State v. Richard J. Sulla

2016 WI 46

SUPREME COURT OF WISCONSIN

CASE NO.: 2013AP2316-CR

COMPLETE TITLE: State of Wisconsin,

Plaintiff-Respondent-Petitioner,

v.

Richard J. Sulla,

Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS

(Reported at 364 Wis. 2d 405, 866 N.W.2d 404)

(Ct. App. 2015 – Unpublished)

OPINION FILED: June 14, 2016

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: January 20, 2016

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Jefferson

JUDGE: David J. Wambach

JUSTICES:

CONCURRED: BRADLEY, A. W., J. and ABRAHAMSON, J. concur

(Opinion filed).

DISSENTED:

NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-respondent-petitioner, the cause was

argued by Anne C. Murphy, assistant attorney general, with whom

on the briefs was Brad D. Schimel, attorney general.

For the defendant-appellant there was a brief by Scott A.

Szabrowicz, Greenfield. Oral argument by Scott A. Szabrowicz.

2016 WI 46

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2013AP2316-CR

(L.C. No. 2011CF221)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner,

FILED

v. JUN 14, 2016

Richard J. Sulla, Diane M. Fremgen

Clerk of Supreme Court

Defendant-Appellant.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 MICHAEL J. GABLEMAN, J. This is a review of an

unpublished decision of the court of appeals,1 which reversed the

Jefferson County Circuit Court's2 order denying Richard Sulla's

("Sulla") postconviction motion to withdraw his no contest

pleas.

¶2 This case requires us to examine the circumstances

under which a circuit court may deny a defendant's

1

State v. Sulla, No.2013AP2316-CR, unpublished slip op.

(Wis. Ct. App. May 21, 2015) (per curiam).

2

The Honorable David J. Wambach presided over the

postconviction motion hearing.

No. 2013AP2316-CR

postconviction motion for plea withdrawal without holding an

evidentiary hearing. Specifically, we consider whether a circuit

court may, without holding an evidentiary hearing, deny a

defendant's motion to withdraw his plea when the defendant

alleges that his plea was not knowing, intelligent, and

voluntary because he did not understand the effect a read-in

charge could have at sentencing.

¶3 The State brought four charges against Sulla in

Jefferson County relating to two burglaries and an arson. Sulla

and the State entered into a plea agreement, under which Sulla

would plead no contest to Counts 1 and 3, while Counts 2 and 4

would be dismissed and read into the record for purposes of

sentencing and restitution.3 Prior to entering his plea, Sulla

read and signed a Plea Questionnaire/Waiver of Rights form, and

the circuit court held a plea hearing.4 At the plea hearing, the

3

The State charged Sulla with the following:

1. Count 1: Burglary, arming oneself with a dangerous

weapon, contrary to Wis. Stat. §§ 943.10(2)(b)

and 939.62(1)(c)

2. Count 2: Conspiracy to commit arson, contrary to Wis.

Stat. §§ 943.02(1)(a), 939.31, and 939.62(1)(c)

3. Count 3: Burglary, contrary to Wis. Stat.

§§ 943.10(1m)(a) and 939.62(1)(c); and

4. Count 4: Operating a motor vehicle without the

owner's consent, as a party to a crime, contrary to

Wis. Stat. §§ 943.23(2), 939.05, and 939.62(1)(b).

4

The Honorable Jacqueline R. Erwin presided over the plea

hearing and the sentencing hearing.

2

No. 2013AP2316-CR

court concluded that Sulla's pleas were made in a knowing,

intelligent, and voluntary fashion, and it ordered judgments of

guilt be entered accordingly. The court then held a sentencing

hearing and, after extensive discussion, sentenced Sulla to 15

years imprisonment, consisting of 7.5 years of initial

confinement and 7.5 years of extended supervision for Count 1,

and 5 years imprisonment, consisting of 2.5 years of initial

confinement and 1.5 years of extended supervision for Count 3.

The court ordered the sentences to run consecutively to one

another and to all other sentences.

¶4 Sulla filed a motion for postconviction relief,

seeking to withdraw his no contest pleas on the basis that his

pleas were not made in a knowing, intelligent, and voluntary

fashion. Sulla claimed that his pleas were unknowing because he

"did not understand that for purposes of the read-in charge, he

would effectively be considered to have committed the offense."

To support his motion, Sulla filed an affidavit, which stated,

in pertinent part, "[M]y attorney [] told me that agreeing to

the read-in offense of arson was not admitting guilt and that it

was just something the Court would 'look at' at sentencing. I

did not understand and my Attorney did not explain the effect

that a read-in offense has . . . ." In short, Sulla claimed that

he was misinformed by his attorney and that because he was

misinformed, he did not understand the effect the read-in

charges would have at sentencing.

¶5 The postconviction court denied Sulla's motion to

withdraw his plea without first holding an evidentiary hearing.

3

No. 2013AP2316-CR

The court concluded that Sulla was not entitled to an

evidentiary hearing on his motion because his affidavit failed

to allege sufficient facts which, if true, would entitle Sulla

to relief. In addition, the postconviction court found that

Sulla was not entitled to an evidentiary hearing because the

record conclusively demonstrated that Sulla was not entitled to

relief. The court of appeals reversed, concluding that Sulla's

motion did allege sufficient facts and further concluding that

Sulla was entitled to an evidentiary hearing because the record

did not conclusively demonstrate that Sulla understood the

effect of the read-in charges at sentencing. The State appealed.

¶6 The issue before us is whether the postconviction

court was required to hold an evidentiary hearing before it

determined whether Sulla had entered his pleas in a knowing,

intelligent, and voluntary fashion. To address this issue, we

apply the test set forth in Nelson v. State, 54 Wis. 2d 489, 195

N.W.2d 629 (1972), and refined in State v. Bentley, 201

Wis. 2d 303, 548 N.W.2d 50 (1996) (hereinafter

"Nelson/Bentley"). Nelson/Bentley instructs that "if 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." State v. Bentley, 201

Wis. 2d 303, 310, 548 N.W.2d 50 (1996) (quoting Nelson v. State,

54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). However, "if the

record conclusively demonstrates that the defendant is not

entitled to relief, the trial court may in the exercise of its

4

No. 2013AP2316-CR

legal discretion deny the motion without a hearing." Id. at 310

(quoting Nelson, 54 Wis. 2d at 497-98).

¶7 We conclude that the postconviction court was not

required to hold an evidentiary hearing before it determined

whether Sulla had entered his pleas in a knowing, intelligent,

and voluntary fashion. Here, the postconviction court properly

exercised its discretion when it denied Sulla's postconviction

motion to withdraw his plea without first holding an evidentiary

hearing because it applied the proper legal standard, examined

the relevant facts, and engaged in a rational decision making

process. Moreover, when we apply the Nelson/Bentley test to this

case, we conclude that Sulla is not entitled to an evidentiary

hearing on his postconviction motion to withdraw his plea. The

record in this case, specifically the Plea Questionnaire/Waiver

of Rights form and the transcripts from the plea hearing and the

sentencing hearing, conclusively demonstrates that Sulla is not

entitled to relief because he was correctly informed of and

understood the effect of the read-in charges at sentencing.5

5

Sulla also raises issues related to judicial bias and

ineffective assistance of counsel in his briefing; however,

these arguments were not raised in the petition for review. We

did not order that any issues presented outside of the petition

for review be granted and briefed. Therefore, we do not address

Sulla's additional arguments. See Jankee v. Clark Cty., 2000 WI

64, ¶7, 235 Wis. 2d 700, 612 N.W.2d 297 ("Generally, a

petitioner cannot raise or argue issues not set forth in the

petition for review unless the court orders otherwise. If an

issue is not raised in the petition for review or in a cross

petition, 'the issue is not before us.'" (citation and footnote

omitted) (quoting State v. Weber, 164 Wis. 2d 788, 791 n.2, 476

N.W.2d 867 (1991) (Abrahamson, J., dissenting))).

5

No. 2013AP2316-CR

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Charging and Plea Bargaining

¶8 On July 26, 2011, the State charged Sulla with two

counts of burglary, one count of conspiracy to commit arson, and

one count of party to the crime of operating a motor vehicle

without the owner's consent, all as a repeat offender. Sulla, if

convicted of each count, would have faced a maximum period of

imprisonment of 95 years and 6 months.6 Despite initially

pleading not guilty on all four counts, Sulla later entered into

a plea deal with the State. In exchange for pleading no contest

to Count 1 (armed burglary) and Count 3 (burglary), the State

agreed to dismiss but have read into the record Count 2 (arson)

and Count 4 (operating motor vehicle without consent). Sulla's

plea deal decreased his maximum period of imprisonment to 39

years and 6 months.

