State v. Cooper
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The Supreme Court affirmed the decision of the circuit court denying Defendant's motion to withdraw his guilty plea, holding that the disciplining of Defendant's attorney for professional misconduct that included his handling of Defendant's defense did not prove that counsel had provided ineffective assistance.
Defendant pleaded guilty to a single count of armed robbery as a party to a crime. Before sentencing, Defendant asked to withdraw his plea due to ineffective assistance of counsel. The circuit court denied the motion. While Defendant's appeal was pending, the Supreme Court decided a disciplinary case brought against Defendant's counsel and disciplined the attorney for professional misconduct. On appeal, Defendant argued that his attorney's discipline for his misconduct in handling Defendant's defense is proof to establish the deficiency of his counsel. The Supreme Court disagreed, holding that the record did not demonstrate that the professional misconduct of Defendant's attorney prevented Defendant from receiving effective assistance of counsel, and therefore, the circuit court did not erroneously exercise its discretion in denying Defendant's motion.
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2019 WI 73 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2016AP375-CR State of Wisconsin, Plaintiff-Respondent, v. Tyrus Lee Cooper, Defendant-Appellant-Petitioner. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 380 Wis. 2d 508,913 N.W.2d 514 (2018 – unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 15, 2019 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee Joseph M. Donald JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: June 20, 2019 DALLET, J. dissents, joined by A.W. BRADLEY, J. (opinion filed). ABRAHAMSON, J. did not participate. ATTORNEYS: For the defendant-appellant-petitioner, there were briefs filed by Nora E. Gierke and Gierke Law LLC, Wauwatosa. There was an oral argument by Nora E. Gierke. For the plaintiff-respondent, there was a brief filed by Lisa E.F. Kumfer, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Lisa E.F. Kumfer. 2019 WI 73 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2016AP375-CR (L.C. No. 2011CF2815) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUN 20, 2019 v. Sheila T. Reiff Clerk of Supreme Court Tyrus Lee Cooper, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 DANIEL KELLY, J. Mr. Tyrus Lee Affirmed. Cooper moved the circuit court, prior to sentencing, to withdraw his guilty plea. The circuit court refused his request. disciplined his attorney (Michael J. Two years later, we Hicks) for professional misconduct that included his handling of Mr. Cooper's defense.1 Mr. Cooper believes our opinion in that disciplinary proceeding proved his counsel had provided ineffective assistance in his 1 See In re Disciplinary Proceedings Against Hicks, 2016 WI 31, 368 Wis. 2d 108, 877 N.W.2d 848. No. criminal case. That, he says, is a "fair and just reason" for For the following reasons, we disagree.2 withdrawing his plea. I. ¶2 2016AP375-CR BACKGROUND robbery Mr. Cooper was charged with a single count of armed as a party to a crime.3 The State Public Defender appointed Mr. Hicks to represent Mr. Cooper after the circuit court permitted his previous counsel to withdraw. Shortly afterwards, Mr. Cooper wrote to Mr. Hicks (in January of 2013) requesting a copy of discovery materials and raising concerns about his case——requests and concerns that he would repeat in subsequent letters. two weeks wrote to before the On October 8, 2013, which was approximately his scheduled circuit court trial, to Mr. claim Cooper that Mr. interfering with his right to aid in his defense. Hicks had not provided him with a copy of personally Hicks was He said Mr. the discovery materials and had failed to subpoena key witnesses. He also said he had not spoken to Mr. Hicks, by phone or in person, and therefore could not be prepared for trial. 2 This is a review of an unpublished court of appeals decision affirming the Milwaukee County Circuit Court, the Honorable M. Joseph Donald presiding. State v. Cooper, No. 2016AP375-CR, unpublished slip op. (Wis. Ct. App. Feb. 27, 2018). 3 See Wis. Stat. § 943.32(1)(a), Wis. Stat. § 943.32(2), and Wis. Stat. § 939.05 (2017-18). All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 2 No. ¶3 2016AP375-CR Shortly before trial, the State offered to recommend a sentence of three years of initial confinement and three years of extended supervision if Mr. Cooper pled guilty as charged. He agreed, and on October 21, 2013, the circuit court heard his Prior to accepting it, the circuit court4 confirmed that plea. Mr. Cooper understood the plea agreement, maximum penalties, and elements of the charge. In response to the circuit court's questions, Mr. Cooper affirmatively asserted that he was aware of the constitutional rights he was waiving. The circuit court confirmed on the record that Mr. Cooper was of sound mind and capable of "freely, knowingly, and voluntarily"5 entering the plea. ¶4 The circuit court specifically asked Mr. Cooper about the allegations he made in his letter of October 8, 2013. Mr. Cooper stated that he wanted the circuit court to take "[n]o actions" with respect to the letter and indicated that he wanted 4 The Honorable Dennis Flynn presided over the plea hearing while the Honorable M. Joseph Donald presided over the hearing of Mr. Cooper's motion to withdraw his plea. 5 Our statutes require that a plea be "made voluntarily with understanding of the nature of the charge and the potential punishment if convicted." Wis. Stat. § 971.08(1)(a). Wisconsin courts typically express this standard as requiring a plea made "knowingly, voluntarily, and intelligently," rather than one that is "freely, knowingly, and voluntarily" made. But we have concluded before that there is no substantive difference between the two phraseologies. See State v. Hoppe, 2009 WI 41, ¶¶25, 57, 317 Wis. 2d 161, 765 N.W.2d 794 (concluding "that the defendant entered his plea knowingly, intelligently, and voluntarily" despite the circuit court finding "a free, knowing and voluntary plea"). 3 No. the letter "disposed of." Mr. Cooper's final statement with respect to his plea was "I fully understand. in what I did." 2016AP375-CR I feel confident The circuit court set sentencing for January 9, 2014. ¶5 Approximately three weeks before sentencing, Mr. Cooper personally sent another letter to the circuit court, this time asking to withdraw his plea "due to the fact of ineffective assistance of counsel." Mr. Cooper wrote that he was unaware that Mr. Hicks had been suspended from practicing law during part of his representation.6 And he claimed Mr. Hicks lied by failing to notify him of his suspension. He also said Mr. Hicks misled him into accepting the plea by stating he was destined to lose at trial. The circuit court allowed Mr. Hicks to withdraw as counsel and rescheduled the sentencing hearing. ¶6 Mr. Cooper's newly-appointed counsel formally moved to withdraw the plea. The motion asserts that the issues raised in the October 2013 letter were not resolved before the circuit court accepted the plea. It repeats many of the concerns Mr. Cooper listed in that letter, including that Mr. Hicks had not met with him from December 2012 until October 8, 2013, to discuss his case, and that Mr. Hicks failed to provide him with a copy of discovery materials. The motion also repeats the assertion that he had been unaware that Mr. Hicks' law license 6 Mr. Hicks' law license was temporarily suspended from February 12, 2013, through March 11, 2013, for reasons unrelated to his representation of Mr. Cooper. Hicks, 368 Wis. 2d 108, ¶9. 