Wis JI-Criminal SM-32

Scope

I. Determining Compliance With Victims’ Rights Legislation............................... 2

II. Reading the Charging Document; Guilty Plea Tendered..................................... 2

III. Determining the Defendant’s Ability to Understand the Proceedings................. 4

IV. Establishing the Voluntariness of the Plea........................................................... 5

V. Determining the Defendant’s Understanding of the Crime Charged................... 6

VI. Waiver of Constitutional Rights........................................................................... 7

VII. Inquiry of Counsel and Defendant........................................................................ 8

VIII. Entering the Plea.................................................................................................... 9

IX. Establishing a Factual Basis for the Plea............................................................. 10

X. Accepting the Plea and Pronouncing Judgment.................................................. 11

Scope

The inquiry suggested here is intended to illustrate a complete plea acceptance

procedure, fully implementing the personal inquiry required by § 971.08 and Wisconsin

case law.

SM-32 has been repeatedly cited with approval by the Wisconsin Supreme Court, in

decisions urging that it be used by the trial courts. In a 2006 decision, the court “strongly

encouraged” trial courts to follow the procedures prescribed in SM-32. State v. Brown,

2006 WI 100, ¶23, footnote 11, 293 Wis.2d 594, 716 N.W.2d 906. Also see, State v.

Hampton, 2004 WI 107, ¶44, 274 Wis.2d 379, 683 N.W.2d 14; State v. Bangert, 131

Wis.2d 246, 272, 389 N.W.2d 12 (1986); State v. Minniecheske, 127 Wis.2d 234, 245-46,

378 N.W.2d 283 (1983); and, State v. Bartelt, 112 Wis.2d 467, 483-84, 334 N.W.2d 91

(1983).

The use of written plea acceptance forms has been expressly approved. State v.

Moederndorfer, 141 Wis.2d 823, 416 N.W.2d 627 (Ct. App. 1987); State v. Brandt, 226

Wis.2d 610, 594 N.W.2d 759 (1999). But a personal inquiry of the defendant is still

required, “. . . making a record that the defendant had sufficient time prior to the hearing

to review the form, had an opportunity to discuss the form with counsel, had read each

paragraph, and had understood each one.” 141 Wis.2d 823, 827. The Judicial Conference

has adopted CR-227, a form titled, “Plea Questionnaire/Waiver of Rights.” Section

971.025(1) provides: “In all criminal actions and proceedings. . . the parties and court

officials shall use the standard court forms adopted by the judicial conference under s.

758.18. . .”

SM-32 is divided into ten sections, each identified by a Roman numeral. The section

headings are intended only to clearly identify the different parts of the plea acceptance

inquiry. Directions to the judge are in all capital letters.

The suggested questions and statements to be addressed to the defendant (and, in a few

instances, to defense counsel) are found in quotation marks and are numbered from 1 to

30. Their form is merely suggested by this Special Material; judges will undoubtedly want

to tailor them to the case at hand and develop others of their own.

THE FOLLOWING ASSUMES THE DEFENDANT IS REPRESENTED BY

COUNSEL. IF THE DEFENDANT IS NOT REPRESENTED, A VALID

WAIVER OF COUNSEL MUST BE OBTAINED BEFORE ACCEPTING THE

PLEA.1

I. Determining Compliance With Victims’ Rights Legislation

THE COURT SHOULD INQUIRE OF THE PROSECUTOR:

“Have you complied with the victim notice and consultation law – § 971.095(2)?”2

II. Reading the Charging Document; Guilty Plea Tendered

ASSURE THAT THE DEFENDANT HAS A COPY OF THE COMPLAINT OR

THE INFORMATION; IDENTIFY THE CHARGE, THE MAXIMUM TERM

OF IMPRISONMENT AND THE MAXIMUM FINE,3 APPLICABLE

REPEATER STATUTES, PENALTY ENHANCERS, AND MANDATORY

MINIMUM SENTENCES.4

THE INFORMATION OR COMPLAINT SHOULD BE READ, UNLESS THE

READING IS WAIVED.5

THE COURT SHOULD INQUIRE PERSONALLY6 OF THE DEFENDANT:

1. “How do you plead?”

IF THE DEFENDANT ANSWERS “NO CONTEST” OR “ALFORD,” THE

COURT SHOULD ADDRESS THE DEFENDANT AND DEFENSE COUNSEL

AS FOLLOWS.7

[“A plea of no contest means that you do not contest the state’s ability to prove

the facts necessary to constitute the crime.”]

[“An Alford plea is a guilty plea accompanied by a claim of innocence.”]

[“Do you understand that for the purposes of this proceeding, (a plea of no contest)

(an Alford plea) will have the same effect as a plea of guilty? And that, if accepted, it

will result in a conviction that carries the same character and force as a conviction

resulting from a plea of guilty?”]