¶9 Prior to entering his plea, Sulla read and signed a

Plea Questionnaire/Waiver of Rights form. A list of

"Understandings" on the form included a statement addressing

read-in charges:

6

For Count 1 (armed burglary), Sulla could have been

imprisoned not more than 15 years plus a 6 year repeat offender

enhancer. For Count 2 (arson), Sulla could have been imprisoned

not more than 40 years plus a 6 year repeat offender enhancer.

For Count 3 (burglary), Sulla could have been imprisoned not

more than 12 years and 6 months plus a 6 year repeat offender

enhancer. For Count 4 (operating a vehicle without consent),

Sulla could have been imprisoned not more than 6 years plus a 4

year repeat offender enhancer. Adding all four counts together

totals 95 years and 6 months.

6

No. 2013AP2316-CR

I understand that if any charges are read-in as part

of a plea agreement they have the following effects:

 Sentencing——although the judge may consider

read-in charges when imposing sentence, the

maximum penalty will not be increased.

 Restitution——I may be required to pay

restitution on any read-in charges.

 Future prosecution——the State may not prosecute

me for any read-in charges.

Sulla signed the Plea Questionnaire/Waiver of Rights form,

acknowledging, "I have reviewed and understand this entire

document and any attachments. I have reviewed it with my

attorney . . . . I have answered all questions truthfully and

either I or my attorney have checked the boxes. I am asking the

court to accept my plea and find me guilty." Sulla's attorney

also signed the Plea Questionnaire/Waiver of Rights form,

acknowledging, "I am the attorney for the defendant. I have

discussed this document and any attachments with the defendant.

I believe the defendant understands it and the plea agreement.

The defendant is making this plea freely, voluntarily, and

intelligently. I saw the defendant sign and date this document."

B. Plea Hearing

¶10 On April 10, 2012, the circuit court held a plea

hearing. At the plea hearing, the court specifically discussed

read-in charges——and their effect at sentencing——with Sulla:

THE COURT: Mr. Sulla, I understand that of the four

counts made against you, you intend to withdraw your

not guilty pleas and instead plead no contest to

crimes in Counts 1 and 3 called armed burglary and

burglary both as habitual criminals. Is that right?

7

No. 2013AP2316-CR

SULLA: Yes, ma'am.

THE COURT: And then you expect that both sides will

ask me to dismiss Counts 2 and 4, conspiracy to commit

arson and operating motor vehicle without owner's

consent, again both as habitual criminal, but have me

consider those offenses when I sentence you, also

true?

SULLA: Yes, ma'am.

(Emphasis added.) As part of the plea hearing, the circuit court

also confirmed that Sulla had an opportunity to discuss his plea

with his attorney:

THE COURT: So Mr. Sulla, have I correctly stated the

representation that the State's attorney has made to

you regarding the State's recommendations?

SULLA: Yes, ma'am.

THE COURT: Have you had enough time with Mr. De La

Rosa?[7]

SULLA: Yes, ma'am.

THE COURT: He's told you and you've--you understand

from him that I don't have to follow that

recommendation or your recommendation or anyone's

recommendations in these cases, don't you?

SULLA: Yes, ma'am.

In addition, the court warned Sulla that regardless of the

recommendation made by the State, the court could award the

maximum statutory sentence:

THE COURT: In fact, on Count 1, I could order

imprisonment up to 21 years and up to $50,000 in fines

and on Count 3, I could order imprisonment up to 18

1/2 years and up to $25,000 in fines, so regardless of

7

Attorney Jeffery De La Rosa represented Sulla at his plea

hearing.

8

No. 2013AP2316-CR

the recommendations, my authority is to--for a total

of 39 1/2 years imprisonment and $75,000 in fines; do

you understand my sentencing authority?

SULLA: Yes, ma'am.

Finally, the court confirmed that Sulla read, understood, and

signed the Plea Questionnaire/Waiver of Rights form:

THE COURT: I was reading in part from a yellow

document called plea questionnaire and waiver of

rights and I see Mr. De La Rosa's signature on it from

this morning. I recognize it. Did you also sign it

this morning?

SULLA: Yes, ma'am.

THE COURT: Before you did, did you read and

understand it?

SULLA: Yes, ma'am.

THE COURT: There is another document that you and Mr.

De La Rosa filed with it and it is called a felony

element of criminal offenses. Did you read it before

you signed this yellow document?

SULLA: Yes, ma'am.

THE COURT: Did you understand everything in both

papers?

SULLA: Yes, ma'am.

After finishing the plea colloquy, the court found that Sulla's

pleas were made in a knowing, intelligent, and voluntary

fashion. Specifically, the court stated,

These pleas are knowing, voluntary, and intelligent.

They and the dismissed charges are sufficiently

supported by fact. I accept the pleas, find the

defendant to be a habitual criminal. Find him guilty

as he's charged in Counts 1 and 3 and on the request

of both parties and for the reasons provided by the

district attorney, dismiss Counts 2 and 4. I'll

consider them at sentencing. I order that judgment

enter.

9

No. 2013AP2316-CR

(Emphasis added.) The case then proceeded to sentencing.

C. Sentencing Hearing

¶11 The circuit court held a sentencing hearing on May 15,

2012. At the sentencing hearing, the court explained the effect

that the read-in arson charge would have on its sentencing

determination for Count 1:

I want to say two things. One is, you asked me to

dismiss it and consider it as a read-in. So I'm going

to. I'm not going to consider that you are uninvolved

with it. You gave me a victim--you gave me a plea

questionnaire that says that you understand that if

charges are read in as part of the plea agreement they

have the following effect; at sentencing, the judge

may consider read-in charges when imposing sentence,

but the maximum penalty will not be increased and that

you might be required to pay restitution for read-in

charges and that the State can't prosecute you

separately for it in the future.

The second consideration I have of the arson is

that, let's say for argument purposes that you were in

Michigan at the time of the arson, that you were non-

participatory in the torching altogether. As far as I

can tell from your statement, the arson followed the

burglary that you were involved with. And so it

followed that felony.

(Emphasis added.)

¶12 After discussing several other sentencing factors,8

such as Sulla's age, his 18 previous convictions, and the nature

8

The circuit court methodically applied the sentencing

factors set forth in State v. Gallion, 2004 WI 42, 270

Wis. 2d 535, 678 N.W.2d 197, stating, "As always, the Court

considers three categories, three factors in any sentence. One

is the character of the defendant. Another is the nature and

gravity of the crimes and a third is the need for public

protection. And I'll do that here and I'll do it in about that

series."

10

No. 2013AP2316-CR

of his crime, the court sentenced Sulla to a total of 20 years,

which is nearly half the maximum period of imprisonment (39

years and 6 months).9 On Count 1, Sulla received 15 years

imprisonment, consisting of 7.5 years of initial confinement and

7.5 years of extended supervision. On Count 3, Sulla received 5

years imprisonment, consisting of 2.5 years of initial

confinement and 1.5 years of extended supervision. The court

ordered the sentences to run consecutively to one another and to

all other sentences.

D. Postconviction Motion and Hearing

¶13 On August 5, 2013, Sulla filed a motion to withdraw

his plea10 on the basis that his plea was not knowing,

intelligent, and voluntary because he did not understand the

effect a read-in charge could have at sentencing.11 To support

his motion, Sulla submitted an affidavit, which stated, in

pertinent part,

[M]y Attorney De La Rosa told me that agreeing to the

read-in offense of arson was not admitting guilt and

that it was just something the Court would "look at"

9

Before imposing its sentence, the circuit court asked

Sulla if "there was anything [he] would like to say." Sulla took

the opportunity to comment on his criminal history and to

apologize to the victims. At no point did Sulla ask for

clarification regarding his plea agreement or the effect a read-

in charge could have on his sentence.

10

Sulla brought his motion for postconviction relief

pursuant to Wis. Stat. § 809.30.

11

Attorney Scott A. Szabrowicz has continued to represent

Sulla throughout Sulla's postconviction proceedings.