4 No. had been suspended. 2016AP375-CR Finally, Mr. Cooper alleged that he did not knowingly and voluntarily enter his plea. ¶7 At Cooper's Hicks' new the hearing counsel license had another lawyer. on said been the that plea-withdrawal if Mr. suspended, he Cooper would motion, Mr. had known Mr. have asked for He also asserted that Mr. Cooper entered his plea in haste because he believed his attorney was not prepared for trial. However, Mr. Cooper's counsel also indicated that, if the circuit court granted his motion, Mr. Cooper might just enter the same plea because he was satisfied with the State's recommendation. that he had reducing the Mr. Cooper testified at the hearing and claimed believed part armed robbery maximum penalty. of the charge plea to agreement included something with a lower He did not say what he believed the reduced charge would have been. The circuit court questioned Mr. Cooper on this point, noting that the charge to which he pled had been read to him at the plea hearing, as well as its elements and the maximum penalty, and that he had affirmatively responded that he understood and wanted to enter his plea. thought the circuit court was required Mr. Cooper said he to read the original charge, but that he would actually be convicted of a lesser offense. ¶8 27, The circuit court denied Mr. Cooper's motion on June 2014 analysis). that Mr. (a date that will have some significance to our It concluded that the plea colloquy demonstrated Cooper knowingly, intelligently, and voluntarily entered his plea, and that the matters in the October 8, 2013, 5 No. letter had been properly addressed. It also 2016AP375-CR concluded that granting Mr. Cooper's motion would cause substantial prejudice to the State. The circuit court made no factual findings regarding communications between Mr. Hicks and Mr. Cooper. In due course, the circuit court sentenced Mr. Cooper to five years of confinement and five years of extended supervision. Mr. Cooper appealed. ¶9 Two years after Mr. Cooper moved to withdraw his plea (and while his appeal was pending), we decided a disciplinary case brought by the Office of Lawyer Regulation (OLR) against Mr. Hicks. See In re Disciplinary Proceedings Against Hicks, 2016 WI 31, 368 Wis. 2d 108, 877 N.W.2d 848. After initially contesting the charges, Mr. Hicks withdrew his answer and filed a written "no contest" plea, agreeing that the referee could use the complaint's facts as a basis for identifying violations of the Rules of Professional Conduct for Attorneys.7 Id., ¶¶6-7. Based on that representation, the OLR referee concluded that Mr. Hicks had engaged in nineteen acts of misconduct, including five 7 The OLR complaint is not in the record in this proceeding. However, the complaint was in the record in Hicks, 368 Wis. 2d 108. This court has a practice of judicially noticing files of cases that have previously come before this court. See Deluhery v. Sisters of St. Mary, 244 Wis. 254, 255-56, 12 N.W.2d 49 (1943); see also Sisson v. Hansen Storage Co., 2008 WI App 111, ¶11, 313 Wis. 2d 411, 756 N.W.2d 667 ("'Judicial notice may be taken at any stage of the proceeding,' . . . and this means that an appellate court may take judicial notice when that is appropriate[.]" (citations omitted)). 6 No. that related to his representation of Mr. Cooper. 2016AP375-CR Id., ¶¶6, 28.8 The OLR's complaint said that Mr. Hicks had failed to provide requested discovery documents to Mr. Cooper and failed to notify him and the circuit court of his license suspension for part of the time he was representing Mr. Cooper. Id., ¶¶23, 26. 8 The The OLR complaint's formal accusations of misconduct, as far as they relate to Mr. Hicks' representation of Mr. Cooper, are as follows: [Count Thirteen] By failing between the date on which he received [Mr. Cooper's] letter in January 2013 and February 12, 2013, between March 11, 2013 and August 16, 2013, and between August 18, 2013 and October 20, 2013, to communicate with [Mr. Cooper] regarding the issues raised in [Mr. Cooper's] January 2013 letter and to otherwise consult with [Mr. Cooper] regarding trial strategy and preparation, thereby preventing [Mr. Cooper] from adequately understanding and participating in his own defense, [Attorney] Hicks violated SCR 20:1.4(a)(2). [Count Fourteen] By failing to timely provide [Mr. Cooper] with a complete copy of the discovery materials, despite [Mr. Cooper's] requests, [Attorney] Hicks violated SCR 20:1.4(a)(4). [Count Fifteen] By failing to provide a written notice to [Mr. Cooper] of his February 12, 2013 suspension, [Attorney] Hicks violated SCR 22.26(1)(a) and (b). [Count Sixteen] By failing to provide written notice to the court and opposing counsel in [Mr. Cooper's pending criminal case] that his license to practice law had been suspended on February 12, 2013, [Attorney] Hicks violated SCR 22.26 (1)(c). [Count Seventeen] By failing to timely file a response to [Mr. Cooper's] grievance, [Attorney] Hicks violated SCR 22.03(2) and (6), enforced via SCR 20:8.4(h). Hicks, 368 Wis. 2d 108, ¶28 (some alterations in original). 7 No. 2016AP375-CR complaint also said that Mr. Hicks did not discuss preparation for trial with Mr. Cooper, nor did he address the issues raised in Mr. Cooper's letters. Id., ¶¶23-24. Based on these facts, the OLR referee concluded, as a matter of law, that Mr. Hicks' misconduct "prevent[ed] [Mr. Cooper] from adequately understanding and participating in his own defense" in violation of SCR 20:1.4(a)(2).9 ¶10 Hicks, 368 Wis. 2d 108, ¶28. After reviewing the referee's report, we accepted his "factual findings as taken from the OLR's complaint." Id., ¶39. We also agreed "with the referee that those factual findings are sufficient to support a legal conclusion that Attorney Hicks engaged misconduct set counts" contained in the OLR's complaint. Id. ¶11 in On the professional appeal, Mr. Cooper argued (in forth part) in the that 19 our decision in Hicks established that he had received ineffective assistance of counsel prior to entering his guilty plea. The court of appeals considered the well-known analytical structure we use to assess such claims10 and concluded that Mr. Cooper had 9 Supreme Court Rule 20:1.4(a)(2) provides in pertinent part: "(a) A lawyer shall: . . . (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished . . . ." 10 "First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687 (1984). 8 No. 2016AP375-CR failed to show the allegedly deficient performance caused him prejudice. court. Therefore, the court of appeals affirmed the circuit State v. Cooper, No. 2016AP375-CR, unpublished slip op. (Wis. Ct. App. Feb. 27, 2018). ¶12 We granted Mr. Cooper's petition for review, which presented the first and third of the following three issues. We asked the parties to brief the second issue: 1. When Cooper's counsel engaged in serious professional misconduct, preventing Cooper from adequately understanding and participating in his own defense, did this constitute ineffective assistance of counsel and provide Cooper with a fair and just reason to withdraw his guilty plea prior to sentencing? 