State v. Julius C. Burton

2013 WI 61
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP450-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Julius C. Burton,
Defendant-Appellant-Petitioner.
REVIEW OF COURT OF APPEALS DECISION
Reported at 340 Wis. 2d 497, 812 N.W.2d 539
(Ct. App. 2012 – Unpublished)
OPINION FILED: July 10, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 11, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Patricia McMahon/Kevin E. Martens
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Esther Cohen Lee and Hall, Burce and Olson, S.C., Milwaukee,
and oral argument by Esther Cohen Lee.
For the plaintiff-respondent, the cause was argued by Sally
L. Wellman, assistant attorney general, with whom on the brief
was J.B. Van Hollen, attorney general.
2013 WI 61
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP450-CR
(L.C. No. 2009CF2823)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUL 10, 2013
Julius C. Burton,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals,1 affirming a
judgment of conviction and an order of the Milwaukee County
Circuit Court denying Julius C. Burton's (Burton) postconviction
motion to withdraw his guilty pleas. The case involves the
merits of this postconviction motion.2
1
State v. Burton, No. 2011AP450-CR, unpublished slip op.
(Wis. Ct. App. Feb. 14, 2012).
2
The Honorable Patricia D. McMahon accepted Burton's pleas
and imposed sentence. The Honorable Kevin E. Martens denied the
motion for postconviction relief.
No. 2011AP450-CR
¶2 Burton pled guilty to two counts of attempted first-
degree intentional homicide. Initially, he had entered pleas of
not guilty and then not guilty by reason of mental disease or
defect (NGI),3 but later he withdrew his not guilty pleas as part
of a plea agreement. After he was sentenced to lengthy
consecutive periods of initial confinement, however, Burton
moved to withdraw his guilty pleas.
¶3 For purposes of this review, Burton's postconviction
motion stated two grounds for plea withdrawal. First, Burton
alleged that his two trial counsel were ineffective for
permitting him to withdraw his NGI pleas inasmuch as there was
no evidence in the record that counsel had informed him of the
possibility of a bifurcated plea with the right to a jury trial
focused solely on the issue of his mental responsibility.
¶4 Second, Burton alleged that the circuit court erred in
not advising him of the bifurcated plea and trial option during
the plea colloquy, so that Burton's resulting pleas were not
knowing, intelligent, and voluntary.
¶5 The first ground alleging ineffective assistance of
counsel is usually categorized as a Nelson/Bentley motion.4 The
second ground alleging a defective plea colloquy is usually
described as a Bangert motion.5 The circuit court denied both
3
The terms "not guilty by reason of mental disease or
defect," "NGI," and "insanity defense" are used interchangeably
in this opinion.
4
Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972);
State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).
5
State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
2
No. 2011AP450-CR
grounds of Burton's single motion without conducting an
evidentiary hearing, and the court of appeals affirmed. We now
affirm the court of appeals.
¶6 We conclude, first, that Burton's Nelson/Bentley
motion was insufficient. The motion asserted that Burton's two
trial counsel were ineffective in not pursuing an NGI or
"insanity" defense. The motion claimed that Burton's explicit
withdrawal of that defense as part of a plea agreement must have
been based upon a failure by trial counsel to inform Burton that
he had the option of pleading guilty to the crimes but also not
guilty by reason of mental disease or defect. Significantly,
Burton's motion never alleged that his trial counsel failed to
inform Burton of this option. Instead, it merely pointed to the
absence of evidence in the record that indicated that counsel
had explained this option to Burton. The absence of record
evidence in this situation is not enough. A defendant must
affirmatively plead facts that, if true, would constitute
deficient performance of counsel. Moreover, even if deficient
performance had been properly pled, Burton's motion did not
affirmatively assert that if trial counsel had informed him of
the option of a trial focused solely upon mental responsibility,
he would have chosen that option and why he would have chosen
it.
¶7 The sufficiency of a Nelson/Bentley motion is critical
because the defendant has the burden of proof in a
Nelson/Bentley hearing. A Nelson/Bentley hearing is an
evidentiary hearing in which a defendant is permitted to prove a
3
No. 2011AP450-CR
claim that his attorney was constitutionally ineffective,
producing a manifest injustice. It is not a fishing expedition
to try to discover error.
¶8 We conclude, second, that Burton's claim of a Bangert
violation also was insufficient. Burton failed to state that,
due to a defect in the plea colloquy, he did not enter his pleas
knowingly, intelligently, and voluntarily. Because Burton did
not allege his lack of personal understanding about some aspect
of the plea process, no evidentiary hearing was necessary. In
any event, we do not find any defect in the plea colloquy. The
circuit court properly inquired as to whether Burton was
entering his guilty pleas knowingly, intelligently, and
voluntarily. The circuit court's inquiry not only followed
standard procedure, but also asked whether Burton was knowingly,
intelligently, and voluntarily withdrawing his NGI plea and
giving up the right to present an insanity defense.
¶9 We reject Burton's claim of a Bangert violation
because defendants do not have a fundamental right to an
insanity plea, and it is not essential to conduct an extensive
colloquy about NGI procedure before a defendant withdraws his
plea of not guilty by reason of mental disease or defect.
Looking forward, we do think it is better practice for circuit
courts to conduct a personal colloquy on the bifurcated NGI plea
and trial option to confirm the defendant's understanding of the
law and to head off later claims of a Bangert violation or
ineffective assistance of counsel.
I. FACTUAL BACKGROUND
4
No. 2011AP450-CR
¶10 The underlying facts of this case are undisputed. On
June 9, 2009, Milwaukee Police Officers Graham Kunisch (Officer
Kunisch) and Bryan Norberg (Officer Norberg) were on routine
patrol in the area of 3rd Street and West National Avenue on the
southeast side of Milwaukee. As the officers drove their marked
police van6 eastbound on National Avenue, they spotted 18-year-
old Burton riding his bicycle on the sidewalk, in violation of a
Milwaukee city ordinance. They did not suspect that Burton was
carrying a concealed weapon.
¶11 Because of the ordinance violation, the officers
decided to stop Burton and conduct a field interview. Officer
Norberg called out to Burton to stop, but after making brief eye
contact with them, he turned away and continued riding his
bicycle. Officer Norberg exited the vehicle, followed Burton,
and continually asked him to stop, while Officer Kunisch
followed in the police van.
¶12 Officer Norberg caught up to Burton after he turned
onto South 2nd Street. Officer Norberg grabbed Burton from
behind to gain control of him. Officer Kunisch got out of the
police van to help, as Burton was resisting. While Kunisch was
trying to gain control of Burton to perform a pat-down search,
Burton pulled out a pistol and shot Officer Norberg in the face
from a distance of about six inches. The bullet went through
Officer Norberg's lip, under his left nostril, through bone and
6
Both officers testified that in addition to driving a
marked police van, they were attired in their Milwaukee Police
uniforms with badges.
5
No. 2011AP450-CR
teeth, and exited out his face. A second and third bullet
wounded his shoulder and grazed his right knee.
¶13 Burton also shot Officer Kunisch several times.
Officer Kunisch suffered gunshot wounds to his left hand, right
shoulder, and the back of his neck. More serious, Burton shot
Officer Kunisch in his face, destroying his left eye and causing
severe damage to the left side of his skull.
¶14 Burton fled the scene and was later arrested after a
local homeowner reported that someone might be hiding in his
basement. The homeowner left his residence when he heard the
commotion from the shooting, and Burton likely entered an open
basement door while the homeowner was absent. Police ordered
Burton out of the basement, found a pistol magazine with bullets
on his person, and discovered a semi-automatic pistol in the
basement. After the police took Burton into custody, and after
Burton was advised of his Miranda rights, he confessed to
shooting Officers Norberg and Kunisch. A videotape from the
scene of the shooting corroborated Burton's account.
