State v. Michael Brandt
Annotate this Case
Download PDF
SUPREME COURT OF WISCONSIN Case No.: 97-1489-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent, v. Michael Brandt, Defendant-Appellant-Petitioner. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 220 Wis. 2d 121, 582 N.W.2d 433 (Ct. App. 1998, Published) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: June 8, 1999 February 25, 1999 Circuit Kenosha S. Michael Wilk JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Michael J. Fitzgerald, Dean A. Strang and Fitzgerald & Strang, S.C., Milwaukee and oral argument by Dean A. Strang. For the plaintiff-respondent the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. No. 97-1489-CR NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-1489-CR STATE OF WISCONSIN : IN SUPREME COURT FILED State of Wisconsin, JUN 8, 1999 Plaintiff-Respondent, Marilyn L. Graves Clerk of Supreme Court Madison, WI v. Michael Brandt, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 ANN WALSH BRADLEY, J. The Affirmed. petitioner, Michael Brandt, seeks review of a published decision of the court of appeals affirming the circuit court's refusal to allow him to withdraw his guilty pleas.1 Brandt contends that he did not understand the the nature of charges because the plea questionnaire prepared by his attorney incorrectly listed the elements of those crimes. In essence, Brandt argues that the circuit court violated the Wis. Stat. § 971.08 plea procedure by its failure to demonstrate at the understood the nature of the crimes. plea hearing that Brandt Because we conclude that Brandt has failed to make a prima facie showing that the circuit court violated the Wis. Stat. § 971.08 plea procedure, we affirm the court of appeals. 1 State v. Brandt, 220 Wis. 2d 121, 582 N.W.2d 433 (Ct. App. 1998) (affirming order and judgment of Circuit Court for Kenosha County, S. Michael Wilk, Judge). 1 No. 97-1489-CR ¶2 In March of 1994, Brandt was charged with two counts of forgery, two counts of uttering, and one count of theft by fraud arising out of a loan he obtained and checks he signed under a false identity. See Wis. Stat. § 943.38(1)(a) (1995- 96);2 § 943.38(2); § 943.20(1)(d). In July of 1996, after being bound over for trial, Brandt entered into a plea agreement where he consented to plead guilty to one count each of forgery and uttering and to the one count of theft by fraud. The State agreed to dismiss the other two counts but retained the right to read in those counts for purposes of sentencing. Nothing in the plea agreement limited the type or length of sentence the State could recommend. ¶3 the Brandt s attorney morning of the plea completed a hearing. plea His attorney questionnaire to Brandt who then signed it. the standard questionnaire, elements of the crimes. Brandt's questionnaire this addendum the As an addendum to attorney penned the The record is unclear whether Brandt's attorney discussed this addendum with Brandt as well. on read on Brandt's attorney listed the However, elements of similar but different crimes than those to which Brandt agreed 2 All further references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted. 2 No. 97-1489-CR to plead guilty.3 The morning pre-hearing conference between Brandt and his attorney lasted for about thirty minutes. ¶4 court That to afternoon plead guilty Brandt to the appeared three before charges. the circuit Because his attorney had a jury trial at the same time, another member of the attorney's According to firm the represented affidavit Brandt Brandt at made the for plea hearing. post-conviction purposes, shortly before the plea hearing began the substitute attorney gave him the addendum with the incorrect elements of the crimes listed on it. Brandt signed that document as an indication that he understood the nature of the crimes. ¶5 During the plea hearing, Brandt's substitute attorney informed the circuit court that a plea questionnaire had been completed. The circuit court noted each one of the three crimes, indicated the maximum penalty allowed by law, and asked for Brandt's plea. The circuit court then confirmed that the 3 Under Count One of the complaint, Brandt agreed to plead guilty to forging a loan application. See Wis. Stat. § 943.38(1)(a). However, the attorney's handwritten paper applied the law to forging a check rather than a loan application. Similarly, under Count Two of the complaint, Brandt agreed to plead guilty to Wis. Stat. § 943.20(1)(d) ("Theft by fraud"). The handwritten paper however listed the elements of § 943.20(1)(c) ("Theft by one having an undisputed interest in property from one having superior right of possession"). Compare Wis JI-Criminal § 1453 with Wis JI-Criminal § 1450. Finally, while Brandt agreed under Count Five of the complaint to plead guilty to uttering a forged check, the handwritten paper instead listed the elements of possessing a forged check with the intent to utter. See § 943.38(2); compare Wis JICriminal § 1492 with Wis JI-Criminal § 1493. 