State v. Douglas J. Richer, 2019AP2024, 5/18/21, District 3 (not recommended for publication); case activity (including briefs)

Douglas Richer was charged in two related cases in two counties; he reached a deal with the state wherein he’d plead to just one count in Eau Claire and there’d be a joint sentencing recommendation. The plea colloquy was a thorough one; Richer expressed dissatisfaction about various aspects of the prosecution but made it very clear that he wanted to plead no-contest. After a number of clarifications the circuit court eventually accepted the plea and found Richer guilty. During sentencing (which was part of the same hearing as the plea), the prosecutor and the court took umbrage at some of Mr. Richer’s statements and, at the state’s suggestion, the court said it was “withdrawing” Richer’s plea. Richer and his counsel objected, both at that hearing and in a later written motion, but to no avail. Richer eventually entered a much less favorable bargain and received a sentence substantially longer than the one the parties had agreed to recommend.

The court of appeals now holds the circuit court erred in vacating Richer’s plea. The most important case in its analysis is State v. Comstock, 168 Wis. 2d 915, 485 N.W.2d 354 (1992). In Comstock, our supreme court noted the longstanding rule that constitutional jeopardy attaches when a court accepts a defendant’s plea. It held the circuit court had violated the defendant’s rights against double jeopardy when it undid an already-accepted plea; it also exercised its superintending authority to “direct each circuit court to refrain from sua sponte vacating a guilty or no contest plea after the circuit court validly accepted the plea by assuring itself of the voluntariness of the plea and the factual basis for the charges unless the circuit court finds that there was fraud in procuring the plea or that a party intentionally withheld from the circuit court material information which would have induced the circuit court not to accept the plea.” Id. at 953-54.

The court of appeals finds Comstock and related cases controlling here. It rejects the state’s attempt to distinguish Comstock by the fact that the plea and vacatur here happened at the same hearing; it notes that the Comstock court itself didn’t draw such distinctions in its direction to the courts, and also that other cases establish that jeopardy attaches at the moment of a finding of guilt. (¶28 (citing State v. Terrill, 2001 WI App 70, 242 Wis. 2d 415, 625 N.W.2d 353)).

It also turns back the state’s argument that Richer’s complaints about his treatment, or his statements about the facts of the offense, fell within the Comstock exception for “intentionally [withholding]… material information which would have induced the circuit court not to accept the plea.” It notes that “[n]one of the information Richer relayed” “would have affected the plea’s validity in the first instance.” (¶33). It observes also that denial of guilt cannot justify the undoing of a plea. (¶36 (citing State v. Rushing, 2007 WI App 227, 305 Wis. 2d 739, 740 N.W.2d 894)).

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