II. PROCEDURAL HISTORY
¶15 Burton was charged with two counts of attempted first-
degree intentional homicide by use of a dangerous weapon,
contrary to Wis. Stat. §§ 939.32, 939.63(1)(b), and
940.01(1)(a).7 At the initial appearance, upon the request of
Burton's counsel, the court ordered that Burton's competency be
7
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
6
No. 2011AP450-CR
evaluated. Dr. Kenneth Smail prepared an initial report
recommending further evaluation. The subsequent evaluation,
conducted by Dr. Tracy Luchetta at the Winnebago Mental Health
Institute, determined that Burton was competent to stand trial.
Neither Burton's newly retained trial counsel, Attorneys Julius
Kim (Kim) and Jonathan LaVoy (LaVoy), nor Burton himself
objected to the evaluation's conclusion.8
¶16 Following a preliminary hearing at which Officers
Norberg and Kunisch testified, the State filed an Information
charging the same counts stated in the Complaint. Defense
counsel entered a plea of not guilty to both charges.
Approximately one month later, defense counsel added pleas of
not guilty by reason of mental disease or defect.
¶17 Dr. Smail, a psychologist, again was appointed to
examine Burton. Dr. Smail's report9 did not support Burton's NGI
plea.
8
The competency evaluator, Dr. Tracy Luchetta of the
Winnebago Mental Health Institute, noted that Burton "presents a
complicated combination of current and past behavioral,
perceptual, cognitive, and mood disturbances." Nevertheless,
Dr. Luchetta found Burton competent to stand trial. In
particular, Dr. Luchetta determined that Burton was
"exaggerating the subjective severity of his symptoms. . . .
Mr. Burton's apparent perceptual disturbances do not interfere
with his accurate perception of reality."
9
As part of his report, Dr. Smail personally interviewed
Burton, reviewed Burton's health and mental health records, his
competency evaluation, his academic reports, and various other
materials related to Burton's case.
7
No. 2011AP450-CR
¶18 Dr. Smail reported that Burton had a history of mental
health problems starting at age seven, when Burton was treated
for hearing voices. Dr. Smail noted that Burton was treated as
recently as April 2009 at the Milwaukee County Mental Health
Complex. This treatment was less than two months before the
attempted homicides.10 At various times over the years Burton
had been diagnosed with Attention Deficient/Hyperactivity
Disorder, Oppositional Defiant Disorder, "mood disorder,"
Bipolar Disorder, and Personality Disorder. After his arrest
for the attempted homicides, Burton's medical records at the
Milwaukee jail indicate that he had a diagnostic history of
schizophrenia and Attention Deficit/Hyperactivity Disorder.
¶19 Ultimately, Dr. Smail concluded that while Burton
suffered from "emotional and behavioral
disturbances, . . . there is not much objective evidence in his
record to substantiate a diagnosis that may reflect psychosis."
With regard to the attempted homicides, Dr. Smail concluded:
Dr. Smail noted in his report that as part of his interview
with Burton he explained the purpose of his mental health
assessment of Burton. In particular, Dr. Smail "described the
issue of exculpatory mental disease" and "described a bifurcated
trial process." After further discussion about the evaluation,
Dr. Smail noted that Burton "did appear to understand the nature
and purpose of the assessment."
10
On April 25, 2009, Burton was taken to the Mental Health
Complex by his family, but he insisted upon being discharged the
following day. He was told to take certain medication and to
meet with a therapist at Acacia Clinic. He met with the
therapist on May 11 and on June 4, 2009, five days before the
shootings.
8
No. 2011AP450-CR
I do not believe that there is any evidence to
reasonably sustain a diagnosis that would reflect a
psychosis of any sort for Mr. Burton when he had the
altercation with the police officers. . . .
It is also my opinion that the evidence
ultimately fails to indicate that Mr. Burton, at the
time of the offense, was substantially unable to
appreciate the wrongfulness of his conduct or conform
his conduct to the requirements of the law.
¶20 Burton's two counsel retained Dr. Dianne Lytton to
evaluate Burton as a defense expert and to determine whether the
evidence supported his NGI plea. Dr. Lytton disagreed with the
conclusions reached by Dr. Smail and concluded that, "at the
time of the alleged criminal events, Mr. Burton experienced
symptoms of psychotic disorder. . . . [I]n my opinion, he is
most appropriately diagnosed with schizoaffective disorder."
Dr. Lytton noted Burton's long history of mental illness and his
family's history of mental illness. Dr. Lytton also disagreed
with the opinions of Drs. Luchetta and Smail that Burton was
malingering, or intentionally faking his symptoms.
¶21 The State offered a plea agreement to Burton in which
he would plead guilty to the two counts of attempted first-
degree intentional homicide while armed with a dangerous weapon.
In exchange, the State would make a global sentence
recommendation of 50 years in confinement and no specific
recommendation on extended supervision. The State would be free
to argue aggravating and mitigating circumstances, Burton would
be free to argue mitigating circumstances at sentencing, and the
victims would be free to make their own sentencing
recommendations.
9
No. 2011AP450-CR
¶22 Burton accepted the State's plea offer. On January
14, 2010, he signed a plea questionnaire/waiver of rights form
acknowledging the charges to which he was pleading guilty, the
constitutional rights he was waiving, and his understanding of
the maximum penalties that the court could impose. Burton also
signed an addendum to the plea questionnaire/waiver of rights
form, which stated, "I understand that by pleading I am giving
up defenses such as alibi, intoxication, self-defense, [and]
insanity." (Emphasis added.) One week later, on January 21,
2010, the circuit court held a plea hearing.
¶23 At the plea hearing, the court conducted a thorough
plea colloquy with Burton. Burton was sworn in and Milwaukee
County Circuit Judge Patricia McMahon informed him that at any
time he could stop the colloquy and talk to his attorneys. The
judge confirmed that Burton understood the two charges to which
he was pleading guilty and the maximum penalty on each charge,
including the maximum period of initial confinement and the
maximum period of extended supervision. The judge also informed
Burton that the court was not bound by the plea agreement and
could impose up to the maximum penalty.
¶24 The court confirmed that Burton had time to meet with
his attorneys and discuss his case with them, that he was making
the decision to plead guilty "freely and voluntarily," and that
he had signed and understood the plea questionnaire/waiver of
rights form and the addendum to the form. The court noted the
constitutional rights Burton was waiving by agreeing to plead
guilty.
10
No. 2011AP450-CR
¶25 The court then conducted a personal colloquy with
Burton regarding his decision to withdraw his NGI plea:
THE COURT: You are also giving up the right to raise
certain defenses such as alibi or intoxication or
self-defense or insanity. Correct?
MR. BURTON: Yes.
THE COURT: You talked with your attorney about
entering, in fact I believe you did enter a plea of
not guilty by reason of mental disease or defect.
Correct?
MR. BURTON: Yes.
THE COURT: You are withdrawing that plea at this time.
Correct?
MR. BURTON: Yes.
¶26 The court also engaged Burton and his defense counsel
in an extensive discussion as to Burton's understanding of the
charges to which he was pleading guilty and the consequences of
those pleas:
THE COURT: And counsel, are you satisfied that your
client understands the nature of the charges, the
effects of his plea and is making his plea freely and
voluntarily?
MR. LaVOY: Yes. The Sheriff's Department provided both
myself and Mr. Kim quite a bit of access to Mr.
