State v. Howell

2007 WI 75, 734 N.W.2d 48, 301 Wis. 2d 350, 2007 Wisc. LEXIS 404

• Court: Wisconsin Supreme Court
• Decided: June 21, 2007
• Docket: 2005AP731-CR
• Status: Published

Opinions

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of a published decision of the court of appeals affirming a judgment and order of the Circuit Court for Milwaukee County, Jean W. DiMotto, Judge.¹ The circuit court denied, without an evidentiary hearing, An-drae D. Howell's postconviction motion to withdraw his guilty plea, holding that the plea colloquy, complaint, and sentencing sufficiently demonstrated that Howell understood that he was aiding and abetting his cousin Joseph Sharp in first degree reckless injury, Wis. Stat. § 940.23(l)(a) (2003-04),² and that there was a sufficient factual basis to support the plea.

¶ 2. The issue on review is limited to whether the circuit court erred in failing to hold an evidentiary hearing on Howell's motion to withdraw his plea. More specifically, the issue is whether Howell's motion to withdraw his guilty plea satisfies, for purposes of granting an evidentiary hearing, the requirements of (1) the Bangert line of cases, State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986); (2) the Nelson/Bentley line of cases, Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), and State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996); or (3) both lines of cases. We are not asked to decide, and do not decide, whether the circuit court should ultimately grant or deny Howell's motion to withdraw his guilty plea.

¶ 3. This case involves the application of our well-developed case law on a circuit court's granting an evidentiary hearing on a defendant's motion to withdraw a guilty plea.

¶ 4. Confusion and disagreement abound about whether Howell's motion papers present a Bangert or a Nelson/Bentley motion. In the State's original brief to the court of appeals, counsel analyzed Howell's plea-withdrawal claim in a Bangert framework. In the State's supplemental brief to the court of appeals and the State's response to Howell's petition for review, counsel adopted the view of the court of appeals' majority that Howell had alleged a Nelson/Bentley claim.

¶ 5. Counsel for the State suggests in this court that upon further analysis and reflection, Howell's plea-withdrawal motion exhibits features of both a Bangert motion and a Nelson/Bentley motion, and is in effect a "dual-purpose motion." The motion alleges that Howell's misunderstanding was a result of problems occurring both within and outside the plea colloquy.

¶ 6. The court of appeals did not review Howell's motion as a Bangert motion because it concluded that Howell had not alleged that the plea colloquy was defective. The dissenting judge in the court of appeals considered Howell's motion to be a Bangert motion describing a defective plea colloquy.

¶ 7. For the reasons set forth, we hold that Howell is entitled under Bangert to an evidentiary hearing regarding his motion to withdraw his guilty plea. As required by Bangert, the motion makes a prima facie showing that the circuit court's plea colloquy did not conform with Wis. Stat. § 971.08 and judicially mandated procedures and includes the allegation that Howell did not know or understand information that should have been provided at the plea colloquy.³ In keeping with Bangert, we examine the record at the plea hearing; we do not confabulate about facts and conversations not on the record. We stay focused. A defendant's right to an evidentiary hearing under Bangert cannot be circumvented by either the court or the State asserting that based on the record as a whole the defendant, despite the defective plea colloquy, entered a constitutionally sound plea.

¶ 8. In analyzing Howell's motion under Nelson/Bentley, we conclude that the part of the motion that could be considered a Nelson/Bentley motion raises the same legal issue as the claim under Bangert, namely that the plea was not knowing, intelligent, and voluntary because Howell misunderstood the concept of party-to-a-crime liability. The evidentiary matter presented in the Nelson/Bentley portion of the motion, namely that Howell misunderstood party-to-a-crime liability based on conversations with his attorney, will likely be addressed at the Bangert hearing. Consequently, we need not assess the validity of Howell's NelsonIBentley claim. Howell's motion entitles him to an evidentiary hearing under Bangert on the issue of whether his plea was knowing, intelligent, and voluntary.

¶ 9. We thus hold that Howell's motion warrants him an evidentiary hearing under Bangert to determine whether he can withdraw his guilty plea because it was not knowing, intelligent, or voluntary. The burden is on the State at the evidentiary hearing in the instant case on the Bangert motion to prove by clear and convincing evidence that Howell's plea was knowing, intelligent, and voluntary.

¶ 10. Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for an evidentiary hearing under Bangert to determine whether Howell is entitled to withdraw his guilty plea.

HH

¶ 11. We briefly summarize the facts here. We discuss the plea colloquy and Howell's motion when we examine the legal issues relating to Bangert and NelsonIBentley.

¶ 12. On February 8, 2004, Marcus Pearson was shot twice while seated in his vehicle. The defendant, Andrae D. Howell, along with his sister Kimberly and his cousin Joseph Sharp, had allegedly driven to the scene to find another sister, April, who was dating Pearson. Pearson alleged that Howell exited his vehicle, brandished a rifle, and shot him.

