State v. A. G. , 2023 WI 61 ( 2023 )

2023 WI 61SUPREME COURT OF WISCONSIN
CASE NO.: 2022AP652
COMPLETE TITLE: In re the termination of parental rights to
A.G., a person under the age of 18:
State of Wisconsin,
Petitioner-Respondent-Petitioner,
v.
A. G.,
Respondent-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 404 Wis. 2d 511,979 N.W.2d 822(2022 – unpublished)
OPINION FILED: June 30, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 17, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Ellen R. Brostrom
JUSTICES:
REBECCA GRASSL BRADLEY, J., announced the mandate of the Court,
and delivered an opinion, in which ZIEGLER, C.J., joined.
HAGEDORN, J., filed a concurring opinion, in which KAROFSKY, J.,
joined. DALLET, J., filed a dissenting opinion, in which ANN
WALSH BRADLEY, J., joined.
NOT PARTICIPATING:
PATIENCE DRAKE ROGGENSACK, J., did not participate.
ATTORNEYS:
For the petitioner-respondent-petitioner, there were briefs
filed by John T. Chisolm, district attorney, and Katie Gutowski,
assistant district attorney. There was an oral argument by Katie
Gutowski, assistant district attorney.
For the respondent-appellant, there was a brief filed by
Christopher D. Sobic, assistant state public defender. There was
an oral argument by Christopher D. Sobic, assistant state public
defender.
Guardian ad litem briefs were filed by Courtney L.A.
Roelandts and The Legal Aid Society of Milwaukee, Inc.,
Milwaukee. There was an oral argument by Courtney L.A.
Roelandts.
2
2023 WI 61NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2022AP652
(L.C. No. 2021CV1469)
STATE OF WISCONSIN : IN SUPREME COURT
In re the termination of parental rights to
A.G., a person under the age of 18:
FILED
State of Wisconsin,
JUN 30, 2023
Petitioner-Respondent-Petitioner,
Samuel A. Christensen
v. Clerk of Supreme Court
A. G.,
Respondent-Appellant.
REBECCA GRASSL BRADLEY, J., announced the mandate of the Court,
and delivered an opinion, in which ZIEGLER, C.J., joined.
HAGEDORN, J., filed a concurring opinion, in which KAROFSKY, J.,
joined. DALLET, J., filed a dissenting opinion, in which ANN
WALSH BRADLEY, J., joined.
PATIENCE DRAKE ROGGENSACK, J., did not participate.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA GRASSL BRADLEY, J. The State filed a
petition to terminate the parental rights of A.G. under Wis.
Stat. § 48.415 (2019–20), alleging A.G.'s biological daughter
remained a child in continuing need of protection or services
No. 2022AP652
(continuing CHIPS) and A.G.'s failure to assume parental
responsibility for his daughter. This appeal concerns whether
A.G. knowingly, voluntarily, and intelligently pled no contest
to one of those two grounds in the termination of parental
rights (TPR) petition. A.G. argues he did not understand the
circuit court at disposition would have to decide whether to
terminate his parental rights.1 He further argues the circuit
court erroneously indicated the State would have to prove at
disposition that "termination was in . . . [the child]'s best
interest" by "clear and convincing" evidence. The State, A.G.
claims, has no such burden; therefore, A.G. asserts he pled no
contest under the belief that his odds of a favorable outcome
were higher than they legally should have been.
¶2 The circuit court denied A.G.'s plea withdrawal
motion. The court of appeals reversed that decision in an
unpublished opinion and ordered the cause remanded with
directions to allow A.G. to withdraw his plea. State v. A.G.
(A.G. II), No. 2022AP652, unpublished slip op. (Wis. Ct. App.
July 12, 2022). The State and the guardian ad litem (GAL) each
filed a petition for review. We granted both petitions.
¶3 We hold A.G. knowingly, voluntarily, and intelligently
pled no contest. During the plea colloquy, the circuit court
told A.G., "[t]he second half of the case is where the [c]ourt
1The Honorable Mark A. Sanders presided over the initial
appearance in the case, but the Honorable Ellen R. Brostrom
presided over the plea colloquy and was the judge who denied
A.G.'s plea withdrawal motion. Both judges serve on the
Milwaukee County Circuit Court.
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No. 2022AP652
decides is it in the child's best interest to in fact terminate
your parental rights." At the initial appearance ten months
before the colloquy, the court had already informed A.G. of
potential dispositional outcomes:
One thing I could decide is that termination of
parental rights can [sic] best for the kids that are
involved. If I make that decision, that ends all
legal relationship between that parent and that child.
As far as the law is concerned, that parent and that
child become complete strangers to each other. But
that's not the only potential outcome. There are
other potential outcomes that don't involve
termination of parental rights.
Assuming the colloquy was defective, A.G. had previously been
notified that at disposition the court may or may not terminate
his parental rights. Additionally, the court conducted a
contested dispositional hearing the day after the colloquy, and
A.G.'s testimony shows he sought reunification rather than
termination of his parental rights. After the court held an
evidentiary hearing on A.G.'s plea withdrawal motion, the court
found A.G. had demonstrated an understanding of potential
dispositions through his testimony at the dispositional hearing.
That finding is not clearly erroneous and must be accepted.
Other parts of the record confirm the validity of A.G.'s plea.
Consequently, we must reject A.G.'s first argument under the
applicable standard of review. See State v. Brown, 2006 WI 100,
¶19, 293 Wis. 2d 594, 716 N.W.2d 906 (citing State v.
Trochinski, 2002 WI 56, ¶16, 253 Wis. 2d 38, 644 N.W.2d 891).
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No. 2022AP652
¶4 Regarding A.G.'s second argument, he is correct to
note that Wis. Stat. § 48.426(2) (2021–22)2 does not place a
burden of proof on the State; however, the circuit court
actually held the State to the clear and convincing standard at
disposition and reiterated at multiple points that the State
satisfied this standard. Accordingly, the court did exactly
what A.G. claims the court told him it would do. Placing a
burden on the State benefitted A.G. and did not affect A.G.'s
ability to weigh the pros and cons of entering this particular
no contest plea. If A.G. thought a favorable outcome was more
likely because the State had to meet a clear and convincing
standard, the State actually did meet that standard. The court
of appeals erred in permitting A.G. to withdraw his plea;
therefore, we reverse its decision.
I. BACKGROUND
¶5 The State's TPR petition sought to sever the parent-
child relationship between A.G. and his daughter. Toward the
top of the first page, in bold lettering, the TPR petition
states: "Petition for Termination of Parental Rights[.]" The
TPR petition continues, "[t]he petitioner seeks termination of
parental rights of . . . [A.G.]" Toward the end, the TPR
petition reads, "[b]ased on the foregoing, . . . [A.G.] is not
fit to be a parent to the above-named child. Upon consideration
of the entire record in this case, termination of parental
Unless otherwise indicated, all subsequent references to
2
the Wisconsin Statutes are to the 2021–22 version.
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No. 2022AP652
rights is warranted. . . . The best interest of the child will
be served by termination of the parental rights of the
parent[.]"
¶6 For context, the State alleged, among other things,
that A.G. and the child's mother were addicted to heroin and the
child "tested positive for drugs" at birth. After spending
approximately one month in the neonatal intensive care unit of
the hospital where she was born, A.G.'s daughter was removed
from her parents, both of whom later pled no contest to the
allegations in the State's petition alleging their daughter was
a child in need of protection or services (CHIPS). Filed eight
months after the circuit court entered its CHIPS order, the
State's TPR petition alleged the child's parents failed to meet
the conditions ordered by the circuit court for the return of
their daughter. Among other contentions, the State claimed A.G.
did not seek treatment and "no call[ed], no show[ed]" multiple
drug screenings. Based on the allegations, the State claimed
two independent grounds for TPR:
 continuing CHIPS; and
 failure to assume parental responsibility.
See Wis. Stat. § 48.415(2), (6) (2019–20). A.G. was represented
by counsel at the hearings discussed below.
¶7 At an adjourned initial appearance, the circuit court
explained the nature of TPR proceedings in detail. Most
relevantly, the court informed A.G. that if grounds were
established, the court would proceed to the disposition phase.
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No. 2022AP652
The court explained it would hold a "contested dispositional
hearing" at which:
[W]hat we focus on is not whether there's a reason
anymore, but what's [sic] we focus on instead is
what's best for the kids that are involved in the
case. Not what's best for anybody else. Not what's
best for any of the lawyers or social workers. Not
what's best for the foster parents. Not what's best
for parents, but what's best for the kids that are
involved in the case.
. . . .
If I make that unfitness finding, then we go on to the
second part of the proceedings. That's that contested
dispositional hearing. There we focus on what is best
for the kids that are involved. So everybody gets to
put on testimony and evidence and argue to me what
they think is best for the kids that are involved.
The State puts on testimony and evidence and tells me
what they think is best. The . . . [GAL] can put on
testimony and evidence and tell me what she thinks is
best. Parents can do exactly the same thing. Parents
have the right to put on testimony and evidence and to
subpoena witnesses and to testify or remain silent
themselves. Parents also have the right to confront
any witness that testifies on behalf of any other
party. Parents have the right to argue to me what
they think is best for the kids that are involved.
. . . . I then decide what outcome is best for the
kids that are involved. One thing I could decide is
that termination of parental rights can [sic] best for
the kids that are involved. If I make that decision,
that ends all legal relationship between that parent
and that child. As far as the law is concerned, that
parent and that child become complete strangers to
each other. But that's not the only potential
outcome. There are other potential outcomes that
don't involve termination of parental rights.
At multiple points during this appearance, the court paused to
inquire whether A.G. understood the court's explanation, and
A.G. responded he did.
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No. 2022AP652
¶8 At a later hearing, A.G. pled no contest to the
continuing CHIPS ground, and the failure to assume parental
responsibility ground was dismissed. During the plea colloquy
between A.G. and the circuit court, A.G. stated he was 26 years
old, had an 11th-grade education, could read and write English,
and had no mental illness or cognitive issues that would limit
his ability to understand the colloquy. A.G. denied taking any
drugs (other than a prescribed medication that did not "alter[]"
his mind) or drinking alcohol within the preceding 12 hours. He
also confirmed he read the TPR petition, understood the State's
allegations, and was not promised or paid anything as an
inducement to plea.