2. In deciding whether Cooper may withdraw his guilty plea, is the circuit court bound by the Supreme Court's findings and/or conclusions in In re Disciplinary Proceedings Against Hicks, 2016 WI 31, 368 Wis. 2d 108, 877 N.W.2d 848 (2016), including, but not limited to, language stating that the failure of Cooper's trial counsel to properly communicate with him prevented him from adequately understanding and participating in his own defense . . . ? 3. Did the circuit court erroneously exercise its discretion when it denied defendant's motion to withdraw his plea prior to sentencing without a sufficient evidentiary record to support a finding that withdrawal of the plea pre-sentencing would result in substantial prejudice to the State? For the reasons set forth below, we affirm the court of appeals. II. ¶13 STANDARD OF REVIEW "[W]hether a defendant may withdraw his plea is left to the sound discretion of the circuit court." 2000 WI 6, omitted). ¶28, We 232 review Wis. 2d 561, 605 the court's circuit 9 State v. Bollig, N.W.2d 199 (citation decision for an No. erroneous exercise of discretion. ¶30, 303 exercise Wis. 2d 157, of 736 discretion if 2016AP375-CR State v. Jenkins, 2007 WI 96, N.W.2d 24. We the court circuit will sustain an "examined the relevant facts, applied a proper standard of law, and, using a demonstrated reasonable rational judge process, could reached reach." a Loy conclusion v. that Bunderson, a 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). ¶14 "A claim for ineffective assistance of counsel is a mixed question of fact and law." State v. Wood, 2010 WI 17, ¶16, 323 Wis. 2d 321, 780 N.W.2d 63. We sustain the circuit court's factual findings "unless they are clearly erroneous." State v. Doss, N.W.2d. 150. 2008 WI 93, ¶23, 312 Wis. 2d. 570, 754 "Whether counsel's performance was deficient and prejudicial to his . . . client's defense is a question of law that we review de novo." State v. Hunt, 2014 WI 102, ¶22, 360 Wis. 2d 576, 851 N.W.2d. 434. III. ANALYSIS ¶15 A court will generally grant a pre-sentencing request to withdraw a guilty plea upon presentation of a fair and just reason for doing so. State v. Canedy, 161 Wis. 2d 565, 582, 469 N.W.2d 163 (1991) ("The appropriate and applicable law in the case before the court, is that a defendant should be allowed to withdraw a guilty plea for any fair and just reason, unless the prosecution omitted). would be substantially prejudiced.") (emphasis This has been described as a "liberal rule" that fosters "the efficient administration of criminal justice" by "reduc[ing] the number of appeals contesting the 'knowing and 10 No. voluntariness' of a guilty plea . . . ." Libke v. State, 60 Wis. 2d 121, 127–28, 208 N.W.2d 331 (1973). establishes evidence, an appropriate Canedy, 161 reason by Wis. 2d at a 2016AP375-CR If the defendant preponderance 583-84, the of State the may nonetheless defeat the motion by proving substantial prejudice. Bollig, 232 Wis. 2d 561, ¶34. ¶16 The phrase "fair and just" is not, of course, susceptible to precise definition, and our cases have identified many reasons for withdrawing a plea that meet this standard. For example, an adequate reason "will likely exist if the defendant shows that the circuit court failed to conform to its statutory or other mandatory duties in the plea colloquy, and the defendant asserts misunderstanding because of it." 303 Wis. 2d 157, ¶62. ("[I]f [the defendant] Jenkins, See also Bollig, 232 Wis. 2d 561, ¶31 was unaware of his requirement to register as a convicted sex offender, he presented a fair and just reason Wis. 2d 284, for plea 290, 448 withdrawal."); N.W.2d 264 (Ct. State App. v. Shanks, 1989) 152 ("Genuine misunderstanding of a guilty plea's consequences is a ground for withdrawal.") (citation omitted). "[H]aste and confusion in entering the plea" is a fair and just reason for withdrawing a plea, as is "coercion on the part of trial counsel." State v. Shimek, 230 Wis. 2d 730, 739, 601 N.W.2d 865 (Ct. App. 1999) (citation omitted). Indeed, we have said that "the mere showing of some adequate reason for defendant's change of heart" will suffice. Canedy, marks omitted). 161 Wis. 2d at 583 (citation and internal But there are limits on the reasons we will 11 No. accept as adequate. 2016AP375-CR At a minimum, a "fair and just reason" must be something other than a bare desire to have a trial. ¶17 Id. Mr. Cooper says he should be allowed to withdraw his plea because he received ineffective assistance of counsel from Mr. Hicks before he pled. If true, that would certainly entitle him to relief because such a justification satisfies even the more rigorous post-sentencing withdrawal standard. Wis. 2d 543, injustice 859 is injustice" plea- State v. Dillard, 2014 WI 123, ¶84, 358 N.W.2d 44 to "manifest ("One establish way that to demonstrate manifest the defendant received ineffective assistance of counsel."). A. ¶18 Hicks as Proof of Ineffective Assistance of Counsel The proof Mr. Cooper offers to establish the deficiency of his counsel is of no small moment, for he offers us the words of our own opinion in which we announced Mr. Hicks' discipline for his misconduct in handling Mr. Cooper's defense. Specifically, he says we conclusively answered the deficiency question when we addressed Count 13 of the OLR's complaint, which says: By failing between the date on which he received [Mr. Cooper's] letter in January 2013 and February 12, 2013, between March 11, 2013 and August 16, 2013, and between August 18, 2013 and October 20, 2013, to communicate with [Mr. Cooper] regarding the issues raised in [Mr. Cooper's] January 2013 letter and to otherwise consult with [Mr. Cooper] regarding trial strategy and preparation, thereby preventing [Mr. Cooper] from adequately understanding and participating in his own defense, [Attorney] Hicks violated SCR 20:1.4(a)(2). 12 No. 2016AP375-CR Hicks, 368 Wis. 2d 108, ¶28 (quoting OLR's complaint) (emphasis added) (some alterations in original). However, for the following three reasons, we conclude that our decision in Hicks has no material effect on the resolution of Mr. Cooper's case. ¶19 First, with respect to what we said in Hicks, there is a distinction to be drawn between our quotation of the OLR's complaint, on the one hand, and on the other our review of the referee's factual findings and our independent conclusions of law. We said we would accept the referee's "factual findings as taken from the OLR's complaint," id., ¶39, which means we must review the referee's findings of fact and the OLR complaint's allegations to determine whether we adopted the statement upon which Mr. Cooper relies. Hicks' misconduct complaint. The factual background supporting Mr. appears in paragraphs 52-62 of the OLR's The passage on which Mr. Cooper relies appears in paragraph 63, which is not part of the factual background but is the formal accusation of misconduct against Mr. Hicks. The referee's report tracked the complaint's distinction between the facts, on the one hand, and on the other the formal accusation of misconduct. not contain Consequently, the referee's findings of fact do the assertion that Mr. Hicks "prevent[ed] [Mr. Cooper] from adequately understanding and participating in his own defense . . . ." See Hicks, 368 Wis. 2d 108, ¶28. 