State v. A. G.

2023 WI 61, 992 N.W.2d 75, 408 Wis. 2d 413

• Court: Wisconsin Supreme Court
• Decided: June 30, 2023
• Docket: 2022AP000652
• Status: Published

Opinion

2023 WI 61

SUPREME COURT OF WISCONSIN CASE NO.: 2022AP652

COMPLETE TITLE: In re the termination of parental rights to A.G., a person under the age of 18:

State of Wisconsin, Petitioner-Respondent-Petitioner, v. A. G., Respondent-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 404 Wis. 2d 511,979 N.W.2d 822 (2022 – unpublished)

OPINION FILED: June 30, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 17, 2023

SOURCE OF APPEAL: COURT: Circuit COUNTY: Milwaukee JUDGE: Ellen R. Brostrom

JUSTICES: REBECCA GRASSL BRADLEY, J., announced the mandate of the Court, and delivered an opinion, in which ZIEGLER, C.J., joined. HAGEDORN, J., filed a concurring opinion, in which KAROFSKY, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

NOT PARTICIPATING: PATIENCE DRAKE ROGGENSACK, J., did not participate.

ATTORNEYS:

For the petitioner-respondent-petitioner, there were briefs filed by John T. Chisolm, district attorney, and Katie Gutowski, assistant district attorney. There was an oral argument by Katie Gutowski, assistant district attorney. For the respondent-appellant, there was a brief filed by Christopher D. Sobic, assistant state public defender. There was an oral argument by Christopher D. Sobic, assistant state public defender.

Guardian ad litem briefs were filed by Courtney L.A. Roelandts and The Legal Aid Society of Milwaukee, Inc., Milwaukee. There was an oral argument by Courtney L.A. Roelandts.

2 2023 WI 61 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2022AP652 (L.C. No. 2021CV1469)

STATE OF WISCONSIN : IN SUPREME COURT

In re the termination of parental rights to A.G., a person under the age of 18:

FILED State of Wisconsin, JUN 30, 2023 Petitioner-Respondent-Petitioner, Samuel A. Christensen v. Clerk of Supreme Court

A. G.,

Respondent-Appellant.

REBECCA GRASSL BRADLEY, J., announced the mandate of the Court, and delivered an opinion, in which ZIEGLER, C.J., joined. HAGEDORN, J., filed a concurring opinion, in which KAROFSKY, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

PATIENCE DRAKE ROGGENSACK, J., did not participate.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 REBECCA GRASSL BRADLEY, J. The State filed a

petition to terminate the parental rights of A.G. under Wis.

Stat. § 48.415 (2019–20), alleging A.G.'s biological daughter remained a child in continuing need of protection or services No. 2022AP652

(continuing CHIPS) and A.G.'s failure to assume parental

responsibility for his daughter. This appeal concerns whether

A.G. knowingly, voluntarily, and intelligently pled no contest

to one of those two grounds in the termination of parental

rights (TPR) petition. A.G. argues he did not understand the

circuit court at disposition would have to decide whether to

terminate his parental rights.1 He further argues the circuit

court erroneously indicated the State would have to prove at

disposition that "termination was in . . . [the child]'s best

interest" by "clear and convincing" evidence. The State, A.G.

claims, has no such burden; therefore, A.G. asserts he pled no

contest under the belief that his odds of a favorable outcome

were higher than they legally should have been.

¶2 The circuit court denied A.G.'s plea withdrawal

motion. The court of appeals reversed that decision in an

unpublished opinion and ordered the cause remanded with

directions to allow A.G. to withdraw his plea. State v. A.G.

(A.G. II), No. 2022AP652, unpublished slip op. (Wis. Ct. App. July 12, 2022). The State and the guardian ad litem (GAL) each

filed a petition for review. We granted both petitions.

¶3 We hold A.G. knowingly, voluntarily, and intelligently

pled no contest. During the plea colloquy, the circuit court

told A.G., "[t]he second half of the case is where the [c]ourt

1The Honorable Mark A. Sanders presided over the initial appearance in the case, but the Honorable Ellen R. Brostrom presided over the plea colloquy and was the judge who denied A.G.'s plea withdrawal motion. Both judges serve on the Milwaukee County Circuit Court.

2 No. 2022AP652

decides is it in the child's best interest to in fact terminate

your parental rights." At the initial appearance ten months

before the colloquy, the court had already informed A.G. of

potential dispositional outcomes:

One thing I could decide is that termination of parental rights can [sic] best for the kids that are involved. If I make that decision, that ends all legal relationship between that parent and that child. As far as the law is concerned, that parent and that child become complete strangers to each other. But that's not the only potential outcome. There are other potential outcomes that don't involve termination of parental rights. Assuming the colloquy was defective, A.G. had previously been

notified that at disposition the court may or may not terminate

his parental rights. Additionally, the court conducted a

contested dispositional hearing the day after the colloquy, and

A.G.'s testimony shows he sought reunification rather than

termination of his parental rights. After the court held an

evidentiary hearing on A.G.'s plea withdrawal motion, the court

found A.G. had demonstrated an understanding of potential

dispositions through his testimony at the dispositional hearing. That finding is not clearly erroneous and must be accepted.

Other parts of the record confirm the validity of A.G.'s plea.

Consequently, we must reject A.G.'s first argument under the

applicable standard of review. See State v. Brown, 2006 WI 100,

¶19, 293 Wis. 2d 594, 716 N.W.2d 906 (citing State v.

Trochinski, 2002 WI 56, ¶16, 253 Wis. 2d 38, 644 N.W.2d 891).

3 No. 2022AP652

¶4 Regarding A.G.'s second argument, he is correct to

note that Wis. Stat. § 48.426(2) (2021–22)2 does not place a

burden of proof on the State; however, the circuit court

actually held the State to the clear and convincing standard at

disposition and reiterated at multiple points that the State

satisfied this standard. Accordingly, the court did exactly

what A.G. claims the court told him it would do. Placing a

burden on the State benefitted A.G. and did not affect A.G.'s

ability to weigh the pros and cons of entering this particular

no contest plea. If A.G. thought a favorable outcome was more

likely because the State had to meet a clear and convincing

standard, the State actually did meet that standard. The court

of appeals erred in permitting A.G. to withdraw his plea;

therefore, we reverse its decision.

I. BACKGROUND

¶5 The State's TPR petition sought to sever the parent-

child relationship between A.G. and his daughter. Toward the

top of the first page, in bold lettering, the TPR petition states: "Petition for Termination of Parental Rights[.]" The

TPR petition continues, "[t]he petitioner seeks termination of

parental rights of . . . [A.G.]" Toward the end, the TPR

petition reads, "[b]ased on the foregoing, . . . [A.G.] is not

fit to be a parent to the above-named child. Upon consideration

of the entire record in this case, termination of parental

Unless otherwise indicated, all subsequent references to 2

the Wisconsin Statutes are to the 2021–22 version.

4 No. 2022AP652

rights is warranted. . . . The best interest of the child will

be served by termination of the parental rights of the

parent[.]"

¶6 For context, the State alleged, among other things,

that A.G. and the child's mother were addicted to heroin and the

child "tested positive for drugs" at birth. After spending

approximately one month in the neonatal intensive care unit of

the hospital where she was born, A.G.'s daughter was removed

from her parents, both of whom later pled no contest to the

allegations in the State's petition alleging their daughter was

a child in need of protection or services (CHIPS). Filed eight

months after the circuit court entered its CHIPS order, the

State's TPR petition alleged the child's parents failed to meet

the conditions ordered by the circuit court for the return of

their daughter. Among other contentions, the State claimed A.G.

did not seek treatment and "no call[ed], no show[ed]" multiple

drug screenings. Based on the allegations, the State claimed

two independent grounds for TPR:

 continuing CHIPS; and

 failure to assume parental responsibility. See Wis. Stat. § 48.415(2), (6) (2019–20). A.G. was represented

by counsel at the hearings discussed below.

¶7 At an adjourned initial appearance, the circuit court

explained the nature of TPR proceedings in detail. Most

relevantly, the court informed A.G. that if grounds were established, the court would proceed to the disposition phase.

5 No. 2022AP652

The court explained it would hold a "contested dispositional

hearing" at which:

[W]hat we focus on is not whether there's a reason anymore, but what's [sic] we focus on instead is what's best for the kids that are involved in the case. Not what's best for anybody else. Not what's best for any of the lawyers or social workers. Not what's best for the foster parents. Not what's best for parents, but what's best for the kids that are involved in the case.

. . . .

If I make that unfitness finding, then we go on to the second part of the proceedings. That's that contested dispositional hearing. There we focus on what is best for the kids that are involved. So everybody gets to put on testimony and evidence and argue to me what they think is best for the kids that are involved. The State puts on testimony and evidence and tells me what they think is best. The . . . [GAL] can put on testimony and evidence and tell me what she thinks is best. Parents can do exactly the same thing. Parents have the right to put on testimony and evidence and to subpoena witnesses and to testify or remain silent themselves. Parents also have the right to confront any witness that testifies on behalf of any other party. Parents have the right to argue to me what they think is best for the kids that are involved.

. . . . I then decide what outcome is best for the kids that are involved. One thing I could decide is that termination of parental rights can [sic] best for the kids that are involved. If I make that decision, that ends all legal relationship between that parent and that child. As far as the law is concerned, that parent and that child become complete strangers to each other. But that's not the only potential outcome. There are other potential outcomes that don't involve termination of parental rights. At multiple points during this appearance, the court paused to

inquire whether A.G. understood the court's explanation, and A.G. responded he did.

6 No. 2022AP652

¶8 At a later hearing, A.G. pled no contest to the

continuing CHIPS ground, and the failure to assume parental

responsibility ground was dismissed. During the plea colloquy

between A.G. and the circuit court, A.G. stated he was 26 years

old, had an 11th-grade education, could read and write English,

and had no mental illness or cognitive issues that would limit

his ability to understand the colloquy. A.G. denied taking any

drugs (other than a prescribed medication that did not "alter[]"

his mind) or drinking alcohol within the preceding 12 hours. He

also confirmed he read the TPR petition, understood the State's

allegations, and was not promised or paid anything as an

inducement to plea.