Burton. We have met with him a number of times about
defenses, the trial issues, N.G.I. issues, motions. I
believe that he's making this decision of his own free
will.
We have explained to Mr. Burton [that] we
retained experts and the experts are prepared to
testify, if necessary. But he's informed us he wishes
to accept responsibility by entering the pleas, so I
believe that he is doing this of his own free will.
11
No. 2011AP450-CR
THE COURT: Mr. Burton, did your attorney describe what
your conversation, general summary of your
conversation . . . with your attorney?
MR. BURTON: Yes.
THE COURT: So, you talked about this with your
attorneys for the time they represented you since the
very beginning of this case. Correct?
MR. BURTON: Yes.
THE COURT: And they came and talked with you and
talked about your various options in this case.
Correct?
MR. BURTON: Yes.
¶27 The prosecutor, Assistant District Attorney Mark
Williams, also spoke on the record to note that the defense had
an expert ready to testify that Burton was not guilty by reason
of mental disease or defect, but that Burton was waiving the
right to present that defense:
MR. WILLIAMS: Judge, there is a doctor
that . . . would render [the] opinion that Mr. Burton
was not guilty by reason of mental disease or defect.
I'm assuming that Mr. Burton read that report, knows
that report is available and that he has two competent
lawyers that would present that if the matter [went]
to trial.
There also is at least one doctor that finds Mr.
Burton . . . did understand what he was doing at the
time and would contradict that opinion. But Mr.
Burton is aware that there is an opinion from a doctor
that he . . . was not guilty by mental disease or
defects at the time and he is waiving that right to
present that defense.
THE COURT: Counsel, have you had that discussion with
your client?
MR. LaVOY: Yes. The doctor that the State's referring
to is Dr. Lytton. That is the doctor we retained. I
12
No. 2011AP450-CR
had reviewed that report word for word with Mr.
Burton. He is aware of her opinion and he is aware
that she would be prepared to testify, if necessary at
trial. But he indicated to me that he wishes to
again, accept responsibility and [forgo] that issue.
He's also aware of the other opinions that have
been presented by the other doctors referenced by the
State. So, it is my opinion that his position is that
he wishes to resolve the case with a plea today.
THE COURT: So, the not guilty by reason of mental
disease or defect plea would be withdrawn at this time
too?
MR. LaVOY: That is correct.
THE COURT: Mr. Burton, you heard what the State said
and your counsel said. Do you disagree with anything
that they have said so far?
MR. BURTON: No.
THE COURT: And they have had, your attorneys [have]
had that conversation with you. Correct?
MR. BURTON: Yes.
THE COURT: And you have gone through, there is a lot
of information here. So, they have spent a lot of
time with you, haven't they?
MR. BURTON: Yes.
THE COURT: And you specifically talked about your
right to raise that particular defense of mental
disease or defect. Correct?
MR. BURTON: Yes.
¶28 The circuit court used the criminal complaint, the
preliminary hearing, and security videotape of the attempted
homicides as the factual basis for Burton's guilty pleas. Given
the factual basis, and its finding that Burton was entering his
pleas "freely," "intelligent[ly]," and "voluntarily," the court
13
No. 2011AP450-CR
accepted Burton's guilty pleas and found him guilty of both
counts.
¶29 At sentencing, the State explained that it thought the
plea bargain was fair, that it would spare the officers and
their families the burdens of going through a trial, and that it
would protect the public by ensuring that Burton would spend
much of the rest of his life in confinement. The State
acknowledged Burton's history of mental illness, but maintained
that Burton knew that the shootings were wrong.
¶30 Defense counsel pointed to Burton's long history of
mental illness. Nevertheless, defense counsel reminded the
court that Burton chose to forgo the insanity defense and
decided to accept responsibility for the attempted homicides.
Counsel contended that by forgoing the defense and accepting
responsibility, Burton should be credited for sparing the
officers and their families the burdens of a trial and perhaps
receive a sentence that would allow him to get out of
confinement at some point in his life.
¶31 In imposing sentence, Judge McMahon considered the
extreme seriousness of Burton's offenses, the devastating impact
of the shootings on the officers and their families, and the
risks that Burton posed to the community. Judge McMahon also
took into account Burton's history of mental illness and
credited him for sparing the officers and their families a
trial. Ultimately, the court sentenced Burton to 40 years of
initial confinement and ten years of extended supervision on
each count, to be served consecutively.
14
No. 2011AP450-CR
¶32 On January 12, 2011, Burton's postconviction counsel,
Attorney Esther Cohen Lee (Attorney Lee), filed a motion to
withdraw Burton's guilty pleas and vacate his convictions.11
¶33 Burton's postconviction motion asserted three claims,
only two of which are relevant in this review.12 First, Burton
alleged that trial counsel was ineffective "since it was obvious
from . . . the record of this matter, . . . that counsel failed
to pursue" an NGI defense and instead counseled Burton to enter
pleas of guilty. Burton's motion also claimed that "there is
nothing in the record to indicate that defense counsel had ever
advised [Burton] of the possibility of entering . . . a
bifurcated plea." The motion also claimed that:
[I]f the defendant had been made to understand that
the jury could certainly have accepted Dr. Lytton's
expert opinions in this matter and, therefore, that
the jury could have found him not guilty by reason of
mental disease or defect, and if he had been advised
that he could have had the jury consider that
affirmative defense even if he had pled guilty to
having committed the crimes charged, there is a
reasonable probability that he would have not pled
guilty to the crimes. For that reason, defense
11
The circuit court did not accept Attorney Lee's initial
motion to withdraw Burton's guilty pleas and convictions dated
December 28, 2011, because it was in excess of 20 pages,
contrary to Rule 4.17(B) of the Local Rules of the First
Judicial District. The circuit court granted a one-time partial
exception to the rule, allowing Burton to file a 25-page motion.
12
Burton's postconviction motion also claimed that trial
counsel was ineffective for failing to advise him that the
circuit court was unlikely to follow the State's sentencing
recommendation. That claim was not before the court of appeals
and is not before this court.
15
No. 2011AP450-CR
counsel's deficient performance prejudiced the
defendant . . . .
¶34 Second, Burton contended that the circuit court failed
to advise him at the plea hearing that "he had the right to a
bifurcated jury trial . . . and that he could choose to plead
guilty to the crimes and still have a jury trial" on the issue
of mental responsibility. Burton claimed that because the
circuit court failed to inform him of this right to bifurcation,
his pleas were not "voluntarily, knowingly, and intelligently
made," resulting in manifest injustice.
¶35 Milwaukee County Circuit Judge Kevin E. Martens denied
Burton's postconviction motion without a hearing. Judge Martens
noted that there was a "very extensive record made during the
plea hearing about the defendant's desire to withdraw his
original [NGI] plea." Noting the relevant portions of the plea
hearing transcript, Judge Martens concluded that there was
"nothing which demonstrates that [Burton] was forced into
entering guilty pleas . . . or that his original [NGI]
plea . . . was abandoned without reason." Judge Martens added
that Judge McMahon "had no duty to advise [Burton] of the
possibility of a bifurcated trial on his original plea when he
was entering guilty pleas to both charges. . . . [Judge
McMahon] fulfilled her duties during the guilty plea colloquy."
¶36 The court of appeals affirmed, holding that the
circuit court properly denied Burton's postconviction motion
without an evidentiary hearing on either claim. State v.
Burton, No. 2011AP450-CR, unpublished slip op., ¶1 (Wis. Ct.