13 That No. 2016AP375-CR statement appears in the referee's conclusions of law.11 So it cannot be said that we adopted the statement on which Mr. Cooper relies as a factual matter. ¶20 Nor could it be said that we adopted the referee's statement as a conclusion of law. with the usual assertion Our analysis in Hicks started that we "review conclusions of law on a de novo basis." omitted). terse the referee's Id., ¶38 (citation We did not deviate from that standard practice. conclusion did not comment on whether misconduct interfered with Mr. Cooper's defense. Mr. Our Hicks' Instead, we said we "agree with the referee that [the] factual findings are sufficient to support a legal conclusion that Attorney Hicks engaged in the professional counts described above." misconduct Id., ¶39. set forth in the 19 The professional misconduct to which the complaint and referee referred in Count 13 was a violation of SCR 20:1.4(a)(2). So our conclusion of law, as relevant here, was that Mr. Hicks failed to "reasonably consult with the client about the means by which the client's objectives are to be accomplished . . . ." SCR 20:1.4(a)(2). The referee's statement that the misconduct had also "prevent[ed] [Mr. Cooper] from adequately understanding and participating in 11 Mr. Hicks predicated, and we accepted, his no contest plea on the facts as contained in the complaint. As the referee recognized, the OLR complaint's accusation of misconduct was not a factual assertion, but an asserted legal conclusion. So it would have been inappropriate for us treat the accusation as a factual finding. 14 No. 2016AP375-CR his own defense" had no necessary bearing on whether Mr. Hicks had violated SCR 20:1.4(a)(2). See Hicks, 368 Wis. 2d 108, ¶28. Our opinion did not specifically address that statement, analyze it, or in any other fashion suggest it was a conclusion we were adopting.12 the Our conclusion went no further than a judgment that referee's findings of fact described a violation of SCR for the 20:1.4(a)(2).13 ¶21 The second reason Hicks does not stand proposition that Mr. Cooper received ineffective assistance of counsel bears a close relation to the first. Hicks was not to inquire into the validity Our purpose in of Mr. Cooper's 12 One of the dissent's key foundational assertions is that "[w]e agreed with the referee that the factual findings support the conclusion that . . . Mr. Cooper was prevented from 'adequately understanding and participating in his own defense.'" Dissent, ¶1. But as described above, we did not say we agreed with that conclusion. We agreed only that the facts in the complaint (which do not contain this statement) described a violation of SCR 20:1.4(a)(2). 13 The dissent is concerned we are ignoring what we said in Hicks: "Mr. Cooper's case is notable because this court accepted the legal conclusion that a defendant was prevented from 'adequately understanding and participating in his own defense.' This court should not now pretend our words in Hicks were meaningless." Dissent, ¶15. We are not pretending they are meaningless; we are carefully distinguishing what we said from what the referee said. They are not necessarily the same. Our analysis establishes that we did not accept the referee's statement as either a finding of fact or as a conclusion of law. This should come as no surprise——the question before us was not whether Mr. Cooper had been prejudiced in his case, it was whether Mr. Hicks violated SCR 20:1.4(a)(2). Those are different questions with different legal standards and different factual predicates. 15 No. guilty plea. It was to determine whether Mr. Hicks had engaged in professional misconduct. Count 13's 2016AP375-CR allegations In particular, our inquiry into required us to go no further than considering the adequacy of Mr. Hicks' consultation with Mr. Cooper about the "means by which the client's objectives are to be accomplished." SCR 20:1.4(a)(2). Ineffective assistance of counsel, on the other hand, arises only when a defendant suffers prejudice as a result of his counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Thiel, 2003 WI 111, ¶18, 264 Wis. 2d 571, 665 N.W.2d 305. Although it is possible for an attorney's misconduct to be so grave that it deprives a defendant of the effective assistance of counsel, the causal link between necessity, but of possibility. the two is not one of That is to say, it is possible that an attorney could violate SCR 20:1.4(a)(2) without running afoul of Strickland; not every violation of the Rules will rise to the level of ineffective assistance of counsel. because the necessarily standards correlate established exactly with by the those That is so Rules do not described in substantive areas of the law. Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. . . . Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. 16 No. 2016AP375-CR Nevertheless, since the rules do establish standards of conduct by lawyers, a lawyer's violation of a rule may be evidence of breach of the applicable standard of conduct. SCR Rules of Professional Conduct, Preamble, ¶20. ¶22 Therefore, our conclusion that Mr. Hicks failed to meet the demands of SCR 20:1.4(a)(2) cannot mean, ipso facto, that he performed deficiently within Strickland's meaning. More to the point, it may not be taken to mean we had specifically measured the impact of Mr. Hicks' violation of SCR 20:1.4(a)(2) on Mr. Cooper's ability to enter an appropriate plea. did not address that subject, even tangentially. We simply Nor could we have done so based on the record before us in Hicks. The OLR's complaint simply did not contain the information necessary for us to evaluate whether Mr. Hicks' performance was so deficient that it prejudiced Mr. Cooper's ability to knowingly, intelligently, and voluntarily enter a plea. ¶23 The third reason Hicks is uninstructive concerns its temporal relationship to this case. recitation of the procedural As we foreshadowed in our history, the Cooper's motion was denied is important. date on which Mr. We are reviewing the circuit court's exercise of its discretion, which necessarily means we focus on the facts available to the circuit court when it made its decision. 