¶9 The part of the plea colloquy giving rise to appellate

proceedings went as follows:

Q. You understand that you do have the right to have a trial for this first half of the case, whether or not there is a legal reason to terminate your parental rights?

A. I do.

Q. And that could be a trial to the judge or a trial to a jury. Do you understand that?

Q. If it were a jury it would be a 12 person jury and 10 out of 12 would have to agree in order to reach a decision. Do you understand that?

A. I do understand.

Q. And at that trial you would have a whole bunch of rights and I'm just going to list them. You would have the right to force the State to prove the

7 No. 2022AP652

grounds by clear, convincing, and satisfactory evidence to a reasonable certainty.

You would have the right to cross-examination of your witnesses; the right to introduce evidence; the right to compel witnesses to come to court and testify for you; the right to testify yourself or remain silent, knowing, though, that silence be [sic] used against you in this kind of case. Do you understand you would have all of these trial rights?

Q. And do you understand that by pleading no contest you're giving those rights up?

Q. Now, you understand that's just the first half of the case? The second half of the case is where the [c]ourt decides is it in the child's best interest to in fact terminate your parental rights. Do you understand that distinction?

A. I understand.

Q. You understand you're not giving up your right to fight about that second half, which is what we're going to do today. Do you understand that?

A. Yes, I do.

Q. You'll have all those same trial rights today for that second half. Do you understand that?

A. Yes. ¶10 A.G.'s arguments arise from portions of this plea

colloquy he considers defective. In particular, the circuit

court stated, "[t]he second half of this case is where the

[c]ourt decides is it in the child's best interest to in fact

terminate your parental rights." The court asked, "[d]o you understand that[?]" A.G. responded "[y]es," but he now asserts

8 No. 2022AP652

"the court did not inform him of the potential dispositions he

faced if he entered a no contest plea." Specifically, he claims

the court did not make clear that it had two options at

disposition: grant the TPR petition or dismiss it. His second

argument stems from the court explaining that during the grounds

phase, A.G. "would have the right to force the State to prove

the grounds by clear, convincing, and satisfactory evidence to a

reasonable certainty." The court later stated, "[y]ou'll have

all those same trial rights today for that second half." A.G.

argues the later statement implied the State would have a burden

of proof that termination of his parental rights would be in the

child's best interest at the disposition phase because that was

one of the "trial rights" identified by the court for the

grounds phase.

¶11 The circuit court proceeded to ask other standard

questions, confirming A.G. had spoken with his counsel about the

plea. The court then asked if A.G. had any questions, to which

A.G. responded, "[n]o, I do not." A.G. also said he did not need more time to think about his decision, and he and his

counsel both stated that the plea was knowing, voluntary, and

intelligent. After this lengthy colloquy, the court accepted

A.G.'s no contest plea.

¶12 The next day, at disposition, A.G. testified in favor

of reunification and continuation of the CHIPS case rather than

termination. Specifically, he testified, "[m]y goal in this

case is to get myself better and have my daughter returned to the household." 9 No. 2022AP652

¶13 The circuit court concluded that termination of A.G.'s

parental rights was in the child's best interest. Twice, the

court referred to the clear and convincing standard. In

summarizing the testimony of the family case manager, the court

characterized the testimony as "clear, convincing, satisfactory

evidence to a reasonable certainty." Moments later, the court

reiterated "[t]hat's clear, convincing, satisfactory evidence to

a reasonable degree of certainty more or less. I don't think

there's case law that assigns a particular percentage to that

standard, and I'm not either." Continuing, the court said

"[the] testimony was excellent. . . . [The family case

manager]'s incredibly honest, and incredibly insightful." At

some points, the court used language indicative of a lower

standard, e.g., "in balance, I do have to find that this

termination is in the best interest of . . . [the child]."

¶14 Post disposition, A.G. filed a motion for plea

withdrawal, which the circuit court denied without taking

evidence. The court reasoned A.G. did not identify a defect in the plea colloquy and therefore was not entitled to an

evidentiary hearing. To the extent the colloquy did not convey

potential dispositions, the court determined the lengthy

discussion of potential dispositions at the adjourned initial

appearance satisfied any requirement. Additionally, the court

noted it "actually did use a clear and convincing standard when

it assessed whether it thought it was in the child's best

interest to terminate the parental rights."

10 No. 2022AP652

¶15 A.G. appealed. The court of appeals reversed the

circuit court's decision and ordered the cause remanded with

directions to hold an evidentiary hearing. State v. A.G.,

No. 2021AP1476, unpublished slip op., ¶1 (Wis. Ct. App. Feb. 15,

2022). The court of appeals concluded that "A.G. was not

advised of the potential dispositions at the plea hearing" and

had "alleged he did not understand the potential dispositions,"

so he was entitled to an evidentiary hearing. Id., ¶12. The

court did not reconcile its conclusion with the circuit court's

statement during the plea colloquy that "[t]he second half of

this case is where the [c]ourt decides is it in the child's best

interest to in fact terminate your parental rights." The court

of appeals also concluded the circuit court needed to take

evidence regarding A.G.'s second argument. Id., ¶16. It

concluded the circuit court erred in suggesting A.G. would "have

all those same trial rights today for that second half" because

"[t]here is not a burden of proof placed on the State" at

disposition. Id., ¶17 (citing Wis. Stat. § 48.426(2) (2019– 20)). The court of appeals never considered how the State

actually satisfying the clear and convincing standard might

affect the analysis.

¶16 On remand, the circuit court held an evidentiary

hearing. A.G. did not appear.3 The hearing proceeded and the

court reviewed the record. In a written decision, the court

3The State and the GAL argue A.G. should have been held in default for not appearing. We need not and therefore do not address this issue.

11 No. 2022AP652

denied the motion, first noting A.G. had been informed during

the plea colloquy that "at the disposition, the [c]ourt simply

decides if it is in the child's best interest to terminate." It

also noted A.G. "had previously been informed of the potential

outcomes" at the adjourned initial appearance. Importantly, the

court found A.G.'s testimony at the dispositional hearing showed

he "understood" the potential dispositions. The court also

reasoned, "[t]hroughout the disposition, the [c]ourt appears to

have applied both the preponderance and the clear and convincing

standards." Accordingly, it reasoned, A.G. "was not

prejudiced[.]"

¶17 A.G. appealed, and the court of appeals reversed the

circuit court's decision, ordering the cause remanded with

directions to allow A.G. to withdraw his plea. A.G. II,

No. 2022AP652, ¶1. In the court of appeals' view, the State

lacked evidence establishing the validity of the plea. Id.,

¶25.

II. STANDARD OF REVIEW ¶18 This court generally considers precedent regarding

plea withdrawal in the context of criminal cases to be

persuasive authority regarding TPR proceedings. See Waukesha

County v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607

N.W.2d 607 (citation omitted), modified on other grounds by St.

Croix. Cnty. Dep't of Health & Hum. Servs. v. Michael D., 2016

WI 35, ¶¶3–4, 368 Wis. 2d 710, 880 N.W.2d 107. In a criminal

case, this court accepts the circuit court's findings of historical fact unless they are clearly erroneous. Brown, 293 12 No. 2022AP652

Wis. 2d 594, ¶19 (citing Trochinski, 253 Wis. 2d 38, ¶16). It

then independently determines whether those facts demonstrate

that the plea was knowing, intelligent, and voluntary. Brown,

293 Wis. 2d 594, ¶19 (citing Trochinski, 253 Wis. 2d 38, ¶16).

That same standard of review applies in this case. See Steven

H., 233 Wis. 2d 344, ¶42.

III. ANALYSIS

¶19 A.G. argues he did not knowingly, voluntarily, and

intelligently plead no contest as required by well-established

precedent. See Kenosha Cnty. Dep't Health Servs. v. Jodie W.,

2006 WI 93, ¶24, 293 Wis. 2d 530, 716 N.W.2d 845 (citing State

v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986)). "A

parent's interest in the parent-child relationship and in the

care, custody, and management of his . . . child is recognized

as a fundamental liberty interest protected by the Fourteenth

Amendment [to the United States Constitution]." Steven V. v.

Kelly H., 2004 WI 47, ¶22, 271 Wis. 2d 1, 678 N.W.2d 856 (citing

Santosky v. Kramer, 455 U.S. 745, 753 (1982)). A parent who enters a no contest plea waives several important procedural

rights meant to safeguard this liberty interest, which is why

such a plea must satisfy the aforementioned standard. See Brown

Cnty Dep't Hum. Servs. v. Brenda B., 2011 WI 6, ¶34, 331

Wis. 2d 310, 795 N.W.2d 730 (citing Jodie W., 293 Wis. 2d 530,

¶25).

¶20 This court has established a burden-shifting scheme

for TPR plea withdrawals. First, a parent must demonstrate the circuit court failed to conduct the plea colloquy in accordance 13 No. 2022AP652

with Wis. Stat. § 48.422 or failed to satisfy another mandatory

duty. Id., ¶36 (citing Steven H., 233 Wis. 2d 344, ¶42). The

parent must also allege he "did not know or understand the

information that should have been provided[.]" Id. (citing

Steven H., 233 Wis. 2d 344, ¶42). If the parent satisfies his

burden, the circuit court is generally required to hold an

evidentiary hearing. See Brown, 293 Wis. 2d 594, ¶40 (citing

Bangert, 131 Wis. 2d at 274). The State must demonstrate by

clear and convincing evidence that the plea was entered

knowingly, voluntarily, and intelligently despite the defective

colloquy.4 Brenda B., 331 Wis. 2d 310, ¶36 (citing Steven H.,

233 Wis. 2d 344, ¶42). While a plea's validity is based on the

parent's understanding at the time the plea was entered, events

before and after the plea can inform a court's analysis. See

State v. Finley, 2016 WI 63, ¶44, 370 Wis. 2d 402, 882

N.W.2d 761; Bangert, 131 Wis. 2d at 274–75.