16
No. 2011AP450-CR
App. Feb. 14, 2012). The court of appeals rejected Burton's
claim of ineffective assistance of counsel as inadequately pled
because the motion failed to allege both deficient performance
and prejudice. Id., ¶¶12–14. As to the claim of a Bangert
violation, the court of appeals agreed with the circuit court
that Burton failed to allege a deficiency in the plea colloquy
or that his pleas were, in fact, not entered knowingly,
intelligently, and voluntarily. Id., ¶¶17–18.
¶37 Burton petitioned this court for review, which we
granted on September 27, 2012.
III. STANDARD OF REVIEW
¶38 In this case, Burton presents two issues for review.
The first issue is whether Burton's postconviction motion is
sufficient on its face to entitle him to an evidentiary hearing
on his claim of ineffective assistance of trial counsel and
whether the circuit court erred in denying Burton an evidentiary
hearing.13 Whether a motion alleges sufficient facts that, if
true, would entitle a defendant to relief is a question of law
that this court reviews de novo. State v. Allen, 2004 WI 106,
¶9, 274 Wis. 2d 568, 682 N.W.2d 433 (citing State v. Bentley,
201 Wis. 2d 303, 309–10, 548 N.W.2d 50 (1996)). The circuit
court must hold an evidentiary hearing if the defendant's motion
raises such facts. Id. (citing Bentley, 201 Wis. 2d at 310;
13
This opinion uses the term "trial counsel" to refer to
Attorneys Julius Kim and Jonathan LaVoy, even though Burton's
case never went to trial. Attorneys Kim and LaVoy did not
represent Burton at his initial appearance.
17
No. 2011AP450-CR
Nelson v. State, 54 Wis. 2d 489, 497, 195 N.W.2d 629 (1972)).
"However, if the motion does not raise facts sufficient to
entitle the movant to relief, or presents only conclusory
allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief, the circuit court has the
discretion to grant or deny a hearing." Id. (citations
omitted).
¶39 The second issue is whether Burton's postconviction
motion is sufficient on its face to entitle him to an
evidentiary hearing on his claim of a Bangert violation, and
whether the circuit court erred in denying Burton a hearing.
Whether a defendant has properly alleged "deficiencies in the
plea colloquy that establish a violation of Wis. Stat. § 971.08
or other mandatory duties at a plea hearing is a question of law
we review de novo." State v. Brown, 2006 WI 100, ¶21, 293
Wis. 2d 594, 716 N.W.2d 906 (citing State v. Brandt, 226
Wis. 2d 610, 618, 594 N.W.2d 759 (1999)). Whether a defendant
has sufficiently alleged that "he did not know or understand
information that should have been provided at the plea hearing"
also is a question of law that we review de novo. Id. (citing
Bentley, 201 Wis. 2d at 310).
IV. ANALYSIS
¶40 In this case, Burton's motion alleges a claim of
ineffective assistance of counsel, which is subject to the
Nelson/Bentley standard for an evidentiary hearing. In
addition, Burton alleges a Bangert violation because of a
purported deficiency in the plea colloquy and implies that he
18
No. 2011AP450-CR
did not enter his pleas knowingly, intelligently, and
voluntarily. "A defendant may invoke both Bangert and
Nelson/Bentley in a single postconviction motion to withdraw a
plea of guilty or no contest." State v. Howell, 2007 WI 75,
¶73, 301 Wis. 2d 350, 734 N.W.2d 48 (citing Brown, 293
Wis. 2d 594, ¶42).
¶41 Although a defendant may invoke both types of claims
in a single postconviction motion, the pleading standards for
the two claims are different. Id. We will examine the pleading
standards for each type of claim and apply them to Burton's
motion. We begin our analysis, however, with a brief
explanation of the NGI plea.
A. Entry of and Trial Upon an NGI Plea
¶42 Wisconsin Stat. § 971.15 provides criminal defendants
with an affirmative defense of not guilty by reason of mental
disease or defect. This is known in common parlance as the
"insanity" defense. It requires that a defendant establish to a
reasonable certainty, by the greater weight of credible
evidence, that the defendant, as a result of mental disease or
defect, "lacked substantial capacity either to appreciate the
wrongfulness of his . . . conduct or conform his . . . conduct
to the requirements of law." Wis. Stat. § 971.15(1), (3).
¶43 A defendant may enter a plea of not guilty by reason
of mental disease or defect in conjunction with a plea of not
guilty. Wis. Stat. § 971.06(1)(d). If the NGI plea is not
joined with a plea of not guilty, the plea admits that but for
lack of mental capacity the defendant committed all the
19
No. 2011AP450-CR
essential elements of the offenses charged. Id. Then——when
there is a substantive basis for finding the crimes charged——the
court will find the defendant guilty of the elements of the
crimes, and the NGI plea will be left for trial. See State v.
Langenbach, 2001 WI App 222, ¶19, 247 Wis. 2d 933, 634
N.W.2d 916 ("[A] defendant can only be found not guilty by
reason of mental disease or defect if he or she first admits to
the criminal conduct or is found guilty.").
¶44 Conversely, if the defendant pleads not guilty in
conjunction with an NGI plea, Wis. Stat. § 971.165(1) provides
for the bifurcation of the guilt and mental responsibility
phases of trial:
(1) If a defendant couples a plea of not guilty
with a plea of not guilty by reason of mental disease
or defect:
(a) There shall be a separation of the
issues with a sequential order of proof in a
continuous trial. The plea of not guilty shall
be determined first and the plea of not guilty by
reason of mental disease or defect shall be
determined second.
(b) If the plea of not guilty is tried to a
jury, the jury shall be informed of the 2 pleas
and that a verdict will be taken upon the plea of
not guilty before the introduction of evidence on
the plea of not guilty by reason of mental
disease or defect. No verdict on the first plea
may be valid or received unless agreed to by all
jurors.
(c) If both pleas are tried to a jury, that
jury shall be the same . . . .
Wis. Stat. § 971.165(1) (emphasis added).
20
No. 2011AP450-CR
¶45 The bifurcated trial for determining guilt and mental
responsibility was first enunciated by this court in State ex
rel. La Follette v. Raskin, 34 Wis. 2d 607, 150 N.W.2d 318
(1967). In Raskin, the court addressed whether the insanity
defense statute at that time14 allowed for bifurcation. Raskin,
34 Wis. 2d at 614. The Raskin court held that a defendant was
entitled to a sequential order of proof at trial——guilt first
and then the issue of criminal responsibility——"to avoid
confusion and prejudice to the jury from inculpatory statements
which were not given or intended to be used on the issue of
guilt."15 Id. at 614, 623; see also State v. Murdock, 2000 WI
App 170, ¶23, 238 Wis. 2d 301, 617 N.W.2d 175.
14
Wisconsin Stat. § 957.11(1) (1967–68), the then-insanity
defense statute, read as follows:
(1) No plea that the defendant indicted or
informed against was insane or feeble-minded at the
time of the commission of the alleged crime shall be
received unless it is interposed at the time of
arraignment and entry of a plea of not guilty unless
the court for cause shown otherwise orders. When such
plea is interposed the special issue thereby made
shall be tried with the plea of not guilty; and if the
jury finds that the defendant was insane or feeble-
minded or that there is reasonable doubt of his sanity
or mental responsibility at the time of the commission
of the alleged crime, they shall find the defendant
not guilty because insane or feeble-minded.
15
This court reiterated the policy of avoiding confusion
and prejudice in State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240
(1985):
The issue of not guilty by reason of mental
disease or defect is tried separately from the
question of whether the defendant committed the acts
which constitute a criminal offense. The principal
21
No. 2011AP450-CR
¶46 Wisconsin Stat. § 971.175 (1969)16 codified Raskin's
bifurcated trial process. See § 63, ch. 255, Laws of 1969. In
1987 the legislature replaced section 971.175 with Wis. Stat.
