Plea Withdrawal
Case Analysis
Sept.
6, 2006
The
court’s decision in Goyette is the first in Wisconsin to
address “package plea agreements” (several unpublished
cases use that term, but in those cases, the defendant was pleading
to several unrelated cases; the charges were “packaged,”
not the defendants).
However,
there is extensive case law concerning package plea agreements
in other courts.
One
of the earliest is the following statement by the U.S. Supreme
Court in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663 (1978),
in which the court held it was not unconstitutional for a prosecutor
to threaten more serious charges if the defendant refused to plead
guilty to the current charges.
The
court wrote, “This case does involve the constitutional implications
of a prosecutor’s offer during plea bargaining of adverse
or lenient treatment for some person other than the accused, which
might pose a greater danger of inducing a false guilty plea by
skewing the assessment of the risks a defendant must consider
(cites omitted)(emphasis in original).” Id., 98 S.Ct. 669,
fn.8.
Since
this statement, many federal circuit courts have considered package
plea agreements, and agree that they are not inherently coercive.
U.S. v. Carr, 80 F.3d 413, 416-417 (10th Cir. 1996); U.S. v. Bennett,
332 F.3d 1094, 1100-01 (7th Cir. 2003); U.S. v. Abbott, 241 F.3d
29, 34 (1st Cir.2001).
However,
all the courts require that the trial court be aware of the package
deal. In Goyette’s case, there was no question that the trial
court was aware of the deal, so these cases do not directly apply.
Despite
being aware of the deal in the case at bar, however, the court
made no special inquiry about the agreement, and this could be
considered inconsistent with what the federal courts require.
The court of appeals found, “the court asked Goyette whether
he had been pressured or coerced, but did not ask more specifically
whether he had been pressured or coerced because of the package
nature of the agreement.”
The
other jurisdictions that have considered this issue suggest that
more may be required.
In
Abbott, the court wrote, “the disclosure of the existence
of a package plea deal is crucial at the Rule 11 hearing so that
the district court may probe as deeply as needed into the possibility
that one defendant is pleading guilty against his will in order
to make it possible for his co-defendant to obtain the benefit
of a favorable plea and sentencing recommendation.” Abbott,
241 F.3d at 34.
In
Carr, the court stated that package plea agreements require “special
care” to ensure the pleas are entered voluntarily. Carr,
80 F.3d at 416-417.
At
first blush, then, it could appear that the Wisconsin Court of
Appeals may be underestimating the potential of package plea agreements
for coercing involuntary guilty pleas.
On
closer examination, however, that is not the case. Despite the
language of the various federal courts, the concern in each case
is only that the trial court be informed of the package plea agreement.
All the reversals were because the trial court was unaware of
the package deal; no decision has concluded that a package plea
agreement actually coerced an involuntary plea.
In
a footnote, the court of appeals in the case at bar wrote, “Goyette
is not clear about the plea colloquy requirement he contends should
be imposed on circuit courts in package plea situations. …
Goyette does not present a cogent proposal for the questions courts
must pose when accepting pleas as part of a package agreement.”
In
truth, the same can be said of the federal court opinions; like
Goynette, while they express concern over the potential for coercion,
they do not clearly set forth any plea colloquy requirements.
Thus, while the court’s opinion seems at odds with the federal
cases, there is likely no practical difference.
In
contrast, it would be very easy to avoid the claim of error that
Howell put forth. The court need only ask the defendant, whenever
party-to-a-crime liability is alleged, whether he understands
that he cannot be found guilty based on mere presence, and failure
to prevent the crime.
The
two opinions in Howell discuss State v. Bangert, 131 Wis.2d 246,
389 N.W.2d 12 (1986), and the applicable law governing plea withdrawal
at great length.
Perhaps
one of the two approaches will ultimately be validated and the
other rejected.
However,
it may be that the real dispute is not a complex legal question,
at all, but merely this: the dissent considers party-to-a-crime
liability “a complex and not totally intuitive subject to
begin with”; and the judges in the majority think that, of
all the varied reasons it has heard over the years why a guilty
plea was involuntary, Howell’s excuse — I thought I
could be convicted just for being there — is the most implausible
yet.
-
David Ziemer
Click here for
Main Story.
David
Ziemer can be reached by email.