11

No. 2013AP2316-CR

at sentencing. I did not understand and my Attorney

did not explain the effect that a read-in offense has

because Attorney De La Rosa did not explain it to me.

In fact, I did not commit the arson and if I had known

that it was going to be considered as a negative at my

sentencing I would not have entered the no contest

plea.

¶14 On September 6, 2013, the court held a postconviction

motion hearing. Ultimately the court, without holding an

evidentiary hearing, denied Sulla's motion to withdraw his plea.

Applying the two-part test set forth in Nelson/Bentley, the

postconviction court concluded that Sulla was not entitled to an

evidentiary hearing on his motion for plea withdrawal because

(1) Sulla's motion failed to alleged sufficient facts which, if

true, would have entitled Sulla to relief and (2) even if

Sulla's motion had alleged sufficient facts, the record

conclusively demonstrated that Sulla was not entitled to relief

because he was correctly informed of and thus understood the

effect of the read-in charges at sentencing.

¶15 Regarding the first prong of Nelson/Bentley, the

postconviction court reasoned,

Counsel was not deficient in his performance, vis-à-

vis the need to sufficiently advise/appraise the

defendant of the import of the arson read-in. Even if

you consider the affidavit of the defendant, he claims

that counsel told him he "was not admitting guilt and

that it [the arson] was just something the court would

'look at' at sentencing." Those are accurate

statements of the law. The court would not find him

guilty of the arson for purposes of exposure to a

sentence on that offense and "look at" is another way

to describe "consider". This court finds the

allegation does not even rise to the level of

deficiency.

12

No. 2013AP2316-CR

(Alterations in original.) Regarding the second prong of

Nelson/Bentley, the postconviction court explained,

Before the court even undertook a colloquy with

the defendant, the defendant's counsel went through

two documents with him . . . . The first is the

Modified Criminal Case Settlement form . . . . That

document bears the signature of both the defendant and

counsel. That exhibit clearly notes that the defendant

would be responsible for restitution in the two

amounts listed, which total $462,070.00. This document

alone completely undercuts the claim that he did not

know that the court would consider he committed the

arson; otherwise how do you get to that amount of

restitution without being held responsible for the

arson? You can't. . . .

The court additionally finds that . . . the Plea

Questionnaire/Waiver of Rights form has a section on

the back side entitled, "Understandings". The second

to last bullet in that box gives a legally proper and

sufficient explanation of how read-in offenses will be

considered by the sentencing court. Even the defendant

does not allege that they are deficient in any way and

the court finds and concludes that they are not (see

the Wisconsin Judicial Benchbook-Page 43-7, 2013

version and State v. Frey ¶62-77). Nor does the

defendant allege that he did not sign the waiver of

rights form with his attorney . . . . The defendant's

signature lies beneath a segment of language entitled,

"Defendant's Statement" which reads in pertinent part

that he has "reviewed and understand[s] this entire

document" which obviously would include the section

and bullet described above. But the record and this

court's findings in this regard do not stop there.

At the plea hearing, the transcript

reveals . . . that the defendant did understand the

court could consider his culpability as to the arson

in crafting [his] sentence under his pleas to count

one and three. Plea hearing TR. P.3 l.4-10; p.4 l.6-8

as well as l.22-25; p.5 l.1-5 as well as l.11-13; p.7

l.7-9; and p.10 l.5-8. Those references clearly and

conclusively demonstrate that the court's colloquy

with the defendant established that he knew that [the

13

No. 2013AP2316-CR

sentencing court] would consider [the read-

ins] . . . .

¶16 Throughout its analysis, the court highlighted several

specific facts: (1) Sulla agreed to have the arson charge read

into the record, (2) the read-in charge allowed Sulla to avoid

significant prison exposure from the arson charge, (3) Sulla

signed the Plea Questionnaire/Waiver of Rights form, which

explicitly informed Sulla that the court could consider the

read-in charges for purposes of sentencing and restitution, and

(4) the court at the plea hearing asked Sulla if he understood

that the read-in charges would be dismissed but read into the

record for consideration at sentencing, and Sulla said he

understood. Further, the postconviction court noted that under

this court's precedent, the sentencing court could have

considered the conduct underlying the arson charge even if the

charge had been dismissed or if Sulla had been acquitted of the

charge:

[T]he sentencing court could, in an exercise of

discretion[,] consider[] [that] he "committed" the

arson offense under the rubric of "character of the

accused" even if the state dismissed the count

outright or if he had a trial, and the jury acquitted

him of the count of arson. Either of those scenarios

would put him in exactly the same position he found

himself at the original sentencing, in terms of the

court's view of his behavior.

¶17 Relying on all of the information outlined above, the

court concluded that Sulla understood that the read-in charges

would be dismissed but read into the record for purposes of

sentencing and restitution. As a result, the court dismissed

14

No. 2013AP2316-CR

Sulla's postconviction motion to withdraw his plea without

holding an evidentiary hearing. Sulla appealed.

E. The Court of Appeals' Decision

¶18 The court of appeals reversed and remanded, concluding

that Sulla was entitled to an evidentiary hearing to determine

whether his pleas were knowing, intelligent, and voluntary. The

court of appeals was sympathetic to Sulla's claim that he did

not understand the effect of a read-in charge, remarking, "It is

not inherently implausible that a defendant would misunderstand

the read-in concept. The concept is not intuitively obvious to

non-lawyers." State v. Sulla, No.2013AP2316-CR, unpublished slip

op., ¶12 (Wis. Ct. App. May 21, 2015) (per curiam).

¶19 Utilizing Nelson/Bentley, the court of appeals first

concluded that Sulla's affidavit made a sufficient factual

allegation that he did not understand the concept of a read-in

charge. Id., ¶¶12-15. The court commented,

Sulla's allegation that his attorney told him "that

agreeing to the read-in offense of arson was not

admitting guilt and that it was just something the

Court would 'look at' at sentencing" is sufficient to

allege why Sulla may not have understood the read-in

concept. The alleged statement by counsel contains an

ambiguity that . . . adds to the potentially confusing

nature of the read-in concept.

Id., ¶13. According to the court of appeals, counsel's use of

the word "guilt" created ambiguity: "[T]here are two ways a non-

lawyer might plausibly understand [the phrase 'not admitting

guilt']. One way is that Sulla was not admitting to committing

the act of arson, and the other is that Sulla was not pleading

15

No. 2013AP2316-CR

guilty to an actual legal charge for doing that act." Id., ¶15

(emphasis in original). "[G]iven the potential for confusion

that is inherent in the read-in concept," the court concluded

that "Sulla has alleged sufficient facts that, if true, would

entitle him to relief." Id.

¶20 The court of appeals then went on to consider the

second prong of Nelson/Bentley——whether the record conclusively

demonstrated that Sulla was not entitled to relief. Id., ¶16.

The court began its analysis by pointing out what it believed

was a "potential inconsistency [] present in the standards

described in Bentley." Id., ¶17. It described the "potential

inconsistency" as follows:

[C]ase law requires a hearing to be held if the

defendant alleges facts that, if true, would entitle

the defendant to relief, but it also allows a hearing

to be denied if the record conclusively demonstrates

that the defendant is not entitled to relief. These

two concepts are potentially in conflict because the

former seems to require an evidentiary hearing

unconditionally, but the latter provides an option in

which it appears that an evidentiary hearing can

nonetheless be denied, even when the defendant makes

allegations that would entitle him to relief, if true.

The relationship of these concepts is not made

entirely clear in existing case law.

Id., ¶17. To reconcile this purported inconsistency, the court

of appeals invented its own test: "[W]e understand a record to

'conclusively demonstrate' the falsity of a defendant's factual

allegations when, even after hearing the expected testimony in

support of the postconviction motion at an evidentiary hearing,

no reasonable fact-finder could find in the defendant's favor,

in light of the rest of the record." Id., ¶18.

16

No. 2013AP2316-CR

¶21 Applying its new test, the court of appeals concluded

that "while . . . several aspects about the existing record []

cast doubt on the accuracy of Sulla's allegations, none of them

rise to the level of making it impossible for a reasonable fact-

finder to believe that Sulla failed to properly understand the

read-in concept . . . ." Id., ¶21. As a result, the court of

appeals remanded for an evidentiary hearing on Sulla's motion to

withdraw his plea.