306 N.W.2d 16 (1981) Hartung v. Hartung, 102 Wis. 2d 58, 66, ("A discretionary determination, to be sustained, must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law."). We did not decide Hicks, of course, until 17 No. 2016AP375-CR almost two years after the circuit court denied Mr. Cooper's motion. And that means the referee's statement about the impact of Mr. Hicks' misconduct on Mr. Cooper's defense was not part of the record before the circuit court. We will not reverse a circuit court's discretionary decision based on facts outside of the record. Although there are mechanisms by which to challenge a court's judgment with facts discovered after its entry, Mr. Cooper does not engage them in this case. This is understandable because Hicks does not really present anything new, at least as it specifically relates to Mr. Cooper's plea (as we will discuss further below). For these three reasons, we conclude that Hicks has nothing instructive to say in evaluating whether the circuit court erroneously exercised its discretion when it denied Mr. Cooper's motion to withdraw his plea. B. Hicks Adds Nothing to the Ineffective Assistance Analysis ¶24 Aside from the referee's statement regarding the effect of Mr. Hicks' misconduct on Mr. Cooper's defense (which we did not adopt), our opinion in Hicks suggests no additional support for Mr. Cooper's claim that he received assistance of counsel prior to entering his plea. ineffective To the extent the opinion bears on Mr. Cooper's case, it reflects that Mr. Hicks: • had minimal communications with Mr. Cooper prior to the plea hearing; • had not timely provided a copy of discovery material to Mr. Cooper; and 18 No. • 2016AP375-CR had not notified his client, the circuit court, or opposing counsel that his license to practice law had been suspended for part of the time he had been representing Mr. Cooper. Hicks, 368 Wis. 2d 108, ¶28. The consequence of this misconduct, Mr. Cooper tells us, is that he acted with such haste and confusion in entering his plea that he genuinely did not understand its consequences. He also claims Mr. Hicks gave him misleading advice and coerced him into entering his plea. ¶25 the All of these facts and allegations were already before circuit court when withdraw his plea. it Thus, considered Mr. in January Cooper's of 2014, motion Mr. to Cooper personally wrote to the circuit court asserting that Mr. Hicks had misled him into pleading guilty and that Mr. Hicks had said Mr. Cooper was destined to lose at trial. His formal motion to withdraw his plea explained that the issues raised in his letter of October 8, 2013, had not been resolved. Hicks for failing to disclose that his It also faulted Mr. license had been suspended during part of the time the criminal case was pending. Finally, Mr. Cooper's motion claimed his plea was not knowing or voluntary, had consultation been with given his in haste, counsel or and without consideration of sufficient discovery materials. ¶26 At the hearing on his motion, Mr. Cooper once again asserted these deficiencies. He told the circuit court that he was confused regarding the charge to which he was pleading and the sentence range. He argued that Mr. Hicks had misled him about the nature of the charge, as well as the content of the 19 No. plea agreement with the State. 2016AP375-CR And he renewed his complaint about Mr. Hicks' lack of communication and his dissatisfaction with Mr. Hicks' failure to notify him of the temporary license suspension. ¶27 Our review of reveals that everything defense had already attention before the record in Hicks been it in relating brought decided this to the the case, to therefore, Mr. Cooper's circuit court's plea-withdrawal motion. Everything, that is, but for the referee's statement regarding the effect of Mr. Hicks' misconduct on Mr. Cooper's defense. But we are not bound by the statements of OLR referees, and as we discussed above, we did not adopt the referee's statement as our own. Consequently, Hicks adds nothing relevant to the universe of facts that the circuit court was responsible for considering. C. ¶28 No Ineffective Assistance of Counsel Hicks cannot do the work Mr. Cooper assigns to it. It does not, of its own force, establish that Mr. Hicks provided ineffective assistance of counsel. the burden of showing: (1) "that That leaves Mr. Cooper with counsel's performance was deficient"; and (2) "that the deficient performance prejudiced the defense." structure Strickland, 466 U.S. at 687. applies specifically in the This analytical context of the process: Although our decision in Strickland v. Washington dealt with a claim of ineffective assistance of counsel in a capital sentencing proceeding, and was premised in part on the similarity between such a 20 plea No. 2016AP375-CR proceeding and the usual criminal trial, the same twopart standard seems to us applicable to ineffectiveassistance claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985). that Mr. Hicks' performance misconduct within the rose meaning to of the Even if we agreed level Strickland of (a deficient question on which we express no opinion), Mr. Cooper would nonetheless be unable to prove the prejudice element of the Strickland analysis.14 ¶29 In considering whether counsel's deficient performance prejudiced the defendant, we "evaluate whether reasonable probability that, but for counsel's errors, of the different.'" result the proceeding 'there is a unprofessional would have been State v. Sholar, 2018 WI 53, ¶33, 381 Wis. 2d 560, 912 N.W.2d 89 (quoting Strickland, 466 U.S. at 694). When the alleged deficiency prejudice component concerns the plea process, Hill says the specifically requires that "the defendant must show that there is a reasonable probability that, but for 14 The nature of the dissent's analysis is unclear. The author says she would dispense with the "deficient performance" component when assessing counsel's ineffectiveness with respect to a plea withdrawal motion: "[B]y requiring Mr. Cooper to prove deficiency as part of a motion for plea withdrawal presentencing, the majority opinion equates the standard for withdrawal of a plea post-sentencing, 'manifest injustice,' with the lower pre-sentence standard of a 'fair and just reason.'" Dissent, ¶39. Whether the motion is pre-sentence or postsentence, the ineffective assistance paradigm established by Strickland requires deficient performance as an indispensable element of the analysis. So it seems the dissent is proposing a relaxed standard for establishing ineffective assistance of counsel when the underlying issue relates to a motion to withdraw a plea before sentencing. 21 No. 2016AP375-CR counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. A probability sufficient to undermine confidence exists when there is "a 'substantial,' not just 'conceivable,' likelihood of a different result." Cullen v. Pinholster, 563 U.S. 170, 189 substantial, as (2011). ¶30 Determining whether a likelihood is opposed to merely conceivable, can be a difficult undertaking when evaluating example, sentence. a how jury's an attorney's verdict, or the performance court's affects, imposition for of a We cannot, of course, reassemble and poll the jury to determine what it would have done in the absence of counsel's deficient performance. Neither do we return to the sentencing court whether to inquire into the sentence different if counsel had performed better. would have been Here, however, we need only know whether there is a substantial likelihood that Mr. Cooper would have pled differently if Mr. Hicks' performance did not fall below the Strickland standard. That information is, obviously, readily available to Mr. Cooper, and he had an opportunity to present it to the circuit court at the hearing on his motion to withdraw his plea. He did not comment, however, on whether his plea would have been different if Mr. Hicks had not performed as he did. To the contrary, his counsel said that "if the Court were to allow Mr. Cooper to withdraw his plea, he still might decide to enter a plea, because he does like——he's satisfied, I guess, with the recommendation that [the State] made." This does not describe a substantial likelihood of a 22 No. different outcome. 