¶9 The part of the plea colloquy giving rise to appellate
proceedings went as follows:
Q. You understand that you do have the right to have a
trial for this first half of the case, whether or
not there is a legal reason to terminate your
parental rights?
A. I do.
Q. And that could be a trial to the judge or a trial
to a jury. Do you understand that?
A. I do.
Q. If it were a jury it would be a 12 person jury and
10 out of 12 would have to agree in order to reach
a decision. Do you understand that?
A. I do understand.
Q. And at that trial you would have a whole bunch of
rights and I'm just going to list them. You would
have the right to force the State to prove the
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No. 2022AP652
grounds by clear, convincing, and satisfactory
evidence to a reasonable certainty.
You would have the right to cross-examination of
your witnesses; the right to introduce evidence;
the right to compel witnesses to come to court and
testify for you; the right to testify yourself or
remain silent, knowing, though, that silence be
[sic] used against you in this kind of case. Do
you understand you would have all of these trial
rights?
A. I do.
Q. And do you understand that by pleading no contest
you're giving those rights up?
A. I do.
Q. Now, you understand that's just the first half of
the case? The second half of the case is where the
[c]ourt decides is it in the child's best interest
to in fact terminate your parental rights. Do you
understand that distinction?
A. I understand.
Q. You understand you're not giving up your right to
fight about that second half, which is what we're
going to do today. Do you understand that?
A. Yes, I do.
Q. You'll have all those same trial rights today for
that second half. Do you understand that?
A. Yes.
¶10 A.G.'s arguments arise from portions of this plea
colloquy he considers defective. In particular, the circuit
court stated, "[t]he second half of this case is where the
[c]ourt decides is it in the child's best interest to in fact
terminate your parental rights." The court asked, "[d]o you
understand that[?]" A.G. responded "[y]es," but he now asserts
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No. 2022AP652
"the court did not inform him of the potential dispositions he
faced if he entered a no contest plea." Specifically, he claims
the court did not make clear that it had two options at
disposition: grant the TPR petition or dismiss it. His second
argument stems from the court explaining that during the grounds
phase, A.G. "would have the right to force the State to prove
the grounds by clear, convincing, and satisfactory evidence to a
reasonable certainty." The court later stated, "[y]ou'll have
all those same trial rights today for that second half." A.G.
argues the later statement implied the State would have a burden
of proof that termination of his parental rights would be in the
child's best interest at the disposition phase because that was
one of the "trial rights" identified by the court for the
grounds phase.
¶11 The circuit court proceeded to ask other standard
questions, confirming A.G. had spoken with his counsel about the
plea. The court then asked if A.G. had any questions, to which
A.G. responded, "[n]o, I do not." A.G. also said he did not
need more time to think about his decision, and he and his
counsel both stated that the plea was knowing, voluntary, and
intelligent. After this lengthy colloquy, the court accepted
A.G.'s no contest plea.
¶12 The next day, at disposition, A.G. testified in favor
of reunification and continuation of the CHIPS case rather than
termination. Specifically, he testified, "[m]y goal in this
case is to get myself better and have my daughter returned to
the household."
9
No. 2022AP652
¶13 The circuit court concluded that termination of A.G.'s
parental rights was in the child's best interest. Twice, the
court referred to the clear and convincing standard. In
summarizing the testimony of the family case manager, the court
characterized the testimony as "clear, convincing, satisfactory
evidence to a reasonable certainty." Moments later, the court
reiterated "[t]hat's clear, convincing, satisfactory evidence to
a reasonable degree of certainty more or less. I don't think
there's case law that assigns a particular percentage to that
standard, and I'm not either." Continuing, the court said
"[the] testimony was excellent. . . . [The family case
manager]'s incredibly honest, and incredibly insightful." At
some points, the court used language indicative of a lower
standard, e.g., "in balance, I do have to find that this
termination is in the best interest of . . . [the child]."
¶14 Post disposition, A.G. filed a motion for plea
withdrawal, which the circuit court denied without taking
evidence. The court reasoned A.G. did not identify a defect in
the plea colloquy and therefore was not entitled to an
evidentiary hearing. To the extent the colloquy did not convey
potential dispositions, the court determined the lengthy
discussion of potential dispositions at the adjourned initial
appearance satisfied any requirement. Additionally, the court
noted it "actually did use a clear and convincing standard when
it assessed whether it thought it was in the child's best
interest to terminate the parental rights."
10
No. 2022AP652
¶15 A.G. appealed. The court of appeals reversed the
circuit court's decision and ordered the cause remanded with
directions to hold an evidentiary hearing. State v. A.G.,
No. 2021AP1476, unpublished slip op., ¶1 (Wis. Ct. App. Feb. 15,
2022). The court of appeals concluded that "A.G. was not
advised of the potential dispositions at the plea hearing" and
had "alleged he did not understand the potential dispositions,"
so he was entitled to an evidentiary hearing. Id., ¶12. The
court did not reconcile its conclusion with the circuit court's
statement during the plea colloquy that "[t]he second half of
this case is where the [c]ourt decides is it in the child's best
interest to in fact terminate your parental rights." The court
of appeals also concluded the circuit court needed to take
evidence regarding A.G.'s second argument. Id., ¶16. It
concluded the circuit court erred in suggesting A.G. would "have
all those same trial rights today for that second half" because
"[t]here is not a burden of proof placed on the State" at
disposition. Id., ¶17 (citing Wis. Stat. § 48.426(2) (2019–
20)). The court of appeals never considered how the State
actually satisfying the clear and convincing standard might
affect the analysis.
¶16 On remand, the circuit court held an evidentiary
hearing. A.G. did not appear.3 The hearing proceeded and the
court reviewed the record. In a written decision, the court
3The State and the GAL argue A.G. should have been held in
default for not appearing. We need not and therefore do not
address this issue.
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No. 2022AP652
denied the motion, first noting A.G. had been informed during
the plea colloquy that "at the disposition, the [c]ourt simply
decides if it is in the child's best interest to terminate." It
also noted A.G. "had previously been informed of the potential
outcomes" at the adjourned initial appearance. Importantly, the
court found A.G.'s testimony at the dispositional hearing showed
he "understood" the potential dispositions. The court also
reasoned, "[t]hroughout the disposition, the [c]ourt appears to
have applied both the preponderance and the clear and convincing
standards." Accordingly, it reasoned, A.G. "was not
prejudiced[.]"
¶17 A.G. appealed, and the court of appeals reversed the
circuit court's decision, ordering the cause remanded with
directions to allow A.G. to withdraw his plea. A.G. II,
No. 2022AP652, ¶1. In the court of appeals' view, the State
lacked evidence establishing the validity of the plea. Id.,
¶25.
II. STANDARD OF REVIEW
¶18 This court generally considers precedent regarding
plea withdrawal in the context of criminal cases to be
persuasive authority regarding TPR proceedings. See Waukesha
County v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607
N.W.2d 607 (citation omitted), modified on other grounds by St.
Croix. Cnty. Dep't of Health & Hum. Servs. v. Michael D., 2016
WI 35, ¶¶3–4, 368 Wis. 2d 710, 880 N.W.2d 107. In a criminal
case, this court accepts the circuit court's findings of
historical fact unless they are clearly erroneous. Brown, 293
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No. 2022AP652
Wis. 2d 594, ¶19 (citing Trochinski, 253 Wis. 2d 38, ¶16). It
then independently determines whether those facts demonstrate
that the plea was knowing, intelligent, and voluntary. Brown,
293 Wis. 2d 594, ¶19 (citing Trochinski, 253 Wis. 2d 38, ¶16).
That same standard of review applies in this case. See Steven
H., 233 Wis. 2d 344, ¶42.
III. ANALYSIS
¶19 A.G. argues he did not knowingly, voluntarily, and
intelligently plead no contest as required by well-established
precedent. See Kenosha Cnty. Dep't Health Servs. v. Jodie W.,
2006 WI 93, ¶24, 293 Wis. 2d 530, 716 N.W.2d 845 (citing State
v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986)). "A
parent's interest in the parent-child relationship and in the
care, custody, and management of his . . . child is recognized
as a fundamental liberty interest protected by the Fourteenth
Amendment [to the United States Constitution]." Steven V. v.
Kelly H., 2004 WI 47, ¶22, 271 Wis. 2d 1, 678 N.W.2d 856 (citing
Santosky v. Kramer, 455 U.S. 745, 753 (1982)). A parent who
enters a no contest plea waives several important procedural
rights meant to safeguard this liberty interest, which is why
such a plea must satisfy the aforementioned standard. See Brown
Cnty Dep't Hum. Servs. v. Brenda B., 2011 WI 6, ¶34, 331
Wis. 2d 310, 795 N.W.2d 730 (citing Jodie W., 293 Wis. 2d 530,
¶25).
¶20 This court has established a burden-shifting scheme
for TPR plea withdrawals. First, a parent must demonstrate the
circuit court failed to conduct the plea colloquy in accordance
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No. 2022AP652
with Wis. Stat. § 48.422 or failed to satisfy another mandatory
duty. Id., ¶36 (citing Steven H., 233 Wis. 2d 344, ¶42). The
parent must also allege he "did not know or understand the
information that should have been provided[.]" Id. (citing
Steven H., 233 Wis. 2d 344, ¶42). If the parent satisfies his
burden, the circuit court is generally required to hold an
evidentiary hearing. See Brown, 293 Wis. 2d 594, ¶40 (citing
Bangert, 131 Wis. 2d at 274). The State must demonstrate by
clear and convincing evidence that the plea was entered
knowingly, voluntarily, and intelligently despite the defective
colloquy.4 Brenda B., 331 Wis. 2d 310, ¶36 (citing Steven H.,
233 Wis. 2d 344, ¶42). While a plea's validity is based on the
parent's understanding at the time the plea was entered, events
before and after the plea can inform a court's analysis. See
State v. Finley, 2016 WI 63, ¶44, 370 Wis. 2d 402, 882
N.W.2d 761; Bangert, 131 Wis. 2d at 274–75.