¶21 We assume A.G. satisfied his burden. First, the court

of appeals determined A.G. demonstrated the plea colloquy was defective; therefore, it ordered the circuit court to hold an

evidentiary hearing. Second, the circuit court acknowledged it

imposed a burden of proof at disposition——even though no such

burden exists. We therefore consider whether the State proved

4 The GAL argues the circuit court should be allowed to look at the full record in determining whether a parent has made a "prima facie case" for plea withdrawal. We do not address this issue because an evidentiary hearing was held in this case.

14 No. 2022AP652

by clear and convincing evidence that A.G.'s plea was validly

entered.

¶22 Notwithstanding our assumption, we nevertheless

examine the plea colloquy because A.G. grounds his arguments in

potential errors during it. Understanding whether the record as

a whole refutes his arguments requires scrutinizing the

colloquy.

¶23 Wisconsin Stat. § 48.422(7)(a) provides: "Before

accepting an admission of the alleged facts in a [TPR] petition,

the [circuit] court shall: (a) Address the parties present and

determine that the admission is made voluntarily with

understanding of the nature of the acts alleged in the petition

and the potential dispositions." We assume a no contest plea is

"an admission of the alleged facts[.]" § 48.422(7). A.G. does

not argue the court failed to determine that he understood the

acts alleged in the petition——he argues the court failed to

inform him of potential dispositions. Although this statute

requires a circuit court to "determine" that a no contest plea is entered "with understanding" of "the potential dispositions,"

it does not require specific words be used. The statute also

does not mention a burden of proof at disposition; however, the

court of appeals has held:

[I]n order for the court's explanation of potential dispositions to be meaningful to the parent, the parent must be informed of the statutory standard the court will apply at the second stage. That is, the court must inform the parent that "[t]he best interests of the child shall be the prevailing factor

15 No. 2022AP652

considered by the court in determining the disposition[.]" Oneida Cnty. Dep't of Soc. Servs. v. Therese S., 2008 WI App

159, ¶16, 314 Wis. 2d 493, 762 N.W.2d 122 (quoting Wis. Stat.

§ 48.426(2) (2005–06)) (second modification in the original).

A. A.G. Understood His Parental Rights Could Be Terminated.

¶24 In this case, the circuit court seemingly informed

A.G. of potential dispositions as required by Wis. Stat.

§ 48.422(7)(a). During the plea colloquy, the circuit court

explicitly explained "[t]he second half of the case is where the

[c]ourt decides is it in the child's best interest to in fact

terminate your parental rights." Essentially, A.G. contends the

colloquy was defective because the court did not specify that

"[t]he second half of the case is where the [c]ourt decides is

it in the child's best interest to in fact terminate your

parental rights or not." The omission of "or not," A.G. claims,

makes the court's statement "somewhat ambiguous" by failing to

explicitly say the court must make an "either/or" decision:

either terminate the parental rights or dismiss the TPR petition. A.G. claims he may have mistakenly believed the court

at disposition could order something between terminating

parental rights and dismissing the petition.

¶25 At oral argument, A.G.'s counsel clarified A.G.'s

position regarding the content of the plea colloquy on potential

dispositions:

THE COURT: Which disposition did the court not review?

16 No. 2022AP652

A.G.'s COUNSEL: . . . [S]o at the plea hearing in this case, what the court said to A.G. is that during the disposition phase "the [c]ourt decides is it in the child's best interest to in fact terminate your parental rights." I don't believe that statement conveys the potential dispositions in a TPR case. That statement does not convey to the parent that the court has two options. And those options are basically all or nothing. Either the court terminates the parent's right or the court dismisses the petition. And the court did not specifically tell A.G. that those were the only two options that it had under the statute.

THE COURT: This feels like magic words to me. . . . It feels like you're asking circuit court judges to say magic words, to thread a needle with a really small eye. . . . I just feel like your argument really has a lot of like, if the court doesn't say these exact words, then there's no way the parent could understand what's happening . . . .

A.G.'s COUNSEL: . . . . [W]hat the court said here left it somewhat ambiguous. . . . [A] parent hearing what the court said here could think that potentially there's some middle ground disposition where the court hears all the testimony and evidence at disposition and the court makes a decision to just hold this open for a length of time to let the parent . . . get their life back on track.

THE COURT: So what do you want us to do about it? . . . . In an opinion, what are you asking us to say? That courts

17 No. 2022AP652

must list out, "I'm going to decide (1) whether your rights will be terminated; or (2) whether they will not be?"

A.G.'s COUNSEL: I believe there's cases interpreting the options that the court has indicating that a court has to tell a parent that it has to make one of two decisions in the case, terminate or dismiss the petition.

THE COURT: [I]f the court says, "there are two potential dispositions, grant the petition to terminate your parental rights or not grant your petition to terminate parental rights," that's not sufficient?

A.G.'s COUNSEL: No, I think that seems sufficient because its putting the case into the two options[.] ¶26 A.G.'s argument seems to be anchored in a misreading

of Oneida County Department of Social Services v. Therese S.,

314 Wis. 2d 493. In that case, the court of appeals held, "a

court must inform the parent that at the second step of the

process, the court will hear evidence related to the disposition

and then will either terminate the parent's rights or dismiss

the petition if the evidence does not warrant termination."

Id., ¶16. In reply, the State references Brown County

Department of Human Services v. Brenda B., 331 Wis. 2d 310. In

that case, while discussing Therese S., this court held "the

parent must be informed of the two independent dispositions

available to the circuit court. That is, the court may decide between dismissing the petition and terminating parental

18 No. 2022AP652

rights." Id., ¶56. A.G. argues the colloquy was defective

because the circuit court did not precisely inform him of the

two "independent dispositions." See id.

¶27 A.G. places far too much weight on a single sentence

from Therese S., and he does not address Brenda B at all. In

Brenda B., the circuit court used the language A.G. would

require of all circuit courts, specifically, "I can either grant

the petition to terminate your parental rights or dismiss the

petition to terminate your parental rights." Id., ¶12. This

court deemed that statement sufficient, distinguishing it from

an insufficient explanation in Therese S., in which the circuit

court said, "[you're] admitting the grounds for termination but

still leaving open the question as to what's gonna happen, the

disposition. . . . [I]t hasn't been decided yet what we're

going to do. Your termination is not actually entered today.

We have more work to do to decide what to do." Id., ¶54

(quoting Therese S., 314 Wis. 2d 493, ¶14). The circuit court's

statement in A.G.'s case is more like the sufficient statement from Brenda B. because it informed A.G. that at disposition the

court may decide to terminate A.G.'s parental rights, or, by

negative implication, may decide not to terminate his rights.

"[I]s it in the child's best interest to in fact terminate your

parental rights" strongly implies a binary, yes/no, either/or

decision. The court described the dispositional options for

A.G. with greater clarity than in Therese S., in which that

court rather vaguely communicated that an unspecified disposition would be forthcoming after additional work. 19 No. 2022AP652

¶28 In Brenda B., this court emphasized that a circuit

court need not "inform parents in detail of all potential

outcomes" because that requirement would be "unduly burdensome"

and potentially "confuse or mislead rather than . . . inform."

Id., ¶¶55–56 (quoting Therese S., 314 Wis. 2d 493, ¶17).

Although this court said "the parent must be informed of the two

independent dispositions available to the circuit court," this

court never suggested that a failure to state the potential

dispositions in explicit either/or terminology would

automatically render a plea colloquy defective. Id., ¶56.

Imposing such a requirement would conflict with our longstanding

rejection of requiring circuit courts to utter "magic words" to

satisfy statutory commands.

¶29 "Magic words" is a colloquial phrase in legal parlance

describing a party's request to prioritize form over substance.

This court strongly disfavors magic words. See, e.g., State v.

Lepsch, 2017 WI 27, ¶36, 374 Wis. 2d 98, 892 N.W.2d 682

(rejecting in the context of a circuit court inquiring about juror bias); State v. Wantland, 2014 WI 58, ¶33, 355

Wis. 2d 135, 848 N.W.2d 810 (rejecting in the context of

withdrawing consent under the Fourth Amendment to the United

States Constitution). In Brenda B., this court rejected the

parent's argument that the plea colloquy was defective for not

explicitly informing the parent that the parent was waiving a

"constitutional" right: "the [circuit] court need not explain

that the right to parent is a constitutional right. What is important is that the parent understands the import of the 20 No. 2022AP652

rights at stake rather than the source from which they are

derived." 331 Wis. 2d 310, ¶46. In this case, the record

confirms A.G. understood the "stake[s]."

¶30 Based on the foregoing, we doubt the plea colloquy was

defective for not explicitly explaining the two potential

dispositions. We need not, however, make that call. The

procedural posture of this case allows for a narrower holding.

The circuit court held an evidentiary hearing and found A.G.

understood potential dispositions based on his testimony at the

dispositional hearing, which was conducted the day after the

plea colloquy. The court's finding is not clearly erroneous;

therefore, we accept it as true. See Brown, 293 Wis. 2d 594,

¶19 (citing Trochinski, 253 Wis. 2d 38, ¶16). Additionally, the

court noted the thorough overview of TPR proceedings the court

had provided at the adjourned initial appearance predating the

plea colloquy. During the colloquy, both A.G. and his counsel

represented to the court that A.G. was entering the plea

knowingly, voluntarily, and intelligently. ¶31 Although not relied upon by the circuit court, during

the plea colloquy A.G. confirmed he read the TPR petition, which

made exceedingly clear that his parental rights were at stake.