¶ 13. The State charged Howell with first degree reckless injury under Wis. Stat. § 940.23(l)(a).⁴ On the date originally set for trial, Sharp allegedly admitted to Howell's trial counsel that Sharp, not Howell, shot the victim. Howell's trial counsel requested an adjournment allegedly in light of this information.

¶ 14. At the next hearing, the State moved to amend the information to add party-to-a-crime liability, on the theory that evidence at the trial might show that Sharp, not Howell, was the shooter and that Howell "assisted people in putting the victim" in a place where he could be shot by someone else. A party to a crime is statutorily defined as "a person who directly commits the crime"; a person who "intentionally aids and abets the commission" of a crime; or a person who "is a party to a conspiracy with another to commit it."⁵ Milwaukee County Circuit Court Judge Richard J. Sankovitz allowed the amendment.⁶

¶ 15. On the same day the information was amended, Howell entered a guilty plea to being party to the crime of first degree reckless injury. Judge Sanko-vitz conducted the plea colloquy, accepted the plea, and convicted Howell of the offense charged.

¶ 16. At a later proceeding, Milwaukee County Circuit Court Judge Jean DiMotto sentenced Howell to fourteen years' imprisonment with seven years of initial incarceration and seven years of extended supervision.

¶ 17. Thereafter, Howell filed a postconviction motion to withdraw his guilty plea pursuant to Wis. Stat. § 809.30, arguing that his plea was not entered knowingly, intelligently, and voluntarily because he failed to understand the concept of party-to-a-crime liability for first degree reckless injury.

¶ 18. The circuit court, Judge Jean DiMotto, without indicating whether she was ruling under the Bangert or Nelson/Bentley line of cases, denied Howell's motion without an evidentiary hearing. The circuit court ruled that "[t]he plea in conjunction with the complaint is more than sufficient to establish that the defendant acted as a party to a crime in the offense perpetrated against Marcus Pearson and that the defendant understood that he was aiding his cousin or intentionally assisting his cousin in facilitating the commission of the offense, whether or not he realized his cousin would utilize the weapon" (emphasis in original).

¶ 19. On appeal, the court of appeals affirmed the circuit court's judgment and order, holding that Howell's motion raised a Nelson/Bentley challenge and that Howell's motion contained only conclusory allegations that were not "subject to meaningful assessment in light of the record."

¶ 20. Howell petitioned the court of appeals for a rehearing in light of State v. Hampton, 2004 WI 107, 274 Wis. 2d 379, 683 N.W.2d 14. The court of appeals withdrew its original unanimous opinion to address the alleged inconsistency between its decision and this court's decision in Hampton.7

¶ 21. Upon rehearing, the court of appeals once again held that Howell was not entitled to an eviden-tiary hearing on his motion to withdraw his guilty plea. The court of appeals determined that "Howell's motion did not assert that his plea colloquy was defective within the meaning of State u. Bangert. "⁸ The court of appeals applied Nelson/Bentley to Howell's motion and again held that Howell's motion included only conclu-sory statements that did not entitle him to an eviden-tiary hearing. The court of appeals rejected Howell's argument that Hampton does not require more than a conclusory statement in a postconviction motion to withdraw a guilty plea when the defendant alleges he misunderstood the nature of the crime charged.

¶ 22. Court of Appeals Judge Charles Dykman dissented, concluding that Howell had in fact raised a Bangert claim and alleged sufficient facts to entitle him to an evidentiary hearing. Judge Dykman also concluded that Hampton applied to both Bangert and non-Bangert (that is, to Nelson/Bentley) claims and that under Hampton, Howell had sufficiently alleged a misunderstanding to warrant an evidentiary hearing on the motion.

II

¶ 23. "A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction . .. ."⁹ By pleading guilty or no contest to a crime, a defendant waives important constitutional rights, including the privilege against self-incrimination, the right to a jury trial, and the right to confront one's accusers.¹⁰ Under the United States Constitution, a guilty or no contest plea "must be affirmatively shown to be knowing, intelligent, and voluntary."¹¹

¶ 24. To warrant an evidentiary hearing on a postconviction motion to withdraw a plea of guilty or no contest, the defendant must satisfy the requirements of Bangert or Nelson/Bentley.

HH HH HH

¶ 25. We first analyze Howell's motion under Bangert.

