¶42, 317 Wis. 2d 161, 765
N.W.2d 794.
¶36 A plea questionnaire is indeed a useful tool to
supplement a plea colloquy, but it alone does not replace a plea
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No. 2017AP741-CR
colloquy during which the circuit court must determine whether a
plea is being made knowingly, intelligently, and voluntarily.
¶37 Contrary to Pegeese's position, we conclude that
Moederndorfer informs our analysis and that the colloquy that
occurred here is not defective. Like the circuit court in
Moederndorfer, the circuit court here specifically asked Pegeese
if he read and completed a waiver of rights form——in this case,
Form CR-227——and also asked Pegeese if he understood the
entirety of the form and if he had any questions about the form.
Pegeese responded that he read and completed the form, that he
understood all of it, and that he had no questions. The circuit
court then asked Pegeese's counsel if he reviewed the form with
Pegeese and if he believed Pegeese understood the form's
contents. Pegeese's counsel responded affirmatively to both
questions. Somewhat like Moederndorfer but unlike the circuit
court in Hansen, after addressing Pegeese's attorney, the
circuit court here directly asked Pegeese, "[D]o you understand
the [c]onstitutional [r]ights you give up when you enter a plea
today?" Pegeese responded affirmatively, and the circuit court
followed up by asking if he had "[a]ny questions about those
rights." Pegeese stated that he had no questions. This is
similar to the circuit court asking Moederndorfer whether he
read and understood each paragraph on the waiver of rights form,
to which Moederndorfer responded that he had read and understood
"each and every one." Moederndorfer, 141 Wis. 2d at 828 n.1.
If anything, the circuit court here went further than the
circuit court did in Moederndorfer, by expressly referencing the
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No. 2017AP741-CR
"constitutional rights" in the form and asking Pegeese if he
understood them. The circuit court in Moederndorfer referenced
the waiver of rights form in more general terms.
¶38 Pegeese further asserts that the circuit court
addressed his attorney and not him, when the circuit court asked
of Pegeese's understanding of Form CR-227. He argues that the
circuit court somehow disconnected the discussion of the form
from the circuit court's follow-up questions regarding Pegeese's
constitutional rights such that the colloquy was rendered
defective. Pegeese specifically claims that "[a]ny person in
Pegeese's shoes would have thought that by asking Pegeese's
attorney about Pegeese's understanding of the questionnaire
after asking Pegeese about the questionnaire, the circuit court
was signaling that it was concluding its questions about the
questionnaire and moving on to a new topic." We are
unpersuaded. The circuit court's questions were intended to
ascertain Pegeese's understanding of the contents of
Form CR—227. That form lists each of the constitutional rights
Pegeese waived and an "X" was placed next to each right so as to
indicate his understanding. The circuit court then specifically
asked Pegeese about whether he understood that he was waiving
those constitutional rights. While circuit courts are to ensure
that a plea is knowingly, intelligently, and voluntarily
entered, there is no specific formula required to do so.
Circuit courts are vested with the responsibility to communicate
with the defendant and counsel to effectuate that purpose and if
done, to then make the finding that a plea is indeed knowing,
25
No. 2017AP741-CR
intelligent, and voluntary. Plea forms such as Form CR-227 are
tools to be utilized in that process.
¶39 We therefore reaffirm that the circuit court may
utilize a waiver of rights form such as Form CR-227, but the use
of that form does not otherwise eliminate the circuit court's
plea colloquy duties. While the circuit court must exercise
great care when conducting a plea colloquy so as to best ensure
that a defendant is knowingly, intelligently, and voluntarily
entering a plea, a formalistic recitation of the constitutional
rights being waived is not required. State v. Imani, 2010 WI
66, ¶26, 326 Wis. 2d 179, 786 N.W.2d 40 (concluding that the
circuit court's colloquy regarding a defendant's waiver of right
to counsel was sufficient, and declining to "impose on circuit
courts the requirement of placing form over substance and using
'magic words' when the reality of the circumstances dictate the
answer").