In State v. Taylor, a criminal defendant was told he faced a

potential six-year term of imprisonment if he pled, when in fact

he faced a total of eight years. 2013 WI 34, ¶¶2, 38–39, 347

Wis. 2d 30, 829 N.W.2d 482. He was sentenced to six years after

pleading no contest. Id., ¶3. This court held, "on this record, a failure to discuss the additional two-year repeater 21 No. 2022AP652

penalty enhancer at the plea hearing is an insubstantial

defect." Id., ¶34. The court emphasized, "[t]he record is

replete" with evidence that the defendant "was aware" of the

potential term of imprisonment, largely based on a complaint

filed on May 8, 2009, which the defendant said he read and

understood during the plea colloquy on August 23, 2010. Id.,

¶¶35–39. This court reasoned, "[t]o conclude that Taylor was

not aware of the maximum eight-year term of imprisonment, we

would have to assume . . . . that Taylor misrepresented to the

court that he had received, read, and understood the

complaint[.]" Id., ¶39. We presume A.G. answered truthfully

when he said he read the TPR petition, which is titled:

"Petition for Termination of Parental Rights[.]"

¶32 Additionally, A.G. confirmed during the plea colloquy

that he had spoken with his counsel about the plea. The court

then asked if A.G. had any questions, to which A.G. responded,

"[n]o, I do not." A.G. also denied needing more time to think

about his decision. In his concurrence in Taylor, Justice David T. Prosser noted, "[t]here is a very high likelihood

that . . . [the defendant]'s attorney . . . explained the

meaning of eight years of imprisonment[.]" Taylor, 347

Wis. 2d 30, ¶83 n.5 (Prosser, J., concurring). Similarly, it is

improbable A.G.'s counsel neglected to tell A.G. that his

parental rights could be terminated. We reject A.G.'s first

argument because the record as a whole, before the plea

22 No. 2022AP652

colloquy, during the colloquy, and after, confirms A.G.

understood the potential dispositions when he entered his plea.5

5 The point the concurrence tries to make is unclear, considering its analysis of A.G.'s first argument mirrors our own. We "assume" A.G. made a prima facie case. Supra, ¶21. So does the concurrence but it "add[s]" a "caveat": "[t]he briefing on this point was not especially helpful. With the benefit of fuller assistance from the parties, it may be that our hands are tied in some way." See Concurrence, ¶¶42, 43 n.1. We then state the issue as follows: "whether the State proved by clear and convincing evidence that A.G.'s plea was validly entered." Supra, ¶21. The concurrence introduces the issue using nearly identical language: "whether the State demonstrated by clear and convincing evidence that the plea was knowing, voluntary, and intelligent." Concurrence, ¶42. Both opinions express skepticism that an error occurred in the colloquy. Compare supra, ¶30 ("[W]e doubt the plea colloquy was defective for not explicitly explaining the two potential dispositions."), with concurrence, ¶43 n.1 ("[O]n both issues, the evidence of a facial deficiency in the plea colloquy was weak at best[.]"). Both opinions examine the full record and determine A.G.'s first issue is without merit. See concurrence, ¶44 ("The lead opinion recites additional evidence from the record both before and after the plea that I agree may be considered. This evidence erases any doubt that the potential dispositions were sufficiently communicated, and by implication, sufficiently understood, when A.G. entered his plea."). Inexplicably, the concurrence rationalizes its unwillingness to join this opinion's analysis on the first issue by complaining about "inconsistencies" it never identifies.

The concurring justices disserve the people of Wisconsin by blocking a clean precedential decision on A.G.'s first argument without cause. Arguments analogous to A.G.'s are recurring in Wisconsin; our guidance in this important area of law is needed. See generally State v. S.S., Nos. 2022AP1179 & 2022AP1180, unpublished slip op., ¶19 (June 7, 2023) ("Relying on Therese S., S.S. asserts that the circuit court's colloquy must convey to the parent that there are only two legal outcomes at a dispositional hearing: termination of parental rights or dismissal of the TPR petitions."). Not a single justice who refuses to join any portion of this opinion even attempts to point out any flaw in our analysis of A.G.'s first argument; nevertheless, only one justice joins it. See dissent, ¶55 ("I focus solely on A.G.'s second argument[.]"). "[I]t is this 23 No. 2022AP652

B. Assuming A.G.'s Reading of the Plea Colloquy Is Reasonable, the Burden of Proof Error Was an Insubstantial Defect. ¶33 We also reject A.G.'s second argument regarding the

burden of proof at the dispositional hearing.6 As a preliminary

court's function to develop and clarify the law." State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (Wis. 1988) (citations omitted). "Part of our obligation as supreme court justices is to take complicated legal issues and decide them in a way that simplifies and explains them." State v. Branter, 2020 WI 21, ¶42, 390 Wis. 2d 494, 939 N.W.2d 546 (Roggensack, C.J., concurring). The concurrence does not fulfill this obligation. If a justice deprives the public of clear precedent, a straightforward, coherent explanation of why is warranted. Doing so not only serves the public but facilitates a resolution of any disagreements for the purpose of establishing clear precedent. We do not sit as seven courts of one but as one court of seven (or in this case six). See, e.g., Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57, ¶3, 403 Wis. 2d 1, 976 N.W.2d 263. 6The concurrence contradicts itself in analyzing A.G.'s second argument. First, the concurrence says: "Procedurally, the question before us concerns step two: whether the State demonstrates by clear and convincing evidence that the plea was knowing, voluntary, and intelligent. This is because the court of appeals previously determined A.G. made the prima facie showing and was therefore entitled to an evidentiary hearing." Concurrence, ¶42 (citing State v. A.G., No. 2021AP1476, unpublished slip op., ¶21 (Wis. Ct. App. Feb. 15, 2022)). Next, the concurrence asserts, "A.G.'s argument rests on the premise that the most reasonable reading . . . [of the colloquy transcript] is that the circuit court communicated a clear and convincing evidence burden of proof would apply at the disposition. But the circuit court never said that." Id., ¶47. If the circuit court "never said that," then A.G. did not make a prima facie case. Although on the first issue we express skepticism as to whether A.G. made a prima facie case, we do not resolve the issue because there is no need to do so. Considering the record as a whole avoids the inconsistencies undermining the analysis set forth in the concurrence, which confusingly considers "step two" notwithstanding the concurrence's implication that A.G. never made a prima facie case. Additionally, the concurrence cites no authority for the proposition that A.G.'s reading needs to be "the most reasonable." Finally, A.G.'s reading of the colloquy, in light 24 No. 2022AP652

matter, A.G. correctly argues Wis. Stat. § 48.426(2) does not

impose a burden on the State to prove that termination is in the

child's best interests.7 The statute provides only that "[t]he

best interests of the child shall be the prevailing factor

considered by the court in determining the disposition of all

proceedings under this subchapter." § 48.426(2). We are

unaware of any Wisconsin decision analyzing whether the evidence

regarding the best interests of the child must meet a particular

burden. See State v. L.J., Nos. 2017AP1225, 2017AP1226 &

2017AP1227, unpublished slip op. ¶21 (Wis. Ct. App. May 1, 2018)

of the entire record, appears pretty reasonable considering the circuit court referenced the clear and convincing standard at disposition and later acknowledged it in fact applied that standard.

The dissent claims "[t]his is a debatable conclusion." 7

Dissent, ¶58 n.3. It cites three foreign state supreme court decisions, one of which merely noted, "the clear and convincing standard might be constitutionally mandated" at disposition. See B.T.B. v. V.T.B., 472 P.3d 827, 838 n.11 (Utah 2020) (emphasis added). The dissent also quotes a South Dakota Supreme Court decision, which misquoted a United States Supreme Court decision, Santosky v. Kramer, as follows: "The trial court must find by 'clear and convincing evidence that termination of parental rights is in the best interests of the child.'" In re D.H., 354 N.W.2d 185, 188 (S.D. 1984) (attributing the quote to Santosky v. Kramer, 455 U.S. 745 (1982); citing In re S.L., 349 N.W.2d 428 (S.D. 1984); In re S.H., 323 N.W.2d 851 (S.D. 1982)). That quote does not appear in Santosky. The South Dakota decision placed two other decisions in the string citation, but neither of those decisions contain the quote either. The dissent also cites a nearly two- decade old student-authored law review comment. See Brian C. Hill, Comment, The State's Burden of Proof at the Best Interests Stage of a Termination of Parental Rights, 2004 U. Chi. Legal Forum 557, 576–84. A Westlaw search reveals this comment has never been cited in a legal opinion.

25 No. 2022AP652

("L.J. identifies no case in which a determination of the best

interests of the child has been analyzed in terms of whether the

burden of proof has been satisfied. . . . The legislature

imposed no burden of proof in the statute, and the determination

of the child's best interests does not turn on distinctions

between levels of proof."). The "polestar" at a dispositional

hearing is simply the best interests of the child. Brenda B.,

331 Wis. 2d 310, ¶33 (quoting Sheboygan Cnty. Dep't of Health &

Hum. Servs. v. Julie A.B., 2002 WI 95, ¶30, 255 Wis. 2d 170, 648

N.W.2d 402).

¶34 Regardless, A.G.'s second argument fails under Taylor,

347 Wis. 2d 30 (majority op.). Although this court emphasized

the defendant knew, based on the record, that he faced eight

years, it also emphasized, "in any event, . . . [the defendant]

was verbally informed by the court at the plea hearing of the

sentence that he actually received. . . . [The]

sentence . . . did not exceed the six-year term of imprisonment

that the court, at the plea hearing, specifically informed him that he could receive." Id., ¶¶39, 42; see also id., ¶28 ("[A]t

the plea hearing, the circuit court verbally informed . . . [the

defendant] of the six-year term of imprisonment to which he was

ultimately sentenced. As a result, . . . [the defendant]'s plea

was entered knowingly, intelligently, and voluntarily, and it

was not a violation of . . . [the defendant]'s due process

rights to deny his motion to withdraw his no contest plea.");

id., ¶52 ("[T]he circuit court informed . . . [the defendant] that he could receive a maximum term of imprisonment of six 26 No. 2022AP652

years. . . . [The defendant] received a six-year term of

imprisonment. In other words, . . . [the defendant] received a

sentence that he was verbally informed he could receive.").