¶21 We assume A.G. satisfied his burden. First, the court
of appeals determined A.G. demonstrated the plea colloquy was
defective; therefore, it ordered the circuit court to hold an
evidentiary hearing. Second, the circuit court acknowledged it
imposed a burden of proof at disposition——even though no such
burden exists. We therefore consider whether the State proved
4 The GAL argues the circuit court should be allowed to look
at the full record in determining whether a parent has made a
"prima facie case" for plea withdrawal. We do not address this
issue because an evidentiary hearing was held in this case.
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No. 2022AP652
by clear and convincing evidence that A.G.'s plea was validly
entered.
¶22 Notwithstanding our assumption, we nevertheless
examine the plea colloquy because A.G. grounds his arguments in
potential errors during it. Understanding whether the record as
a whole refutes his arguments requires scrutinizing the
colloquy.
¶23 Wisconsin Stat. § 48.422(7)(a) provides: "Before
accepting an admission of the alleged facts in a [TPR] petition,
the [circuit] court shall: (a) Address the parties present and
determine that the admission is made voluntarily with
understanding of the nature of the acts alleged in the petition
and the potential dispositions." We assume a no contest plea is
"an admission of the alleged facts[.]" § 48.422(7). A.G. does
not argue the court failed to determine that he understood the
acts alleged in the petition——he argues the court failed to
inform him of potential dispositions. Although this statute
requires a circuit court to "determine" that a no contest plea
is entered "with understanding" of "the potential dispositions,"
it does not require specific words be used. The statute also
does not mention a burden of proof at disposition; however, the
court of appeals has held:
[I]n order for the court's explanation of potential
dispositions to be meaningful to the parent, the
parent must be informed of the statutory standard the
court will apply at the second stage. That is, the
court must inform the parent that "[t]he best
interests of the child shall be the prevailing factor
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No. 2022AP652
considered by the court in determining the
disposition[.]"
Oneida Cnty. Dep't of Soc. Servs. v. Therese S., 2008 WI App
159, ¶16, 314 Wis. 2d 493, 762 N.W.2d 122 (quoting Wis. Stat.
§ 48.426(2) (2005–06)) (second modification in the original).
A. A.G. Understood His Parental Rights Could Be Terminated.
¶24 In this case, the circuit court seemingly informed
A.G. of potential dispositions as required by Wis. Stat.
§ 48.422(7)(a). During the plea colloquy, the circuit court
explicitly explained "[t]he second half of the case is where the
[c]ourt decides is it in the child's best interest to in fact
terminate your parental rights." Essentially, A.G. contends the
colloquy was defective because the court did not specify that
"[t]he second half of the case is where the [c]ourt decides is
it in the child's best interest to in fact terminate your
parental rights or not." The omission of "or not," A.G. claims,
makes the court's statement "somewhat ambiguous" by failing to
explicitly say the court must make an "either/or" decision:
either terminate the parental rights or dismiss the TPR
petition. A.G. claims he may have mistakenly believed the court
at disposition could order something between terminating
parental rights and dismissing the petition.
¶25 At oral argument, A.G.'s counsel clarified A.G.'s
position regarding the content of the plea colloquy on potential
dispositions:
THE COURT: Which disposition did the court not
review?
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No. 2022AP652
A.G.'s COUNSEL: . . . [S]o at the plea hearing in
this case, what the court said to
A.G. is that during the disposition
phase "the [c]ourt decides is it in
the child's best interest to in fact
terminate your parental rights." I
don't believe that statement conveys
the potential dispositions in a TPR
case. That statement does not convey
to the parent that the court has two
options. And those options are
basically all or nothing. Either the
court terminates the parent's right
or the court dismisses the petition.
And the court did not specifically
tell A.G. that those were the only
two options that it had under the
statute.
THE COURT: This feels like magic words to
me. . . . It feels like you're
asking circuit court judges to say
magic words, to thread a needle with
a really small eye. . . . I just
feel like your argument really has a
lot of like, if the court doesn't say
these exact words, then there's no
way the parent could understand
what's happening . . . .
A.G.'s COUNSEL: . . . . [W]hat the court said here
left it somewhat
ambiguous. . . . [A] parent hearing
what the court said here could think
that potentially there's some middle
ground disposition where the court
hears all the testimony and evidence
at disposition and the court makes a
decision to just hold this open for a
length of time to let the
parent . . . get their life back on
track.
. . . .
THE COURT: So what do you want us to do about
it? . . . . In an opinion, what are
you asking us to say? That courts
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No. 2022AP652
must list out, "I'm going to decide
(1) whether your rights will be
terminated; or (2) whether they will
not be?"
A.G.'s COUNSEL: I believe there's cases interpreting
the options that the court has
indicating that a court has to tell a
parent that it has to make one of two
decisions in the case, terminate or
dismiss the petition.
. . . .
THE COURT: [I]f the court says, "there are two
potential dispositions, grant the
petition to terminate your parental
rights or not grant your petition to
terminate parental rights," that's
not sufficient?
A.G.'s COUNSEL: No, I think that seems sufficient
because its putting the case into the
two options[.]
¶26 A.G.'s argument seems to be anchored in a misreading
of Oneida County Department of Social Services v. Therese S.,
314 Wis. 2d 493. In that case, the court of appeals held, "a
court must inform the parent that at the second step of the
process, the court will hear evidence related to the disposition
and then will either terminate the parent's rights or dismiss
the petition if the evidence does not warrant termination."
Id., ¶16. In reply, the State references Brown County
Department of Human Services v. Brenda B., 331 Wis. 2d 310. In
that case, while discussing Therese S., this court held "the
parent must be informed of the two independent dispositions
available to the circuit court. That is, the court may decide
between dismissing the petition and terminating parental
18
No. 2022AP652
rights." Id., ¶56. A.G. argues the colloquy was defective
because the circuit court did not precisely inform him of the
two "independent dispositions." See id.
¶27 A.G. places far too much weight on a single sentence
from Therese S., and he does not address Brenda B at all. In
Brenda B., the circuit court used the language A.G. would
require of all circuit courts, specifically, "I can either grant
the petition to terminate your parental rights or dismiss the
petition to terminate your parental rights." Id., ¶12. This
court deemed that statement sufficient, distinguishing it from
an insufficient explanation in Therese S., in which the circuit
court said, "[you're] admitting the grounds for termination but
still leaving open the question as to what's gonna happen, the
disposition. . . . [I]t hasn't been decided yet what we're
going to do. Your termination is not actually entered today.
We have more work to do to decide what to do." Id., ¶54
(quoting Therese S., 314 Wis. 2d 493, ¶14). The circuit court's
statement in A.G.'s case is more like the sufficient statement
from Brenda B. because it informed A.G. that at disposition the
court may decide to terminate A.G.'s parental rights, or, by
negative implication, may decide not to terminate his rights.
"[I]s it in the child's best interest to in fact terminate your
parental rights" strongly implies a binary, yes/no, either/or
decision. The court described the dispositional options for
A.G. with greater clarity than in Therese S., in which that
court rather vaguely communicated that an unspecified
disposition would be forthcoming after additional work.
19
No. 2022AP652
¶28 In Brenda B., this court emphasized that a circuit
court need not "inform parents in detail of all potential
outcomes" because that requirement would be "unduly burdensome"
and potentially "confuse or mislead rather than . . . inform."
Id., ¶¶55–56 (quoting Therese S., 314 Wis. 2d 493, ¶17).
Although this court said "the parent must be informed of the two
independent dispositions available to the circuit court," this
court never suggested that a failure to state the potential
dispositions in explicit either/or terminology would
automatically render a plea colloquy defective. Id., ¶56.
Imposing such a requirement would conflict with our longstanding
rejection of requiring circuit courts to utter "magic words" to
satisfy statutory commands.
¶29 "Magic words" is a colloquial phrase in legal parlance
describing a party's request to prioritize form over substance.
This court strongly disfavors magic words. See, e.g., State v.
Lepsch, 2017 WI 27, ¶36, 374 Wis. 2d 98, 892 N.W.2d 682(rejecting in the context of a circuit court inquiring about
juror bias); State v. Wantland, 2014 WI 58, ¶33, 355
Wis. 2d 135, 848 N.W.2d 810 (rejecting in the context of
withdrawing consent under the Fourth Amendment to the United
States Constitution). In Brenda B., this court rejected the
parent's argument that the plea colloquy was defective for not
explicitly informing the parent that the parent was waiving a
"constitutional" right: "the [circuit] court need not explain
that the right to parent is a constitutional right. What is
important is that the parent understands the import of the
20
No. 2022AP652
rights at stake rather than the source from which they are
derived." 331 Wis. 2d 310, ¶46. In this case, the record
confirms A.G. understood the "stake[s]."
¶30 Based on the foregoing, we doubt the plea colloquy was
defective for not explicitly explaining the two potential
dispositions. We need not, however, make that call. The
procedural posture of this case allows for a narrower holding.
The circuit court held an evidentiary hearing and found A.G.
understood potential dispositions based on his testimony at the
dispositional hearing, which was conducted the day after the
plea colloquy. The court's finding is not clearly erroneous;
therefore, we accept it as true. See Brown, 293 Wis. 2d 594,
¶19 (citing Trochinski, 253 Wis. 2d 38, ¶16). Additionally, the
court noted the thorough overview of TPR proceedings the court
had provided at the adjourned initial appearance predating the
plea colloquy. During the colloquy, both A.G. and his counsel
represented to the court that A.G. was entering the plea
knowingly, voluntarily, and intelligently.
¶31 Although not relied upon by the circuit court, during
the plea colloquy A.G. confirmed he read the TPR petition, which
made exceedingly clear that his parental rights were at stake.