¶ 26. Bangert and its progeny govern the circuit court at plea colloquies. A circuit court must address defendants personally and fulfill several duties set forth in Wis. Stat. § 971.08¹² and judicial mandates to ensure that a plea of guilty or no contest is constitutionally sound.¹³ The purpose of these duties is to inform the defendant of the nature of the charges, to ascertain the defendant's understanding of the charge, and to ensure that the defendant is aware of the constitutional rights being waived.¹⁴ "In a legal sense, the purpose of the colloquy is to assure a voluntary and intelligent plea, as well as fundamental fairness in the taking of pleas."¹⁵

¶ 27. A Bangert Motion. A defendant may invoke Bangert only by alleging that the circuit court failed to fulfill its plea colloquy duties.¹⁶ A Bangert motion warrants an evidentiary hearing if (1) the motion makes "a prima facie showing that [the] plea was accepted without the trial court's conformance with [Wis. Stat.] § 971.08 or other mandatory procedures,"¹⁷ and if (2) the motion alleges that in fact the defendant did not know or understand the information that should have been provided at the plea colloquy.¹⁸

¶ 28. The requirements for a Bangert motion are relatively relaxed because the source of the defendant's misunderstanding, the plea colloquy defect, should be clear from the transcript of the hearing at which the plea was taken. We require less from the allegations in a Bangert motion because the circuit court bears the responsibility of preventing failures in the plea colloquy.¹⁹

¶ 29. If the defendant's motion meets both prongs of Bangert, the State has the burden to prove at the evidentiary hearing that the plea was knowing, intelligent, and voluntary.²⁰

¶ 30. Standard of Appellate Review. This court decides whether a postconviction motion to withdraw a guilty or no contest plea under Bangert entitles a defendant to an evidentiary hearing independently of the circuit court and court of appeals but benefiting from their analyses.²¹

¶ 31. A reviewing court first determines as a matter of law whether a defendant's motion "has pointed to deficiencies in the plea colloquy that establish a violation of Wis. Stat. § 971.08 or other mandatory duties at a plea hearing."²² The reviewing court then determines as a matter of law whether a defendant "has sufficiently alleged that he did not know or understand information that should have been provided at the plea hearing . . . ."²³

¶ 32. Howell's Bangert Motion. Howell and the State agree in this court that Howell's motion should be considered under Bangert. They disagree, however, whether the motion entitles Howell to an evidentiaiy hearing under Bangert.

¶ 33. Howell contends that his allegations are sufficient to entitle him to an evidentiary hearing under Bangert, namely that the circuit court did not determine that the plea was made voluntarily with understanding of the nature of the charge; did not clarify what party-to-a-crime liability entailed; and did not correct misleading statements the State made during the plea colloquy about party-to-a-crime liability. He asserts that as a result, he did not understand party-to-a-crime liability such that his plea was not knowing or voluntary.

¶ 34. The State contends that Howell's Bangert motion fails because the plea colloquy was not defective. The State asserts that the plea colloquy adequately and accurately informed Howell of his criminal liability as an aider and abettor party to a crime.

¶ 35. Relevant to the instant review are two Bangert duties of a circuit court at the plea colloquy.

¶ 36. One, "the [circuit] court must address the defendant personally and. .. [establish the defendant's understanding of the nature of the crime with which he is charged and the range of punishments to which he is subjecting himself by entering a plea . . . ."²⁴ Two, "the [circuit] court must address the defendant personally and ... [ascertain personally whether a factual basis exists to support the plea ... ."²⁵

¶ 37. Duty to Establish Defendant's Understanding. We first examine the circuit court's duty to establish the defendant's understanding of the nature of the crime. In State v. Brown, 2006 WI 100, ¶ 55, 293 Wis. 2d 594, 716 N.W.2d 906, the court recognized that party-to-a-crime liability needed to be addressed by the circuit court during the plea colloquy.

¶ 38. In the instant case, as evidenced by the record, the circuit court engaged in only a limited exploration regarding whether Howell understood the nature of his criminal liability as an aider and abettor.

¶ 39. We examine the relevant portions of the record, namely the transcript of the plea colloquy, to determine whether the plea colloquy was defective. We examine the plea colloquy first to determine whether the circuit court informed Howell of the nature of the charge and then whether the circuit court ascertained Howell's understanding of the nature of the charge.²⁶

¶ ’40. In permitting the amendment to the charge to include the party-to-a-crime modifier at the beginning of the plea hearing, the circuit court characterized party-to-a-crime liability in the instant case as assisting people in putting the victim in a place where he could be shot. The circuit court then engaged in the following exchange with Howell's trial counsel and Howell:

THE COURT: Would it be fair to state that the amendment to the information comprises the prospect that at trial the evidence might show that Mr. Howell didn't pull the trigger, but that he assisted people in putting the victim in a place where he could be shot by somebody else?

[DEFENSE COUNSEL]: That's a correct statement. THE COURT: Mr. Howell, do you agree with that?

THE DEFENDANT: Yes, Your Honor.

(Emphasis added.)

¶ 41. Later in the plea colloquy, the circuit court described how if Howell went to trial the State would have to prove that Howell shot the victim or assisted the person who shot the victim, knowing what that person was doing. The circuit court addressed Howell as follows:

THE COURT: Do you understand that before you can be found guilty the State would be required to prove that on February 8th of this year someone caused great bodily harm to [Pearson], The State would have to prove that whoever did this [shot Pearson] did it by criminally reckless conduct. That means that they were engaged in conduct that the person knew at the time to create a substantial and unreasonable risk of death or great bodily harm to Mr. Pearson, and was aware that they were creating such a risk. The State would have to prove that the person who shot him, shot him in circumstances which showed utter disregard for human life. And then the State would have to prove either that you were the person who did all those things or that you intentionally assisted someone else who was doing those things, knowing what they were doing.