2016AP375-CR At best, it describes something conceivable. Therefore, he has shown no prejudice. Without prejudice, there can be no ineffective assistance of counsel. And because the ineffectiveness of counsel is the only "fair and just reason" Mr. Cooper gave for withdrawing his plea (at least in this court), his argument cannot prevail.15 ¶31 "I The dissent is of a different mind. disagree Cooper with failed performance to caused the majority allege opinion's that prejudice. conclusion Attorney Although The author says: Mr. Hicks' that Mr. deficient Cooper's counsel stated at the hearing that Mr. Cooper still 'might' decide to enter a plea, Mr. Cooper is now asking this court to 'allow him to withdraw his guilty plea, and remand this case for further proceedings and a trial on the merits.'" omitted). facts of Dissent, ¶38 (emphasis Our project here, of course, is reviewing whether the record demonstrate "a 'substantial,' not just 'conceivable,' likelihood," Cullen, 563 U.S. at 189, that Mr. 15 In addition to his ineffective assistance of counsel claim, Mr. Cooper says the circuit court erred in not allowing him to withdraw his plea because he pled so hastily that it caused him to be confused and to genuinely misunderstand the plea's consequences. He also said he was subject to the coercion and misleading advice of his counsel. Those have been recognized as adequate reasons for withdrawing a plea. State v. Shimek, 230 Wis. 2d 730, 739, 601 N.W.2d 865 (Ct. App. 1999). His only argument supporting this assignment of error is that, in rejecting those grounds for withdrawal, the circuit court did not account for our decision in Hicks. But because we have concluded that Hicks does not bear on the circuit court's exercise of discretion (as described above), this argument cannot succeed. 23 No. Cooper would demand a trial. 2016AP375-CR Although he conversed with the court at the hearing on his motion to withdraw his plea, he did not say he wanted to go to trial. To the contrary, his counsel told the circuit court that Mr. Cooper just might enter the plea again because he was satisfied with the State's recommendation.16 ¶32 In any event, the dissent says, United States v. Davis, 428 F.3d 802, 808 (9th Cir. 2005), relieves defendants in Mr. Cooper's prejudice.17 with Hill position of the obligation to even allege The Ninth Circuit tried to reconcile its decision by distinguishing between pre-sentencing plea- withdrawal (Davis) and post-sentencing plea-withdrawal (Hill). It said that requiring a showing of prejudice in the former category would applied to each. eliminate the distinction Davis, 428 F.3d at 806. between the tests We disagree. The purpose of the "prejudice" component is to winnow the cases in which counsel's deficient performance would have no effect on the outcome of the proceedings: requirement was based on "This additional 'prejudice' our conclusion that '[a]n error by 16 Furthermore, the dissent's formulation of the "prejudice" component of the Strickland test suggests the defendant can satisfy it by merely "alleging" prejudice. But Strickland says the defendant "must show that the deficient performance prejudiced the defense." Id., 466 U.S. at 687 (emphasis added). Mr. Cooper has not shown he was prejudiced. 17 Combined with the proposition that Mr. Cooper need not establish deficient performance, dissent ¶39, the dissent would apparently let defendants prove ineffective assistance of counsel without satisfying any of its elements. Not even Mr. Cooper advanced such pioneering arguments. 24 No. 2016AP375-CR counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.'" Hill, 747 U.S. at 57 (quoting Strickland, 466 U.S. at 691) (alteration in original). We agree with Hill that Mr. Cooper cannot show prejudice unless "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 747 U.S. at 59. * ¶33 embarking One on final a point bears significantly presented by this case. mentioning. different to create and project dissent from the is one Our task here is to review the record of Mr. Cooper's criminal proceedings. wants The review a hybrid The dissent, however, record comprising Mr. Cooper's criminal case and Mr. Hicks' disciplinary proceedings. To further complicate matters, this hypothetical record did not become hybridized until after the circuit court completed its work, so the author is retroactively reading into the Cooper record information that was not available to the circuit court when the actions and decisions under review occurred. Making the dissent's proposed experiment in hybrid records even more problematic is the fact that one is criminal and the other is disciplinary. with The differences between the two types of cases respect to evidentiary standards, procedural constitutional requirements, and interests parties are too vast to catalogue here. of the safeguards, different Neither the dissent nor Mr. Cooper explain how we can iron out all of those differences 25 No. 2016AP375-CR in a way that would allow one record to rationally inform the other. Ultimately, record simply the creates dissent's a path for proposal to hybridize collaterally attacking the a criminal conviction via our attorney disciplinary proceedings. We are unwilling to blaze that trail. IV. ¶34 Our conclusions CONCLUSION with respect presented by this case are as follows. to the three issues First, the record does not demonstrate that the professional misconduct described in Hicks prevented Mr. assistance of counsel. Cooper from receiving the effective Because that was the only rationale he offered (in this court) for withdrawing his plea, we conclude the circuit court did not erroneously exercise its discretion when it denied Mr. Cooper's motion. Second, we conclude that we did not adopt the referee's statement regarding the effect of Mr. Hicks' professional misconduct on Mr. Cooper's defense. And third, we need not determine whether the State would have been prejudiced if Mr. Cooper had been allowed to withdraw his plea because we conclude he did not present a "fair and just reason" for doing so. By the Court.—The decision of the court of appeals is affirmed. ¶35 SHIRLEY S. ABRAHAMSON, J., withdrew from participation prior to oral argument. 26 No. ¶36 REBECCA FRANK DALLET, J. 2016AP375-CR.rfd In (dissenting). determining that Attorney Michael J. Hicks violated the Rules of Professional Conduct for Attorneys in his representation of Mr. Cooper, we Regulation accepted ("OLR") and relied referee's upon factual the Office findings. of The Lawyer referee found that during the 10 months leading up to the trial date on which Mr. Cooper entered his guilty plea, Attorney Hicks failed to consult with Mr. Cooper We agreed with the referee that the factual findings professional misconduct statement that understanding Mr. that Attorney outlined Cooper Mr. was by the Cooper Hicks with and discovery.1 conclusion provide strategy and the to trial preparation support failed regarding engaged referee, prevented requested from in the including a "adequately and participating in his own defense." In re Disciplinary Proceedings Against Hicks, 2016 WI 31, ¶28, 368 Wis. 2d 108, 877 N.W. 2d 848.2 I disagree with the majority opinion's conclusion that this court's decision in Hicks "has no material effect" on Mr. Cooper's motion to withdraw his plea pre-sentencing. Majority op., ¶18. I therefore dissent. 