In State v. Taylor, a criminal defendant was told he faced a
potential six-year term of imprisonment if he pled, when in fact
he faced a total of eight years. 2013 WI 34, ¶¶2, 38–39, 347
Wis. 2d 30, 829 N.W.2d 482. He was sentenced to six years after
pleading no contest. Id., ¶3. This court held, "on this
record, a failure to discuss the additional two-year repeater
21
No. 2022AP652
penalty enhancer at the plea hearing is an insubstantial
defect." Id., ¶34. The court emphasized, "[t]he record is
replete" with evidence that the defendant "was aware" of the
potential term of imprisonment, largely based on a complaint
filed on May 8, 2009, which the defendant said he read and
understood during the plea colloquy on August 23, 2010. Id.,
¶¶35–39. This court reasoned, "[t]o conclude that Taylor was
not aware of the maximum eight-year term of imprisonment, we
would have to assume . . . . that Taylor misrepresented to the
court that he had received, read, and understood the
complaint[.]" Id., ¶39. We presume A.G. answered truthfully
when he said he read the TPR petition, which is titled:
"Petition for Termination of Parental Rights[.]"
¶32 Additionally, A.G. confirmed during the plea colloquy
that he had spoken with his counsel about the plea. The court
then asked if A.G. had any questions, to which A.G. responded,
"[n]o, I do not." A.G. also denied needing more time to think
about his decision. In his concurrence in Taylor, Justice David
T. Prosser noted, "[t]here is a very high likelihood
that . . . [the defendant]'s attorney . . . explained the
meaning of eight years of imprisonment[.]" Taylor, 347
Wis. 2d 30, ¶83 n.5 (Prosser, J., concurring). Similarly, it is
improbable A.G.'s counsel neglected to tell A.G. that his
parental rights could be terminated. We reject A.G.'s first
argument because the record as a whole, before the plea
22
No. 2022AP652
colloquy, during the colloquy, and after, confirms A.G.
understood the potential dispositions when he entered his plea.5
5 The point the concurrence tries to make is unclear,
considering its analysis of A.G.'s first argument mirrors our
own. We "assume" A.G. made a prima facie case. Supra, ¶21. So
does the concurrence but it "add[s]" a "caveat": "[t]he
briefing on this point was not especially helpful. With the
benefit of fuller assistance from the parties, it may be that
our hands are tied in some way." See Concurrence, ¶¶42, 43 n.1.
We then state the issue as follows: "whether the State proved
by clear and convincing evidence that A.G.'s plea was validly
entered." Supra, ¶21. The concurrence introduces the issue
using nearly identical language: "whether the State
demonstrated by clear and convincing evidence that the plea was
knowing, voluntary, and intelligent." Concurrence, ¶42. Both
opinions express skepticism that an error occurred in the
colloquy. Compare supra, ¶30 ("[W]e doubt the plea colloquy was
defective for not explicitly explaining the two potential
dispositions."), with concurrence, ¶43 n.1 ("[O]n both issues,
the evidence of a facial deficiency in the plea colloquy was
weak at best[.]"). Both opinions examine the full record and
determine A.G.'s first issue is without merit. See concurrence,
¶44 ("The lead opinion recites additional evidence from the
record both before and after the plea that I agree may be
considered. This evidence erases any doubt that the potential
dispositions were sufficiently communicated, and by implication,
sufficiently understood, when A.G. entered his plea.").
Inexplicably, the concurrence rationalizes its unwillingness to
join this opinion's analysis on the first issue by complaining
about "inconsistencies" it never identifies.
The concurring justices disserve the people of Wisconsin by
blocking a clean precedential decision on A.G.'s first argument
without cause. Arguments analogous to A.G.'s are recurring in
Wisconsin; our guidance in this important area of law is needed.
See generally State v. S.S., Nos. 2022AP1179 & 2022AP1180,
unpublished slip op., ¶19 (June 7, 2023) ("Relying on Therese
S., S.S. asserts that the circuit court's colloquy must convey
to the parent that there are only two legal outcomes at a
dispositional hearing: termination of parental rights or
dismissal of the TPR petitions."). Not a single justice who
refuses to join any portion of this opinion even attempts to
point out any flaw in our analysis of A.G.'s first argument;
nevertheless, only one justice joins it. See dissent, ¶55 ("I
focus solely on A.G.'s second argument[.]"). "[I]t is this
23
No. 2022AP652
B. Assuming A.G.'s Reading of the Plea Colloquy Is Reasonable,
the Burden of Proof Error Was an Insubstantial Defect.
¶33 We also reject A.G.'s second argument regarding the
burden of proof at the dispositional hearing.6 As a preliminary
court's function to develop and clarify the law." State ex rel.
Wis. Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385(Wis. 1988) (citations omitted). "Part of our obligation as
supreme court justices is to take complicated legal issues and
decide them in a way that simplifies and explains them." State
v. Branter, 2020 WI 21, ¶42, 390 Wis. 2d 494, 939 N.W.2d 546(Roggensack, C.J., concurring). The concurrence does not
fulfill this obligation. If a justice deprives the public of
clear precedent, a straightforward, coherent explanation of why
is warranted. Doing so not only serves the public but
facilitates a resolution of any disagreements for the purpose of
establishing clear precedent. We do not sit as seven courts of
one but as one court of seven (or in this case six). See, e.g.,
Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57, ¶3,
403 Wis. 2d 1, 976 N.W.2d 263.
6The concurrence contradicts itself in analyzing A.G.'s
second argument. First, the concurrence says: "Procedurally,
the question before us concerns step two: whether the State
demonstrates by clear and convincing evidence that the plea was
knowing, voluntary, and intelligent. This is because the court
of appeals previously determined A.G. made the prima facie
showing and was therefore entitled to an evidentiary hearing."
Concurrence, ¶42 (citing State v. A.G., No. 2021AP1476,
unpublished slip op., ¶21 (Wis. Ct. App. Feb. 15, 2022)). Next,
the concurrence asserts, "A.G.'s argument rests on the premise
that the most reasonable reading . . . [of the colloquy
transcript] is that the circuit court communicated a clear and
convincing evidence burden of proof would apply at the
disposition. But the circuit court never said that." Id., ¶47.
If the circuit court "never said that," then A.G. did not make a
prima facie case. Although on the first issue we express
skepticism as to whether A.G. made a prima facie case, we do not
resolve the issue because there is no need to do so.
Considering the record as a whole avoids the inconsistencies
undermining the analysis set forth in the concurrence, which
confusingly considers "step two" notwithstanding the
concurrence's implication that A.G. never made a prima facie
case. Additionally, the concurrence cites no authority for the
proposition that A.G.'s reading needs to be "the most
reasonable." Finally, A.G.'s reading of the colloquy, in light
24
No. 2022AP652
matter, A.G. correctly argues Wis. Stat. § 48.426(2) does not
impose a burden on the State to prove that termination is in the
child's best interests.7 The statute provides only that "[t]he
best interests of the child shall be the prevailing factor
considered by the court in determining the disposition of all
proceedings under this subchapter." § 48.426(2). We are
unaware of any Wisconsin decision analyzing whether the evidence
regarding the best interests of the child must meet a particular
burden. See State v. L.J., Nos. 2017AP1225, 2017AP1226 &
2017AP1227, unpublished slip op. ¶21 (Wis. Ct. App. May 1, 2018)
of the entire record, appears pretty reasonable considering the
circuit court referenced the clear and convincing standard at
disposition and later acknowledged it in fact applied that
standard.
The dissent claims "[t]his is a debatable conclusion."
7
Dissent, ¶58 n.3. It cites three foreign state supreme court
decisions, one of which merely noted, "the clear and convincing
standard might be constitutionally mandated" at disposition.
See B.T.B. v. V.T.B., 472 P.3d 827, 838 n.11 (Utah 2020)
(emphasis added). The dissent also quotes a South Dakota
Supreme Court decision, which misquoted a United States Supreme
Court decision, Santosky v. Kramer, as follows: "The trial
court must find by 'clear and convincing evidence that
termination of parental rights is in the best interests of the
child.'" In re D.H., 354 N.W.2d 185, 188 (S.D. 1984)
(attributing the quote to Santosky v. Kramer, 455 U.S. 745(1982); citing In re S.L., 349 N.W.2d 428 (S.D. 1984); In re
S.H., 323 N.W.2d 851 (S.D. 1982)). That quote does not appear
in Santosky. The South Dakota decision placed two other
decisions in the string citation, but neither of those decisions
contain the quote either. The dissent also cites a nearly two-
decade old student-authored law review comment. See Brian C.
Hill, Comment, The State's Burden of Proof at the Best Interests
Stage of a Termination of Parental Rights, 2004 U. Chi. Legal
Forum 557, 576–84. A Westlaw search reveals this comment has
never been cited in a legal opinion.
25
No. 2022AP652
("L.J. identifies no case in which a determination of the best
interests of the child has been analyzed in terms of whether the
burden of proof has been satisfied. . . . The legislature
imposed no burden of proof in the statute, and the determination
of the child's best interests does not turn on distinctions
between levels of proof."). The "polestar" at a dispositional
hearing is simply the best interests of the child. Brenda B.,
331 Wis. 2d 310, ¶33 (quoting Sheboygan Cnty. Dep't of Health &
Hum. Servs. v. Julie A.B., 2002 WI 95, ¶30, 255 Wis. 2d 170, 648
N.W.2d 402).
¶34 Regardless, A.G.'s second argument fails under Taylor,
347 Wis. 2d 30 (majority op.). Although this court emphasized
the defendant knew, based on the record, that he faced eight
years, it also emphasized, "in any event, . . . [the defendant]
was verbally informed by the court at the plea hearing of the
sentence that he actually received. . . . [The]
sentence . . . did not exceed the six-year term of imprisonment
that the court, at the plea hearing, specifically informed him
that he could receive." Id., ¶¶39, 42; see also id., ¶28 ("[A]t
the plea hearing, the circuit court verbally informed . . . [the
defendant] of the six-year term of imprisonment to which he was
ultimately sentenced. As a result, . . . [the defendant]'s plea
was entered knowingly, intelligently, and voluntarily, and it
was not a violation of . . . [the defendant]'s due process
rights to deny his motion to withdraw his no contest plea.");
id., ¶52 ("[T]he circuit court informed . . . [the defendant]
that he could receive a maximum term of imprisonment of six
26
No. 2022AP652
years. . . . [The defendant] received a six-year term of
imprisonment. In other words, . . . [the defendant] received a
sentence that he was verbally informed he could receive.").