Do you understand what the State would have to prove?

THE DEFENDANT: Yes.

¶ 42. When prompted by the circuit court, the State, in describing the nature of Howell's criminal liability as a party to a crime, explained that Howell was with the shooter, observed the shooter with the gun as they got out of the car, and would have approached the victim in this situation. This part of the colloquy reads as follows:

THE COURT: So, if the case came to trial what are the two possibilities that the State could prove as far as Mr. Howell's involvement in the shooting?

[THE STATE]: The two possibilities would be, Judge, that, one, he is the actual shooter, which would have been the victim's actual testimony; the other is what defense counsel and I have discussed. His position and his argument to the court will be that his cousin was the shooter and he was there with him, observed him with the gun as they got out of the car and would have approached the victim in this situation.

THE COURT: Are those facts — or may I accept those facts as true?

DEFENSE COUNSEL: We would stipulate to that factual basis and those are the facts upon which Mr. Howell has indicated his guilt to me as well. Is that correct?

THE DEFENDANT: Yes.

THE COURT: So, Mr. Howell, you're not necessarily agreeing that you shot Mr. Pearson; that you are agreeing that you and your cousin went there and that you approached Mr. Pearson and by doing so you assisted your cousin in shooting him ?

THE DEFENDANT: Yes.

¶ 43. Although the circuit court, the State, and Howell's trial counsel were discussing the factual bases for the crime charged, these parts of the plea colloquy have bearing on the court's obligation to inform Howell of the nature of the charge.

¶ 44. Howell's motion contends that the plea colloquy reinforced Howell's belief that his mere presence and his failure to stop the shooting were sufficient to make him a party to a crime. Howell asserts in his motion that he "never would have pled guilty had he realized that his mere presence was not enough because he maintains he is innocent and did not even know there was a gun until Mr. Sharp raised the gun up to shoot."

¶ 45. To demonstrate that the circuit court failed to explain party-to-a-crime liability adequately, one need only compare the circuit court's plea colloquy with the pattern jury instruction explaining the liability of a person who aids and abets the commission of a crime.

¶ 46. Wisconsin Jury Instruction — Criminal 400 (2005) states in part as follows:

A person intentionally aids and abets the commission of a crime when, acting with knowledge or belief that another person is committing or intends to commit a crime, (he) (she) knowingly either:

assists the person who commits the crime; or

is ready and willing to assist and the person who commits the crime knows of the willingness to assist.

To intentionally aid and abet [first degree reckless injury], the defendant must know that another person is committing or intends to commit the crime of [first degree reckless injury] and have the purpose to assist the commission of that crime.

However, a person does not aid and abet if (he) (she) is only a bystander or spectator and does nothing to assist the commission of a crime.²⁷

¶ 47. The circuit court's curt explanation of aiding and abetting falls far short of this jury instruction and of any other means of informing Howell about the nature of his criminal liability.

¶ 48. Simply stating that the State would have to prove that Howell "assisted" or "intentionally assisted" the shooter was not sufficient to explain to Howell aider and abettor party-to-a-crime liability, either generally or in the context of first degree reckless injury. The circuit court did not explain how Howell had been a party to a crime if he "would have approached the victim" or if he had "assisted people in putting the victim in a place where he could be shot." In short, the circuit court's descriptions of the aiding and abetting aspect of party-to-a-crime liability do not amount to a clear explanation of the charge. This court cannot and should not speculate about what information Howell, counsel, and the circuit court may have shared off the record before the plea hearing.

¶ 49. Accordingly, we conclude that nothing in the plea colloquy demonstrates that Howell received correct information about this charge from other sources.

¶ 50. To satisfy Bangert, the circuit court should have established not only that Howell had the proper information but also that he understood that information. The plea colloquy in the instant case quoted above failed to establish that Howell understood the nature of the charge.

¶ 51. This court has recommended that to ascertain a defendant's understanding of a charge, a circuit court might summarize the nature of the charge by reading the jury instructions, might ask defendant's counsel about his or her explanation to the defendant and ask counsel or the defendant to summarize the explanation, or might refer to the record or other evidence of the defendant's understanding of the nature of the charge.²⁸ We encourage circuit courts to use these or similar methods because "[e]ach method enables a court to ascertain the accuracy of the defendant's knowledge; each method gives substantive content to a defendant's understanding."²⁹ The circuit court did not employ any of these suggested methods or any other suitable method to ascertain Howell's understanding of party-to-a-crime liability.