¶40 To the extent Pegeese asserts that circuit courts must
verify on the record that defendants understand each of the
constitutional rights they waive when they enter a guilty or no
contest plea, the record reflects that the circuit court here
did so. As noted previously, the circuit court utilized a plea
questionnaire form that specifically listed each constitutional
right being waived. Pegeese stated that he understood each
right and did not wish to further discuss the matter with his
lawyer, and he indicated his understanding by checking off each
right listed on the form. His counsel verified that he had
consulted with Pegeese and that they went through the form
26
No. 2017AP741-CR
together. Although the circuit court did not individually
recite and specifically address each constitutional right on the
record, the plea colloquy proceedings as a whole reflect that
Pegeese understood the constitutional rights he was waiving.
¶41 Perhaps Pegeese's argument is more appropriately
construed as seeking a formalistic requirement that circuit
courts read, verbatim and on the record, each constitutional
right defendants waive by entering a guilty or no contest plea.
We decline to use our superintending and administrative
authority under Article VII, section 3 of the Wisconsin
Constitution, placing form over substance, in order to reach
such a holding.7 Pegeese presents no authority, and indeed there
is no indication that requiring the recitation of "magic words"
already contained on a plea questionnaire form, on the record,
would advance a defendant's understanding of the constitutional
rights waived by pleading guilty or no contest. We instead look
to the substance of the record as a whole to determine whether
the circuit court sufficiently ensured that the defendant
7Article VII, section 3(1) of the Wisconsin Constitution
states, "The supreme court shall have superintending and
administrative authority over all courts." While this court's
superintending and administrative authority is "indefinite in
character, unsupplied with means and instrumentalities, and
limited only by the necessities of justice," this court does not
use such power lightly. Arneson v. Jezwinski, 206 Wis. 2d 217,
225–26, 556 N.W.2d 721 (1996).
27
No. 2017AP741-CR
understood the constitutional rights waived by entering a guilty
or no contest plea.8
¶42 Accordingly, we conclude that Pegeese has failed to
meet his initial burden to show that the circuit court violated
the requirements of Wis. Stat. § 971.08 or Bangert. Therefore,
Pegeese is not entitled to a Bangert hearing. As a result,
Pegeese is not entitled to withdraw his guilty plea.
IV. CONCLUSION
¶43 The circuit court's colloquy with Pegeese verified
that the constitutional rights at issue were contained in
Form CR-227, that Pegeese completed and signed the form with
counsel and that he wanted no further time to discuss matters
with his lawyer. The colloquy further verified that Pegeese
comprehended the contents of the form, and he and his lawyer
acknowledged that he understood each constitutional right he was
waiving by pleading guilty. The circuit court concluded that
Pegeese was "freely, knowingly[,] and intelligently" entering
his plea.
¶44 We conclude that Pegeese has not met his burden to
demonstrate that the plea colloquy was defective so as to
entitle him to the relief requested. We further decline to
8
Though today we do not require circuit courts to recite
any particular magic words when conducting a plea colloquy,
circuit courts should be mindful of the suggested plea colloquy
in Wis JI–Criminal SM-32 (2007). See Bangert, 131 Wis. 2d at
268 (stating that circuit courts can use Wis JI–Criminal SM-32
(1985) as one method of fulfilling the requirements under
Bangert).
28
No. 2017AP741-CR
exercise our superintending authority to impose a specific
requirement that at a plea hearing circuit courts must
individually recite and specifically address each constitutional
right being waived and then otherwise verify the defendant's
understanding of each constitutional right being waived.
Therefore, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
¶45 SHIRLEY S. ABRAHAMSON, J., withdrew from
participation.
29
No. 2017AP741-CR.rfd
¶46 REBECCA FRANK DALLET, J. (concurring). I agree with
the majority opinion that Javien Pegeese failed to demonstrate
that the circuit court's plea colloquy was defective. However,
I write separately because I urge this court to exercise its
superintending authority, pursuant to Article VII, Section 3(1)
of the Wisconsin Constitution, and prospectively require circuit
courts to advise a defendant of each constitutional right being
waived by pleading guilty. This court's superintending
authority "endows this court with a power that is indefinite in
character . . . and limited only by the necessities of justice."