¶35 In Taylor, quoting an earlier decision of this court,
this court explained that "[r]equiring an evidentiary hearing
for every small deviation from the circuit court's duties during
a plea colloquy is simply not necessary for the protection of a
defendant's constitutional rights." Id., ¶33 (quoting State v.
Cross, 2010 WI 70, ¶32, 326 Wis. 2d 492, 786 N.W.2d 64). As
noted in that earlier decision, not every "insubstantial
defect[]"——i.e., technical legal error——renders a plea invalid.
Cross, 326 Wis. 2d 492, ¶32.
¶36 Like the defendant in Taylor, A.G. received what the
circuit court told him he would receive; the State was held to a
burden of proof the law does not require, but the State met that
burden. At disposition, the court explicitly referenced the
clear and convincing standard. In denying the motion for plea
withdrawal without an evidentiary hearing, the court explained,
"[t]he [c]ourt actually did use a clear and convincing standard
when it assessed whether it thought it was in the child's best
interest to terminate the parental rights." After the
evidentiary hearing, the court noted in its written decision
that it seems to have held the State to both a clear and
convincing and a preponderance of the evidence standard.
Regardless, the court emphasized the State satisfied the higher
clear and convincing standard, as expressed in the dispositional
hearing transcript. The mere fact the court also stated "in
27
No. 2022AP652
balance" termination was in the best interests of the child does
not show the court applied a burden lower than clear and
convincing evidence. A.G. was not inhibited from weighing the
pros and cons of entering this particular no contest plea by
being told the State would have to satisfy a particular burden
of proof because the State was actually held to and did satisfy
that burden.8
¶37 Our holding regarding the burden of proof argument
presupposes that events subsequent to the plea colloquy can
illuminate whether a plea was entered knowingly, voluntarily,
and intelligently. In State v. Finley, this court explained the
State "bore the burden of proving, by clear and convincing
8The dissent complains we are "importing a harmless error
standard[.]" Dissent, ¶70. Not so. Although the dissent
mischaracterizes our holding as "A.G. did not know the statutory
standard that applies at the dispositional phase," id., we
actually hold he did know the standard this particular circuit
court would apply——because the court applied the standard it
said it would. Accordingly, as in Taylor, the error did not
render the plea unknowing, unintelligent, or involuntary. 2013
WI 34, ¶¶41–42, 347 Wis. 2d 30, 829 N.W.2d 482. A harmless
error analysis would instead consider whether and to what extent
the information provided at the plea colloquy caused A.G. to
enter a plea he would not otherwise have entered. Cf. State v.
Barnes, 2023 WI 45, ¶29, __ Wis. 2d __, 990 N.W.2d 759. We do
not hold that A.G. would surely have entered a no contest plea
regardless of the information he received during the plea
colloquy.
Due process is not a game of gotcha to be sprung on the
State. A.G. benefitted from the circuit court holding his
opponent, the State, to a burden of proof the law did not
require the State to meet. A.G. claims he considered this when
weighing the pros and cons of pleading. To permit him to
withdraw his plea at this stage would make a mockery of a very
serious TPR proceeding.
28
No. 2022AP652
evidence," that a criminal defendant "knew the potential
punishment he faced . . . at the time of the plea acceptance."
370 Wis. 2d 402, ¶44 (emphasis added). Our holding in this case
is consistent with Finley. A.G. claims he knew, at the time of
the plea acceptance, the State would be required to satisfy the
clear and convincing standard. The State was then held to that
standard even though it did not apply. The error could have
been consequential, but it became insubstantial when the circuit
court actually held the State to the clear and convincing
standard. Given this subsequent development, A.G.'s knowledge
at the time of the plea permitted him to accurately weigh the
pros and cons of entering this specific plea. However he
calculated the odds of a favorable outcome at disposition, to
the extent his calculation depended on the State being held to
the clear and convincing standard, he calculated correctly. Had
the State not satisfied this burden and the circuit court
nonetheless terminated A.G.'s parental rights, we might have a
different case.9
The dissent contends this court in Finley held Taylor has
9
no relevance as applied to cases in which an evidentiary hearing
was held. Dissent, ¶67. A fair reading of Finley does not
support the dissent's assertion.
In Finley, a criminal defendant was told the maximum
statutory punishment was lower than it actually was and then
sentenced to more time than he was told he would face. 2016 WI
63, ¶10, 370 Wis. 2d 402, 882 N.W.2d 761. The question facing
this court was one of remedy: the State argued the sentence
should be commuted, but the defendant sought plea withdrawal.
Id., ¶¶9–10. After an evidentiary hearing, the State conceded
the defendant "did not know the potential punishment he faced
29
No. 2022AP652
IV. CONCLUSION
¶38 We hold that A.G. knowingly, voluntarily, and
intelligently pled no contest to the continuing CHIPS ground for
terminating his parental rights. The circuit court found A.G.
demonstrated he understood potential dispositions through his
testimony at the dispositional hearing, which was conducted one
day after the plea colloquy. Based on the record, the court's
findings are not clearly erroneous. Although the court
mistakenly imposed a clear and convincing evidentiary burden on
the State in determining whether terminating A.G.'s parental
rights was in the child's best interests, the court actually
held the State to that burden and concluded it was met. The
court's mistake therefore was an insubstantial defect. The
court of appeals erred in permitting A.G. to withdraw his plea.
when he entered his plea." Id., ¶85. This court held the
defendant was entitled to withdraw his plea. Id., ¶95.
Although this court in Finley noted that "no evidentiary
hearing was needed" in Taylor, it did not suggest Taylor has no
bearing on a case in which one has been held. See id., ¶84. If
Finley does stand for the proposition the dissent suggests, it
is simply wrong. See id., ¶153 (Ziegler, J., dissenting)
("There is a principle present in . . . Taylor——namely, that
incorrect or insufficient knowledge about an aspect of a plea
does not necessarily invalidate the entire plea[.]").
In this case, an evidentiary hearing was held, in which the
circuit court reiterated that it actually applied the clear and
convincing standard, which has facilitated our review. The mere
fact that one was held, however, does not render the defect
somehow more serious; rather, the record of the evidentiary
hearing demonstrates why the defect was insubstantial.
30
No. 2022AP652
By the Court.——The decision of the court of appeals is
reversed.
31
No. 2022AP652.bh
¶39 BRIAN HAGEDORN, J. (concurring). A.G. argues that
the no-contest plea he entered in his termination of parental
rights (TPR) proceeding was not knowing, voluntary, and
intelligent for two independent reasons. First, he asserts the
circuit court failed to advise him of the possible dispositions
that it could enter after accepting his plea. Second, A.G.
contends the circuit court failed to explain the statutory
standard it was required to apply at the dispositional phase of
the TPR proceeding. Neither argument wins the day.
¶40 Contested TPR proceedings involve a two-step process:
(1) a fact-finding hearing to determine if "grounds exist for
the termination of parental rights," and (2) the dispositional
hearing where the circuit court determines whether the rights
should in fact be terminated. See Wis. Stat. §§ 48.424, 48.427.
Here, A.G. pled no-contest that grounds existed to terminate his
parental rights. On appeal, he contends that his plea at the
grounds phase was not knowing, voluntary, and intelligent based
on what he was told (or not told) about the dispositional
hearing.
¶41 We analyze whether A.G. can withdraw his plea
utilizing a two-step process. Waukesha County v. Steven H.,
2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607, modified on
other grounds by St. Croix Cnty. Dep't of Health & Hum. Servs.
v. Michael D., 2016 WI 35, ¶¶3-4, 368 Wis. 2d 170, 880
N.W.2d 107. First, the parent "must make a prima facie showing
that the circuit court violated its mandatory duties and he must
allege that in fact he did not know or understand the
1
No. 2022AP652.bh
information that should have been provided at the" hearing. Id.This prima facie showing will generally focus on the plea
colloquy itself to determine whether certain requirements were
not followed. See State v. Clark, 2022 WI 21, ¶¶13-16, 401
Wis. 2d 344, 972 N.W.2d 533 (explaining the defendant's burden).
Second, if the defendant makes this showing, the burden shifts
to the State to demonstrate by clear and convincing evidence
that even given the facial deficiencies, the parent's plea was
knowing, voluntary, and intelligent. Steven H., 233
Wis. 2d 344, ¶42. This usually involves the consideration of
additional evidence at a hearing. State v. Hoppe, 2009 WI 41,
¶47, 317 Wis. 2d 161, 765 N.W.2d 794. At this stage, the
circuit court considers all new evidence along with "the entire
record" to ascertain if the parent's plea was knowing,
voluntary, and intelligent. Steven H., 233 Wis. 2d 344, ¶42.
¶42 Procedurally, the question before us concerns step
two: whether the State demonstrated by clear and convincing
evidence that the plea was knowing, voluntary, and intelligent.
This is because the court of appeals previously determined A.G.
made the prima facie showing and was therefore entitled to an
evidentiary hearing. State v. A.G. (A.G. I), No. 2021AP1476,
unpublished slip op., ¶21 (Wis. Ct. App. Feb. 15, 2022). The
State did not challenge this decision, and the case was remanded
back to the circuit court for a hearing. That's when the case
transformed into something of a unicorn. A.G. did not appear at
the scheduled evidentiary hearing, so neither his testimony nor
any other testimony was introduced. Instead, the State moved
2
No. 2022AP652.bh
into evidence all the transcripts in the case and relied on the
transcripts alone to argue that it had proven A.G.'s plea was
knowing, voluntary, and intelligent. The circuit court
concluded the State satisfied its burden, but the court of
appeals reversed and remanded with instructions to permit A.G.
to withdraw his plea. State v. A.G. (A.G. II), No. 2022AP652,
unpublished slip op., ¶25 (Wis. Ct. App. July 12, 2022). We
granted review of this second appeal.