¶ 52. The circuit court did not establish Howell's understanding of the information it relayed to Howell by personally questioning him. Rather than asking Howell to summarize his understanding, the circuit court asked him questions that required simple "yes" or "no" responses.

¶ 53. As we explained in Bangert, "[a] defendant's mere affirmative response that he understands the nature of the charge, without establishing his knowledge of the nature of the charge, submits more to a perfunctory procedure rather than to the constitutional standard that a plea be affirmatively shown to be voluntarily arid intelligently made."³⁰ By referring simply to Howell's "assistance" in the crime and asking Howell for only a single word response, the circuit court did not appropriately ascertain Howell's understanding. A defendant must "at some point [have] expressed his knowledge of the nature of the charge" to satisfy the requirement of Wis. Stat. § 971.08.³¹

¶ 54. The circuit court did not establish that Howell was properly advised of the nature of the charge by his trial counsel. The circuit court asked Howell's trial counsel only whether he was satisfied that Howell was entering the guilty plea knowingly and voluntarily, to which counsel answered "yes." This question by the circuit court and Howell's trial counsel's response were not adequate. "A statement from defense counsel that he has reviewed the elements of the charge, without some summary of the elements or detailed description of the conversation, cannot constitute an 'affirmative showing that the nature of the crime has been communicated.' "³²

¶ 55. We thus agree with Howell that, as demonstrated by the record, the plea colloquy was defective in that the circuit court failed to inform Howell of the nature of the charge and failed to ascertain Howell's understanding of the nature of the party-to-a-crime charge.

¶ 56. Duty to Ascertain Factual Basis. We turn now to the second alleged defect in the plea colloquy, namely that the circuit court failed in its duty to establish the factual basis for the charged crime to support Howell's guilty plea.³³

¶ 57. Howell's motion alleges that the circuit court failed to establish a sufficient factual basis for the plea by alleging that his conduct did not satisfy party-to-a-crime liability and that if he had had the proper understanding he never would have pled guilty because he was not a party to the crime of first degree reckless injury. The State recognizes that party-to-a-crime liability is an aspect of the factual basis of the charged crime when the defendant disavows direct participation in the crime and discusses the factual basis requirement in its brief.

¶ 58. A circuit court's failure to fulfill the Wis. Stat. § 971.08(l)(b) factual basis requirement entitles the defendant to the Bangert procedure, according to our case law, although "applying the Bangert procedure for failure to satisfy the factual basis requirement is an awkward fit." State v. Lackershire, 2007 WI 74, 734 N.W.2d 23, 301 Wis. 2d 418. As the court explained in Lackershire, when a substantial question exists about the factual basis for a plea of guilty or no contest, doubts arise about whether the plea was knowing and intelligent. The focus of the Bangert evidentiary hearing in these cases will be on whether the plea was knowing and intelligent despite the failure of the circuit court to establish whether a factual basis for the plea existed.³⁴ In the instant case, as in Lackershire, the facts relating to the defendant's conduct remain in dispute because the circuit court failed to establish whether the underlying conduct constituted the crime to which the defendant pled guilty.³⁵

¶ 59. In light of our recent decision in Lackershire, we use this opportunity to emphasize the importance of a circuit court's ensuring it is satisfied that the defendant in fact committed the crime by engaging in sufficient inquiry at the plea colloquy.³⁶

¶ 60. The circuit court's discussion of the factual basis is limited to the following alleged actions by Howell: that "he assisted people in putting the victim in a place where he could be shot by somebody else"; that he either shot Pearson or "intentionally assisted someone else who was doing those things, knowing what they were doing"; that "he was there with [Sharp], observed him with the gun as they got out of the car and would have approached the victim in this situation";³⁷ and that Howell and Sharp "went there and that [Howell] approached Mr. Pearson and by doing so [he] assisted [his] cousin in shooting him."

¶ 61. No additional details about Howell's role in the crime charged appear in the plea colloquy in part because the circuit court allowed defense counsel to stipulate that a factual basis for the plea existed in the complaint.

THE COURT: May I accept as true the facts stated in the complaint?

[DEFENSE COUNSEL]: We would stipulate to the factual basis for the plea in the complaint with the understanding as party to a crime.

¶ 62. Because the complaint was not amended to reflect party-to-a-crime liability the factual basis for Howell’s guilty plea to aiding and abetting the crime was absent from the complaint. Thus, defense counsel's stipulation to the factual basis in the complaint is insufficient to fulfill the circuit court's duty to personally ascertain that a factual basis exists for the crime charged. The complaint simply states that Pearson "personally observed the above-named defendant [Howell] approaching him armed with a rifle, point this rifle at him and shoot him."