¶22 On June 18, 2015, the State filed a petition for

review, which we granted. We now reverse the court of appeals.

II. STANDARD OF REVIEW

¶23 When examining a defendant's postconviction motion for

plea withdrawal, we employ the following standard of review.

"[W]hether a defendant's motion to withdraw a guilty plea 'on

its face alleges facts which would entitle the defendant to

relief' and whether the record conclusively demonstrates that

the defendant is entitled to no relief" are questions of law

that we review de novo. State v. Howell, 2007 WI 75, ¶78, 301

Wis. 2d 350, 734 N.W.2d 48 (footnotes omitted) (citing Bentley,

201 Wis. 2d at 310); see also State v. Allen, 2004 WI 106, ¶9,

274 Wis. 2d 568, 682 N.W.2d 433. 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." Allen, 274 Wis. 2d 568, ¶9 (citing Bentley, 201

Wis. 2d at 310-11; Nelson, 54 Wis. 2d at 497-98). "We review a

17

No. 2013AP2316-CR

circuit court's discretionary decisions under the deferential

erroneous exercise of discretion standard." Id. "A circuit court

properly exercises its discretion when it has examined the

relevant facts, applied the proper legal standards, and engaged

in a rational decision-making process." Bentley, 201 Wis. 2d at

318. When reviewing a trial court's exercise of discretion, we

are permitted to search the record for reasons to sustain such a

determination. Klawitter v. Klawitter, 2001 WI App 16, ¶10 n.7,

240 Wis. 2d 685, 623 N.W.2d 169.

III. DISCUSSION

A. General Principles Regarding Plea Withdrawal

¶24 A defendant may withdraw his or her plea either before

or after sentencing. State v. Cain, 2012 WI 68, ¶24, 342

Wis. 2d 1, 816 N.W.2d 177. "When a defendant moves to withdraw a

plea before sentencing, 'a circuit court should "freely allow a

defendant to withdraw his plea . . . for any fair and just

reason, unless the prosecution [would] be substantially

prejudiced."'" Id. (quoting State v. Jenkins, 2007 WI 96, ¶2,

303 Wis. 2d 157, 736 N.W.2d 24). In contrast, "When a defendant

moves to withdraw the plea after sentencing, the defendant

'carries the heavy burden of establishing, by clear and

convincing evidence, that the trial court should permit the

defendant to withdraw his plea to correct a "manifest

injustice."'" Id., ¶25 (quoting State v. Thomas, 2000 WI 13,

¶16, 232 Wis. 2d 714, 605 N.W.2d 836). "One way for a defendant

to meet this burden is to show that he did not knowingly,

intelligently, and voluntarily enter the plea." State v. Brown,

18

No. 2013AP2316-CR

2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906; see also

State v. Straszkowski, 2008 WI 65, ¶28, 310 Wis. 2d 259, 750

N.W.2d 835.

¶25 Two legal paths are available to a defendant who seeks

to withdraw his plea after sentencing. The first is via a motion

made pursuant to State v. Bangert, 131 Wis. 2d 246, 389

N.W.2d 12 (1986). "A defendant invokes Bangert when the plea

colloquy is defective . . . ." Howell, 301 Wis. 2d 350, ¶74. The

second is through a Nelson/Bentley motion for plea withdrawal.

"[A] defendant invokes Nelson/Bentley when the defendant alleges

that some factor extrinsic to the plea colloquy, like

ineffective assistance of counsel or coercion, renders a plea

infirm." Id. Sulla brings his challenge pursuant to

Nelson/Bentley;12 thus, we limit our discussion to the plea

withdrawal procedure outlined in Nelson/Bentley.

¶26 The first prong of the Nelson/Bentley test provides:

"[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." Bentley, 201 Wis. 2d at 309 (alteration in original)

(quoting Nelson, 54 Wis. 2d at 497). To meet this first prong, a

12

Sulla does not challenge the court of appeals'

classification of his motion as a motion for plea withdrawal

under Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972),

modified by, State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50

(1996). Moreover, Sulla's brief to this court cites exclusively

to Nelson/Bentley; it does not cite State v. Bangert, 131

Wis. 2d 246, 389 N.W.2d 12 (1986).

19

No. 2013AP2316-CR

defendant must allege "sufficient material facts" that would

allow a reviewing court "to meaningfully assess a defendant's

claim." Allen, 274 Wis. 2d 568, ¶23; see also Bentley, 201

Wis. 2d at 314 ("[A] defendant must do more than merely allege

that he would have pled differently; such an allegation must be

supported by objective factual assertions." (quoting Key v.

United States, 806 F.2d 133, 139 (7th Cir. 1986))).

Specifically, a defendant should "allege the five 'w's' and one

'h'; that is, who, what, where, when, why, and how." Allen, 274

Wis. 2d 568, ¶23.

¶27 The second prong of Nelson/Bentley provides: "[I]f the

defendant fails to allege sufficient facts in his motion to

raise a question of fact, or presents only conclusory

allegations, or 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." Bentley, 201 Wis. 2d at 309-10 (quoting Nelson, 54

Wis. 2d at 497-98).

¶28 In this case, the court of appeals struggled to

properly apply Nelson/Bentley. Perhaps this is because the court

of appeals neglected to examine any recent case law from this

court. Indeed, the only law cited in the court of appeals'

opinion is Nelson (1972), Bentley (1996), and Bangert (1986).

Absent from the court of appeals' opinion is any reference to

our recent explanations of the Nelson/Bentley standard, which

include State v. Allen, 2004 WI 106, 274 Wis. 2d 568, 682

N.W.2d 433, State v. Howell, 2007 WI 75, 301 Wis. 2d 350, 734

20

No. 2013AP2316-CR

N.W.2d 48, State v. Straszkowski, 2008 WI 65, 310 Wis. 2d 259,

750 N.W.2d 835, and State v. Frey, 2012 WI 99, 343 Wis. 2d 358,

817 N.W.2d 436.

¶29 Had the court of appeals been so inclined, it could

have read and applied these cases, and a costly, time-consuming

appeal to this court could have been avoided. Be that as it may,

the court of appeals concluded that Nelson/Bentley's two prongs

potentially conflict because "the former seems to require an

evidentiary hearing unconditionally, but the latter provides an

option in which it appears that an evidentiary hearing can

nonetheless be denied, even if the defendant makes allegations

that would entitle him to relief, if true." Sulla, unpublished

slip op., ¶17. A review of our existing case law confirms that

we clarified any "potential inconsistency" years ago when we

explained,

Bentley might be interpreted to make an evidentiary

hearing mandatory whenever the motion contains

sufficient, nonconclusory facts, even if the record as

a whole would demonstrate that the defendant's plea

was constitutionally sound. Such an interpretation of

Nelson and Bentley, however, is not correct. The

correct interpretation of Nelson/Bentley is that an

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; see also id., ¶150-153

(Prosser, J., dissenting) ("Two years ago in [another case], I

tried to explain the internal inconsistency I perceived in the

Bentley decision. . . . To its credit, the majority opinion

corrects this festering problem. . . . The majority's

21

No. 2013AP2316-CR

clarification of the Bentley opinion restores to the circuit

court the ability to form its independent judgment [on a Bentley

plea withdrawal motion] after a review of the [entire] record

and pleadings." (fourth and fifth alterations in original)

(quotation marks and citation omitted)).

¶30 To be clear, a circuit court has the discretion to

deny a defendant's motion——even a properly pled motion——to

withdraw his plea without holding an evidentiary hearing if the

record conclusively demonstrates that the defendant is not

entitled to relief. With this framework in mind, we move on to

consider whether the postconviction court, here, was required to

hold an evidentiary hearing on Sulla's motion before it

determined whether Sulla had entered his pleas in a knowing,

intelligent, and voluntary fashion. To answer this question we

must discuss (1) whether Sulla's motion to withdraw his plea

alleged facts which, if true, would entitle him to relief; (2)

whether the record conclusively demonstrates that Sulla is not

entitled to relief; and (3) whether the postconviction court

erroneously exercised its discretion when it denied Sulla's

postconviction motion to withdraw his plea without holding an

evidentiary hearing.

B. Read-in Charges and Their Role at Sentencing

¶31 Before turning to the three considerations listed

above, we first take a moment to discuss generally sentencing

and the role read-in charges play at sentencing.