§ 971.165, which maintained "the basic bifurcated trial
procedure with its sequential order of proof as first
established in Raskin." Murdock, 238 Wis. 2d 301, ¶23. See
also 1987 Wis. Act 86.
B. Burton's Claim of Ineffective Assistance of Counsel
¶47 The Sixth and Fourteenth Amendments to the United
States Constitution guarantee a criminal defendant the right to
the effective assistance of counsel. State v. Balliette, 2011
WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334 (citing Strickland
v. Washington, 466 U.S. 668, 686 (1984)). A defendant's claim
purpose of bifurcation is to withhold from the jury,
while it debates the question of guilt or innocence,
evidence which is not legally relevant to that
question. This permits the defendant to fully
litigate the issue of mental responsibility without
compromising his ability to contest the issue of
guilt. Bifurcation protects both the defendant and
the state from having to confront evidence which if
introduced in the guilt phase, could confuse the jury
or appeal to its prejudice or sympathy.
Id. at 662 (citations omitted).
16
Wisconsin Stat. § 971.175 (1969) read in part:
When a defendant couples a plea of not guilty
with a plea of not guilty by reason of mental disease
or defect, there shall be a separation of the issues
with a sequential order of proof before the same jury
in a continuous trial. The guilt issue shall be heard
first and then the issue of the defendant's mental
responsibility.
22
No. 2011AP450-CR
of ineffective assistance has two components. Strickland, 466
U.S. at 687. First, a "defendant must show that counsel's
performance was deficient." Id. Second, a defendant must show
that counsel's deficient performance prejudiced the defense.
Id.
¶48 A defendant does not show the element of deficient
performance "simply by demonstrating that his counsel was
imperfect or less than ideal." Balliette, 336 Wis. 2d 358, ¶22.
Rather, "the proper standard for attorney performance is that of
reasonably effective assistance" by a "reasonably competent
attorney." Strickland, 466 U.S. at 687. "The benchmark for
judging any claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
just result." Id. at 686. When a court considers this issue,
"counsel is strongly presumed to have rendered adequate
assistance" to the defendant, id. at 690; thus, "the law affords
counsel the benefit of the doubt." Balliette, 336 Wis. 2d 358,
¶27.
¶49 As a general rule, a defendant who shows deficient
performance of counsel cannot presume prejudice. Strickland,
466 U.S. at 692–93.17 Instead, a defendant must affirmatively
17
There are some exceptions to the rule. "Actual or
constructive denial of the assistance of counsel altogether is
legally presumed to result in prejudice." Strickland v.
Washington, 466 U.S. 668, 692 (1984). In addition, actual
conflict of interest will result in a "similar, though more
limited, presumption of prejudice." Id. See also Cuyler v.
Sullivan, 446 U.S. 335, 348, 350 (1980).
23
No. 2011AP450-CR
prove prejudice by "show[ing] that particular errors of counsel
were unreasonable" and that those errors "had an adverse effect
on the defense." Id. at 693. Therefore, the proper test for
prejudice in the context of ineffective assistance of counsel is
whether "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Id. at 694; Balliette, 336 Wis. 2d 358, ¶24.
¶50 To establish prejudice in the context of a
postconviction motion to withdraw a guilty plea based upon
ineffective assistance of counsel, the defendant must allege
that "but for the counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial." Bentley, 201
Wis. 2d at 312 (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)).
¶51 Ineffective assistance of trial counsel may be raised
in a postconviction motion under Wis. Stat. § 974.02. The
evidentiary hearing evaluating counsel's effectiveness is widely
referred to as a Machner hearing. State v. Machner, 92
Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).18
18
In State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct.
App. 1979), the court of appeals explored the hearing that
results "where a counsel's conduct at trial is questioned." Id.
at 804. The term "Machner hearing" appears to have been
extended to include all hearings challenging the effectiveness
of trial counsel or preconviction counsel. A Nelson/Bentley
hearing is one subset of a Machner hearing. A Bangert hearing,
which involves an alleged deficiency on the part of a judge, is
not a subset of a Machner hearing.
24
No. 2011AP450-CR
¶52 Generally, a motion must "[s]tate with particularity
the grounds for the motion and the order or relief sought."
Wis. Stat. § 971.30(2)(c). This court has developed
particularized standards for Nelson/Bentley motions to secure an
evidentiary hearing on a claim of ineffective assistance of
trial counsel.
¶53 In Nelson, the court rejected the defendant's argument
that an evidentiary hearing must be held whenever a defendant
moves to withdraw a plea of guilty, unless the defendant's
motion is patently frivolous. Nelson, 54 Wis. 2d at 495.
Instead, the Nelson court held:
[I]f a motion to withdraw a guilty plea after judgment
and sentence alleges facts which, if true, would
entitle the defendant to relief, the trial court must
hold an evidentiary hearing. However, [1] if the
defendant fails to allege sufficient facts in his
motion to raise a question of fact, or [2] presents
only conclusionary allegations, or [3] if the record
conclusively demonstrates that the defendant is not
entitled to relief, the trial court may in the
exercise of its legal discretion deny the motion
without a hearing. It is incumbent upon the trial
court to form its independent judgment after a review
of the record and pleadings and to support its
decision by written opinion.
Id. at 497–98 (footnote omitted).
¶54 In Bentley, a defendant sought to withdraw his guilty
pleas on the basis of ineffective assistance of counsel.
Bentley, 201 Wis. 2d at 307. Bentley noted that a defendant may
withdraw a guilty plea after sentencing "only upon a showing of
'manifest injustice' by clear and convincing evidence." Id. at
311 (citing State v. Rock, 92 Wis. 2d 554, 558–59, 285
25
No. 2011AP450-CR
N.W.2d 739 (1979)). The "manifest injustice" requirement is met
if a defendant is denied the effective assistance of counsel.
Id. (citations omitted). The Bentley court relied on Nelson for
the criteria in determining whether a hearing is required on a
motion to withdraw a guilty plea, but restated the Nelson
holding as a two-part test:
If the motion on its face alleges facts which would
entitle the defendant to relief, the circuit court has
no discretion and must hold an evidentiary hearing.
Whether a motion alleges facts which, if true, would
entitle a defendant to relief is a question of law
that we review de novo.
However, if the motion fails to allege sufficient
facts, the circuit court has the discretion to deny a
postconviction motion without a hearing based on any
one of the three factors enumerated in Nelson. When
reviewing a circuit court's discretionary act, this
court uses the deferential erroneous exercise of
discretion standard.
Id. at 310–11 (citations omitted.)
¶55 The Bentley court continued:
This court has long held that the facts
supporting plea withdrawal must be alleged in the
petition and the defendant cannot rely on conclusory
allegations, hoping to supplement them at a
hearing . . . .
The nature and specificity of the required supporting
facts will necessarily differ from case to case.
However, a defendant should provide facts that allow
the reviewing court to meaningfully assess his or her
claim.
Id. at 313–14 (citations omitted).
¶56 Howell clarified the Bentley restatement of the Nelson
test. "The correct interpretation of Nelson/Bentley is that an
26
No. 2011AP450-CR
evidentiary hearing is not mandatory if the record as a whole
conclusively demonstrates that defendant is not entitled to
relief, even if the motion alleges sufficient nonconclusory
facts." Howell, 301 Wis. 2d 350, ¶77 n.51.