¶ 63. The information is even less informative about the crime charged and similarly does not reflect party-to-a-crime liability. Even if Howell's counsel stipulated to the facts elicited at the preliminary hearing, that testimony is insufficient to provide a factual basis for the plea.³⁸

¶ 64. The circuit court did not inquire into how Howell "assisted" Sharp, how "approaching" the victim constituted assistance, or how either alleged action was sufficient to establish that Howell aided and abetted Sharp in the shooting. That Howell observed Sharp with a firearm does not alone subject Howell to party-to-a-crime liability. The circuit court did not inquire into Howell's knowledge about Sharp's intentions or when Howell first observed the firearm. The circuit court also did not inquire into who procured the firearm or brought it to the scene. Nor did the circuit court determine whether Howell had the requisite intent for party-to-a-crime liability.

¶ 65. In Brown, we explained that "[p]robing questions may not always be necessary, but they help to ensure a defendant's understanding and they help to complete the hearing record."³⁹ Here, the plea colloquy raises more questions than it answers about what actually happened regarding Howell, Sharp, and Pearson on the day of the shooting.

¶ 66. In light of the late amendment to the charge adding party-to-a-crime liability and without an accompanying change in the factual basis in the complaint, the circuit court, pursuant to Wis. Stat. § 971.08 and Bangert, should have probed deeper to ensure that there was a sufficient factual basis for the plea that was now based on the theory that Howell may not have been the shooter and instead only assisted the shooter. It was important for the circuit court to determine at the plea colloquy what assistance Howell provided and whether that assistance was provided with the requisite intent, especially since the complaint, information, and preliminary hearing did not address aider and abettor liability.

¶ 67. We repeat our comments in Lackershire: "[T]he obligation that the circuit court establish a sufficient factual basis helps ensure that the defendant's plea is knowing and intelligent. The factual basis requirement 'protects a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.' ... A defendant's failure to realize that the conduct to which she pleads guilty does not fall within the offense charged is incompatible with the plea being 'knowing' and 'intelligent.' "⁴⁰

¶ 68. We thus conclude that Howell's motion satisfies the first prong of Bangert by making a prima facie demonstration that the plea colloquy was defective in establishing Howell's understanding of the nature of his criminal liability as a party to a crime and in establishing a factual basis for the crime charged.

¶ 69. We further conclude that Howell's postcon-viction motion satisfies the second prong of Bangert. It alleges that the plea was not knowingly, intelligently, and voluntarily entered. Howell's motion states that Howell "believed that he was guilty as party-to-a-crime simply for failure to stop the crime from occurring"; that he "did not know that being guilty as party to a crime required more than his presence and his failure to act to stop the shooting"; and that he "never would have pled guilty had he realized that his mere presence was not enough...." In short, Howell's motion sufficiently alleges that he in fact did not know or understand the information that should have been provided at the plea hearing to support his guilty plea.

¶ 70. In a Bangert motion, a circuit court and a reviewing court examine only whether "a defendant is entitled to an evidentiary hearing when the court errs at a plea hearing."⁴¹ The State cannot circumvent a defendant's right to an evidentiary hearing under Bangert by arguing that based on the record as a whole the defendant, despite the defective plea colloquy, entered a constitutionally sound plea. "If the motion establishes a prima facie violation of Wis. Stat. § 971.08 or other court-mandated duties and makes the requisite allegations, the court must hold a postconviction evi-dentiary 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."⁴² The State will have the opportunity at the evidentiary hearing to demonstrate that Howell understood his party-to-a-crime liability.

¶ 71. In sum, we conclude that Howell's motion is sufficient under Bangert and that Howell is entitled to an evidentiary hearing on his Bangert claims. We remind circuit courts (and the State) to ensure that the Bangert requirements are met. " 'This court cannot overemphasize the importance of the trial court's taking great care in ascertaining the defendant's understanding' of the nature of the charges and the constitutional rights being waived."⁴³ This court understands "that most trial judges are under considerable calendar constraints, but it is of paramount importance that judges devote the time necessary to ensure that a plea meets the constitutional standard. The plea hearing colloquy must not be reduced to a perfunctory exchange. It demands the trial court's 'utmost solicitude.' "⁴⁴

IV

¶ 72. Before moving to our second inquiry, namely whether Howell's motion satisfies Nelson/Bentley, we must briefly discuss a defendant's ability to invoke both Bangert and Nelson/Bentley in the same motion.

¶ 73. A Dual Bangert and Nelson/Bentley Motion. A defendant may invoke both Bangert and Nelson/Bentley in a single postconviction motion to withdraw a plea of guilty or no contest.⁴⁵ Nelson/Bentley and Bangert, although different, are not inconsistent. Both involve requests for an evidentiary hearing on a motion to withdraw a plea of guilty or no contest. In both the defendant has the burden of making a showing in the motion to withdraw the plea to justify an evidentiary hearing.⁴⁶

¶ 74. The Bangert and Nelson/Bentley motions, however, are applicable to different factual circumstances.⁴⁷ A defendant invokes Bangert when the plea colloquy is defective; a defendant invokes Nelson/Bentley when the defendant alleges that some factor extrinsic to the plea colloquy, like ineffective assistance of counsel or coercion, renders a plea infirm.⁴⁸ A "dual purpose" motion would include allegations of a defective plea colloquy and allegations of some other injustice that renders the plea infirm. We again state that a defendant may include both Bangert and Nelson/Bentley claims in a single motion to withdraw a plea of guilty or no contest.