¶43 Our review involves an examination of substantially
the same transcript evidence that the court of appeals had when
it concluded A.G. made the initial prima facie case. But at
this stage, we must independently determine whether the plea was
knowing, voluntary, and intelligent. Hoppe, 317 Wis. 2d 161,
¶45. Thus, even though the court of appeals may have had much
of the same evidence available to it when it determined A.G.
made a prima facie case, our standard of review suggests we can
come to a different legal conclusion when conducting our
independent analysis under step two.1
I add one caveat to this conclusion, however.
1 The
briefing on this point was not especially helpful. With the
benefit of fuller assistance from the parties, it may be that
our hands are tied in some way.
The dissent seems to think so when it employs a law-of-the-
case rationale to A.G.'s second argument. But on both issues,
the evidence of a facial deficiency in the plea colloquy was
weak at best, and the broader plea withdrawal claim even weaker
when the full spectrum of evidence in a stage two analysis is
considered. Given our standard of review, I don't understand
why the conclusion that A.G. made a prima facie case——reached by
a lower court in a different appeal focusing primarily on the
plea colloquy alone——should transform into a binding conclusion
for a higher court considering more evidence and conducting an
independent review of whether the State met its burden.
3
No. 2022AP652.bh
¶44 Turning to this analysis, A.G. first contends the
circuit court failed to advise him of the possible dispositions
of the proceeding consistent with Wis. Stat. § 48.422. See
§ 48.422(7)(a) (providing the circuit court must "determine that
the admission is made voluntarily with understanding
of . . . the potential dispositions"). And to enter a knowing,
voluntary, and intelligent plea the defendant must be informed
that the court can either dismiss the petition or terminate
parental rights. See Brown Cnty. Dep't of Hum. Servs. v. Brenda
B., 2011 WI 6, ¶56, 331 Wis. 2d 310, 795 N.W.2d 730; see also
Wis. Stat. § 48.427(2), (3). As I read the record, the circuit
court did so when it said that during the dispositional phase,
it would decide if it was "in the child's best interest to in
fact terminate [A.G.'s] parental rights." The lead opinion
recites additional evidence from the record both before and
after the plea that I agree may be considered. This evidence
erases any doubt that the potential dispositions were
sufficiently communicated, and by implication, sufficiently
understood, when A.G. entered his plea. Accordingly, I conclude
the State proved by clear and convincing evidence that A.G.'s
plea was knowing, voluntary, and intelligent with respect to the
possible dispositions of the TPR proceeding.
The lead opinion is equally unclear. While it seems to
agree we can come to an independent conclusion on A.G.'s first
argument, it criticizes this opinion for applying the same
analytical approach to A.G.'s second argument. Given the
inconsistencies in the lead opinion and the potential for
confusion, I do not join its analysis.
4
No. 2022AP652.bh
¶45 A.G. also argues the circuit court failed to explain
the statutory standard it was required to apply to the
dispositional phase. Wisconsin Stat. § 48.422 does not directly
require disclosure of this standard when the circuit court
accepts a no-contest plea. However, a published court of
appeals decision states that "the parent must be informed of the
statutory standard the court will apply at the second stage" "in
order for the court's explanation of potential dispositions to
be meaningful." Oneida Cnty. Dep't of Soc. Servs. v. Therese
S., 2008 WI App 159, ¶16, 314 Wis. 2d 493, 762 N.W.2d 122.
Wisconsin Stat. § 48.426 states that the standard is the "best
interests of the child"; no burden of proof is specified.
¶46 A.G.'s argument on this point relies on a strained
reading of the record. The circuit court explained during the
plea colloquy for the grounds phase that A.G. would be giving up
a variety of trial rights, including "the right to force the
state to prove the grounds by clear, convincing, and
satisfactory evidence to a reasonable certainty." The circuit
court later communicated that during the dispositional phase,
the court would determine whether it is "in the child's best
interest to in fact terminate your parental rights." And in the
dispositional phase, A.G. would still have his trial rights. In
other words, A.G. was not giving up his trial rights in the
dispositional phase by pleading in the grounds phase.
¶47 A.G.'s argument rests on the premise that the most
reasonable reading of this exchange is that the circuit court
communicated a clear and convincing evidence burden of proof
5
No. 2022AP652.bh
would apply at the dispositional phase. But the circuit court
never said that. The circuit court merely said that standard
applied "to prove the grounds." When it pivoted to explaining
the dispositional phase, the circuit court followed the
statutory language and explained that it would render a decision
based on the best interests of the child. Sure, the circuit
court could have been a bit more precise. But the record shows
A.G. was informed ten months before entering his plea that in
the second phase of the TPR proceeding, the focus shifted to
what was in the child's best interest. Thus, reviewing the
record independently and as a whole, in the face of A.G.'s
argument that he was incorrectly informed of the statutory
standard governing the dispositional hearing, the State met its
burden to prove by clear and convincing evidence that A.G.'s
plea was knowing, voluntary, and intelligent.2
¶48 For these reasons, I respectfully concur.
¶49 I am authorized to state that Justice JILL J. KAROFSKY
joins this concurrence.
2The lead opinion concludes the same, but rests its
conclusion in part on the basis that the circuit court held the
State to the clear and convincing standard during the
dispositional phase. Like the dissent, I do not understand why
that would be relevant to whether the State proved that A.G.'s
plea was knowing, voluntary, and intelligent.
6
No. 2022AP652.rfd
¶50 REBECCA FRANK DALLET, J. (dissenting). The
Constitution requires that pleas be knowingly, intelligently,
and voluntarily entered. State v. Bangert, 131 Wis. 2d 246,
257, 389 N.W.2d 12 (1986). Accordingly, when we evaluate
whether a plea met that constitutional standard, we must focus
on what the person entering the plea knew "at the time of the
plea acceptance." See State v. Finley, 2016 WI 63, ¶44, 370
Wis. 2d 402, 882 N.W.2d 761. The lead opinion fails at this
basic task, focusing instead on what A.G. knew many months
before entering his plea and on what happened after. Worse yet,
if the lead opinion's approach were adopted, it would upset our
well-settled approach to plea-withdrawal claims in the process.
Because I conclude that A.G. is entitled to withdraw his plea, I
respectfully dissent.
I
¶51 The State petitioned to terminate A.G.'s parental
rights to his daughter. Termination of parental rights (TPR)
cases implicate parents' fundamental right to raise their
children, see Santosky v. Kramer, 455 U.S. 745, 753 (1982), and
are thus "among the most consequential of judicial acts,"
involving "'the awesome authority of the State to destroy
permanently all legal recognition of the parental
relationship.'" Steven V. v. Kelley H., 2004 WI 47, ¶21, 271
Wis. 2d 1, 678 N.W.2d 856 (quoting Evelyn C.R. v. Tykila S.,
2001 WI 110, ¶20, 246 Wis. 2d 1, 629 N.W.2d 768). For that
reason, numerous statutory and constitutional protections apply
in TPR cases.
1
No. 2022AP652.rfd
¶52 These protections apply at each of the two phases of a
TPR case. The first or "grounds" phase concerns whether one or
more of the statutory grounds for termination of parental rights
enumerated in Wis. Stat. § 48.415(1)-(10) exist. See Kenosha
Cnty. Dep't of Human Servs. v. Jodie W., 2006 WI 93, ¶10 n.10,
293 Wis. 2d 530, 716 N.W.2d 845. At this phase, the
Constitution requires "fundamentally fair procedures," including
a hearing and proof by the State1 of the grounds for termination
by clear and convincing evidence. Santosky, 455 U.S. at 748,
753-54. The second or "dispositional" phase concerns "whether
it is in the child's best interest to terminate parental
rights." Jodie W., 293 Wis. 2d 530, ¶10 n.10. At this phase,
"[t]he parent has the right to present evidence and be heard,"
and if "'the evidence does not warrant the termination of
parental rights,'" then the court may dismiss the petition.
Evelyn C.R., 246 Wis. 2d 1, ¶23 (quoting Wis. Stat.
§ 48.427(2)).
A
¶53 In this case, A.G. pleaded no contest at the grounds
phase, effectively conceding the State's allegation that his
daughter was a child in need of protection or services (CHIPS)——
one of the statutory grounds for termination of parental rights.
See Wis. Stat. § 48.415(2). This was a meaningful concession,
since it meant A.G. was giving up his constitutional right to
Counties may also file TPR petitions, but for simplicity I
1
will refer to the petitioner as the State throughout this
opinion.
2
No. 2022AP652.rfd
hold the State to its burden of proving that he was an unfit
parent by clear and convincing evidence. See Evelyn C.R., 246
Wis. 2d 1, ¶22 (explaining that at the grounds phase "the
parent's rights are paramount"). To ensure that he understood
the important rights he was waiving, the circuit court conducted
a colloquy before accepting A.G.'s plea. See Wis. Stat.
§ 48.422(7); see also Brown Cnty. Dep't of Human Servs. v.
Brenda B., 2011 WI 6, ¶34, 331 Wis. 2d 310, 795 N.W.2d 730 ("A
parent who chooses to enter a no contest plea during [the
grounds] phase is giving up valuable protections and must have
knowledge of the rights being waived by making the plea.").
¶54 During that colloquy, the circuit court explained what
it called A.G.'s "trial rights" during the grounds phase. Those
included the right to a trial before the court or a jury to
determine whether grounds to terminate his parental rights
existed. At that trial, the circuit court said "[A.G.] would
have a whole bunch of rights," including: (1) "the right to
force the State to prove the grounds by clear, convincing, and
satisfactory evidence to a reasonable certainty;" (2) "the right
of cross-examination of your witnesses;" (3) "the right to
introduce evidence;" (4) "the right to compel witnesses to come
to court and testify;" and (5) "the right to testify . . . or
remain silent, knowing, though, that silence be [sic] used
against you in this kind of case." After A.G. confirmed that he
understood those "trial rights," the circuit court then told
A.G. about the dispositional phase: "[t]he second half of the
case is where the [c]ourt decides is it in the child's best
3
No. 2022AP652.rfd
interest to in fact terminate your parental rights." At that
phase, the circuit court said, A.G. would have "all those same
trial rights."