¶32 "Wisconsin has a strong public policy that the

sentencing court be provided with all relevant information."

22

No. 2013AP2316-CR

State v. Frey, 2012 WI 99, ¶45, 343 Wis. 2d 358, 817 N.W.2d 436

(quoting State v. Guzman, 166 Wis. 2d 577, 592, 480 N.W.2d 446

(1992)). Accordingly, a "sentencing court or jury must be

permitted to consider any and all relevant information that

reasonably might bear on the proper sentence for the particular

defendant, given the crime committed." Id. (quoting Wasman v.

United States, 468 U.S. 559, 563 (1984)). Notably, we have held

that "'a sentencing court may consider uncharged and unproven

offenses'" regardless of "whether or not the defendant consents

to having the charge read in. Indeed, the court may consider not

only 'uncharged and unproven offenses' but also 'facts related

to offenses for which the defendant has been acquitted.'" Id.,

¶47 (quoting State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449,

646 N.W.2d 341).

¶33 A read-in charge is any crime "that is uncharged or

that is dismissed as part of a plea agreement, that the

defendant agrees to be considered by the court at the time of

sentencing and that the court considers at the time of

sentencing the defendant for the crime for which the defendant

was convicted." Wis. Stat. § 973.20(1g)(b).13 Similar to Wis.

Stat. § 973.20(1g)(b), we have defined read-in charges as

"charges [that] are expected to be considered in sentencing,

with the understanding that read-in charges could increase the

sentence up to the maximum that the defendant could receive for

13

Chapter 973 of the Wisconsin Statutes governs sentencing.

23

No. 2013AP2316-CR

the conviction in exchange for the promise not to prosecute

those additional offenses." Frey, 343 Wis. 2d 358, ¶68 (citation

omitted).14

¶34 In Straszkowski, we examined "the history of read-in

charges in this state" and set forth the proper procedure trial

counsel and circuit courts should undertake when advising

defendants about read-in charges. 310 Wis. 2d 259, ¶59. There,

the defendant claimed that his plea was not "knowing and

intelligent because he was unaware that a charge dismissed but

read in under a plea agreement [was] deemed admitted for

purposes of sentencing the defendant on the charge to which the

defendant pled guilty." Id., ¶2. After analyzing our precedent,

we concluded that "Wisconsin's read-in procedure does not

require a defendant to admit guilt of a read-in charge for

purposes of sentencing and does not require a circuit court to

14

In State v. Frey, 2012 WI 99, 343 Wis. 2d 358, 817

N.W.2d 436, we commented on the benefits both the State and a

defendant receive from the read-in charge procedure. 343

Wis. 2d 358, ¶¶69-74. On the one hand, the State "preserves

precious prosecutorial resources by not prosecuting other

charges," while having the defendant "expose[] himself to the

likelihood of a higher sentence within the sentencing range and

the additional possibility of restitution for the offenses that

are 'read-in.'" Id., ¶¶70, 73. On the other hand, the defendant

cleans "his slate of several uncharged crimes with the safety of

only receiving at most the maximum sentence on the crimes of

which he is convicted and receive[s] immunity from future

prosecution of any read-in offense." Id., ¶71 (quotation marks

and emphasis omitted) (quoting Embry v. State, 46 Wis. 2d 151,

158, 174 N.W.2d 521).

24

No. 2013AP2316-CR

deem the defendant to admit as a matter of law to the read-in

crime for purposes of sentencing." Id., ¶92.

¶35 Consequently, we instructed trial counsel and circuit

courts to take the following approach when advising defendants

about read-in charges:

It is a better practice for prosecuting and defense

counsel and circuit courts to omit any reference to a

defendant admitting a read-in crime, except when the

defendant [chooses to] admit guilt, and simply to

recognize that a defendant's agreement to read in a

charge affects sentencing in the following manner: a

circuit court may consider the read-in charge when

imposing sentence but the maximum penalty of the

charged offense will not be increased; a circuit court

may require a defendant to pay restitution on the

read-in charges; and a read-in has a preclusive effect

in that the State is prohibited from future

prosecution of the read-in charge.

Id., ¶93 (footnotes omitted). Put simply, counsel and courts

should refrain from advising defendants that a read-in charge

necessitates admitting guilt. Id. Instead, counsel and courts

should advise defendants that (1) the read-in charge will be

considered by the sentencing court, but the maximum penalty will

not be increased; (2) the defendant may be required to pay

restitution on the read-in charge; and (3) the defendant may not

be prosecuted for the read-in charge in the future. Id. With

these general principles in mind, we now proceed to address

Sulla's claim.

C. Whether Sulla's Motion to Withdraw His Plea Alleged Facts

Which, if True, Would Entitle Him to Relief

¶36 Under the first prong of Nelson/Bentley, we examine

whether Sulla's motion alleged sufficient facts that, if true,

25

No. 2013AP2316-CR

would entitle Sulla to relief. Bentley, 201 Wis. 2d at 309

(quoting Nelson, 54 Wis. 2d at 497). As noted previously, for a

motion to be sufficient, it must "allege the five 'w's' and one

'h'; that is, who, what, where, when, why, and how." Allen, 274

Wis. 2d 568, ¶23. These "five w's' and one 'h'" make it so that

a reviewing court has enough sufficient facts that it can

"meaningfully assess a defendant's claim." Id.

¶37 Sulla's affidavit stated, in pertinent part,

[M]y attorney De La Rosa told me that agreeing to the

read-in offense of arson was not admitting guilt and

that it was just something the Court would 'look at'

at sentencing. I did not understand and my Attorney

did not explain the effect that a read-in offense has

because Attorney De La Rosa did not explain it to me.

At its core, Sulla's motion to withdraw his plea and his

accompanying affidavit allege that, in spite of Attorney De La

Rosa specifically informing Sulla that the sentencing court

would "look at" (or consider) the read-in charge for the purpose

of sentencing, Sulla did not understand that the circuit court

would consider the read-in charges for purposes of imposing a

sentence.

¶38 The problem with Sulla's claim is that Attorney De La

Rosa's alleged statement "that agreeing to the read-in offense

of arson was not admitting guilt and that it was just something

the Court would 'look at' at sentencing" is a correct statement

of the law under Straszkowski and Frey. As we noted in both

Straszkowski and Frey, "when the State and a defendant agree

that charges will be read in, those charges are expected to be

considered in sentencing." Frey, 343 Wis. 2d 358, ¶68; see also

26

No. 2013AP2316-CR

Straszkowski, 310 Wis. 2d 259, ¶93 ("[A] circuit court may

consider the read-in charge when imposing sentence but the

maximum penalty of the charged offense will not be increased.").

¶39 Moreover, as noted previously in our discussion of

Straszkowski, "no admission of guilt from a defendant for

sentencing purposes is required (or should be deemed) for a

read-in charge to be considered for sentencing purposes and to

be dismissed." 310 Wis. 2d 259, ¶5 (emphasis added). Stated

simply, Attorney De La Rosa's alleged statements to Sulla (1)

"that agreeing to the read-in offense of arson was not admitting

guilt," and (2) that the read-in offense was something the court

would "look at" at sentencing are correct statements of the law

under our precedent.

¶40 Even assuming Sulla is entitled to an evidentiary

hearing because his motion alleged sufficient facts which, if

true, would entitle Sulla to relief, we could still consider

whether the record conclusively demonstrates that Sulla is not

entitled to relief because he in fact understood the effect the

read-in charges could have at sentencing. Here, we will proceed

to consider the remainder of the record to determine whether

Sulla in fact understood that the read-in charge would be

considered by the circuit court when fashioning Sulla's

sentence.

D. Whether the Record Conclusively Demonstrates

That Sulla is Not Entitled to Relief

¶41 Under the second prong of Nelson/Bentley, we examine

whether "the record conclusively demonstrates that the defendant

27

No. 2013AP2316-CR

is not entitled to relief." Bentley, 201 Wis. 2d at 309-10

(quoting Nelson, 54 Wis. 2d at 497-98). If it so demonstrates,

then the "trial court may in the exercise of its legal

discretion deny the motion without a hearing." Id.

¶42 In Allen, we considered what it meant for a record to

conclusively demonstrate that a defendant was not entitled to

the relief sought. 274 Wis. 2d 568, ¶30. There, we explained

that the record conclusively refuted the defendant's claim that

his trial counsel failed to contact potential witnesses because

it contained specific statements by the defendant's attorney

indicating that the attorney had investigated and ruled out each

witness suggested by the defendant. Id.