¶ 75. A Nelson/Bentley Motion. To entitle a defendant to an evidentiary hearing under Nelson/Bentley, a defendant must "allegeQ facts which, if true, would entitle the defendant to relief.... However, if the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusionary allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing."⁴⁹ A defendant's Nelson/Bentley motion must meet a higher standard for pleading than a Bangert motion.⁵⁰ If the defendant's motion and the record fail to meet these requirements, a circuit court in its discretion may grant or deny an evidentiary hearing.

¶ 76. In other words, a defendant first must allege sufficient, nonconclusory facts in his motion that, if true, would entitle him to relief. If the defendant fails to meet the pleading requirements, the circuit court in its discretion may nevertheless grant or deny an eviden-tiary hearing. If the defendant meets the pleading requirements, the circuit court then must look to the record.

¶ 77. A well-pled complaint may be denied without an evidentiary hearing if the record as a whole conclusively demonstrates that relief is not warranted.⁵¹ Unless the record conclusively demonstrates that the defendant is entitled to no relief, the circuit court must grant an evidentiary hearing. If the record conclusively demonstrates that the defendant is not entitled to relief, then the circuit court in its discretion may grant or deny an evidentiary hearing.⁵²

¶ 78. Standard of Appellate Review. Under Nelson/Bentley, a reviewing court determines as a matter of law, independently of the circuit court and court of appeals but benefiting from their analyses, whether a defendant's motion to withdraw a guilty plea "on its face alleges facts which would entitle the defendant to relief,"⁵³ and whether the record conclusively demonstrates that the defendant is entitled to no relief.

¶ 79. A reviewing court reviews a circuit court's exercise of its discretion to grant or deny a hearing when as a matter of law the defendant's motion fails to allege sufficient facts entitling the defendant to relief or presents only conelusory allegations, or the record, as a matter of law, conclusively demonstrates the defendant is not entitled to relief. This review determines whether the circuit court erroneously exercised its discretion.⁵⁴

¶ 80. Howell's Nelson/Bentley Motion. We begin by observing that Howell's motion itself did not clearly distinguish between the claims under Bangert of a defective plea colloquy and the claims under Nelson/Bentley of problems extrinsic to the plea colloquy. Rather, Howell's motion generally alleged that he misunderstood the nature of party-to-a-crime liability, listed the various sources of this misunderstanding, and requested an evidentiary hearing to demonstrate Howell's misunderstanding.

¶ 81. We need not examine in the instant case whether allegations in the postconviction motion to withdraw the guilty plea are sufficient under Nelson/Bentley to entitle Howell to an evidentiary hearing. Several of Howell's claims appropriately fall under Nelson/Bentley because they relate to problems other than a defective plea colloquy. That part of Howell's motion that might be considered a Nelson/Bentley motion raises the same legal issue as his Bangert claim, namely that his plea was not knowing, intelligent, or voluntary because he misunderstood the nature of party-to-a-crime liability.

¶ 82. The motion asserts that between June 9, the original date of trial, and the plea colloquy, Howell spoke with his trial counsel about the amended party-to-a-crime charge, and as a result of the conversation, Howell developed a misunderstanding about what was necessary for him to be convicted of being party to the crime of first degree reckless injury. The evidentiary matter under Howell's Nelson/Bentley claim, namely that Howell misunderstood party-to-a-crime liability because of conversations with his attorney, will likely be addressed at the Bangert hearing. At the Bangert hearing, both the State and Howell may present evidence extrinsic to the record to demonstrate whether Howell properly understood the concept of party-to-a-crime liability despite the defective plea colloquy. Consequently, we need not and do not assess the validity of Howell's allegations under the Nelson/Bentley line of cases.

¶ 83. We recognize that, under other circumstances, a court may have to analyze a defendant's dual purpose motion under both the Bangert and the Nelson/Bentley standards to determine whether an evi-dentiary hearing is warranted on those claims and the nature of the hearing.

¶ 84. In sum, having already recognized that Howell is entitled to an evidentiary hearing under Bangert on whether his plea was knowing, intelligent, and voluntary because Howell misunderstood the nature of party-to-a-crime liability, we need not determine whether Howell has made sufficient allegations under Nelson/Bentley to warrant an evidentiary hearing under Nelson/Bentley. The allegations in his motion are sufficient under Bangert to entitle Howell to the relief sought, that is, an evidentiary hearing that will address whether Howell properly understood the nature of party-to-a-crime liability.

¶ 85. We need write no further. We do, however, point out that were we to consider Howell's motion as a Nelson/Bentley motion rather than as a Bangert motion, we would have to determine whether as a matter of law the record conclusively demonstrates that Howell is entitled to no relief. Although the statements made by Howell's trial counsel at sentencing give pause, the record as a whole does not conclusively demonstrate that Howell is entitled to no relief.