¶35 In Taylor, quoting an earlier decision of this court,

this court explained that "[r]equiring an evidentiary hearing

for every small deviation from the circuit court's duties during

a plea colloquy is simply not necessary for the protection of a

defendant's constitutional rights." Id., ¶33 (quoting State v.

Cross, 2010 WI 70, ¶32, 326 Wis. 2d 492, 786 N.W.2d 64). As

noted in that earlier decision, not every "insubstantial

defect[]"——i.e., technical legal error——renders a plea invalid.

Cross, 326 Wis. 2d 492, ¶32.

¶36 Like the defendant in Taylor, A.G. received what the

circuit court told him he would receive; the State was held to a

burden of proof the law does not require, but the State met that

burden. At disposition, the court explicitly referenced the

clear and convincing standard. In denying the motion for plea

withdrawal without an evidentiary hearing, the court explained, "[t]he [c]ourt actually did use a clear and convincing standard

when it assessed whether it thought it was in the child's best

interest to terminate the parental rights." After the

evidentiary hearing, the court noted in its written decision

that it seems to have held the State to both a clear and

convincing and a preponderance of the evidence standard.

Regardless, the court emphasized the State satisfied the higher

clear and convincing standard, as expressed in the dispositional hearing transcript. The mere fact the court also stated "in 27 No. 2022AP652

balance" termination was in the best interests of the child does

not show the court applied a burden lower than clear and

convincing evidence. A.G. was not inhibited from weighing the

pros and cons of entering this particular no contest plea by

being told the State would have to satisfy a particular burden

of proof because the State was actually held to and did satisfy

that burden.8

¶37 Our holding regarding the burden of proof argument

presupposes that events subsequent to the plea colloquy can

illuminate whether a plea was entered knowingly, voluntarily,

and intelligently. In State v. Finley, this court explained the

State "bore the burden of proving, by clear and convincing

8The dissent complains we are "importing a harmless error standard[.]" Dissent, ¶70. Not so. Although the dissent mischaracterizes our holding as "A.G. did not know the statutory standard that applies at the dispositional phase," id., we actually hold he did know the standard this particular circuit court would apply——because the court applied the standard it said it would. Accordingly, as in Taylor, the error did not render the plea unknowing, unintelligent, or involuntary. 2013 WI 34, ¶¶41–42, 347 Wis. 2d 30, 829 N.W.2d 482. A harmless error analysis would instead consider whether and to what extent the information provided at the plea colloquy caused A.G. to enter a plea he would not otherwise have entered. Cf. State v. Barnes, 2023 WI 45, ¶29, __ Wis. 2d __, 990 N.W.2d 759. We do not hold that A.G. would surely have entered a no contest plea regardless of the information he received during the plea colloquy.

Due process is not a game of gotcha to be sprung on the State. A.G. benefitted from the circuit court holding his opponent, the State, to a burden of proof the law did not require the State to meet. A.G. claims he considered this when weighing the pros and cons of pleading. To permit him to withdraw his plea at this stage would make a mockery of a very serious TPR proceeding.

28 No. 2022AP652

evidence," that a criminal defendant "knew the potential

punishment he faced . . . at the time of the plea acceptance."

370 Wis. 2d 402, ¶44 (emphasis added). Our holding in this case

is consistent with Finley. A.G. claims he knew, at the time of

the plea acceptance, the State would be required to satisfy the

clear and convincing standard. The State was then held to that

standard even though it did not apply. The error could have

been consequential, but it became insubstantial when the circuit

court actually held the State to the clear and convincing

standard. Given this subsequent development, A.G.'s knowledge

at the time of the plea permitted him to accurately weigh the

pros and cons of entering this specific plea. However he

calculated the odds of a favorable outcome at disposition, to

the extent his calculation depended on the State being held to

the clear and convincing standard, he calculated correctly. Had

the State not satisfied this burden and the circuit court

nonetheless terminated A.G.'s parental rights, we might have a

different case.9

The dissent contends this court in Finley held Taylor has 9

no relevance as applied to cases in which an evidentiary hearing was held. Dissent, ¶67. A fair reading of Finley does not support the dissent's assertion.

In Finley, a criminal defendant was told the maximum statutory punishment was lower than it actually was and then sentenced to more time than he was told he would face. 2016 WI 63, ¶10, 370 Wis. 2d 402, 882 N.W.2d 761. The question facing this court was one of remedy: the State argued the sentence should be commuted, but the defendant sought plea withdrawal. Id., ¶¶9–10. After an evidentiary hearing, the State conceded the defendant "did not know the potential punishment he faced 29 No. 2022AP652

IV. CONCLUSION

¶38 We hold that A.G. knowingly, voluntarily, and

intelligently pled no contest to the continuing CHIPS ground for

terminating his parental rights. The circuit court found A.G.

demonstrated he understood potential dispositions through his

testimony at the dispositional hearing, which was conducted one

day after the plea colloquy. Based on the record, the court's

findings are not clearly erroneous. Although the court

mistakenly imposed a clear and convincing evidentiary burden on

the State in determining whether terminating A.G.'s parental

rights was in the child's best interests, the court actually

held the State to that burden and concluded it was met. The

court's mistake therefore was an insubstantial defect. The

court of appeals erred in permitting A.G. to withdraw his plea.

when he entered his plea." Id., ¶85. This court held the defendant was entitled to withdraw his plea. Id., ¶95.

Although this court in Finley noted that "no evidentiary hearing was needed" in Taylor, it did not suggest Taylor has no bearing on a case in which one has been held. See id., ¶84. If Finley does stand for the proposition the dissent suggests, it is simply wrong. See id., ¶153 (Ziegler, J., dissenting) ("There is a principle present in . . . Taylor——namely, that incorrect or insufficient knowledge about an aspect of a plea does not necessarily invalidate the entire plea[.]").

In this case, an evidentiary hearing was held, in which the circuit court reiterated that it actually applied the clear and convincing standard, which has facilitated our review. The mere fact that one was held, however, does not render the defect somehow more serious; rather, the record of the evidentiary hearing demonstrates why the defect was insubstantial.

30 No. 2022AP652

By the Court.——The decision of the court of appeals is

reversed.

31 No. 2022AP652.bh

¶39 BRIAN HAGEDORN, J. (concurring). A.G. argues that

the no-contest plea he entered in his termination of parental

rights (TPR) proceeding was not knowing, voluntary, and

intelligent for two independent reasons. First, he asserts the

circuit court failed to advise him of the possible dispositions

that it could enter after accepting his plea. Second, A.G.

contends the circuit court failed to explain the statutory

standard it was required to apply at the dispositional phase of

the TPR proceeding. Neither argument wins the day.

¶40 Contested TPR proceedings involve a two-step process:

(1) a fact-finding hearing to determine if "grounds exist for

the termination of parental rights," and (2) the dispositional

hearing where the circuit court determines whether the rights

should in fact be terminated. See Wis. Stat. §§ 48.424, 48.427.

Here, A.G. pled no-contest that grounds existed to terminate his

parental rights. On appeal, he contends that his plea at the

grounds phase was not knowing, voluntary, and intelligent based

on what he was told (or not told) about the dispositional hearing.

¶41 We analyze whether A.G. can withdraw his plea

utilizing a two-step process. Waukesha County v. Steven H.,

2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607, modified on

other grounds by St. Croix Cnty. Dep't of Health & Hum. Servs.

v. Michael D., 2016 WI 35, ¶¶3-4, 368 Wis. 2d 170, 880

N.W.2d 107. First, the parent "must make a prima facie showing

that the circuit court violated its mandatory duties and he must allege that in fact he did not know or understand the

1 No. 2022AP652.bh

information that should have been provided at the" hearing. Id.

This prima facie showing will generally focus on the plea

colloquy itself to determine whether certain requirements were

not followed. See State v. Clark, 2022 WI 21, ¶¶13-16, 401

Wis. 2d 344, 972 N.W.2d 533 (explaining the defendant's burden).

Second, if the defendant makes this showing, the burden shifts

to the State to demonstrate by clear and convincing evidence

that even given the facial deficiencies, the parent's plea was

knowing, voluntary, and intelligent. Steven H., 233

Wis. 2d 344, ¶42. This usually involves the consideration of

additional evidence at a hearing. State v. Hoppe, 2009 WI 41,

¶47, 317 Wis. 2d 161, 765 N.W.2d 794. At this stage, the

circuit court considers all new evidence along with "the entire

record" to ascertain if the parent's plea was knowing,

voluntary, and intelligent. Steven H., 233 Wis. 2d 344, ¶42.

¶42 Procedurally, the question before us concerns step

two: whether the State demonstrated by clear and convincing

evidence that the plea was knowing, voluntary, and intelligent. This is because the court of appeals previously determined A.G.

made the prima facie showing and was therefore entitled to an

evidentiary hearing. State v. A.G. (A.G. I), No. 2021AP1476,

unpublished slip op., ¶21 (Wis. Ct. App. Feb. 15, 2022). The

State did not challenge this decision, and the case was remanded

back to the circuit court for a hearing. That's when the case

transformed into something of a unicorn. A.G. did not appear at

the scheduled evidentiary hearing, so neither his testimony nor any other testimony was introduced. Instead, the State moved

2 No. 2022AP652.bh

into evidence all the transcripts in the case and relied on the

transcripts alone to argue that it had proven A.G.'s plea was

knowing, voluntary, and intelligent. The circuit court

concluded the State satisfied its burden, but the court of

appeals reversed and remanded with instructions to permit A.G.

to withdraw his plea. State v. A.G. (A.G. II), No. 2022AP652,

unpublished slip op., ¶25 (Wis. Ct. App. July 12, 2022). We

granted review of this second appeal.