¶43 As in Allen, in this case, the record conclusively

refutes Sulla's claim that he was misinformed of and therefore

did not understand the effect a read-in charge could have at

sentencing. The record is replete with indications that Sulla

was properly informed and understood that the sentencing court

could consider the read-in charges when it determined his

sentence.

¶44 First, the Plea Questionnaire/Waiver of Rights form——

that Sulla read and signed——clearly explained the effect of a

read-in charge at sentencing:

[I]f any charges are read-in as part of a plea

agreement they have the following effects:

 Sentencing——although the judge may consider

read-in charges when imposing sentence, the

maximum penalty will not be increased.

28

No. 2013AP2316-CR

 Restitution——I may be required to pay

restitution on any read-in charges.

 Future prosecution——the State may not prosecute

me for any read-in charges.[15]

¶45 Second, at the plea hearing, the circuit court

specifically discussed read-in charges——and their effect at

sentencing——with Sulla:

THE COURT: Mr. Sulla, I understand that of the four

counts made against you, you intend to withdraw your

not guilty pleas and instead plead no contest to

crimes in Counts 1 and 3 called armed burglary and

burglary both as habitual criminals. Is that right?

SULLA: Yes, ma'am.

THE COURT: And then you expect that both sides will

ask me to dismiss Counts 2 and 4, conspiracy to commit

arson and operating motor vehicle without owner's

consent, again both as habitual criminal, but have me

consider those offenses when I sentence you, also

true?

SULLA: Yes, ma'am.

. . . .

THE COURT: These pleas are knowing, voluntary, and

intelligent. They and the dismissed charges are

sufficiently supported by fact. I accept the pleas,

find the defendant to be a habitual criminal. Find him

guilty as he's charged in Counts 1 and 3 and on the

request of both parties and for the reasons provided

by the district attorney, dismiss Counts 2 and 4. I'll

consider them at sentencing.

(Emphasis added.)

15

We note that the three points listed in the Plea

Questionnaire/Waiver of Rights form match the three points we

listed in State v. Straszkowski, 2008 WI 65, ¶93, 310

Wis. 2d 259, 750 N.W.2d 825.

29

No. 2013AP2316-CR

¶46 Third, at the sentencing hearing, the circuit court

explained precisely what effect that the read-in arson charge

would have on its sentencing determination for Count 1:

I want to say two things. One is, you asked me to

dismiss it and consider it as a read-in. So I'm going

to. I'm not going to consider that you are uninvolved

with it. You gave me a victim--you gave me a plea

questionnaire that says that you understand that if

charges are read in as part of the plea agreement they

have the following effect; at sentencing, the judge

may consider read-in charges when imposing sentence,

but the maximum penalty will not be increased and that

you might be required to pay restitution for read-in

charges and that the State can't prosecute you

separately for it in the future.

(Emphasis added.)

¶47 Fourth, Sulla agreed to pay over $460,000 in

restitution to the victims. As was noted by the postconviction

court, this large sum of money can only be computed by factoring

in the destruction of the victim's home due to arson (one of the

read-in charges).

¶48 Finally, at the time of sentencing, Sulla had amassed

a rather extensive criminal record. Included in his criminal

record were 17 other charges that had been dismissed and read

into the record. The fact that Sulla has past experience with

read-in charges only further refutes his claim that he did not

understand the effect a read-in charge could have at sentencing.

In short, Sulla is not entitled to an evidentiary hearing on his

motion for plea withdrawal because the record conclusively

demonstrates that Sulla is not entitled to relief. Sulla was

30

No. 2013AP2316-CR

properly informed of and understood the effect the read-in

charges would have at sentencing.

E. Whether the Postconviction Court Erroneously Exercised Its

Discretion When it Denied Sulla's Postconviction Motion to

Withdraw His Plea Without Holding an Evidentiary Hearing

¶49 We turn to our final consideration: whether the

postconviction court erroneously exercised its discretion when

it denied Sulla's postconviction motion to withdraw his plea

without holding an evidentiary hearing. As discussed previously,

"A circuit court properly exercises its discretion when it has

examined the relevant facts, applied the proper legal standards,

and engaged in a rational decision-making process." Bentley, 201

Wis. 2d at 318.

¶50 Here, the circuit court both orally and in writing set

forth its reasons for denying Sulla's motion to withdraw his

plea without holding an evidentiary hearing. The postconviction

court began its analysis by properly articulating the

Nelson/Bentley framework. Next, the postconviction court made

extensive and substantiated factual findings. Based on these

findings, the postconviction court determined that Sulla was not

entitled to an evidentiary hearing on his motion because his

affidavit did not allege sufficient facts which, if true, would

entitle Sulla to relief. In reaching this conclusion, the

postconviction court properly recognized that the statements

Sulla takes issue with in his motion for plea withdrawal are in

fact "accurate statements of the law."

31

No. 2013AP2316-CR

¶51 Though the court could have ended its analysis there,

it proceeded to consider whether Sulla was not entitled to an

evidentiary hearing on his motion because the record

conclusively demonstrated that Sulla was not entitled to relief.

In making that determination, the postconviction court combed

through the entire record, highlighting the read-in language

used in the Plea Questionnaire/Waiver of Rights form and the

language used by the circuit court at the plea hearing and the

sentencing hearing. Moreover, the postconviction court, citing

our decision in Frey, properly zeroed in on the fact that the

sentencing court could have considered the arson charge even if

Sulla had refused to have the charge read in as part of his plea

agreement. See Frey, 343 Wis. 2d 358, ¶47. Relying on the entire

record, and our case law, the postconviction court reasoned that

Sulla was not entitled to an evidentiary hearing on his motion

because the record conclusively demonstrated that Sulla was not

entitled to relief, as Sulla was properly informed of and

understood the effect the read-in charges would have at

sentencing.

¶52 Stated otherwise, the postconviction court properly

exercised its discretion when it denied Sulla's postconviction

motion to withdraw his plea without holding an evidentiary

hearing because it applied the proper legal standard, examined

the relevant facts, and engaged in a rational decision-making

process. The postconviction court had an abundance of

information on which it could base its determination; thus, it

32

No. 2013AP2316-CR

was well within its discretion when it dismissed Sulla's motion

to withdraw his plea without holding an evidentiary hearing.

IV. CONCLUSION

¶53 To summarize, we conclude that the postconviction

court was not required to hold an evidentiary hearing before it

determined whether Sulla had entered his pleas in a knowing,

intelligent, and voluntary fashion. Here, the postconviction

court properly exercised its discretion when it denied Sulla's

postconviction motion to withdraw his plea without first holding

an evidentiary hearing because it applied the proper legal

standard, examined the relevant facts, and engaged in a rational

decision making process. Moreover, when we apply the

Nelson/Bentley test to this case, we conclude that Sulla is not

entitled to an evidentiary hearing on his postconviction motion

to withdraw his plea. The record in this case, specifically the

Plea Questionnaire/Waiver of Rights form and the transcripts

from the plea hearing and the sentencing hearing, conclusively

demonstrates that Sulla is not entitled to relief because he was

correctly informed of and understood the effect of the read-in

charges at sentencing.

By the Court.—The decision of the court of appeals is

reversed.

33

No. 2013AP2316-CR.awb

¶54 ANN WALSH BRADLEY, J. (concurring). I agree with the

majority that the circuit court did not erroneously exercise its

discretion when it denied the defendant's postconviction motion

for plea withdrawal without an evidentiary hearing. Majority op.

at ¶7. The circuit court applied the proper legal standards and

engaged in a rational decision-making process. Id.

¶55 I write separately, however, to address read-in

offenses. The court of appeals observed that "the potential for

confusion [] is inherent in the read-in concept." It also

described the procedure as "not intuitively obvious," and as

containing "a certain inconsistency." State v. Sulla, No.

2013AP2316-CR, unpublished slip op., ¶¶12, 15 (Wis. Ct. App. May

21, 2015) (per curiam). I agree.

¶56 The confusion is only exacerbated when defendants

consent to have a charge read-in, but continue to proclaim their

innocence of that charge. In those situations, greater

attention need be employed by the court and counsel to ensure a

constitutionally valid plea.