¶57 State v. Hampton, 2004 WI 107, 274 Wis. 2d 379, 683
N.W.2d 14, and Allen fleshed out the requirement for sufficient
facts that would allow a court to meaningfully assess a
defendant's claim in a postconviction motion.
¶58 In Hampton, we discussed the difference between
Bangert claims of a defective plea colloquy and Nelson/Bentley
claims of ineffective assistance of counsel. Hampton, 274
Wis. 2d 379, ¶¶50–65. While Bangert-type claims require a
defendant to point to a specific deficiency in the plea colloquy
and assert an unknowing, unintelligent, and involuntary plea
because of that deficiency, Nelson/Bentley-type claims are
different in that they assert a legal conclusion. Id., ¶¶57–58.
"[Nelson/Bentley-type] legal conclusions cry out for supporting
facts, and these supporting facts must be alleged to satisfy the
defendant's burden for an evidentiary hearing." Id., ¶58.
Hampton continued:
[T]he Bentley court explained that normally a
defendant is entitled to withdraw a guilty plea after
sentencing only upon a showing of "manifest injustice
by clear and convincing evidence." When, for example,
the basis for this injustice is an allegation that
defendant involuntarily entered a plea because of the
ineffective assistance of counsel, his claim raises
questions about both deficient performance and
prejudice. To establish deficient performance, a
defendant must necessarily provide the factual basis
for the court to make a legal determination. To show
27
No. 2011AP450-CR
prejudice, a defendant must do more than merely allege
that he would have pleaded differently but for the
alleged deficient performance. He must support that
allegation with "objective factual assertions."
Id., ¶60 (citations omitted).
¶59 Hampton added that "[i]n Bentley–type cases, the
defendant has the burden of making a prima facie case for an
evidentiary hearing . . . . The defendant must prove the
linkage between his plea and the purported defect." Id., ¶63.
Ultimately, "[t]he defendant's proof must add up to manifest
injustice." Id.
¶60 The Allen court noted that "the sufficiency standard
for postconviction motions requires more from a defendant" than
for pretrial motions where a defendant has the "opportunity to
develop the factual record." Allen, 274 Wis. 2d 568, ¶11
(citations omitted). Thus, the Allen court offered a practical
blueprint for specificity in postconviction motions,
recommending that:
postconviction motions sufficient to meet the Bentley
standard allege the five 'w's' and one 'h'; that is,
who, what, where, when, why, and how. A motion that
alleges, within the four corners of the document
itself, . . . material factual objectivity . . . will
necessarily include sufficient material facts for
reviewing courts to meaningfully assess a defendant's
claim.
Id., ¶23 (footnote omitted).
C. Nelson/Bentley Standard Applied to Burton's Motion
¶61 Against this background, we turn to the allegations of
ineffective assistance of counsel in Burton's postconviction
motion.
28
No. 2011AP450-CR
¶62 Burton's motion alleged that his trial counsel was
ineffective under both prongs of the Strickland test. Burton
alleged that trial counsel's performance was deficient "since it
was obvious from . . . the record of this matter, . . . that
counsel failed to pursue" an NGI defense and instead counseled
Burton to enter pleas of guilty. Burton's motion also claimed
that "there is nothing in the record to indicate that defense
counsel had ever advised [Burton] of the possibility of
entering . . . a bifurcated plea." Burton's motion alleged
prejudice to the defendant in that if he had known of the
possibility of a bifurcated trial on mental responsibility,
"there is a reasonable probability that he would not have pled
guilty to the crimes."
¶63 We conclude that Burton's motion was insufficient
because it did not adequately plead deficient performance by
Burton's trial counsel. Burton's motion pointed to the record
and suggested that because the record did not show that counsel
informed Burton of the possibility of a bifurcated trial,
Burton's counsel must not have informed Burton of the
possibility of a bifurcated trial. This is a shaky inference at
best, inasmuch as virtually all meetings between attorneys and
clients are not "on the record." Burton's motion did not allege
that his counsel never informed him that he had the option to
plead guilty to the crimes and have a jury determine his mental
responsibility. We suspect that Burton's attorney crafted
Burton's motion the way she did to push his arguments as far as
the facts allowed.
29
No. 2011AP450-CR
¶64 But it is not enough for the postconviction motion to
allege that the record does not show that Burton was told about
his options. To obtain an evidentiary hearing based on
ineffective assistance of counsel, Burton was required to assert
that his counsel in fact failed to tell him this information.
He was also required to assert that this failure to inform him
of his prerogatives was so serious an error that it fell below
the standard of reasonable performance by reasonable counsel,
such that counsel was not functioning as counsel, as guaranteed
by the Sixth Amendment. Strickland, 466 U.S. at 687. Burton's
motion failed to make this elementary allegation of deficient
performance. Burton's motion is conclusory and lacks sufficient
material facts to establish a failure to inform. The motion
presents a hypothesis, not an offer of proof.
¶65 The record in this case does not reveal all the
information that trial counsel provided to Burton in regard to
his plea option, nor should it. As the State observed, a
criminal record does not contain all the information that trial
counsel provides to a defendant. At a plea hearing, a record is
made to establish that a defendant enters his plea knowingly,
intelligently, and voluntarily. Trial counsel must provide
enough information to a defendant that any plea is made with a
constitutionally-required degree of understanding and
willingness. However, the record is not likely to contain a
detailed recitation of all information that trial counsel
provided to the defendant throughout counsel's representation.
30
No. 2011AP450-CR
¶66 Here, the plea hearing transcript reveals that
Burton's counsel communicated with him about "N.G.I. issues,"
retained experts who were ready to testify should Burton go to
trial on an NGI plea, talked to Burton about "[his] various
options in this case," and "specifically talked about [his]
right to raise that particular defense of mental disease or
defect." These statements in the record permit inferences about
the information provided to Burton that are very different from
the inferences that Burton's motion urges the court to draw.
¶67 A complete record was made of Burton's decision to
forgo an NGI defense and enter a plea of guilty. Burton cannot
now allege a purported gap in the record as justification to
turn a requested evidentiary hearing into a fishing expedition.
Either Burton's two counsel told him about the possibility of a
bifurcated trial on mental responsibility or they did not. If
trial counsel did not tell him, Burton should have alleged this
failure on the basis of his personal knowledge. In the absence
of such an allegation, there is an insufficient factual basis
for investigating deficient performance of counsel in an
evidentiary hearing.19
¶68 Even if we were to conclude that Burton's allegation
of deficient performance was sufficient, Burton was still
required to allege sufficient facts to show that the deficient
19
Moreover, Burton's motion did not allege that he did not
know that he could have a bifurcated trial on mental
responsibility, another claim necessary to sufficiently allege
deficient performance of counsel.
31
No. 2011AP450-CR
performance prejudiced his defense. Burton's motion fails in
this regard, too, because it does not assert how the option of
bifurcation on mental responsibility would have caused him to
decline the plea bargain and proceed to trial.
¶69 Burton's motion alleged that had he known about the
option of bifurcation on mental responsibility, "there is a
reasonable probability that he would not have pled guilty to the
crimes." This is speculation, not assertion. The State's
proffered sentencing recommendation was not especially generous
but the charges were so serious that the State could have argued
for much more time. Had Burton not accepted the plea agreement,
he would likely have pled guilty to the charged crimes——with no
sentence recommendation——and taken his chances with a jury on
the issue of mental responsibility.