3 No. 97-1489-CR State would be dismissing the other two counts of the complaint but that it would still read in those counts for purposes of sentencing. Brandt indicated that he understood this to be the agreement. ¶6 Next the circuit court inquired briefly about the plea questionnaire, asking Brandt whether he had signed the form and understood it.4 understood the Brandt responded questionnaire. that The he circuit both court signed and questioned Brandt on various items relating to his mental state and his ability to freely and voluntarily plead guilty to his crimes. ¶7 After these questions, the circuit court turned to a detailed examination crimes. In court s crimes. of contrast to colloquy Brandt's the accurately plea understanding of questionnaire, described the the the elements three circuit of the Beginning with the forgery count, the circuit court inquired as follows: THE COURT: You understand that by pleading guilty to Count One, forgery, you are admitting you committed each of the elements of that crime, which are as follows. First, that the document in the case was a writing by which legal rights or obligations are created or transferred. 4 In total the circuit court's questions relating to the plea questionnaire were as follows: THE COURT: You signed a plea questionnaire and waiver of rights form; is that correct? BRANDT: Yes, Your Honor. THE COURT: Did you read it and understand it before you signed it? BRANDT: Yes, Your Honor. 4 No. 97-1489-CR Second, that the writing was an application for a loan. Also, that you falsely wrote the name of Bruce Baca on the application for the loan. And, finally, that you falsely made the writing with the intent to defraud. Do you understand that you, by pleading guilty, you are admitting you committed all the elements of that crime? BRANDT: Yes, Your Honor. The circuit court then made similar inquiries into the other two counts, describing the elements of each crime and applying them to the facts of Brandt's case. he understood the crimes to In all cases Brandt stated that which he was pleading guilty. Nowhere in its explanation of and inquiry into the elements of the crimes did the circuit court refer to the plea questionnaire or addendum. Rather the circuit court conducted this part of the plea colloquy independently of the plea questionnaire. ¶8 After addressing Brandt's understanding of each of the crimes, the circuit court next examined his understanding of the rights he waived by pleading guilty. discussed with Brandt his Finally, the circuit court conversations with his lawyer and asked if he had any "questions now about the [plea questionnaire he] signed charges." ¶9 verified or about [his] plea of guilty to each of [the] Brandt stated that he did not. The circuit court then turned to Brandt's attorney and that the attorney had discussed the charges with Brandt, sought the attorney's assurance that Brandt understood the consequences of pleading guilty, and sought a stipulation that the complaint provided a sufficient factual basis for the crimes. Brandt's attorney assured 5 the circuit court that No. 97-1489-CR Brandt s plea was knowing and voluntary and that the complaint did provide a sufficient factual basis for accepting his plea. ¶10 Before accepting his guilty plea, the circuit court again asked if Brandt had any questions about his plea or its consequences or disagreed in any way with the statements his attorney had just made. Hearing no question or disagreement from Brandt, the circuit court then concluded that he was freely and voluntarily pleading guilty to the three crimes and accepted his guilty pleas. ¶11 Some months later the court sentenced Brandt. That sentence included ten years of prison, a consecutive ten years of probation with an imposed imprisonment, and a $7500 fine. sentence, Brandt indicated and stayed seven years of Shortly after the court imposed that he intended to seek post- conviction relief and later moved the circuit court to withdraw his guilty pleas. ¶12 knowingly between Brandt's and the motion voluntarily elements of claimed that given because the crimes his of pleas the listed were not discrepancy on the questionnaire addendum and those given at the plea hearing. plea He contended that this discrepancy caused him to not understand the actual crimes to which he was pleading guilty. In support of his himself, motion, Brandt attached affidavits from his attorney, and his attorney's partner who had represented him at the plea hearing. ¶13 Brandt's attorney averred that although he prepared the plea questionnaire and discussed it with Brandt, he did not 6 No. 97-1489-CR realize that in the addendum elements of the crimes. he had incorrectly listed the His partner averred that he did not read or review the plea questionnaire prior to the plea hearing, although he had assured the circuit court at that hearing that he had done so. Finally, Brandt averred that he and his attorney went through the plea questionnaire "very quickly" on the morning of the plea hearing and that