State v. Mack Lewis
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COURT OF APPEALS DECISION DATED AND FILED November 15, 2011 A. John Voelker Acting Clerk of Court of Appeals Appeal No. NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62. 2010AP2447-CR STATE OF WISCONSIN Cir. Ct. No. 2007CF3546 IN COURT OF APPEALS DISTRICT I STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, V. MACK LEWIS, DEFENDANT-APPELLANT. APPEAL from a judgment and an order of the circuit court for Milwaukee County: REBECCA F. DALLET and KEVIN E. MARTENS, Judges.1 Affirmed. Before Fine, Kessler and Brennan, JJ. 1 The Honorable Rebecca F. Dallet entered the order denying Lewis s postconviction motion to withdraw his Alford plea and granting his motion for resentencing. See North Carolina v. Alford, 400 U.S. 25 (1970). The Honorable Kevin E. Martens entered the order resentencing Lewis. No. 2010AP2447-CR ¶1 PER CURIAM. Mack Lewis appeals a judgment convicting him of second-degree reckless homicide while armed. He also appeals an order denying his postconviction motion to withdraw his Alford plea. Lewis argues that he should be allowed to withdraw his plea because the circuit court did not fully explain the meaning of the plea to him. We affirm. ¶2 Prior to accepting a plea, a circuit court must personally address a defendant to determine whether the defendant understands the nature of the charge against him and the consequences of entering a plea. See State v. Bangert, 131 Wis. 2d 246, 267, 389 N.W.2d 12 (1986). A defendant is entitled to an evidentiary hearing on a motion alleging that the circuit court did not comply with Bangert if the motion makes a prima facie showing that the plea was accepted without the trial court s conformance with Wis. Stat. § 971.08 or other mandatory procedures and the motion alleges that in fact the defendant did not know or understand the information that should have been provided at the plea colloquy. See State v. Howell, 2007 WI 75, ¶27, 301 Wis. 2d 350, 734 N.W.2d 48 (quotation marks, footnote and brackets omitted). We review a postconviction motion alleging a Bangert violation de novo. ¶3 Lewis contends that the plea colloquy was defective because the circuit court did not establish that he knew that an Alford plea meant that he was pleading guilty, while simultaneously maintaining his innocence. We reject Lewis s argument for several reasons. First, a defendant who enters an Alford plea is not necessarily maintaining his innocence; a defendant may also enter an Alford plea when he simply does not want to admit that he committed the crime. See State v. Multaler, 2002 WI 35, ¶4 n.4, 252 Wis. 2d 54, 643 N.W.2d 437 ( An Alford plea is a guilty plea or no contest plea in which the defendant either 2 No. 2010AP2447-CR maintains innocence or does not admit to commission of the crime. ) (Emphasis added.) ¶4 Second, the case on which Lewis relies for the proposition that the circuit court erred in failing to provide him with the definition of an Alford plea during the plea colloquy, State v. Garcia, 192 Wis. 2d 845, 860 n.6, 532 N.W.2d 111 (1995), explicitly provides that the circuit court does not need to provide the definition of an Alford plea on the plea questionnaire much less the plea colloquy although doing so is the better practice. The Garcia court stated: Although not required to make the plea acceptable, including a definition of an Alford plea on the guilty plea questionnaire may help to further document the defendant s understanding of the plea. Garcia, 192 Wis. 2d at 860 n.6 (emphasis added). Contrary to Lewis s assertion otherwise, Garcia does not provide support for his argument that the circuit court violated Bangert by failing to provide him with the definition of an Alford plea during the colloquy. ¶5 Finally, we reject Lewis s argument because he has failed to allege that he did not, in fact, know that an Alford plea was a guilty plea accompanied by a claim of innocence, nor does he explain how this would have adversely impacted his decision to enter the plea. As we previously explained, to warrant a hearing on an alleged Bangert violation, a defendant s motion must allege that in fact the defendant did not know or understand the information that should have been provided at the plea colloquy. See Howell, 301 Wis. 2d 350, ¶27. Because Lewis s motion did not make this requisite allegation, he has not made a prima facie showing that he is entitled to a hearing on his motion to withdraw his plea. 3 No. 2010AP2447-CR By the Court. Judgment and order affirmed. This opinion will not be published. 809.23(1)(b)5. (2009-10). 4 See WIS. STAT. RULE
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