[“Counsel, have you discussed the consequences of the plea with the defendant

and do you believe the defendant understands them?”]

CONTINUE WITH THE FOLLOWING IN ALL CASES.

2. “Before your plea is entered and accepted by the court, the court will ask you

certain questions to determine whether or not your plea should be entered and

accepted. If you have any trouble understanding the questions, take all the time

you need to confer with your attorney.”

3. “If you are not a citizen of the United States of America, you are advised that

a plea of guilty or no contest for the offense with which you are charged may

result in deportation, the exclusion from admission to this country or the

denial of naturalization, under federal law.”8

ADD THE FOLLOWING IN ALL FELONY CASES.

4. “If you are convicted of a felony, you will not be allowed to possess a firearm.

Section 941.29 makes it a crime punishable by imprisonment for up to ten years

or a fine of up to $25,000, or both, for a person convicted of a felony to possess a

firearm.”9

5. “If you are convicted of a felony, you may not vote in any election until your civil

rights are restored.”10

CONTINUE WITH THE FOLLOWING IN ALL CASES.

6. “If you are convicted, you may be required to make full or partial restitution to

any victim of the crime.”11

III. Determining the Defendant’s Ability to Understand the Proceedings

THE COURT MUST BE SATISFIED THAT THE DEFENDANT UNDERSTANDS

THE PROCEEDINGS BEFORE ACCEPTING THE PLEA. THE COURT SHOULD

MAKE PERSONAL INQUIRY OF THE DEFENDANT INTO AREAS SUCH AS

EDUCATION, WORK EXPERIENCE, HISTORY OF MENTAL ILLNESS, RECENT

DRUG OR ALCOHOL USE, ETC. THE FOLLOWING ARE EXAMPLES OF

QUESTIONS12 THAT SHOULD BE ASKED. ANSWERS INDICATING THE NEED

FOR MORE INFORMATION SHOULD BE PURSUED.

7. “How old are you?”

8. “How far did you go in school?”

9. “Do you have a job?”

IF THE ANSWER IS YES:

“Where do you work?”

“How long have you worked there?”

IF THE ANSWER IS NO:

“When were you last employed?”

“What are you trained to do?”

10. “Have you received treatment for mental or emotional problems?”

11. “Have you had any alcohol or other intoxicants today?”

“Have you taken any medication or drugs today?”

12. “Are you having any difficulty understanding the court?”

“Are you having any difficulty understanding your attorney?”

13. “Is there anything you do not understand about what has happened in this case so

far?”

IV. Establishing the Voluntariness of the Plea

ESTABLISHING VOLUNTARINESS INVOLVES TWO AREAS OF

INQUIRY:

1. PLEA AGREEMENT; AND

2. THREATS OR COERCION OR PROMISES OUTSIDE OF A PLEA

AGREEMENT.

14. “Is there a plea agreement in this case?”

IF THERE IS A PLEA AGREEMENT,13 PUT IT ON THE RECORD AND

ESTABLISH THE DEFENDANT’S UNDERSTANDING OF THE

AGREEMENT.

15. “Do you understand the plea agreement?”

16. “Do you understand that the court is not bound by a sentencing recommendation

or other terms of the plea agreement?”14

17. “Do you understand that upon your plea of guilty, the court may impose the

maximum penalty, in spite of any agreement?”15

IF THE PLEA AGREEMENT INVOLVES READ-INS, ADD THE

FOLLOWING:16

18. Do you 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 – you may be required to pay restitution on any read-in charges.

• Future prosecution – the State may not prosecute you for any read-in charges.

IF THE PLEA AGREEMENT CALLS FOR PROBATION, ADD THE

FOLLOWING:17

19. “Do you understand that if you are placed on probation and if you later violate a

condition of probation, that your probation may be revoked and you may be

required to serve a sentence in jail or prison?”

CONTINUE WITH THE FOLLOWING IN ALL CASES:

20. “Has anyone else made any promise or threat to you18 (aside from the plea

agreement) to get you to plead guilty to this charge?”

V. Determining the Defendant’s Understanding of the Crime Charged

21. “By pleading guilty, you are admitting that you committed all the elements of the

crime of __________________, which are as follows:”

THE COURT MUST BE SATISFIED THAT THE DEFENDANT

UNDERSTANDS THE CHARGE TO WHICH THE GUILTY PLEA IS BEING

ENTERED. ONE WAY TO ACHIEVE THIS IS TO SUMMARIZE THE

ELEMENTS OF THE CRIME CHARGED, RELATING THEM TO THE

FACTS OF THE CASE.19 REFERRING TO THE UNIFORM INSTRUCTION

FOR THE OFFENSE WILL BE HELPFUL IN IDENTIFYING THE

ELEMENTS. ATTACHING A COPY OF THE APPLICABLE INSTRUCTION

TO THE PLEA QUESTIONNAIRE IS RECOMMENDED. THE COURT

SHOULD INQUIRE OF DEFENSE COUNSEL REGARDING ANY SPECIAL

ISSUES20 OR PROBLEMS THAT SHOULD BE EXPLAINED TO THE

DEFENDANT.