he "did not pay close attention" to the circuit court's colloquy. In sum, Brandt contended that he did not appreciate the difference between what had appeared on the plea questionnaire addendum and what the circuit court told him in the afternoon. ¶14 The circuit court concluded that Brandt had knowingly and voluntarily entered his guilty pleas based on its lengthy and constitutionally adequate colloquy with him. The circuit court reasoned that it was not required to make an investigation of the handwritten addendum to ascertain whether that addendum outlined different crimes than those discussed with a defendant in open court. Brandt appealed and the court of appeals affirmed. ¶15 The court of appeals concluded that Brandt's pleas were knowingly and voluntarily given because the circuit court's colloquy, not having relied on the incorrect plea questionnaire addendum, indicated that Brandt understood the substance of his pleas and appreciated their consequences. State v. Brandt, 220 Wis. 2d 121, 134-36, 582 N.W.2d 433 (Ct. App. 1998). However, the court of appeals cautioned that a different outcome would have resulted had the circuit 7 court relied upon the plea No. 97-1489-CR questionnaire to outline the crimes to which Brandt agreed to plead guilty. ¶16 Id. at 136. To successfully withdraw his plea, Brandt initially must make a prima facie showing that the circuit court violated Wis. Stat. § 971.08 when it failed to demonstrate on the record that Brandt understood the elements of the crimes to which he pled.5 State v. Van Camp, 213 Wis. 2d 131, 140-41, 569 N.W.2d 577 (1997); State v. Dugan, 193 Wis. 2d 610, 617, 534 N.W.2d 897 (Ct. App. 1995). requires this Determining whether he made such a showing court to apply appropriate legal standard. a given set of facts to the This application is a question of law that we review independently of the legal determinations of the circuit court and court of appeals. See Van Camp, 213 Wis. 2d at 139; State v. Moederndorfer, 141 Wis. 2d 823, 831, 416 N.W.2d 627 (Ct. App. 1987). 5 In addition to making a prima facie showing that the circuit court violated Wis. Stat. § 971.08, Brandt must also allege that he did not know or understand the information that the circuit court should have provided at the plea hearing. State v. Van Camp, 213 Wis. 2d 131, 140-41, 569 N.W.2d 577 (1997); State v. Bangert, 131 Wis. 2d 246, 275, 389 N.W.2d 12 (1986); State v. James, 176 Wis. 2d 230, 237, 500 N.W.2d 345, 348 (Ct. App. 1993). Even after demonstrating both items, Brandt would not automatically be entitled to relief. The State is then given the opportunity to show by clear and convincing evidence that the defendant nevertheless knowingly entered the plea. State v. Garcia, 192 Wis. 2d 845, 864, 532 N.W.2d 111 (1995); Bangert, 131 Wis. 2d at 275. Because we conclude that Brandt did not overcome his initial burden of demonstrating a prima facie violation of Wis. Stat. § 971.08, we do not consider the other elements of this test. 8 No. 97-1489-CR ¶17 For a plea to satisfy the constitutional standard, a defendant must intelligently. enter State it v. knowingly, Bangert, 131 voluntarily, Wis. 2d 246, and 257, 389 N.W.2d 12 (1986); see also Boykin v. Alabama, 395 U.S. 238, 24243 (1969). This means, in effect, that by pleading guilty defendants must understand both the constitutional rights they are relinquishing as well as the nature of the crimes to which they are pleading. Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976); Van Camp, 213 Wis. 2d at 140. ¶18 created In enacting Wis. a statute that constitutional mandate. Stat. § 971.08 procedurally the legislature implements this The statute provides in relevant part: (1) Before the court accepts a plea of guilty or no contest, it shall do all of the following: (a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted. Wis. Stat. § 971.08. A defendant's understanding of the nature of include the charge must elements of the crime. ¶19 In Bangert, an awareness of the essential Bangert, 131 Wis. 2d at 267. we suggested various methods that circuit court might use to satisfy this statutory obligation: First, the trial court may summarize the elements of the crime charged by reading from the appropriate jury instructions or from the applicable statute. Second, the trial judge may ask defendant's counsel whether he explained the nature of the charge to the defendant and request him to summarize the extent of the explanation, including a reiteration of the elements, at the plea hearing. Third, the trial judge may 9 a No. 97-1489-CR expressly refer to the record or other evidence of defendant's knowledge of the nature of the charge established prior to the plea hearing. . . . A trial judge may also specifically refer to and summarize any signed statement of the defendant which might demonstrate that the defendant has notice of the nature of the charge. Id. at 268. extensive This list is not exhaustive and does not require an verbal colloquy with every defendant. See Moederndorfer, 141 