¶70 Burton's motion asserted that he could have presented
the report of his retained expert, Dr. Lytton, and her
assessment of his mental health at the mental responsibility
phase of a bifurcated trial. Essentially, Burton contended that
had he known of the option to a bifurcated trial on mental
responsibility, he could have presented this mental illness
evidence to the jury and the lack of opportunity to do so
constituted prejudice to his defense. On the other hand, the
State would have presented contrary evidence from Dr. Smail and
Dr. Luchetta, the competency evaluator. The jury would have had
to find Dr. Lytton's opinion more persuasive than the other
experts. Burton would have had to convince a jury "to a
reasonable certainty by the greater weight of the credible
32
No. 2011AP450-CR
evidence" that, at the time he admittedly attempted to kill two
police officers, his conduct was the result of mental disease or
defect. Wis. Stat. § 971.15(3).
¶71 We conclude that Burton failed to allege sufficient
material facts to support a claim of ineffective assistance of
counsel, and the circuit court did not err in denying Burton's
motion without an evidentiary hearing.
D. Burton's Claim of a Bangert Violation
¶72 Burton's motion also alleged a Bangert violation.
Burton alleges that he had a right to plead guilty to the crimes
and to have a jury determine whether he suffered from mental
disease or defect. Burton contends that the circuit court
failed to advise him of this right during the plea colloquy, and
consequently his pleas were not knowing, intelligent, and
voluntary. Burton contends, in essence, that the plea colloquy
outlined in Brown20 must be substantially modified whenever a
defendant contemplates withdrawal of an NGI plea.
20
To ensure a knowing, intelligent, and voluntary plea, a
court must, at a plea hearing and on the record, address the
defendant personally and:
(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;
33
No. 2011AP450-CR
¶73 The duties of the court established in Wis. Stat.
§ 971.08 and in Bangert and its progeny are designed to ensure
that a defendant's guilty or no contest plea is knowingly,
intelligently, and voluntarily entered. Brown, 293 Wis. 2d 594,
¶23; Hampton, 274 Wis. 2d 379, ¶21. "When a defendant pleads
guilty or no contest, he or she waives several constitutional
rights, including the privilege against self-incrimination, the
(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 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).
State v. Brown, 2006 WI 100, ¶35, 293 Wis. 2d 594, 716
N.W.2d 906 (footnotes omitted).
34
No. 2011AP450-CR
right to a trial by jury, and the right to confront one's
accusers." Hampton, 274 Wis. 2d 379, ¶22 (citing Boykin v.
Alabama, 395 U.S. 238, 243 (1969)). Waiving constitutional
rights must be knowing, intelligent, and voluntary acts "done
with sufficient awareness of the relevant circumstances and
likely consequences." Brady v. United States, 397 U.S. 742, 748
(1970) (footnote omitted). Thus, before a court accepts a plea
of guilty or no contest, it must "[a]ddress 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." Wis. Stat. § 971.08(1)(a).
¶74 If a circuit court fails to fulfill one of these
duties at the plea hearing, and the defendant "did not
understand an aspect of the plea because of the omission," the
defendant may move to withdraw his plea, alleging a Bangert
violation. Brown, 293 Wis. 2d 594, ¶36.
¶75 The procedure for filing a Bangert motion has been
explained as follows:
The defendant must file a postconviction motion under
Wis. Stat. § 809.30 or other appropriate statute. The
motion must (1) make a prima facie showing of a
violation of Wis. Stat. § 971.08(1) or other court-
mandated duties by pointing to passages or gaps in the
plea hearing transcript; and (2) allege that the
defendant did not know or understand the information
that should have been provided at the plea hearing.
Id., ¶39 (citing Bangert, 131 Wis. 2d at 274) (emphasis added).
¶76 In Brown, the defendant's motion stated that the
record failed to demonstrate that he actually understood the
35
No. 2011AP450-CR
elements of the crimes to which he pled guilty. Brown's motion
did not make a direct allegation. Id., ¶61. Consequently, this
court was concerned with the lack of a direct allegation that
the defendant did not know or understand some aspect of his
plea. Id., ¶62. We explained:
[I]f the defendant is unwilling or unable to assert a
lack of understanding about some aspect of the plea
process, there is no point in holding a
hearing. . . . In the absence of a claim by the
defendant that he lacked understanding with regard to
the plea, any shortcoming in the plea colloquy is
harmless.
Id., ¶63.
¶77 The Brown court cautioned that in the ordinary case,
defense counsel should plead with particularity a defendant's
lack of understanding. Id., ¶67.
¶78 Only if "the motion establishes a prima facie
violation of Wis. Stat. § 971.08 or other court-mandated duties
and makes the requisite allegations" must the court hold an
evidentiary Bangert hearing. Id., ¶40. Thus, the initial
burden rests with the defendant to show a defective plea
colloquy and allege that he did not know or understand
information that should have been provided during the plea
colloquy. Hampton, 274 Wis. 2d 379, ¶46.
¶79 In this case, Burton's motion was insufficient to
require an evidentiary hearing. Burton's motion did not allege
that at the time his pleas were entered, he did not know or
understand that he had the option of a bifurcated trial on the
issue of mental responsibility after pleading guilty to the
36
No. 2011AP450-CR
crimes. Rather, Burton asserted in his motion that there was
nothing in the record that indicated he was ever made aware of
his "right" to a bifurcated trial on mental responsibility;
thus, his plea was not knowing, intelligent, and voluntary.
Burton failed to plead with particularity that he entered his
plea unknowingly, unintelligently, and involuntarily because he
did not understand his procedural rights.
¶80 More important, Burton's motion failed to identify a
real deficiency in the plea colloquy. Neither Wis. Stat.
§ 971.08, nor the procedures mandated by Bangert and its
progeny, require a court to inform a defendant during a plea
colloquy that he may plead guilty to a crime and still have a
jury trial on the issue of mental responsibility. Because the
trial court was not required to inform Burton of this option,
there was no deficiency in the plea colloquy.
¶81 The issue of whether a circuit court must engage the
defendant in a personal colloquy on the option of a bifurcated
trial on mental responsibility was carefully analyzed in State
v. Francis, 2005 WI App 161, 285 Wis. 2d 451, 701 N.W.2d 632.
In Francis, a defendant initially pled not guilty to several
criminal charges and concurrently entered an NGI plea. Id., ¶6.
After a mental health examination concluded that the defendant's
psychopathology would not support an NGI plea, the State offered
the defendant a plea bargain that she accepted. Id., ¶¶8–11.
Pursuant to the plea agreement, the defendant withdrew her not
guilty and NGI pleas and then pled guilty and no contest to
several charges. Id., ¶11. In her postconviction motion, the
37
No. 2011AP450-CR
defendant alleged, inter alia, that "the circuit court erred
when it accepted her pleas of guilty and no contest without
ascertaining via a personal colloquy that [the defendant]
intended to abandon her earlier NGI plea." Id., ¶12. The
circuit court denied the motion in all respects. Id., ¶13.
¶82 On review, the court of appeals concluded that circuit
courts "engage in personal colloquies in order to protect
defendants against violations of their fundamental
constitutional rights." Id., ¶1. Because neither the federal
constitution nor the Wisconsin Constitution confers a right to
an insanity defense, a court has no obligation to personally
address a defendant in regard to the withdrawal of an NGI plea.21
Id.
21
The United States Supreme Court has never held that a
defendant has a constitutional right to present an affirmative
insanity defense. See, e.g., Medina v. California, 505 U.S.
437, 449 (1992) (citing Powell v. Texas, 392 U.S. 514, 536-37
(1968) ("[W]e have not said that the Constitution requires the
States to recognize the insanity defense."); see also 22 C.J.S.
Criminal Law § 501 (2013) ("There is no independent
constitutional right to plead insanity as a defense to criminal
charges.") (footnote omitted).