¶43 Our review involves an examination of substantially

the same transcript evidence that the court of appeals had when

it concluded A.G. made the initial prima facie case. But at

this stage, we must independently determine whether the plea was

knowing, voluntary, and intelligent. Hoppe, 317 Wis. 2d 161,

¶45. Thus, even though the court of appeals may have had much

of the same evidence available to it when it determined A.G.

made a prima facie case, our standard of review suggests we can

come to a different legal conclusion when conducting our

independent analysis under step two.1

I add one caveat to this conclusion, however. 1 The briefing on this point was not especially helpful. With the benefit of fuller assistance from the parties, it may be that our hands are tied in some way.

The dissent seems to think so when it employs a law-of-the- case rationale to A.G.'s second argument. But on both issues, the evidence of a facial deficiency in the plea colloquy was weak at best, and the broader plea withdrawal claim even weaker when the full spectrum of evidence in a stage two analysis is considered. Given our standard of review, I don't understand why the conclusion that A.G. made a prima facie case——reached by a lower court in a different appeal focusing primarily on the plea colloquy alone——should transform into a binding conclusion for a higher court considering more evidence and conducting an independent review of whether the State met its burden. 3 No. 2022AP652.bh

¶44 Turning to this analysis, A.G. first contends the

circuit court failed to advise him of the possible dispositions

of the proceeding consistent with Wis. Stat. § 48.422. See

§ 48.422(7)(a) (providing the circuit court must "determine that

the admission is made voluntarily with understanding

of . . . the potential dispositions"). And to enter a knowing,

voluntary, and intelligent plea the defendant must be informed

that the court can either dismiss the petition or terminate

parental rights. See Brown Cnty. Dep't of Hum. Servs. v. Brenda

B., 2011 WI 6, ¶56, 331 Wis. 2d 310, 795 N.W.2d 730; see also

Wis. Stat. § 48.427(2), (3). As I read the record, the circuit

court did so when it said that during the dispositional phase,

it would decide if it was "in the child's best interest to in

fact terminate [A.G.'s] parental rights." The lead opinion

recites additional evidence from the record both before and

after the plea that I agree may be considered. This evidence

erases any doubt that the potential dispositions were

sufficiently communicated, and by implication, sufficiently understood, when A.G. entered his plea. Accordingly, I conclude

the State proved by clear and convincing evidence that A.G.'s

plea was knowing, voluntary, and intelligent with respect to the

possible dispositions of the TPR proceeding.

The lead opinion is equally unclear. While it seems to agree we can come to an independent conclusion on A.G.'s first argument, it criticizes this opinion for applying the same analytical approach to A.G.'s second argument. Given the inconsistencies in the lead opinion and the potential for confusion, I do not join its analysis.

4 No. 2022AP652.bh

¶45 A.G. also argues the circuit court failed to explain

the statutory standard it was required to apply to the

dispositional phase. Wisconsin Stat. § 48.422 does not directly

require disclosure of this standard when the circuit court

accepts a no-contest plea. However, a published court of

appeals decision states that "the parent must be informed of the

statutory standard the court will apply at the second stage" "in

order for the court's explanation of potential dispositions to

be meaningful." Oneida Cnty. Dep't of Soc. Servs. v. Therese

S., 2008 WI App 159, ¶16, 314 Wis. 2d 493, 762 N.W.2d 122.

Wisconsin Stat. § 48.426 states that the standard is the "best

interests of the child"; no burden of proof is specified.

¶46 A.G.'s argument on this point relies on a strained

reading of the record. The circuit court explained during the

plea colloquy for the grounds phase that A.G. would be giving up

a variety of trial rights, including "the right to force the

state to prove the grounds by clear, convincing, and

satisfactory evidence to a reasonable certainty." The circuit court later communicated that during the dispositional phase,

the court would determine whether it is "in the child's best

interest to in fact terminate your parental rights." And in the

dispositional phase, A.G. would still have his trial rights. In

other words, A.G. was not giving up his trial rights in the

dispositional phase by pleading in the grounds phase.

¶47 A.G.'s argument rests on the premise that the most

reasonable reading of this exchange is that the circuit court communicated a clear and convincing evidence burden of proof

5 No. 2022AP652.bh

would apply at the dispositional phase. But the circuit court

never said that. The circuit court merely said that standard

applied "to prove the grounds." When it pivoted to explaining

the dispositional phase, the circuit court followed the

statutory language and explained that it would render a decision

based on the best interests of the child. Sure, the circuit

court could have been a bit more precise. But the record shows

A.G. was informed ten months before entering his plea that in

the second phase of the TPR proceeding, the focus shifted to

what was in the child's best interest. Thus, reviewing the

record independently and as a whole, in the face of A.G.'s

argument that he was incorrectly informed of the statutory

standard governing the dispositional hearing, the State met its

burden to prove by clear and convincing evidence that A.G.'s

plea was knowing, voluntary, and intelligent.2

¶48 For these reasons, I respectfully concur.

¶49 I am authorized to state that Justice JILL J. KAROFSKY

joins this concurrence.

2The lead opinion concludes the same, but rests its conclusion in part on the basis that the circuit court held the State to the clear and convincing standard during the dispositional phase. Like the dissent, I do not understand why that would be relevant to whether the State proved that A.G.'s plea was knowing, voluntary, and intelligent.

6 No. 2022AP652.rfd

¶50 REBECCA FRANK DALLET, J. (dissenting). The

Constitution requires that pleas be knowingly, intelligently,

and voluntarily entered. State v. Bangert, 131 Wis. 2d 246,

257, 389 N.W.2d 12 (1986). Accordingly, when we evaluate

whether a plea met that constitutional standard, we must focus

on what the person entering the plea knew "at the time of the

plea acceptance." See State v. Finley, 2016 WI 63, ¶44, 370

Wis. 2d 402, 882 N.W.2d 761. The lead opinion fails at this

basic task, focusing instead on what A.G. knew many months

before entering his plea and on what happened after. Worse yet,

if the lead opinion's approach were adopted, it would upset our

well-settled approach to plea-withdrawal claims in the process.

Because I conclude that A.G. is entitled to withdraw his plea, I

respectfully dissent.

I

¶51 The State petitioned to terminate A.G.'s parental

rights to his daughter. Termination of parental rights (TPR)

cases implicate parents' fundamental right to raise their children, see Santosky v. Kramer, 455 U.S. 745, 753 (1982), and

are thus "among the most consequential of judicial acts,"

involving "'the awesome authority of the State to destroy

permanently all legal recognition of the parental

relationship.'" Steven V. v. Kelley H., 2004 WI 47, ¶21, 271

Wis. 2d 1, 678 N.W.2d 856 (quoting Evelyn C.R. v. Tykila S.,

2001 WI 110, ¶20, 246 Wis. 2d 1, 629 N.W.2d 768). For that reason, numerous statutory and constitutional protections apply

in TPR cases. 1 No. 2022AP652.rfd

¶52 These protections apply at each of the two phases of a

TPR case. The first or "grounds" phase concerns whether one or

more of the statutory grounds for termination of parental rights

enumerated in Wis. Stat. § 48.415(1)-(10) exist. See Kenosha

Cnty. Dep't of Human Servs. v. Jodie W., 2006 WI 93, ¶10 n.10,

293 Wis. 2d 530, 716 N.W.2d 845. At this phase, the

Constitution requires "fundamentally fair procedures," including

a hearing and proof by the State1 of the grounds for termination

by clear and convincing evidence. Santosky, 455 U.S. at 748,

753-54. The second or "dispositional" phase concerns "whether

it is in the child's best interest to terminate parental

rights." Jodie W., 293 Wis. 2d 530, ¶10 n.10. At this phase,

"[t]he parent has the right to present evidence and be heard,"

and if "'the evidence does not warrant the termination of

parental rights,'" then the court may dismiss the petition.

Evelyn C.R., 246 Wis. 2d 1, ¶23 (quoting Wis. Stat.

§ 48.427(2)).

A

¶53 In this case, A.G. pleaded no contest at the grounds

phase, effectively conceding the State's allegation that his

daughter was a child in need of protection or services (CHIPS)——

one of the statutory grounds for termination of parental rights.

See Wis. Stat. § 48.415(2). This was a meaningful concession,

since it meant A.G. was giving up his constitutional right to

Counties may also file TPR petitions, but for simplicity I 1

will refer to the petitioner as the State throughout this opinion.

2 No. 2022AP652.rfd

hold the State to its burden of proving that he was an unfit

parent by clear and convincing evidence. See Evelyn C.R., 246

Wis. 2d 1, ¶22 (explaining that at the grounds phase "the

parent's rights are paramount"). To ensure that he understood

the important rights he was waiving, the circuit court conducted

a colloquy before accepting A.G.'s plea. See Wis. Stat.

§ 48.422(7); see also Brown Cnty. Dep't of Human Servs. v.

Brenda B., 2011 WI 6, ¶34, 331 Wis. 2d 310, 795 N.W.2d 730 ("A

parent who chooses to enter a no contest plea during [the

grounds] phase is giving up valuable protections and must have

knowledge of the rights being waived by making the plea.").

¶54 During that colloquy, the circuit court explained what

it called A.G.'s "trial rights" during the grounds phase. Those

included the right to a trial before the court or a jury to

determine whether grounds to terminate his parental rights

existed. At that trial, the circuit court said "[A.G.] would

have a whole bunch of rights," including: (1) "the right to

force the State to prove the grounds by clear, convincing, and satisfactory evidence to a reasonable certainty;" (2) "the right

of cross-examination of your witnesses;" (3) "the right to

introduce evidence;" (4) "the right to compel witnesses to come

to court and testify;" and (5) "the right to testify . . . or

remain silent, knowing, though, that silence be [sic] used

against you in this kind of case." After A.G. confirmed that he

understood those "trial rights," the circuit court then told

A.G. about the dispositional phase: "[t]he second half of the case is where the [c]ourt decides is it in the child's best

3 No. 2022AP652.rfd

interest to in fact terminate your parental rights." At that

phase, the circuit court said, A.G. would have "all those same

trial rights."