¶55 A.G. argues that there were two defects in this
colloquy. First, he asserts that the circuit court did not
inform him of the two potential outcomes of the dispositional
phase——granting the petition and terminating his parental rights
or dismissing the petition.2 See § 48.422(7)(a) (requiring the
circuit court, before entering a plea, to ensure it is made
"with understanding of . . . the potential dispositions").
Second, A.G. contends that at the time of his plea, the circuit
court did not inform him of the correct statutory standard that
applies at the dispositional phase. See Oneida Cnty. Dep't of
Soc. Servs. v. Therese S., 2008 WI App 159, ¶16, 314
Wis. 2d 493, 762 N.W.2d 122 (holding that before accepting a no-
contest plea to grounds, the circuit court "must inform the
parent that '[t]he best interests of the child shall be the
prevailing factor considered by the court in determining the
disposition.'" (quoting Wis. Stat. § 48.426(2))). According to
If the circuit court terminates parental rights, it "may
2
exercise several alternatives for designating custody,
guardianship, and care of the child." Brenda B., 331
Wis. 2d 310, ¶52. Nevertheless, the availability of those
alternatives depends on the circuit court first determining that
termination of parental rights is in the best interests of the
child. Id. Accordingly, the circuit court complies with
§ 48.422(7)(a)'s directive to address "the potential
dispositions" so long as it identifies "the two independent
dispositions available to the circuit court. That is, the court
may decide between dismissing the petition and terminating
parental rights." Id., ¶56.
4
No. 2022AP652.rfd
A.G., the correct statutory standard that applies at the
dispositional phase is simply the best interests of the child,
and "Wis. Stat. § 48.426(2) . . . does not set a burden of proof
level." During the plea colloquy, however, the circuit court
indicated that the State would have the burden of proving by
clear and convincing evidence at the dispositional phase that
termination of his parental rights was in his daughter's best
interest. As a result, A.G. contends that his plea was not
knowingly, intelligently, and voluntarily entered. I focus
solely on A.G.'s second argument because it is dispositive.
B
¶56 To understand why A.G. should be permitted to withdraw
his plea on this basis, it is first necessary to review the
legal framework for plea-withdrawal claims and the procedural
history of this case. State v. Bangert, 131 Wis. 2d 246, 274-
75, 389 N.W.2d 12 (1986) provides the framework for evaluating
whether A.G. is entitled to withdraw his plea. See Waukesha
County v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607
N.W.2d 607, modified on other grounds by St. Croix Cnty. Dep't
of Health & Human Servs. v. Michael D., 2016 WI 35, ¶¶3-4, 368
Wis. 2d 170, 880 N.W.2d 107. Bangert and our subsequent plea-
withdrawal cases set forth a two-step approach. First, a plea-
withdrawal motion "is reviewed by the court" to determine
whether it "establishes a prima facie violation of . . . court-
mandated duties and makes the requisite allegations," namely
that "the defendant did not know or understand the information
that should have been provided at the plea hearing." State v.
5
No. 2022AP652.rfd
Brown, 2006 WI 100, ¶¶39-40, 293 Wis. 2d 594, 716 N.W.2d 906.
If the motion clears that hurdle, the second step is an
evidentiary hearing "at which the state is given an opportunity
to show by clear and convincing evidence that the defendant's
plea was knowing, intelligent, and voluntary despite the
identified inadequacy of the plea colloquy." Id., ¶40
¶57 When A.G. moved to withdraw his plea, the circuit
court initially denied his motion without an evidentiary hearing
because it "actually did use a clear and convincing standard
when it assessed whether it thought it was in the child's best
interest to terminate the parental rights." In other words, the
circuit court concluded that A.G.'s motion did not satisfy the
first step of Bangert——making a prima facie case for plea
withdrawal——because even if A.G. wasn't told the correct
statutory standard that applies at the dispositional phase, the
circuit court ultimately applied the clear-and-convincing-
evidence standard that it said it would.
¶58 The court of appeals reversed, holding that A.G. was
not informed of the correct statutory standard that applies at
the dispositional phase because "contrary to the [circuit]
court's statement, at the dispositional hearing, the 'same trial
rights' do not apply. There is not a burden of proof placed on
the State." State v. A.G., No. 2021AP1476, unpublished slip
op., ¶17 (Wis. Ct. App. Feb. 15, 2022) (emphasis added). Thus,
the court of appeals held that the correct statutory standard
that applies at the dispositional phase is simply the best
6
No. 2022AP652.rfd
interests of the child, with no burden on any party.3 See id.Accordingly, the court of appeals concluded that A.G.'s motion
made a prima facie case for plea withdrawal and that he was
entitled to an evidentiary hearing on remand to determine
whether his plea was knowing, intelligent, and voluntary,
despite the information he received regarding the statutory
standard that applies at the dispositional phase. Id., ¶22.
¶59 Before discussing what happened at the evidentiary
hearing, it is important to emphasize that the State did not
appeal from this decision by the court of appeals. And for that
3 This is a debatable conclusion. To be sure, Wis. Stat. §
48.426(2) does not contain a burden of proof. It merely states
that "[t]he best interests of the child shall be the prevailing
factor considered by the court in determining the disposition."
Id. That being said, the State is the petitioner in this case.
As such, the State must——at a minimum——produce some evidence of
the best interests of the child at the dispositional phase.
Otherwise, the petition would have to be denied. Moreover,
given the weighty constitutional rights at play in TPR cases,
other courts have held that the Constitution requires proof that
termination is in the child's best interest by a preponderance
of the evidence or clear and convincing evidence. See Kent K.
v. Bobby M., 110 P.3d 1013, 1021-22 (Ariz. 2005) (holding that
due process requires proof of the child's best interests by a
preponderance of the evidence); In re D.H., 354 N.W.2d 185, 188
(S.D. 1984) (stating that "[t]he trial court must find by clear
and convincing evidence that termination of parental rights is
in the best interests of the child" (quoting another source));
see also In re B.T.B., 472 P.3d 827, 838 n.11 (Utah 2020)
(explaining that, in the context of the best-interest-of-the-
child inquiry, "the clear and convincing standard might be
constitutionally mandated"); Brian C. Hill, Comment, The State's
Burden of Proof at the Best Interests Stage of a Termination of
Parental Rights, 2004 U. Chi. Legal F. 557, 576-84 (arguing that
the Fourteenth Amendment, as interpreted by the United States
Supreme Court in Santosky, requires proof of the best interests
of the child by clear and convincing evidence). Nevertheless, as
discussed below, the question of whether there is a burden of
proof at the dispositional phase is not before us.
7
No. 2022AP652.rfd
reason, the court of appeals' conclusion that the correct
statutory standard that applies at the dispositional phase is
the best interests of the child with no burden on any party is
the law of the case. The law of the case is "a 'longstanding
rule' that requires courts to adhere to an appellate court's
ruling on a legal issue 'in all subsequent proceedings in the
trial court or on later appeal.'" State v. Jensen, 2021 WI 27,
¶13, 396 Wis. 2d 196, 957 N.W.2d 244 (quoting State v. Stuart,
2003 WI 73, ¶23, 262 Wis. 2d 620, 664 N.W.2d 82). Although
there are exceptions to the law of the case, none of them apply
here.4 Accordingly, we need not decide what the correct
statutory standard is at the dispositional phase; instead, we
must adhere to the court of appeals' holding that the standard
is the best interests of the child with no burden on any party.
And that means that to determine whether A.G.'s plea was
knowing, intelligent, and voluntary, we have to evaluate whether
the State proved by clear and convincing evidence at the Bangert
hearing that, at the time he entered his plea, A.G. knew that
standard.
4Those exceptions apply when "'a controlling authority has
since made a contrary decision of law' on the same issue," "when
the evidence at a subsequent trial is 'substantially different'
than that at the initial trial; and when following the law of
the case would result in a 'manifest injustice.'" Jensen, 396
Wis. 2d 196, ¶13, n.8 (quoting Stuart, 262 Wis. 2d 620, ¶24).
Because the court of appeals' conclusion that there is no
burden of proof on the State at the dispositional phase is the
law of the case, I do not address the guardian ad litem's
argument that the court should hold that the burden is clear and
convincing evidence.
8
No. 2022AP652.rfd
¶60 A.G. did not appear at the Bangert hearing and no
witnesses were called to testify. Instead, the State relied on
the transcript of A.G.'s plea hearing, as well as transcripts of
prior and subsequent hearings in the case. See Steven H., 233
Wis. 2d 344, ¶42 (explaining that at a Bangert hearing "a court
may examine the entire record, not merely one proceeding, and
look at the totality of the circumstances to determine" whether
the plea was constitutionally sufficient). The sole question is
whether this evidence clearly and convincingly demonstrates
that, at the time he entered his plea, A.G. knew that the
statutory standard that would apply at the dispositional phase
was the best interests of the child with no burden on any party.
¶61 The plea colloquy indicates that he did not. During
that colloquy, the circuit court described a different standard.
The court explained that A.G.'s "trial rights" at the grounds
phase included "the right to force the State to prove grounds by
clear, convincing, and satisfactory evidence to a reasonable
certainty." And then the circuit court said that A.G. would
have "those same trial rights" at the dispositional phase. In
other words, the circuit court told A.G. that the State would
have to prove the best interests of the child by clear and
convincing evidence. But that is not the statutory standard
that applies at the dispositional phase under the court of
appeals' prior ruling in this case. Thus, A.G.'s plea colloquy
was defective.
¶62 The remaining evidence falls far short of showing, let
alone clearly and convincingly, that A.G. knew the correct
9
No. 2022AP652.rfd
statutory standard that would apply at the dispositional phase
despite the defective plea colloquy. Indeed, the only evidence
that even suggests that A.G. knew the correct standard is a
transcript of a hearing ten months before his plea. At that
hearing, the circuit court explained that the dispositional
phase "focus[es] on what outcome is best for the kids that are
involved," and that "everybody gets to put on testimony and
evidence and argue to [the court] what they think is best for
the kids that are involved," before the circuit court made the
ultimate determination of "what outcome is best for the kids."