¶57 Accordingly, I recommend a better practice. Given the

potential for confusion and the uncertainties detailed below, I

urge circuit courts and counsel to make additional efforts to

guarantee that defendants understand all the consequences of

read-in charges, ensuring that the plea is knowingly,

intelligently, and voluntarily made.

I

¶58 A brief history of the read-in procedure is helpful in

explaining why it poses a challenge today. This court first

1

No. 2013AP2316-CR.awb

used the term "read-in" in Austin v. State, 49 Wis. 2d 727, 183

N.W.2d 56 (1971).1 In that case, the court examined the validity

of plea bargains involving read-in charges, focusing on the

subsequent immunity granted to defendants. It first explained

the read-in procedure, noting that the "admitted uncharged

offenses" expose a defendant to a longer sentence:

Under our read-in procedure, the defendant does not

plead to any charges and therefore is not sentenced on

any of the read-in charges but such admitted uncharged

offenses are considered in sentencing him on the

charged offense. Thus under the read-in procedure,

the defendant does not run the risk of consecutive

sentences or even concurrent sentences. His only risk

is a longer sentence for the crime charged but this

sentence cannot exceed the maximum.

Id. at 732.

¶59 The court then observed that the read-in procedure was

an outgrowth of English common law which permitted consideration

of uncharged offenses at the request of the accused (referred to

as the practice of "taking into account"). Id. English

practice was to refrain from subsequently prosecuting offenses

that had been taken into account. Id. Relying on notions of

fairness, the Austin court determined that this practice

1

Although Austin was the first case from this court to use

the term "read in," a few earlier cases described the procedure.

See, e.g., Embry v. State, 46 Wis. 2d 151, 158, 174 N.W.2d 521

(1970) ("Upon agreement between the state and the accused, the

judge may take these [dismissed] offenses into consideration and

the prosecution agrees not to prosecute."); State v. Smith, 45

Wis. 2d 39, 42, 172 N.W.2d 18 (1969) ("In the instant case the

defendant voluntarily agreed to allow the judge to consider

unproven offenses so that, should the state later attempt to

prosecute him, he could successfully assert the defense of

double jeopardy.").

2

No. 2013AP2316-CR.awb

constituted good public policy and upheld the read-in procedure.

Id. at 736.

¶60 Since Austin, the idea that read-in charges were

"admitted" was included in multiple opinions. See, e.g., State

v. Lackershire, 2007 WI 74, ¶27 n.7, 301 Wis. 2d 418, 734 N.W.2d

23 ("When charges are read in during sentencing, the defendant

admits to having committed the underlying crimes, but does not

plead guilty to the charges, and therefore is not sentenced for

those charges."); State v. Martel, 2003 WI 70, ¶21, 262 Wis. 2d

483, 664 N.W.2d 69 ("offenses that are dismissed and read in are

admitted by the defendant for purposes of consideration at

sentencing on the crime or crimes for which the defendant is

convicted"); State v. Floyd, 2000 WI 14, ¶25, 232 Wis. 2d 767,

606 N.W.2d 155 ("Read-ins constitute admissions by the defendant

to those charges."); In Interest of R.W.S., 162 Wis. 2d 862, 866

n.1, 471 N.W.2d 16 (1991) ("[The defendant] is not sentenced on

these read-in charges, but these admitted, uncharged offenses

are considered in sentencing him or her on the charged

offense.").

¶61 However, as this court has acknowledged, Austin did

not state that a defendant's admission was required for

Wisconsin's read-in procedure. State v. Straszkowski, 2008 WI

65, ¶68, 310 Wis. 2d 259, 750 N.W.2d 835. Further, some cases

"describe the defendant's admission of a read-in charge not as

an actual admission of guilt but rather as an admission as a

matter of law that the defendant makes simply by agreeing to

read in a dismissed charge." Id., ¶¶69-73 (citing State v.

3

No. 2013AP2316-CR.awb

Cleaves, 181 Wis. 2d 73, 510 N.W.2d 143 (Ct. App. 1993); State

v. Szarkowitz, 157 Wis. 2d 740, 753, 460 N.W.2d 819 (Ct. App.

1990)). Other cases described the read-in procedure without

making reference to the defendant's actual or deemed admission

of guilt. Martinkoski v. State, 51 Wis. 2d 237, 186 N.W.2d 302

(1971); Embry v. State, 46 Wis. 2d 151, 174 N.W.2d 521 (1970).

¶62 In 1995, the legislature incorporated a reference to

read-in procedures into the statute governing restitution, Wis.

Stat. § 973.20. Specifically, it drafted subsection (1g) to

insert a definition of "read-in crime" into the restitution

statute and add provisions making it clear that restitution

could be ordered for those crimes. The preliminary draft

assumed that a read-in crime required an admission by the

defendant:

"Read-in crime" means any crime that is uncharged,

that the defendant admits to having committed and that

the court considers at the time of sentencing the

defendant for the crime for which the defendant was

convicted.

1995 A.B. 467, § 3, LRB-0353/1.

¶63 However, as detailed in Strazkowski, the Department of

Justice (DOJ) objected to this definition, asserting that it was

inconsistent with the law on read-ins. 310 Wis. 2d 259, ¶¶82-83

(citing Correspondence/Memorandum: Department of Justice, Aug.

11, 1995, in Bill Drafting File 1995 Wis. Act 141). It proposed

an alternative definition that would not require an admission by

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the defendant.2 The Legislature ultimately adopted the DOJ's

proposed language. See Wis. Stat. § 973.20(1g)(b).

¶64 After reviewing the case law and this legislative

history, Straszkowski directly addressed whether a defendant is

deemed to have admitted or is required to admit guilt when a

plea includes a read-in charge. Observing that "this court has

not necessarily been consistent in describing read-in offenses,"

and that the restitution statute, Wis. Stat. § 973.20(1g),

"makes no reference to any sort of admission, whether actual or

deemed," it determined that no admission of guilt was required

or presumed for read-in purposes. 310 Wis. 2d 259, ¶¶85, 88,

92.

¶65 Straszkowski advised that "prosecuting attorneys,

defense counsel, and circuit courts should hereafter avoid (as

they did in the instant case) the terminology 'admit' or 'deemed

admitted' in referring to or explaining a defendant's agreement

to read in charges." Id., ¶94. Further, it specifically

withdrew language in the case law "that may be read as

intimating that when a charge is read in a defendant must admit

2

The Department of Justice proposed the following language:

"Read-in" means any crime that is uncharged or which

is dismissed as part of a plea agreement, that the

defendant agrees to be considered by the court at

sentencing and that the court considers at the time of

sentencing the defendant for the crime for which the

defendant was convicted.

Correspondence/Memorandum: Department of Justice, Aug. 11, 1995,

at 2, in Bill Drafting File 1995 Wis. Act 141 (emphasis in

original).

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or is deemed to admit the read-in charge for sentencing

purposes." Id., ¶95.

¶66 The only substantive court discussion of read-in

procedures since Straszkowski is contained in State v. Frey,

2012 WI 99, 343 Wis. 2d 358, 817 N.W.2d 436. In that case, the

court addressed whether a circuit court could consider dismissed

charges in imposing sentences when they were not read-in. Id.

Its analysis repeated Straszkowski's discussion of read-in

procedures and explained how they differed from charges that are

dismissed. Id., ¶¶63-73, 77-80.

II

¶67 Although Straszkowski clarified part of the read-in

procedure, it remains a thorny concept. The circuit court in

this case was correct when it stated that counsel's explanation

of a read-in charge——that it was not an admission of guilt, but

something that the court would look at during sentencing——was an

"accurate statement[] of law." Further, it correctly described

the Plea Questionnaire/Waiver of Rights form as "legally

proper."3 However, even as such understandings prevail, there is

a lack of clarity when it comes to the application of read-in

procedures, especially in the context of a defendant's assertion

of innocence.

¶68 Confusion from the bar and the bench regarding read-in

procedures persists, as is reflected in unpublished opinions

3

The Plea Questionnaire/Waiver of Rights form advises

defendants that "the judge may consider read-in charges when

imposing sentence. . . ."

6

No. 2013AP2316-CR.awb

from the court of appeals.4 Doubtlessly some of this confusion

stems from the fact that Straszkowski withdrew language from our

precedent that some courts had been following for decades.5 And

as I review plea and sentencing transcripts, it appears that

courts and counsel continue to rely on now withdrawn language

from past precedent.