1 The OLR referee found that Attorney Hicks failed between "January 2013 and February 12, 2013, between March 11, 2013 and August 16, 2013, and between August 18, 2013 and October 20, 2013 to communicate with [Mr. Cooper] regarding the issues raised in [Mr. Cooper's] January 2013 letter [requesting discovery and raising concerns about his case] and to otherwise consult with [Mr. Cooper] regarding trial strategy and preparation." In re Disciplinary Proceedings Against Hicks, 2016 WI 31, ¶28, 368 Wis. 2d 108, 877 N.W.2d 848. 2 The majority opinion attempts to distance itself from our language and holding in Hicks. The majority seems to be saying: "just because we said it does not mean we actually meant it." 1 No. ¶37 United 2016AP375-CR.rfd In Strickland v. Washington, 466 U.S. 668 (1984), the States Supreme Court adopted a two-part standard evaluating claims of ineffective assistance of counsel. the defendant must show that counsel's for First, performance was deficient, which requires showing that "counsel made errors so serious that counsel was not functioning as the guaranteed the defendant by the Sixth Amendment." 'counsel' Id. at 687. Second, the defendant must show that the deficient performance prejudiced the defense, which requires showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability undermine confidence in the outcome." sufficient Id. at 694. to In Hill v. Lockhart, 474 U.S. 52, 58 (1985), the Court held that the twopart Strickland test applied to a defendant's post-sentencing motion to withdraw his plea based on ineffective assistance of counsel. ¶38 The majority opinion ultimately determines that even if Attorney Hicks' performance was deficient, Mr. Cooper failed to allege prejudice resulting from that deficient performance, and therefore his motion to withdraw his plea fails. op., ¶¶28-30. Majority I disagree with the majority opinion's conclusion that Mr. Cooper failed to allege that Attorney Hicks' deficient performance caused prejudice. Although Mr. Cooper's counsel stated at the hearing that Mr. Cooper still "might" decide to enter a plea, Mr. Cooper is now asking this court to "allow him to withdraw his guilty plea, and remand this case for further 2 No. proceedings and a trial on the merits." 2016AP375-CR.rfd (emphasis added). Mr. Cooper alleges sufficient prejudice that resulted from Attorney Hicks' deficient performance, namely, hasty entry of a plea because Attorney Hicks was not prepared to defend him on the day of trial. ¶39 as part Moreover, by requiring Mr. Cooper to prove deficiency of a motion for plea withdrawal pre-sentencing, the majority opinion equates the standard for withdrawal of a plea post-sentencing, "manifest injustice," with the lower sentencing standard of a "fair and just reason." Cain, 2012 WI 68, ¶24, 342 Wis. 2d 1, pre- See State v. 816 N.W.2d 177 (emphasizing that while a circuit court should "'freely allow a defendant to withdraw his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced,'" this post-sentencing withdrawal is standard rule should "'where necessary (quoted source omitted). to not the be confused defendant correct a must manifest with show the the injustice.'") "A manifest injustice is a serious flaw in the fundamental integrity of the plea, generally of a constitutional dimension" convincing evidence. 601 N.W.2d 865 (Ct. and must be shown by clear and State v. Shimek, 230 Wis. 2d 730, 740, App. 1999). To prove that ineffective assistance of counsel resulted in a manifest injustice, this court has required a defendant to demonstrate both prongs of an ineffective assistance of counsel claim. See State v. Dillard, 2014 WI 123, ¶¶84-85, 358 Wis. 2d 543, 859 N.W.2d 44; see also State v. Bentley, 201 Wis. 2d 303, 311-12, 548 N.W.2d 50 (1996). 3 No. ¶40 2016AP375-CR.rfd In contrast, to withdraw a plea prior to sentencing, a defendant need only prove by a preponderance of the evidence a "fair and just reason." 469 N.W.2d 163 (1991). State v. Canedy, 161 Wis. 2d 565, 584, A "fair and just reason" is defined as "the mere showing of some adequate reason for the defendant's change of heart." Libke v. State, 60 Wis. 2d 121, 128, 208 N.W.2d 331 (1973). Less proof is therefore needed to prevail on a motion to withdraw a plea pre-sentencing than post-sentencing. See, e.g., id. at 124 ("It should be easier to withdraw a plea before sentence than after."); see also State v. Reppin, 35 Wis. 2d 377, 384, 151 N.W.2d 9 (1967). ¶41 in the Guidelines have emerged from appellate cases that aid consideration of whether withdrawal is fair and just. the reason given for plea See State v. Shanks, 152 Wis. 2d 284, 290, 448 N.W.2d 264 (Ct. App. 1989); see also United States v. Barker, 514 F.2d 208, 220 (D.C. Cir. 1975) (noting that "the terms 'fair exactness."). and just' Several lack any factors pretense courts of consider scientific include: assertion of innocence, a genuine misunderstanding of a plea's consequences, hasty entry of a plea, confusion of the defendant, coercion by withdrawal. trial counsel, and expeditiously See Shanks, 152 Wis. 2d at 290-91. seeking plea If a defendant proves by a preponderance of the evidence a fair and just reason for withdrawal of his or her plea prior to sentencing, then the burden shifts to the State to show order to defeat the plea withdrawal. substantial in State v. Bollig, 2000 WI 6, ¶34, 232 Wis. 2d 561, 605 N.W.2d 199. 4 prejudice No. ¶42 It is noteworthy that both 2016AP375-CR.rfd Strickland and Hill involved a motion to withdraw a plea post-sentencing and that there is no United States Supreme Court or Wisconsin precedent requiring a defendant to show prejudice as a result of counsel's deficient performance sentencing. when moving to withdraw a plea pre- In United States v. Davis, 428 F.3d 802, 808 (9th Cir. 2005), the Ninth Circuit held that a defendant does not have to show prejudice as a result of his counsel's deficient performance, instead he need only show that the deficient performance "could have motivated his decision to plead guilty" (emphasis in original). The Davis court concluded that "[t]o require a defendant to satisfy the prejudice prong of Hill in order to withdraw a plea based on counsel's erroneous advice eviscerates the distinction between a motion to withdraw a plea made pre-sentence and a post-sentence challenge to a plea." Id. at 806. ¶43 I therefore focus my attention not on whether Mr. Cooper must show prejudice, which may be inconsequential presentencing, but on whether the circuit court erred in finding that Attorney Hicks' performance was not deficient. v. Turner, 136 Wis. 2d 333, 343-44, 401 See State N.W.2d 827 (1987) (applying a clearly erroneous standard to the circuit court's findings of fact). incorrect, Attorney the Hicks Cooper's plea. By making factual findings now known to be circuit was court prepared for erroneously trial at determined the time of that Mr. This court should therefore remand this case for a new plea withdrawal hearing. 