This ten-month-old transcript describes the best-interest-of-
the-child standard and does not reference a burden of proof on
any party.
¶63 Given that A.G. received conflicting information at
these two hearings, the State failed to prove by clear and
convincing evidence that, at the time he entered his plea, A.G.
knew the statutory standard that applies at the dispositional
phase. To conclude otherwise would be absurd, since we would
have to assume that A.G. ignored or disregarded the information
he received from the circuit court during the plea colloquy in
favor of different information he was told once ten months
earlier. Additionally, common sense tells us that people forget
10
No. 2022AP652.rfd
things they were told ten months earlier.5 That is especially
true when a non-lawyer is advised about the details of legal
proceedings he is facing and with which he is likely unfamiliar.
For these reasons, the State failed to prove that A.G. knew the
statutory standard that applies at the dispositional phase, and
he is therefore entitled to withdraw his plea. See Finley, 370
Wis. 2d 402, ¶95 (explaining that when the State fails to meet
its burden of proof at a Bangert hearing, the movant is entitled
to withdraw his plea).
C
¶64 The lead opinion tries to justify a different result
by relying on our decision in State v. Taylor, 347 Wis. 2d 30.
In that case, a criminal defendant was told during his plea
hearing that he could be sentenced to a maximum of six years of
imprisonment. Id., ¶16. In fact, the maximum potential
sentence was eight years of imprisonment. Id. After the
defendant was sentenced to the six years of imprisonment, he
5 For this reason, I similarly question the lead opinion's
reliance on this same ten-month-old transcript (and related
factual findings by the circuit court) in rejecting A.G.'s
alternative argument that he is entitled to withdraw his plea
because the circuit court failed to advise him of the potential
dispositions. See lead op., ¶30. Additionally, much of the
other evidence the lead opinion cites in support of that
conclusion is also suspect. For example, what A.G. knew the day
after he entered his plea is at best a weak indication of what
he knew when that plea was entered since people can learn new
things from day to day. See id. And the lead opinion's
speculation about what A.G.'s counsel might have told him before
entering his plea is just that——speculation. See id., ¶32.
There is no evidence in the record about what A.G.'s counsel did
or did not tell A.G.
11
No. 2022AP652.rfd
moved to withdraw his plea, arguing that it was not knowingly,
intelligently, and voluntarily entered because he did not know
the maximum potential sentence. Id., ¶18. The defendant's
motion was denied without an evidentiary hearing. Id., ¶20. We
affirmed, explaining that an evidentiary hearing was not
required because the record was "replete with evidence" that the
defendant, in fact, knew the maximum sentence he faced at the
time he entered his plea. See id., ¶¶35-39. In doing so, we
emphasized that we were not engaging in a harmless-error
analysis, instead reiterating that "the focus is on whether
the . . . plea was entered knowingly, intelligently, and
voluntarily" in spite of any claimed error. Id., ¶41 n.11.
¶65 According to the lead opinion, A.G. is not entitled
withdraw his plea because, "[l]ike the defendant in Taylor, [he]
received what the circuit court told him he would receive."
Lead op., ¶35. That is because, as mentioned previously, the
circuit court said that it applied the clear-and-convincing-
evidence standard at the dispositional phase. For this reason,
the lead opinion concludes that "A.G. was not inhibited from
weighing the pros and cons of entering this particular no
contest plea by being told the State would have to satisfy a
particular burden of proof because the State was actually held
to and did satisfy that burden." Id.
¶66 There are several problems with the lead opinion's
reliance on Taylor, and with its analysis more generally.
First, Taylor was evaluating a different question than the one
we are addressing in this case. Taylor concerned only whether
12
No. 2022AP652.rfd
the defendant was entitled to an evidentiary hearing under the
first step of Bangert's two-part plea-withdrawal framework.
Taylor, 347 Wis. 2d 30, ¶42. At that step, the court must
determine only whether the defendant's motion makes a prima
facie showing of that the plea colloquy was defective and that
he "did not, in fact, know or understand the information that
should have been been provided during the plea colloquy." Id.,
¶32. If the defendant's motion makes that showing, the next
step is an evidentiary hearing at which "the State has the
burden to prove by clear and convincing evidence that the
defendant's plea, despite the inadequacy of the plea colloquy,
was knowing, intelligent, and voluntary." Id.
¶67 In this case, unlike in Taylor, the court of appeals
has already determined that A.G.'s motion made the prima facie
case entitling him to an evidentiary hearing, and remanded for
an evidentiary hearing. A.G., No. 2021AP1476, at ¶22. And as
explained previously, that decision was not appealed and the
court of appeals' conclusion is thus the law of the case.
Accordingly, the only question before us is whether the State
met its burden at the evidentiary hearing of proving by clear
and convincing evidence that A.G.'s plea was knowing,
intelligent, and voluntary. Thus, Taylor's rule simply does not
apply to A.G.'s case. Indeed, we distinguished Taylor on
precisely these grounds in State v. Finley, 370 Wis. 2d 402. In
that case, we explained that Taylor does not apply when, as
here, an evidentiary hearing was held on the plea-withdrawal
motion. Finley, 370 Wis. 2d 402, ¶¶82-85.
13
No. 2022AP652.rfd
¶68 Second, even if Taylor did apply, the lead opinion
mischaracterizes its conclusion. Contrary to the lead opinion's
assertions, Taylor did not conclude that whenever a defendant
"receive[s] what the circuit court told him he would receive,"
he is not entitled to withdraw his plea. See lead op., ¶35.
Instead, we held that the plea in that case "was entered
knowingly, intelligently, and voluntarily [because] the record
makes clear that the defendant knew the maximum penalty that
could be imposed and was verbally informed at the plea hearing
of the penalty that he received." Taylor, 347 Wis. 2d 30, ¶8;
see also Finley, 370 Wis. 2d 402, ¶79 (describing Taylor
similarly). Thus, the reason the defendant in Taylor wasn't
entitled to withdraw his plea was because "the . . . record
revealed that the defendant knew the potential punishment he
faced if convicted"——not because he received a sentence the
circuit court told him he could receive. Finley, 370
Wis. 2d 402, ¶87. This conclusion is in keeping with our other
plea withdrawal cases, which likewise focus on whether the
defendant's plea was knowing, intelligent, and voluntary based
on the information he knew at the time he entered the plea. See
id., ¶44.
¶69 The lead opinion, by contrast, looks only to events
that occurred after A.G. entered his plea. To be sure, the
State may rely on evidence from after a plea is entered to show
that the plea was knowing, intelligent, and voluntary. See
Taylor, 347 Wis. 2d 30, ¶32; Bangert, 131 Wis. 2d at 269, 283.
But that evidence still must demonstrate what A.G. knew at the
14
No. 2022AP652.rfd
time he entered his plea. And here, the fact that the circuit
court held the State to a heightened burden of proof at
disposition tells us nothing about what A.G. knew when he
entered his plea. Moreover, unlike in Taylor, where the plea
questionnaire/waiver of rights form, information, and criminal
complaint all demonstrated what the defendant knew when he
entered his plea, here we have none of that. See Taylor, 347
Wis. 2d 30, ¶¶35-38. On the contrary, we have a description
given once ten months before his plea that, under the law of the
case, is correct. And we have a different one given the day he
entered the plea. This is far from clear and convincing
evidence that A.G. knew the correct statutory standard that
applies at the dispositional phase.
¶70 Finally, although the lead opinion denies it, it is
importing a harmless error standard into the plea-withdrawal
context. See lead op., ¶36 n.8. That is the upshot of the lead
opinion's claims that "[t]he error could have been
consequential, but it became insubstantial when the circuit
court actually held the State to the clear and convincing
standard," and that A.G. "benefitted from the circuit court
holding . . . the State[] to a burden of proof the law did not
require [it] to meet." Id., ¶¶36 n.8, 37. In essence, the lead
opinion is conceding that A.G. did not know the statutory
standard that applies at the dispositional phase, but arguing
that there was no harm because the State was held to the
standard of proof the circuit court said it would apply. The
only reason we would care whether the circuit court did what it
15
No. 2022AP652.rfd
said it would do, or whether someone benefitted from an error,
is if we are evaluating whether they were harmed by that error.
Yet, as Taylor said, our plea-withdrawal cases "clearly d[o] not
engage in a harmless error analysis." 347 Wis. 2d 30, ¶41.
¶71 Nevertheless, the lead opinion claims that it isn't
doing a harmless-error analysis, since it does not "consider
whether and to what extent the information provided at the plea
colloquy caused A.G. to enter a plea he would not otherwise have
entered." Id., ¶36 n.8 (citing State v. Barnes, 2023 WI 45,
¶29, ___ Wis. 2d ____, 990 N.W.2d 759). Doing that, in the lead
opinion's view, would be evaluating whether an error was
harmless. See id. But that is exactly what the lead opinion is
doing. It repeatedly asserts that A.G. "was not inhibited from
weighing the pros and cons of entering this particular no
contest plea" by the information he received in the plea
colloquy, and that his "knowledge at the time of the plea
permitted him to accurately weigh the pros and cons of entering
this specific plea." See id. ¶¶36-37. Thus, the lead opinion
is in fact "consider[ing] whether and to what extent the
information provided at the plea colloquy" affected A.G.'s
decision to plead no contest. See id., ¶36 n.8.
¶72 This approach, if taken seriously, would allow courts
to substitute their own speculation about whether someone's
"knowledge at the time of plea permitted him to accurately weigh
the pros and cons of entering this specific plea" or
"benefitted" from an error for the clear and convincing evidence
of what he actually knew that our cases require. Compare lead
16
No. 2022AP652.rfd
op., ¶¶36 n.8, 37, with Finley, 370 Wis. 2d 402, ¶95.
Thankfully, because the lead opinion fails to garner four votes,
that approach is not our law. Because we should keep the focus
in evaluating a plea-withdrawal motion where it belongs——"on
whether the . . . plea was entered knowingly, intelligently, and
voluntarily" in spite of any claimed error——I respectfully
dissent. See Taylor, 370 Wis. 2d 30, ¶41 n.11
¶73 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
17
No. 2022AP652.rfd
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