State v. Bangert
In State v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986), the Wisconsin Supreme Court established a test designed to ascertain whether a defendant lacked an understanding of the charges against him or her, thus rendering his or her plea constitutionally infirm.
First, a defendant must show that the trial court failed to comply with the procedural requirements set forth in Wis. Stat. 971.08. See Bangert, 131 Wis. 2d at 274.
Then the defendant must properly allege that he or she did not understand or know the information that should have been provided at the plea hearing. See id.
Once the defendant makes a prima facie showing that his or her plea was accepted without compliance with the procedures set forth in 971.08 and has properly alleged that he or she did not understand or know the information that should have been provided at the plea hearing, the burden shifts to the State to show by clear and convincing evidence that the plea was knowingly, voluntarily and intelligently entered. See Bangert, 131 Wis. 2d at 274.
Wisconsin Stat. 971.08 represents the statutory codification of the constitutional mandate that a plea be knowing, voluntary and intelligent. It states in relevant part:
(1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.
(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.
The Court reaffirmed its intention to impose a mandatory duty upon the trial judge to engage in a colloquy that, among other things, affirmatively exhibited a defendant's knowledge of the constitutional rights he or she would be waiving. See Bangert, 131 Wis. 2d at 270-71.
In this regard, the trial judges of this state were instructed to use Wis JI-Criminal SM-32. See Bangert, 131 Wis. 2d at 272.
But that was not what the case was about. Rather, the case was about what to do if the trial judge did not follow the mandated procedure and the defendant claimed, for instance, not to have understood which constitutional rights were being waived by a plea of guilty or no contest.
The court announced the following procedure:
(1) the initial burden rests with the defendant to make a prima facie showing that his or her plea was accepted without the trial court's conformance with the mandatory procedures. See id. at 274.
(2) If that showing is made, the burden shifts to the State to show by clear and convincing evidence "that the defendant's plea was knowingly, voluntarily and intelligently entered, despite the inadequacy of the record at the time of the plea's acceptance." Id.
The State may then "utilize any evidence which substantiates that the plea was knowingly and voluntarily made." Bangert, 131 Wis. 2d at 274-75.
The teaching of the Bangert court is that prosecutors may use the entire record to demonstrate by clear and convincing evidence that the defendant knew and understood the constitutional rights he or she would be waiving. See id. at 275.
The court wrote that to enable a trial court to consider only the plea hearing transcript itself "essentially raises form over constitutional substance." See Bangert, 131 Wis. 2d at 275-76.