Arneson v. Jezwinski, 206 Wis. 2d 217, 225, 556 N.W.2d 721
(1996). It is in the interest of justice that a circuit court
advise a defendant of each constitutional right being waived to
ensure that his or her guilty plea is being entered knowingly,
intelligently, and voluntarily.
¶47 When a defendant pleads guilty, he or she
"simultaneously waives several constitutional rights, including
[the] privilege against compulsory self-incrimination, [the]
right to trial by jury, and [the] right to confront [his or her]
accusers." McCarthy v. United States, 394 U.S. 459, 466 (1969).
Even if defense counsel diligently reviews the Plea
Questionnaire/Waiver of Rights form1 with a defendant, a
defendant may not understand each right. It is the duty of the
circuit court, not defense counsel, to ascertain whether a
defendant is knowingly, intelligently, and voluntarily waiving
1
See Form CR-227. This form was adopted by the Judicial
Conference pursuant to Wis. Stat. §§ 971.025 and 758.18(1).
1
No. 2017AP741-CR.rfd
each right. As explained by this court in State v. Bangert, 131
Wis. 2d 246, 272, 389 N.W. 12 (1986), "[i]t is incumbent upon
the trial court to inform the defendant of his rights and
ascertain that he understands they are being waived."
¶48 In Bangert, 131 Wis. 2d at 270-71, we exercised our
supervisory powers to require circuit courts to "follow the
provisions set forth in Wis. JI——Criminal SM-32 (1985), Part V,
Waiver of Constitutional Rights, or specifically refer to some
portion of the record or communication between defense counsel
and defendant which affirmatively exhibits defendant's knowledge
of the constitutional rights he will be waiving." As in
Bangert, I reaffirm Special Materials 32 as the gold standard
for conducting a plea colloquy.
¶49 Special Materials 32 illustrates a thorough plea
colloquy.2 The "Waiver of Constitutional Rights" portion reads
as follows:
By pleading guilty, you admit that you committed the
crime and, thus, you relieve the state of proving at a
trial that you committed the crime, and by pleading
guilty you also waive——that is, you give up——important
constitutional rights.
First, you give up your right to have the state prove
that you committed each element of the crime. The
state must convince each member of the jury beyond a
reasonable doubt that you committed the crime. Do you
understand that?
2
The current section of Special Materials 32 addressing a
defendant's waiver of constitutional rights is nearly identical
to the version referenced in State v. Bangert, 131 Wis. 2d 246,
271 n.5, 389 N.W. 12 (1986).
2
No. 2017AP741-CR.rfd
You have a constitutional right not to incriminate
yourself, which means, you have a right not to admit
to a crime, not to say anything that will subject you
to a criminal penalty. By pleading guilty, you give up
this privilege not to incriminate yourself, and if the
court accepts your plea of guilty, you will be
convicted, and the court can impose sentence against
you. Do you understand that?
You have a constitutional right to confront your
accusers, which means you have the right to face the
witnesses against you, to hear their sworn testimony
against you, and to cross-examine them by asking them
questions to test the truth and accuracy of their
testimony. If the court accepts your plea of guilty,
you give up your right to confront your accusers. Do
you understand that?
You have the right to present evidence in your own
behalf and to require witnesses to come to court and
testify for you. Do you understand that?
Knowing that by pleading guilty, you give up your
constitutional right to a trial by jury, your
constitutional right not to incriminate yourself, and
your constitutional right to confront the witnesses
against you and to subpoena witnesses, do you still
wish to plead guilty?"
Wis JI——Criminal SM-32 (2007).