5 No. ¶44 counsel At the plea articulated deficient. withdrawal two ways hearing, in which 2016AP375-CR.rfd Mr. Cooper's Attorney Hicks new was First, Attorney Hicks did not inform Mr. Cooper of the suspension of his law license. Second, Mr. Cooper "entered the plea in haste" based upon his belief that "he felt like his attorney wasn't prepared" to proceed to trial. This belief led Mr. Cooper to answer the circuit court's questions at the plea hearing in the manner in which he did. ¶45 The majority opinion broadly discounts Attorney Hicks' deficient performance and mistakenly states that "[a]ll of these facts and allegations were already before the circuit court when it considered Mr. Cooper's motion . . . ." According to the decision in Hicks Cooper's claim majority opinion, "suggests that he no that the circuit received court court's additional Id., ¶24. drew disciplinary support ineffective counsel prior to entering his plea." apparent this Majority op., ¶25. for assistance Mr. of However, it is conclusions based upon incomplete and incorrect information. ¶46 Regarding Attorney Hicks' failure to inform Mr. Cooper of his license suspension, the circuit court stated: I don't know what attempts Mr. Hicks made to communicate [his license suspension] or whether or not he did . . . I don't see anything in the record, at least at this point, to say that Mr. Hicks didn't communicate that or if he did communicate that whether or not Mr. Cooper cared. 6 No. 2016AP375-CR.rfd It is now undisputed that Attorney Hicks never communicated the fact that his law license was suspended to Mr. Cooper.3 Mr. Cooper further testified at the plea withdrawal hearing about how he felt misled by Attorney Hicks due to the disclosure regarding his law license suspension. lack of The circuit court's finding was therefore erroneous. ¶47 It is Mr. Cooper's second proffered reason, his hasty entry of a plea because Attorney Hicks was not prepared and did not turn over requested discovery, that causes even more concern in light of this court's conclusions in Hicks, 368 Wis. 2d 108. On October 8, 2013, Mr. Cooper wrote a letter to the circuit court stating that "[t]here are approximately 13 days till trail [sic] and I have yet to receive a copy of the discovery material to review the evidence against me." Mr. Cooper further stated that he was not prepared for trial and that his alibi witness was not subpoenaed. In his December 21, 2013 letter to the circuit court asking to withdraw his guilty plea, Mr. Cooper said that he was never provided with the documents he sought and that he "was misslead [sic] by my counsel that I was dstined [sic] to loss [sic] my case if I go to trial, and [i]f I take this plea I will still go home on time. Even [i]f I didn't commit this case a plea will be in my best interest." ¶48 Based upon Mr. Cooper's statements at the plea hearing indicating that he wanted the circuit court to take "no actions" 3 In Hicks, we accepted the referee's factual finding that Attorney Hicks failed to notify Mr. Cooper of his law license suspension. Hicks, 368 Wis. 2d 108, ¶¶26, 28. 7 No. with respect discounted to the the letters letters. he The had sent, circuit the court 2016AP375-CR.rfd circuit made no court factual findings about whether or not Attorney Hicks had communicated with Mr. Cooper regarding trial preparation or whether he had turned over the requested discovery to Mr. Cooper. The circuit court concluded that "prior to the plea Mr. Cooper is sitting, they weren't ready for trial, there were alibi witnesses available, he felt he had a defense, and all of those things seem to be consistent with someone who is prepared and going to trial." deal The circuit court further emphasized the generous plea and speculated that Attorney Hicks prevailed upon Mr. Cooper to take the deal. ¶49 The circuit court erroneously found that Mr. Cooper was prepared to proceed to a jury trial on October 21, 2013. The factual findings accepted in Hicks establish that for the 10 months prior to trial, Attorney Hicks failed to communicate with Mr. Cooper regarding trial strategy and preparation and failed to give Mr. Cooper discovery that he had requested to review prior to trial. This court agreed with the referee that the factual support findings the conclusion that the lack of communication between Attorney Hicks and Mr. Cooper resulted in Mr. Cooper being prevented from "adequately understanding and participating in his own defense." Hicks, 368 Wis. 2d 108, ¶28. The fact that Mr. Cooper took a plea on the day of trial to take advantage of what the circuit court characterized as a "good deal," is inapposite. Based on Attorney Hicks' lack of communication and consultation with Mr. Cooper and his failure 8 No. 2016AP375-CR.rfd to turn over discovery, the circuit court erroneously found that Mr. Cooper was prepared to proceed to trial.4 ¶50 The majority opinion claims that I am "hybridiz[ing] the record" and creating "a path for collaterally attacking a criminal conviction via our attorney disciplinary proceedings." Majority op., because this defendant ¶33. However, court was accepted prevented Mr. Cooper's the legal from pretend our acknowledge words the in Hicks majority is conclusion "adequately participating in his own defense." case notable that a understanding and This court should not now were opinion's meaningless. concern, While in the I rare situation that this issue arises again, the right to effective assistance of counsel is fundamental and therefore justifies remand to the circuit court for a new plea withdrawal hearing. ¶51 For the foregoing reasons I would remand the case to the circuit court for a new plea withdrawal hearing. hearing, the circuit court should consider all of undisputed facts and make a determination as to At that these now whether Mr. Cooper offered a fair and just reason for withdrawal of his plea. Factors for the circuit court to consider include: Attorney Hicks' lack of communication and preparation for trial, possible coercion by Attorney Hicks to accept a plea, Mr. Cooper's potentially hasty entry of a plea, and Mr. Cooper's 4 Of note, Mr. Cooper filed a grievance with OLR against Attorney Hicks well before his plea withdrawal hearing. In December 2013, OLR requested specific documents and information from Attorney Hicks surrounding Mr. Cooper's claims. 9 No. 2016AP375-CR.rfd subsequent expeditious request to withdraw his plea. If the circuit court determines Mr. Cooper has demonstrated a fair and just reason to withdraw his plea, the burden shifts to the State to show substantial prejudice to defeat the plea withdrawal.5 See Bollig, 232 Wis. 2d 561, ¶34. ¶52 Accordingly, I respectfully dissent. ¶53 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent. 5 The circuit court summarily stated "for purposes of the record": "given the age of the case and the time lapse, I would find that there would be a substantial prejudice to allow [Mr. Cooper] to withdraw the plea at this point in time." However, because the circuit court did not find a fair and just reason to support plea withdrawal, this analysis was incomplete. 10 No. 1 2016AP375-CR.rfd
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