Wis. 2d at 826-27; but see State v. Hansen, 168 Wis. 2d 749, 756, 485 N.W.2d 74 (Ct. App. 1992). A circuit court is given discretion to tailor the colloquy to its style and to the demonstrates facts on of the the particular record that case the provided defendant that it knowingly, Bangert, 131 voluntarily, and intelligently entered the plea. Wis. 2d at 267-68; Hansen, 168 Wis. 2d at 756. ¶20 Brandt s argument hinges entirely on two facts: (1) the plea questionnaire6 and the plea colloquy described different crimes; and (2) the circuit court did not notice inconsistency and clarify the matter with Brandt. Importantly, his objection does not lie in the plea colloquy itself. readily admits adequately that, taken demonstrated entered guilty pleas. in that isolation, he the knowingly this plea and He colloquy voluntarily However, Brandt argues that because of the errant plea questionnaire s existence, the plea colloquy can only be viewed in conjunction with the plea questionnaire. 6 Hereafter, we will use the term plea questionnaire to refer to both the actual plea questionnaire and the attached addendum. 10 No. 97-1489-CR ¶21 It is uncontroverted that the elements set forth in the plea questionnaire failed to advise Brandt of the nature of the crimes to which he was pleading guilty. However, dereliction in that regard need not automatically result in a defective plea. If the circuit court satisfactorily shows that the defendant understands the nature of the crime at the time of the taking of the plea no error will result. Bangert, 131 Wis. 2d at 269; State v. Nichelson, 220 Wis. 2d 214, 218, 582 N.W.2d 460 (Ct. App. 1998). ¶22 Brandt does not dispute that a circuit court is under no obligation to require the completion of a plea questionnaire. Nevertheless, he suggests that once a circuit court requires the completion obligated to of a plea insure that questionnaire, the questionnaire it is then is accurate. also We disagree. ¶23 A circuit court has significant discretion in how it conducts a plea hearing. Within its discretion, a circuit court may incorporate into the plea colloquy the information contained in the plea questionnaire, relying substantially on that questionnaire to establish the defendant s understanding of the crime. Bangert, 131 Wis. 2d at 269. do so does not mean that it must do so. That a circuit court may We are satisfied that a circuit court may also do what the circuit court did in this case: conduct order the completion of a plea questionnaire but then its colloquy questionnaire. disregarding in whole or in part that There is nothing constitutionally or statutorily onerous about such an action. 11 No. 97-1489-CR ¶24 Where, as here, a circuit court ignores the plea questionnaire in its colloquy concerning the elements of the crimes, the adequacy of that colloquy rises or falls on the circuit court s discussion at the plea hearing. In such cases, the adequacy or deficiency of the plea questionnaire is not at issue because it does not constitute the basis on which the plea is accepted. ¶25 The circuit court s actions in this case are to be distinguished from those cases where the circuit court relies on the information in the plea questionnaire to demonstrate that the defendant understood the elements of the crimes. See Hansen, 168 Wis. 2d at 756; Moederndorfer, 141 Wis. 2d at 827. In such cases, because the plea questionnaire is the underlying basis on which the plea is accepted, the sufficiency of the questionnaire drives the sufficiency of the plea. If the relied upon part of the questionnaire is deficient, so too is the plea taken in reliance of that part of the questionnaire. However in this case, when the circuit court discussed the elements of the crimes with Brandt, it did so without is therefore reliance on the plea only the questionnaire. ¶26 This court left adequacy of the plea colloquy itself. concedes, the record compels a to consider As even Brandt himself conclusion that the circuit court s plea colloquy easily satisfied the constitutional and statutory requirements. That is, the circuit court established at the plea hearing that Brandt understood the nature of the crimes to which he pled guilty. 12 No. 97-1489-CR ¶27 In sum, Brandt has failed to make a prima facie showing that the circuit court violated the Wis. Stat. § 971.08 requirement that a defendant s plea be made voluntarily with an understanding of the nature of the crimes. court did not questionnaire, accuracy of rely it that on did the not Because the circuit incorrect have information. an information obligation Instead, the to in the verify the circuit court conducted a personal colloquy with Brandt describing the correct elements of the crimes nature of the crimes. and insuring that he understood the Accordingly, we conclude that the circuit court properly denied Brandt s motion to withdraw his pleas and affirm the court of appeals. By the Court. The decision affirmed. 13 of the court of appeals is 1
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