¶55 A.G. argues that there were two defects in this

colloquy. First, he asserts that the circuit court did not

inform him of the two potential outcomes of the dispositional

phase——granting the petition and terminating his parental rights

or dismissing the petition.2 See § 48.422(7)(a) (requiring the

circuit court, before entering a plea, to ensure it is made

"with understanding of . . . the potential dispositions").

Second, A.G. contends that at the time of his plea, the circuit

court did not inform him of the correct statutory standard that

applies at the dispositional phase. See Oneida Cnty. Dep't of

Soc. Servs. v. Therese S., 2008 WI App 159, ¶16, 314

Wis. 2d 493, 762 N.W.2d 122 (holding that before accepting a no-

contest plea to grounds, the circuit court "must inform the

parent that '[t]he best interests of the child shall be the

prevailing factor considered by the court in determining the disposition.'" (quoting Wis. Stat. § 48.426(2))). According to

If the circuit court terminates parental rights, it "may 2

exercise several alternatives for designating custody, guardianship, and care of the child." Brenda B., 331 Wis. 2d 310, ¶52. Nevertheless, the availability of those alternatives depends on the circuit court first determining that termination of parental rights is in the best interests of the child. Id. Accordingly, the circuit court complies with § 48.422(7)(a)'s directive to address "the potential dispositions" so long as it identifies "the two independent dispositions available to the circuit court. That is, the court may decide between dismissing the petition and terminating parental rights." Id., ¶56.

4 No. 2022AP652.rfd

A.G., the correct statutory standard that applies at the

dispositional phase is simply the best interests of the child,

and "Wis. Stat. § 48.426(2) . . . does not set a burden of proof

level." During the plea colloquy, however, the circuit court

indicated that the State would have the burden of proving by

clear and convincing evidence at the dispositional phase that

termination of his parental rights was in his daughter's best

interest. As a result, A.G. contends that his plea was not

knowingly, intelligently, and voluntarily entered. I focus

solely on A.G.'s second argument because it is dispositive.

B

¶56 To understand why A.G. should be permitted to withdraw

his plea on this basis, it is first necessary to review the

legal framework for plea-withdrawal claims and the procedural

history of this case. State v. Bangert, 131 Wis. 2d 246, 274-

75, 389 N.W.2d 12 (1986) provides the framework for evaluating

whether A.G. is entitled to withdraw his plea. See Waukesha

County v. Steven H., 2000 WI 28, ¶42, 233 Wis. 2d 344, 607 N.W.2d 607, modified on other grounds by St. Croix Cnty. Dep't

of Health & Human Servs. v. Michael D., 2016 WI 35, ¶¶3-4, 368

Wis. 2d 170, 880 N.W.2d 107. Bangert and our subsequent plea-

withdrawal cases set forth a two-step approach. First, a plea-

withdrawal motion "is reviewed by the court" to determine

whether it "establishes a prima facie violation of . . . court-

mandated duties and makes the requisite allegations," namely that "the defendant did not know or understand the information

that should have been provided at the plea hearing." State v. 5 No. 2022AP652.rfd

Brown, 2006 WI 100, ¶¶39-40, 293 Wis. 2d 594, 716 N.W.2d 906.

If the motion clears that hurdle, the second step is an

evidentiary hearing "at which the state is given an opportunity

to show by clear and convincing evidence that the defendant's

plea was knowing, intelligent, and voluntary despite the

identified inadequacy of the plea colloquy." Id., ¶40

¶57 When A.G. moved to withdraw his plea, the circuit

court initially denied his motion without an evidentiary hearing

because it "actually did use a clear and convincing standard

when it assessed whether it thought it was in the child's best

interest to terminate the parental rights." In other words, the

circuit court concluded that A.G.'s motion did not satisfy the

first step of Bangert——making a prima facie case for plea

withdrawal——because even if A.G. wasn't told the correct

statutory standard that applies at the dispositional phase, the

circuit court ultimately applied the clear-and-convincing-

evidence standard that it said it would.

¶58 The court of appeals reversed, holding that A.G. was not informed of the correct statutory standard that applies at

the dispositional phase because "contrary to the [circuit]

court's statement, at the dispositional hearing, the 'same trial

rights' do not apply. There is not a burden of proof placed on

the State." State v. A.G., No. 2021AP1476, unpublished slip

op., ¶17 (Wis. Ct. App. Feb. 15, 2022) (emphasis added). Thus,

the court of appeals held that the correct statutory standard

that applies at the dispositional phase is simply the best

interests of the child, with no burden on any party.3 See id.

Accordingly, the court of appeals concluded that A.G.'s motion

made a prima facie case for plea withdrawal and that he was

entitled to an evidentiary hearing on remand to determine

whether his plea was knowing, intelligent, and voluntary,

despite the information he received regarding the statutory

standard that applies at the dispositional phase. Id., ¶22.

¶59 Before discussing what happened at the evidentiary

hearing, it is important to emphasize that the State did not

appeal from this decision by the court of appeals. And for that

3 This is a debatable conclusion. To be sure, Wis. Stat. § 48.426(2) does not contain a burden of proof. It merely states that "[t]he best interests of the child shall be the prevailing factor considered by the court in determining the disposition." Id. That being said, the State is the petitioner in this case. As such, the State must——at a minimum——produce some evidence of the best interests of the child at the dispositional phase. Otherwise, the petition would have to be denied. Moreover, given the weighty constitutional rights at play in TPR cases, other courts have held that the Constitution requires proof that termination is in the child's best interest by a preponderance of the evidence or clear and convincing evidence. See Kent K. v. Bobby M., 110 P.3d 1013, 1021-22 (Ariz. 2005) (holding that due process requires proof of the child's best interests by a preponderance of the evidence); In re D.H., 354 N.W.2d 185, 188 (S.D. 1984) (stating that "[t]he trial court must find by clear and convincing evidence that termination of parental rights is in the best interests of the child" (quoting another source)); see also In re B.T.B., 472 P.3d 827, 838 n.11 (Utah 2020) (explaining that, in the context of the best-interest-of-the- child inquiry, "the clear and convincing standard might be constitutionally mandated"); Brian C. Hill, Comment, The State's Burden of Proof at the Best Interests Stage of a Termination of Parental Rights, 2004 U. Chi. Legal F. 557, 576-84 (arguing that the Fourteenth Amendment, as interpreted by the United States Supreme Court in Santosky, requires proof of the best interests of the child by clear and convincing evidence). Nevertheless, as discussed below, the question of whether there is a burden of proof at the dispositional phase is not before us.

7 No. 2022AP652.rfd

reason, the court of appeals' conclusion that the correct

statutory standard that applies at the dispositional phase is

the best interests of the child with no burden on any party is

the law of the case. The law of the case is "a 'longstanding

rule' that requires courts to adhere to an appellate court's

ruling on a legal issue 'in all subsequent proceedings in the

trial court or on later appeal.'" State v. Jensen, 2021 WI 27,

¶13, 396 Wis. 2d 196, 957 N.W.2d 244 (quoting State v. Stuart,

2003 WI 73, ¶23, 262 Wis. 2d 620, 664 N.W.2d 82). Although

there are exceptions to the law of the case, none of them apply

here.4 Accordingly, we need not decide what the correct

statutory standard is at the dispositional phase; instead, we

must adhere to the court of appeals' holding that the standard

is the best interests of the child with no burden on any party.

And that means that to determine whether A.G.'s plea was

knowing, intelligent, and voluntary, we have to evaluate whether

the State proved by clear and convincing evidence at the Bangert

hearing that, at the time he entered his plea, A.G. knew that standard.

4Those exceptions apply when "'a controlling authority has since made a contrary decision of law' on the same issue," "when the evidence at a subsequent trial is 'substantially different' than that at the initial trial; and when following the law of the case would result in a 'manifest injustice.'" Jensen, 396 Wis. 2d 196, ¶13, n.8 (quoting Stuart, 262 Wis. 2d 620, ¶24).

Because the court of appeals' conclusion that there is no burden of proof on the State at the dispositional phase is the law of the case, I do not address the guardian ad litem's argument that the court should hold that the burden is clear and convincing evidence.

8 No. 2022AP652.rfd

¶60 A.G. did not appear at the Bangert hearing and no

witnesses were called to testify. Instead, the State relied on

the transcript of A.G.'s plea hearing, as well as transcripts of

prior and subsequent hearings in the case. See Steven H., 233

Wis. 2d 344, ¶42 (explaining that at a Bangert hearing "a court

may examine the entire record, not merely one proceeding, and

look at the totality of the circumstances to determine" whether

the plea was constitutionally sufficient). The sole question is

whether this evidence clearly and convincingly demonstrates

that, at the time he entered his plea, A.G. knew that the

statutory standard that would apply at the dispositional phase

was the best interests of the child with no burden on any party.

¶61 The plea colloquy indicates that he did not. During

that colloquy, the circuit court described a different standard.

The court explained that A.G.'s "trial rights" at the grounds

phase included "the right to force the State to prove grounds by

clear, convincing, and satisfactory evidence to a reasonable

certainty." And then the circuit court said that A.G. would have "those same trial rights" at the dispositional phase. In

other words, the circuit court told A.G. that the State would

have to prove the best interests of the child by clear and

convincing evidence. But that is not the statutory standard

that applies at the dispositional phase under the court of

appeals' prior ruling in this case. Thus, A.G.'s plea colloquy

was defective.

¶62 The remaining evidence falls far short of showing, let alone clearly and convincingly, that A.G. knew the correct

9 No. 2022AP652.rfd

statutory standard that would apply at the dispositional phase

despite the defective plea colloquy. Indeed, the only evidence

that even suggests that A.G. knew the correct standard is a

transcript of a hearing ten months before his plea. At that

hearing, the circuit court explained that the dispositional

phase "focus[es] on what outcome is best for the kids that are

involved," and that "everybody gets to put on testimony and

evidence and argue to [the court] what they think is best for

the kids that are involved," before the circuit court made the

ultimate determination of "what outcome is best for the kids."

This ten-month-old transcript describes the best-interest-of-

the-child standard and does not reference a burden of proof on

any party.