22. “Do you understand that you are admitting that you committed each of these

elements?”21

FOR NO CONTEST PLEAS, SUBSTITUTE THE FOLLOWING.22

[“Do you understand that your plea does not contest that the state can prove

each of these elements?”]

FOR ALFORD PLEAS, SUBSTITUTE THE FOLLOWING.

[“Do you understand that these are the elements the state would have to prove

if you went to trial?

“And do you understand that despite your claim of innocence, if your plea is

accepted the court will find you guilty, because strong evidence of guilt will have

been established?”]

VI. Waiver of Constitutional Rights23

23. “By pleading (guilty you admit that you committed the crime) (no contest you do

not contest that you committed the crime) and, thus, you relieve the state of

proving at a trial that you committed that crime, and you also waive – that is, you

give up – important constitutional rights.

IF AN ALFORD PLEA IS INVOLVED, SEE SM-32A NO CONTEST AND

ALFORD PLEAS.24

“You give up your right to have the state prove that you committed each

element of the crime. The state must convince each member of the jury beyond a

reasonable doubt that you committed the crime. Do you understand that?

“You give up your right not to incriminate yourself, which means, you have

a right not to admit to a crime, not to say anything that will subject you to a

criminal penalty. If the court accepts your plea, you will be convicted, and the

court can impose sentence against you. Do you understand that?

“You give up the right to confront your accusers, which means you have the

right to face the witnesses against you, to hear their sworn testimony against you,

and to cross-examine them by asking them questions to test the truth and accuracy

of their testimony. If the court accepts your plea, you give up your right to

confront your accusers. Do you understand that?

“You give up the right to present evidence in your own behalf and to require

witnesses to come to court and testify for you. Do you understand that?

“Knowing that if the court accepts your plea, you give up your constitutional

right to a trial by jury, your constitutional right not to incriminate yourself, and

your constitutional right to confront the witnesses against you and to subpoena

witnesses, do you still wish to plead (guilty) (no contest)?”

VII. Inquiry of Counsel and Defendant

THE FOLLOWING QUESTIONS SHOULD BE DIRECTED TO DEFENSE

COUNSEL.

24. “Have you had sufficient opportunity to thoroughly discuss this case and the plea

decision with the defendant?”

25. “Are you fully satisfied that the defendant is making (his) (her) plea of guilty

freely, voluntarily, and intelligently?”

26. “Are you satisfied that the defendant understands the nature of the charge(s), the

elements thereof, and the effects of (his) (her) plea?”

27. “And, are you satisfied the defendant is knowingly and intelligently waiving (his)

(her) constitutional rights?”

ADD THE FOLLOWING IF A REPEATER ALLEGATION IS INVOLVED.

[28. “And, are you satisfied that the defendant understands the enhanced penalty that

can be imposed if the court accepts the plea(s) of guilty as a repeater?”]

THE FOLLOWING QUESTIONS SHOULD BE DIRECTED TO

DEFENDANT.

29. “Have you thoroughly discussed this case and the plea decision with your

lawyer?”

30. “Are you satisfied with the representation you have received from your lawyer?”

VIII. Entering the Plea

IF, BASED ON THE ABOVE INQUIRY, THE COURT IS SATISFIED THAT

THE PLEA SHOULD BE ENTERED, THE COURT SHOULD STATE:25

“The clerk is directed to enter the plea in the record. The court does not thereby

accept the plea, but the court defers acceptance of the plea and will now hear facts to

determine whether the court should accept the plea of guilty.”