¶69 Given the red flags raised by the court of appeals'

admonitions that the read-in procedure is not intuitively

obvious and contains the potential for inconsistency and

inherent confusion, sentencing courts and practitioners may need

4

See, e.g., State v. Triplett, No. 2014AP2825-CR (Wis. Ct.

App. Apr. 14, 2016) (decision on publication pending) (counsel

allegedly told defendant that "the read-in charges could not

[be] considered by the judge at sentencing because he was not

admitting to the read-in offenses"); State v. Buckles, No.

2014AP2717-CR, unpublished slip op., ¶9 (Wis. Ct. App. Nov. 10,

2015) (attorney advised defendant that "the read-in offenses

could be used by the State for restitution purposes only and not

as "aggravating" factors during sentencing"); State v. Clayton-

Jones, No. 2010AP2239-CR, unpublished slip op., ¶32 (Wis. Ct.

App. Dec. 15, 2011) ("what neither [the defendant] nor our own

non-exhaustive review of the case law makes clear is what must

minimally occur before alleged conduct is treated as a 'read-in'

for purposes of the Wisconsin rule prohibiting a future

prosecution.").

5

See, e.g., State v. Cleaves, 181 Wis. 2d 73, 79, 510

N.W.2d 143 (Ct. App. 1993) (observing that the defendant's

"'admission' to the charges came when he allowed the dismissed

crimes to be 'read in.'"); State v. Mattes, 175 Wis. 2d 572,

581, 499 N.W.2d 711 (Ct. App. 1993) (describing read-ins as

"admitted uncharged offense[s]"); State v. Szarkowitz, 157 Wis.

2d 740, 753, 460 N.W.2d 819 (Ct. App. 1990) (relying on Austin

for the conclusion that "In Wisconsin, when a defendant agrees

to crimes being read in at the time of sentencing, he makes an

admission that he committed those crimes.").

7

No. 2013AP2316-CR.awb

to take special care with read-in charges, especially in the

context of protestations of innocence.

¶70 Previously a unanimous court of appeals voiced

concerns about the need to ensure a defendant properly

understands the consequences of a read-in charge. Cleaves, 181

Wis. 2d at 80 n.1. In his concurrence, Judge Nettesheim

recommended that circuit courts engage in a personal colloquy to

establish that the defendant understands all of the consequences

of a read-in charge that may apply. Id. at 81 (Nettesheim, J.

concurring) (emphasis in original). I resurrect that

recommendation.

¶71 Further, I acknowledge that uncertainties, not

previously addressed by this court, continue to linger. We have

advised that "the circuit court may consider the read-in charge

when imposing a sentence." Straszkowski, 310 Wis. 2d 259, ¶93

(emphasis added). Similarly, the majority declares that "the

read-in charge will be considered by the sentencing court."

Majority op., ¶35 (emphasis added). Yet we do not explain how

read-ins should be considered when defendants maintain their

innocence.

¶72 The absence of guidance in this area is particularly

striking considering the wealth of information that has been

provided in the somewhat analogous situation of an Alford plea.6

6

The term "Alford plea" refers to the practice where "the

defendant pleads guilty while either maintaining his innocence

or not admitting having committed the crime." State v. Garcia,

192 Wis. 2d 845, 856, 532 N.W.2d 111 (1995). It is named after

a United States Supreme Court case which determined that the

(continued)

8

No. 2013AP2316-CR.awb

In both situations, defendants protest their innocence, but

nevertheless can acquiesce to the possibility of serving a

prison sentence for the offense.

¶73 Given the rights that a defendant relinquishes when

entering an Alford plea, special care is taken to ensure that

such a plea is knowing, intelligent, and voluntary.7 For

instance, the Wisconsin Jury Instructions recommend that courts

address "special questions to defendants to assure that they

understand that if the plea is accepted, an unequivocal criminal

judgment will be entered——a judgment that will allow imposition

of the same penalties that could follow regular guilty plea."

Wis. JI-Criminal SM-32A at 12 (1995).

¶74 It advises the court to "ask defense counsel to make a

statement on the record to show that the nature and consequences

of the Alford plea were thoroughly discussed with the defendant

and what the defendant's understanding of that discussion was."

Id. at 12. It also provides a script for courts to use when

accepting Alford pleas. Id. at 13-14. These safeguards

ameliorate the uncomfortable fit of accepting a guilty plea

while the defendant protests innocence. State v. Garcia, 192

Wis. 2d 845, 858, 532 N.W.2d 111 (1995).

practice was constitutional, North Carolina v. Alford, 400 U.S.

25 (1970).

7

The rights waived by entering an Alford plea include "the

privilege against self-incrimination, the right to a trial by

jury, and the right to confront one's accusers." State v.

Hampton, 2004 WI 107, ¶22, 274 Wis. 2d 379, 683 N.W.2d 14.

9

No. 2013AP2316-CR.awb

¶75 To further protect defendants entering Alford pleas,

we require strong evidence of guilt before a court can accept

such a plea. Id., at 857. This court has provided detailed

guidance clarifying that standard, explaining that it falls

between "beyond reasonable doubt" and the proof necessary to

meet the factual basis requirement behind a guilty plea:

The requirement of a higher level of proof in Alford

pleas is necessitated by the fact that the evidence

has to be strong enough to overcome a defendant's

"protestations" of innocence. Although strong proof

of guilt is less than proof beyond a reasonable doubt,

State v. Spears, 147 Wis. 2d 429, 435, 433 N.W.2d 595

(Ct. App. 1988), it is clearly greater than what is

needed to meet the factual basis requirement under a

guilty plea.

State v. Smith, 202 Wis. 2d 21, 27, 549 N.W.2d 232 (1996)

(internal citation omitted).8 No similar guidance is available

for courts struggling with how to consider a read-in charge when

the defendant maintains innocence.

8

State v. Spears, 147 Wis. 2d 429, 435, 433 N.W.2d 595 (Ct.

App. 1988), similarly described the concept of "strong proof of

guilt":

First, it is not the equivalent of proof beyond a

reasonable doubt. Indeed, the court suggested that

the trial court's conclusion in that case that there

was a factual basis for the plea "was equivalent to a

finding that the proof of guilt was strong." Second,

the Johnson court framed the inquiry as whether the

record "indicates that a sufficient factual basis was

established at the plea proceeding to substantially

negate [the] defendant's claim of innocence."

(citing State v. Johnson, 105 Wis. 2d 657, 664, 314 N.W.2d

897 (Ct. App. 1981)).

10

No. 2013AP2316-CR.awb

¶76 With our current precedent, courts and defense

attorneys can give advice that is "proper" and "legally

accurate," even though it fails to address the ambiguities in

the read-in procedure. When defendants maintain their innocence

of read-in charges, it remains uncertain how those charges will

be considered. How much weight should a sentencing court accord

to those read-in charges? Are there circumstances where they

are not entitled to any weight? Should this court adopt the

strong proof requirement set forth in Smith, 202 Wis. 2d at 27,

and Garcia, 192 Wis. 2d at 857-58?

¶77 I am mindful of the legal landscape allowing

sentencing courts to consider all relevant information,

including dismissed, uncharged, and unproven offenses. Frey,

343 Wis. 2d 358, ¶¶45-47. Nevertheless, it is not always clear

how to reconcile the concept of being able to lengthen a prison

sentence for an offense where a defendant maintains innocence

with the underpinnings of our system of justice. Those

underpinnings include the presumption of innocence, the

privilege against self-incrimination, the right to confront

one's accuser, and the right to present a defense. State v.

Hampton, 2004 WI 107, ¶22, 274 Wis. 2d 379, 683 N.W.2d 14.

Absent clarification on how sentencing courts should consider

read-in charges where defendants maintain their innocence, this

tension remains unaddressed.

III

¶78 An antidote to the confusions and uncertainties that

attend a read-in offense which is accompanied with a

11

No. 2013AP2316-CR.awb

protestation of innocence, lies in giving the defendant more

information. I urge circuit courts and counsel to make

additional efforts to guarantee that defendants understand all

the consequences of read-in charges, ensuring that the plea is

knowingly, intelligently, and voluntarily made. Accordingly, I

respectfully concur.

¶79 I am authorized to state that Justice SHIRLEY S.

ABRAHAMSON joins this concurrence.

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