¶50 A requirement that a circuit court inform a defendant
of each constitutional right being waived by pleading guilty
does not put form over substance or require "magic words," as
the majority opinion suggests. Majority op., ¶41. The Special
Materials do not need to be read verbatim;3 instead, a circuit
court should verify that the defendant understands and agrees to
waive each constitutional right implicated in entering a guilty
3 The Special Materials note that the questions and
statements are merely suggestions and that "judges will
undoubtedly want to tailor them to the case at hand and develop
others of their own." Wis JI——Criminal SM-32 (2007).
3
No. 2017AP741-CR.rfd
plea, as the Bangert court intended. The circuit court must be
more than just "mindful" of the suggested plea colloquy in
Special Materials 32, majority op., ¶41 n.8, it should attempt
to encapsulate its thorough explanation of the waiver of rights.
¶51 The vast majority of states and the federal courts
have recognized the importance of requiring a circuit court to
advise a defendant of the constitutional rights being waived by
pleading guilty to a felony. See Fed. R. Crim. P. 11(b)(1)(B)-
(F). Some states implement this requirement pursuant to
statute. See, e.g., Alaska R. Crim. P. 11; Ark. R. Crim. P.
24.4; Colo. R. Crim. P. 5(a)(2) & 11; Conn. Practice Book
§ 39-19; Del. Super. Ct. R. Crim. 11; Fla. R. Crim. P. 3.172;
Il. S. Ct. Rule 402; Ind. Code Ann. § 35-35-1-2; I. C. A. Rule
2.8; La. Code Crim. Proc. Ann. art. 556.1; Me. R. U. Crim. P.
11; Mass. R. Crim. P. 12; Minn. R. Crim. P. 15.01; Miss. R.
Crim. P. 15.3(d)(3); Mo. R. Crim. P. 24.02; N.C. Gen. Stat. Ann.
§ 15A-1022; N.D. R. Crim. P. 11; Ohio R. Crim. P. 11; O.R.S.
§ 135.385 (Oregon); S.D.C.L. § 23A-7-4; Tenn. R. Crim. P. 11;
Vt. R. Crim. P. 11; W. Va. R. Crim. P. 11; Wyo. R. Crim. P. 11.
¶52 Other states implement this requirement pursuant to
case law. See, e.g., People v. Cross, 347 P.3d 1130, 1132 (Cal.
2015) ("As a prophylactic measure, the court must inform the
defendant of three constitutional rights——the privilege against
compulsory self-incrimination, the right to trial by jury, and
the right to confront one's accusers——and solicit a personal
waiver of each"); Edmonds v. Commonwealth of Ky., 189 S.W.3d
558, 565 (Ky. 2006); State v. Solomon, 111 P.3d 12 (Haw. 2005);
4
No. 2017AP741-CR.rfd
State ex rel. T.M., 765 A.2d 735, 739-740, 744 (N.J. 2001);
State v. Garcia, 915 P.2d 300, 303 (N.M. 1996); State v.
Anziana, 840 P.2d 550, 552 (Ct. App. Kan. 1992) (reading
specific constitutional rights into statutory "consequences of
[] plea" language); State v. Irish, 394 N.W.2d 879, 883 (Neb.
1986); State v. Levario, 577 P.2d 712, 713 (Ariz. 1978) (partly
defining "constitutional rights" language in Ariz. R. Crim. P.
17.2); Commonwealth of Pa. v. Willis, 369 A.2d 1189 (Pa. 1977);
King v. State, 553 P.2d 529, 534–35 (Okla. 1976) (requiring an
advisement by the court as to the list of constitutional rights
being waived).
¶53 A requirement that a circuit court advise a defendant
of each constitutional right being waived by pleading guilty
would respect the gravity of a defendant's decision to plead
guilty and ensure that the decision is being made knowingly,
intelligently, and voluntarily. Wisconsin should join the
majority of jurisdictions from around the country and adopt this
requirement.
¶54 Accordingly, I respectfully concur.
¶55 I am authorized to state that Justice ANN WALSH
BRADLEY joins this concurrence.
5
No. 2017AP741-CR.rfd
1