Several state courts also have concluded there is no
federal constitutional right to an insanity defense. See, e.g.,
State v. Bethel, 66 P.3d 840, 851 (Kan. 2003), cert. denied 540
U.S. 1006 (2003); State v. Herrera, 895 P.2d 359, 366 (Utah
1995); State v. Searcy, 798 P.2d 914, 919 (Idaho 1990) (noting
that neither the federal constitution nor the state constitution
contains any language setting forth any right to an insanity
plea); State v. Korell, 690 P.2d 992, 999 (Mont. 1984) ("The
United States Supreme Court has never held that there is a
constitutional right to plead an insanity defense."). See also
Parkin v. State, 238 So. 2d 817, 822 (Fla. 1970). Idaho,
Kansas, Montana, and Utah have virtually abolished the insanity
defense. State v. Delling, 267 P.3d 709, 711 n.1 (Idaho 2011).
38
No. 2011AP450-CR
¶83 The Francis court did, however, offer this suggestion:
While we hold that a personal colloquy is not
required to withdraw an NGI plea, we believe it is
nonetheless advisable for trial courts to engage in
personal colloquy for at least two reasons: First, it
helps satisfy the court that the defendant is aware
and alert as to what is going on. Second, the record
is protected from later ineffective assistance of
counsel claims where a convicted defendant might
assert that counsel never discussed the NGI
withdrawal.
Id., ¶27 n.5.
¶84 We agree. We believe it is the better practice for
courts to engage the defendant in a personal colloquy on his or
her withdrawal of an NGI plea. It is also advisable for both
defense counsel and the State to help the court make a record of
the defendant's NGI plea withdrawal and his knowing,
intelligent, and voluntary plea of guilty or no contest.22
¶85 In this case, the court, defense counsel, and the
prosecutor were very diligent and professional at the plea
hearing. All of them worked together to ensure a complete
22
One criminal practice manual suggests:
The withdrawal of an NGI plea should be clearly
noted on the record. The court should question the
defendant to ensure that the defendant agrees with the
decision to withdraw the insanity defense and that the
decision was based upon the advice of counsel. A
careful record of the plea's withdrawal will eliminate
or minimize later time-consuming hearings on
ineffective assistance of counsel or the assertion
that the plea was withdrawn without the defendant's
permission.
Christine M. Wiseman & Michael Tobin, 9 Wis. Practice: Criminal
Practice and Procedure § 17:33, at 534–35 (2d ed. 2008).
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No. 2011AP450-CR
record of Burton's knowing, intelligent, and voluntary entry of
a guilty plea and withdrawal of an NGI plea. The court engaged
in a personal colloquy with Burton on whether he was making his
plea voluntarily, whether he understood that he was waiving
certain fundamental rights, and whether he was freely giving up
his right to pursue an NGI defense. Defense counsel went on
record to establish that an expert had been retained who would
support an NGI plea, but that Burton was accepting
responsibility and pleading guilty. The prosecutor also wanted
the record to reflect that, despite having retained an expert on
mental health and two competent defense attorneys, Burton was
choosing to forgo an NGI defense and accept responsibility, a
fact that Burton confirmed on the record.
¶86 Although the plea colloquy was sound, we take this
opportunity to emphasize the important issue of mental illness
in our state correctional system. As of June 2008, 31 percent
of all inmates incarcerated in adult correctional facilities in
Wisconsin were identified as mentally ill. Inmate Mental Health
Care, Report 09-4, at 25, Legislative Audit Bureau, Madison,
Wis. During the period from June 2006 to June 2008, the number
of mentally ill inmates increased from 6,084 to 6,957, or 14.3
percent. Id. at 24. While some mentally ill inmates are housed
in specialized facilities, many are housed with other inmates.
Id. at 33. Trained staff who provide therapy to mentally ill
inmates and the resources for helping them are limited; hence,
troubled individuals may not always get the mental health
treatment they need. See id. at 37–38. While this sobering
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No. 2011AP450-CR
information does not change our analysis or conclusion, it
underscores the better practice of courts engaging in personal
colloquies with defendants about the withdrawal of NGI pleas.23
¶87 Because Burton did not specifically plead to his lack
of knowledge or understanding at the plea colloquy, and because
there was no deficiency in the plea colloquy, we conclude that
the circuit court properly rejected Burton's Bangert motion
without an evidentiary hearing.
V. CONCLUSION
¶88 We conclude, first, that Burton's Nelson/Bentley
motion was insufficient. The motion asserted that Burton's two
trial counsel were ineffective in not pursuing an NGI or
"insanity" defense. The motion claimed that Burton's explicit
withdrawal of that defense as part of a plea agreement must have
been based upon a failure by trial counsel to inform Burton that
he had the option of pleading guilty to the crimes but also not
guilty by reason of mental disease or defect. Significantly,
Burton's motion never alleged that his trial counsel failed to
inform Burton of this option. Instead, it merely pointed to the
23
See generally Report of the Chief Justice's Task Force on
Criminal Justice and Mental Health (Sept. 2010). The Task
Force's mission was "to develop models of research-based, cost-
effective intervention processes that can be implemented to
improve responses of the criminal justice system to persons with
mental illness." Id. at 1. The Task Force's report highlights
current initiatives across the state that both "improve public
safety and the plight of persons with mental illnesses who come
into contact with the criminal justice system." Id. at 5. The
report also inventories gaps in the criminal justice and mental
health systems, and suggests programs and procedures to
institute statewide. Id.
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No. 2011AP450-CR
absence of evidence in the record that indicated that counsel
had explained this option to Burton. The absence of record
evidence in this situation is not enough. A defendant must
affirmatively plead facts that, if true, would constitute
deficient performance of counsel. Moreover, even if deficient
performance had been properly pled, Burton's motion did not
affirmatively assert that if trial counsel had informed him of
the option of a trial focused solely upon mental responsibility,
he would have chosen that option and why he would have chosen
it.
¶89 The sufficiency of a Nelson/Bentley motion is critical
because the defendant has the burden of proof in a
Nelson/Bentley hearing. A Nelson/Bentley hearing is an
evidentiary hearing in which a defendant is permitted to prove a
claim that his attorney was constitutionally ineffective; it is
not a fishing expedition to try to discover error.
¶90 We conclude, second, that Burton's claim of a Bangert
violation also was insufficient. Burton failed to state that,
due to a defect in the plea colloquy, he did not enter his pleas
knowingly, intelligently, and voluntarily. Because Burton did
not allege his lack of personal understanding about some aspect
of the plea process, no evidentiary hearing was necessary. In
any event, we do not find any defect in the plea colloquy. The
circuit court properly inquired as to whether Burton was
entering his guilty pleas knowingly, intelligently, and
voluntarily. The circuit court's inquiry not only followed
standard procedure, but also asked whether Burton was knowingly,
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No. 2011AP450-CR
intelligently, and voluntarily withdrawing his NGI plea and
giving up the right to present an insanity defense.
¶91 We reject Burton's claim of a Bangert violation
because defendants do not have a fundamental right to an
insanity plea, and it is not essential to conduct an extensive
colloquy about NGI procedure before a defendant withdraws his
plea of not guilty by reason of mental disease or defect.
Looking forward, we do think it is better practice for circuit
courts to conduct a personal colloquy on the bifurcated NGI plea
and trial option to confirm the defendant's understanding of the
law and to head off later claims of a Bangert violation or
ineffective assistance of counsel.
¶92 By the Court.—The decision of the court of appeals is
affirmed.
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No. 2011AP450-CR
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