IX. Establishing a Factual Basis for the Plea

IT IS REQUIRED THAT THE COURT MAKE A RECORD SHOWING THAT

THERE IS A FACTUAL BASIS FOR THE DEFENDANT’S PLEA.26 THE

TRIAL JUDGE MUST DETERMINE THAT A FACTUAL BASIS FOR THE

PLEA EXISTS BY MAKING “SUCH AN INQUIRY AS SATISFIES [THE

COURT] THAT THE DEFENDANT IN FACT COMMITTED THE CRIME

CHARGED.” WIS. STAT. § 971.08(1)(b).27

IF THE CASE INVOLVES AN ALFORD PLEA, THE COURT MUST MAKE

A FINDING THAT THERE IS “STRONG EVIDENCE OF GUILT.”28

THE PRECISE METHOD BY WHICH THIS DUTY IS MET HAS BEEN LEFT

TO THE DISCRETION OF THE TRIAL COURTS.29 IT IS NOT REQUIRED

THAT THE EVIDENCE SUBMITTED AS A BASIS FOR THE PLEA BE

ADMISSIBLE AT A TRIAL OR THAT IT BE SUFFICIENT TO CONVICT

BEYOND A REASONABLE DOUBT.30

THE REQUIRED INFORMATION MAY BE ESTABLISHED IN A VARIETY

OF WAYS, AND THE TRIAL COURT MAY ADOPT DIFFERENT

PROCEDURES, DEPENDING ON THE SERIOUSNESS OF THE CHARGE.

IT IS COMMON PRACTICE TO ASK THE PROSECUTOR TO ESTABLISH

THE FACTUAL BASIS FOR THE PLEA. ACCEPTED METHODS INCLUDE:

(1) REFERRING TO THE CRIMINAL COMPLAINT;

(2) CONSIDERING TRANSCRIPTS OF THE PRELIMINARY

EXAMINATION31 OR HEARINGS ON PRETRIAL MOTIONS;

(3) ALLOWING THE PROSECUTOR TO DESCRIBE THE FACTS;

(4) REFERRING TO POLICE REPORTS32 OR STATEMENTS OF THE

DEFENDANT;

(5) RECEIVING TESTIMONY FROM POLICE OFFICERS,33 VICTIMS, OR

OTHER WITNESSES;34 AND

(6) TAKING JUDICIAL NOTICE OF COURT RECORDS IN OTHER CASES

(e.g., TRIAL OF A CODEFENDANT).

(7) ALLOCUTION BY THE DEFENDANT.

IN ADDITION TO THE ABOVE-DESCRIBED METHODS, SOME COURTS

ADVOCATE THE USE OF A FULLY DESCRIPTIVE STIPULATION, OFTEN

IN CONNECTION WITH A WRITTEN GUILTY PLEA FORM, WHICH IS

SIGNED BY THE DEFENDANT, DEFENSE COUNSEL, AND THE

PROSECUTOR AND DISCLOSES THE CHARGE, ITS CONSEQUENCES,

THE RIGHTS WAIVED BY A GUILTY PLEA, THE FACTS SUPPORTING

THE PLEA, AND ANY PLEA BARGAIN THAT HAS BEEN NEGOTIATED.35

THE CASE MAY BE ADJOURNED BY THE COURT FOR THE PURPOSE

OF PREPARING FOR ANY OF THE METHODS OF ESTABLISHING THE

FACTUAL BASIS FOR THE PLEA.

IF THE PLEA IS BEING ENTERED TO A REPEATER ALLEGATION, ADD

THE FOLLOWING QUESTION.36

31. “Were you convicted of (name offense) on (date)?”

FOLLOWING THE OFFERING OF THE FACTUAL BASIS, DEFENSE

COUNSEL SHOULD BE ASKED:

32. “From your own investigation, are you satisfied that there is a factual basis for the

plea?”

X. Accepting the Plea and Pronouncing Judgment

IF THE COURT IS SATISFIED FROM THE SHOWING PRESENTED BY THE

STATE THAT A FACTUAL BASIS EXISTS FOR THE DEFENDANT’S PLEA

TO THE OFFENSE TO WHICH THE DEFENDANT PLEADS (OR TO A

MORE SERIOUS OFFENSE),37 THE COURT SHOULD MAKE FINDINGS

OF FACT, ON THE RECORD, SUBSTANTIALLY AS FOLLOWS:38

“The court finds that the defendant understands the proceedings and that the plea

of guilty is freely, voluntarily, and intelligently made. The court finds that the

defendant understands the constitutional rights that are waived by a guilty plea and

that the defendant freely and voluntarily waives those rights.”

“The court finds from the record that a factual basis exists for the plea and that the

defendant has committed the crime charged.”

SUBSTITUTE THE FOLLOWING IF THE CASE INVOLVES AN ALFORD

PLEA.

[“The court finds from the record that a factual basis exists for the plea, that there

is strong evidence of guilt, and that the defendant has committed the crime charged.”]

CONTINUE WITH THE FOLLOWING IN ALL CASES.39

“The court accepts the plea and finds the defendant guilty.”

THE COURT SHOULD NOW STATE UPON THE RECORD:

“Upon the court’s finding of guilty, it is adjudged that the defendant is convicted

of the crime of ____________ in violation of § ________, Wisconsin Criminal Code.”

THE COURT SHOULD NOW DECIDE WHETHER A PRESENTENCE

INVESTIGATION SHOULD BE ORDERED AND A DATE SHOULD BE SET FOR

SENTENCING.