¶63 Given that A.G. received conflicting information at

these two hearings, the State failed to prove by clear and

convincing evidence that, at the time he entered his plea, A.G.

knew the statutory standard that applies at the dispositional

phase. To conclude otherwise would be absurd, since we would have to assume that A.G. ignored or disregarded the information

he received from the circuit court during the plea colloquy in

favor of different information he was told once ten months

earlier. Additionally, common sense tells us that people forget

10 No. 2022AP652.rfd

things they were told ten months earlier.5 That is especially

true when a non-lawyer is advised about the details of legal

proceedings he is facing and with which he is likely unfamiliar.

For these reasons, the State failed to prove that A.G. knew the

statutory standard that applies at the dispositional phase, and

he is therefore entitled to withdraw his plea. See Finley, 370

Wis. 2d 402, ¶95 (explaining that when the State fails to meet

its burden of proof at a Bangert hearing, the movant is entitled

to withdraw his plea).

C

¶64 The lead opinion tries to justify a different result

by relying on our decision in State v. Taylor, 347 Wis. 2d 30.

In that case, a criminal defendant was told during his plea

hearing that he could be sentenced to a maximum of six years of

imprisonment. Id., ¶16. In fact, the maximum potential

sentence was eight years of imprisonment. Id. After the

defendant was sentenced to the six years of imprisonment, he

5 For this reason, I similarly question the lead opinion's reliance on this same ten-month-old transcript (and related factual findings by the circuit court) in rejecting A.G.'s alternative argument that he is entitled to withdraw his plea because the circuit court failed to advise him of the potential dispositions. See lead op., ¶30. Additionally, much of the other evidence the lead opinion cites in support of that conclusion is also suspect. For example, what A.G. knew the day after he entered his plea is at best a weak indication of what he knew when that plea was entered since people can learn new things from day to day. See id. And the lead opinion's speculation about what A.G.'s counsel might have told him before entering his plea is just that——speculation. See id., ¶32. There is no evidence in the record about what A.G.'s counsel did or did not tell A.G.

11 No. 2022AP652.rfd

moved to withdraw his plea, arguing that it was not knowingly,

intelligently, and voluntarily entered because he did not know

the maximum potential sentence. Id., ¶18. The defendant's

motion was denied without an evidentiary hearing. Id., ¶20. We

affirmed, explaining that an evidentiary hearing was not

required because the record was "replete with evidence" that the

defendant, in fact, knew the maximum sentence he faced at the

time he entered his plea. See id., ¶¶35-39. In doing so, we

emphasized that we were not engaging in a harmless-error

analysis, instead reiterating that "the focus is on whether

the . . . plea was entered knowingly, intelligently, and

voluntarily" in spite of any claimed error. Id., ¶41 n.11.

¶65 According to the lead opinion, A.G. is not entitled

withdraw his plea because, "[l]ike the defendant in Taylor, [he]

received what the circuit court told him he would receive."

Lead op., ¶35. That is because, as mentioned previously, the

circuit court said that it applied the clear-and-convincing-

evidence standard at the dispositional phase. For this reason, the lead opinion concludes that "A.G. was not inhibited from

weighing the pros and cons of entering this particular no

contest plea by being told the State would have to satisfy a

particular burden of proof because the State was actually held

to and did satisfy that burden." Id.

¶66 There are several problems with the lead opinion's

reliance on Taylor, and with its analysis more generally.

First, Taylor was evaluating a different question than the one we are addressing in this case. Taylor concerned only whether

12 No. 2022AP652.rfd

the defendant was entitled to an evidentiary hearing under the

first step of Bangert's two-part plea-withdrawal framework.

Taylor, 347 Wis. 2d 30, ¶42. At that step, the court must

determine only whether the defendant's motion makes a prima

facie showing of that the plea colloquy was defective and that

he "did not, in fact, know or understand the information that

should have been been provided during the plea colloquy." Id.,

¶32. If the defendant's motion makes that showing, the next

step is an evidentiary hearing at which "the State has the

burden to prove by clear and convincing evidence that the

defendant's plea, despite the inadequacy of the plea colloquy,

was knowing, intelligent, and voluntary." Id.

¶67 In this case, unlike in Taylor, the court of appeals

has already determined that A.G.'s motion made the prima facie

case entitling him to an evidentiary hearing, and remanded for

an evidentiary hearing. A.G., No. 2021AP1476, at ¶22. And as

explained previously, that decision was not appealed and the

court of appeals' conclusion is thus the law of the case. Accordingly, the only question before us is whether the State

met its burden at the evidentiary hearing of proving by clear

and convincing evidence that A.G.'s plea was knowing,

intelligent, and voluntary. Thus, Taylor's rule simply does not

apply to A.G.'s case. Indeed, we distinguished Taylor on

precisely these grounds in State v. Finley, 370 Wis. 2d 402. In

that case, we explained that Taylor does not apply when, as

here, an evidentiary hearing was held on the plea-withdrawal motion. Finley, 370 Wis. 2d 402, ¶¶82-85.

13 No. 2022AP652.rfd

¶68 Second, even if Taylor did apply, the lead opinion

mischaracterizes its conclusion. Contrary to the lead opinion's

assertions, Taylor did not conclude that whenever a defendant

"receive[s] what the circuit court told him he would receive,"

he is not entitled to withdraw his plea. See lead op., ¶35.

Instead, we held that the plea in that case "was entered

knowingly, intelligently, and voluntarily [because] the record

makes clear that the defendant knew the maximum penalty that

could be imposed and was verbally informed at the plea hearing

of the penalty that he received." Taylor, 347 Wis. 2d 30, ¶8;

see also Finley, 370 Wis. 2d 402, ¶79 (describing Taylor

similarly). Thus, the reason the defendant in Taylor wasn't

entitled to withdraw his plea was because "the . . . record

revealed that the defendant knew the potential punishment he

faced if convicted"——not because he received a sentence the

circuit court told him he could receive. Finley, 370

Wis. 2d 402, ¶87. This conclusion is in keeping with our other

plea withdrawal cases, which likewise focus on whether the defendant's plea was knowing, intelligent, and voluntary based

on the information he knew at the time he entered the plea. See

id., ¶44.

¶69 The lead opinion, by contrast, looks only to events

that occurred after A.G. entered his plea. To be sure, the

State may rely on evidence from after a plea is entered to show

that the plea was knowing, intelligent, and voluntary. See

Taylor, 347 Wis. 2d 30, ¶32; Bangert, 131 Wis. 2d at 269, 283. But that evidence still must demonstrate what A.G. knew at the

14 No. 2022AP652.rfd

time he entered his plea. And here, the fact that the circuit

court held the State to a heightened burden of proof at

disposition tells us nothing about what A.G. knew when he

entered his plea. Moreover, unlike in Taylor, where the plea

questionnaire/waiver of rights form, information, and criminal

complaint all demonstrated what the defendant knew when he

entered his plea, here we have none of that. See Taylor, 347

Wis. 2d 30, ¶¶35-38. On the contrary, we have a description

given once ten months before his plea that, under the law of the

case, is correct. And we have a different one given the day he

entered the plea. This is far from clear and convincing

evidence that A.G. knew the correct statutory standard that

applies at the dispositional phase.

¶70 Finally, although the lead opinion denies it, it is

importing a harmless error standard into the plea-withdrawal

context. See lead op., ¶36 n.8. That is the upshot of the lead

opinion's claims that "[t]he error could have been

consequential, but it became insubstantial when the circuit court actually held the State to the clear and convincing

standard," and that A.G. "benefitted from the circuit court

holding . . . the State[] to a burden of proof the law did not

require [it] to meet." Id., ¶¶36 n.8, 37. In essence, the lead

opinion is conceding that A.G. did not know the statutory

standard that applies at the dispositional phase, but arguing

that there was no harm because the State was held to the

standard of proof the circuit court said it would apply. The only reason we would care whether the circuit court did what it

15 No. 2022AP652.rfd

said it would do, or whether someone benefitted from an error,

is if we are evaluating whether they were harmed by that error.

Yet, as Taylor said, our plea-withdrawal cases "clearly d[o] not

engage in a harmless error analysis." 347 Wis. 2d 30, ¶41.

¶71 Nevertheless, the lead opinion claims that it isn't

doing a harmless-error analysis, since it does not "consider

whether and to what extent the information provided at the plea

colloquy caused A.G. to enter a plea he would not otherwise have

entered." Id., ¶36 n.8 (citing State v. Barnes, 2023 WI 45,

¶29, ___ Wis. 2d ____, 990 N.W.2d 759). Doing that, in the lead

opinion's view, would be evaluating whether an error was

harmless. See id. But that is exactly what the lead opinion is

doing. It repeatedly asserts that A.G. "was not inhibited from

contest plea" by the information he received in the plea

colloquy, and that his "knowledge at the time of the plea

permitted him to accurately weigh the pros and cons of entering

this specific plea." See id. ¶¶36-37. Thus, the lead opinion is in fact "consider[ing] whether and to what extent the

information provided at the plea colloquy" affected A.G.'s

decision to plead no contest. See id., ¶36 n.8.

¶72 This approach, if taken seriously, would allow courts

to substitute their own speculation about whether someone's

"knowledge at the time of plea permitted him to accurately weigh

the pros and cons of entering this specific plea" or

"benefitted" from an error for the clear and convincing evidence of what he actually knew that our cases require. Compare lead

16 No. 2022AP652.rfd

op., ¶¶36 n.8, 37, with Finley, 370 Wis. 2d 402, ¶95.

Thankfully, because the lead opinion fails to garner four votes,

that approach is not our law. Because we should keep the focus

in evaluating a plea-withdrawal motion where it belongs——"on

whether the . . . plea was entered knowingly, intelligently, and

voluntarily" in spite of any claimed error——I respectfully

dissent. See Taylor, 370 Wis. 2d 30, ¶41 n.11

¶73 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.

17 No. 2022AP652.rfd