^ ‡

¶ 86. For the reasons set forth, we hold that Howell is entitled under Bangert to an evidentiary hearing regarding his motion to withdraw his guilty plea. As required by Bangert, the motion makes a prima facie showing that the circuit court's plea colloquy did not conform with Wis. Stat. § 971.08 and judicially mandated procedures and includes the allegation that Howell did not know or understand information that should have been provided at the plea colloquy.⁵⁵

¶ 87. In analyzing Howell's motion under NelsonIBentley, we conclude that the part of the motion that could be considered & NelsonIBentley motion raises the same legal issue as the claim under Bangert, namely that his plea was not knowing, intelligent, and voluntary because Howell misunderstood the concept of party-to-a-crime liability. The evidentiary matter presented in the NelsonIBentley portion of the motion, namely that Howell misunderstood party-to-a-crime liability based on conversations with his attorney, will likely be addressed at the Bangert hearing. Consequently, we need not assess the validity of Howell's Nelson/Bentley claim. Howell's motion entitles him to an evidentiary hearing under Bangert on the issue of whether his plea was knowing, intelligent, and voluntary.

¶ 88. We thus hold that Howell's motion warrants an evidentiary hearing under Bangert to determine whether he can withdraw his guilty plea because it was not knowing, intelligent, or voluntary. The burden is on the State at the evidentiary hearing in the instant case on the Bangert motion to prove by clear and convincing evidence that Howell's plea was knowing, intelligent, and voluntary.

¶ 89. Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for an evidentiary hearing under Bangert to determine whether Howell is entitled to withdraw his guilty plea.

By the Court. — The decision of the court of appeals is reversed and the cause remanded.

1 State v. Howell, 2006 WI App 182, 296 Wis. 2d 380, 722 N.W.2d 567.

2 All references to the Wisconsin statutes are to the 2003-04 version unless otherwise indicated.

3 State v. Brown, 2006 WI 100, ¶ 2, 293 Wis. 2d 594, 716 N.W.2d 906 (citing State v. Hampton, 2004 WI 107, ¶ 46, 274 Wis. 2d 379, 683 N.W.2d 14; State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986)).

4 The information incorrectly states that the charge is first degree recklessly endangering safety under Wis. Stat. § 941.30(1).

5 Wis. Stat. § 939.05(1),(2)(b).

6 It appears that the charge was only constructively amended to include a party-to-a-crime modifier; neither the complaint nor the information in the record reflects this amendment.

7 Howell, 296 Wis. 2d 380, ¶ 10.

8 Id., ¶ 9 (emphasis in original).

9 Boykin v. Alabama, 395 U.S. 238, 242 (1969).

10 Id at 243; Hampton, 274 Wis. 2d 379, ¶ 22.

11 Brown, 293 Wis. 2d 594, ¶ 25.

12 Wisconsin Stat. § 971.08 provides:

971.08 Pleas of guilty and no contest; withdrawal thereof.

(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.

(c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."

(d) Inquire of the district attorney whether he or she has complied with s. 971.095(2).

(2) If a court fails to advise a defendant as required by sub. (l)(c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.

(3) Any plea of guilty which is not accepted by the court or which is subsequently permitted to he withdrawn shall not be used against the defendant in a subsequent action.

13 The court recently commented on these duties in Brown, 293 Wis. 2d 594, ¶¶ 34-36. We will describe only those duties relevant to the instant review. The remainder are discussed in Brown.

14 Bangert, 131 Wis. 2d at 267.

15 Hampton, 274 Wis. 2d 379, ¶ 44. "In a practical sense, the purpose of the colloquy is to promote finality by eliminating one of the grounds for plea withdrawal." Id.

16 Brown, 293 Wis. 2d 594, ¶ 36.

17 Bangert, 131 Wis. 2d at 274. In Hampton, we explained that "the defendant must point to a specific defect in the plea hearing which constitutes an error by the court. The defendant will not satisfy this burden merely by alleging that 'the plea colloquy was defective' or 'the court failed to conform to its mandatory duties during the plea colloquy.' The defendant must make specific allegations . . . ." Hampton, 274 Wis. 2d 379, ¶ 57.

18 Bangert, 131 Wis. 2d at 274. See also Hampton, 274 Wis. 2d 379, ¶ 46. A Bangert claim, in essence, "argues that the colloquy conducted by the trial court at the plea hearing was constitutionally insufficient to ascertain [the defendant's] understanding of the nature of the charge and [the defendant's] knowledge of which constitutional rights he was waiving." Bangert, 131 Wis. 2d at 255.

19 Bangert "requires something less to support the defendant's allegation of his understanding at the time of plea [because] the court can head off the problem with a sufficient plea colloquy." Hampton, 274 Wis. 2d 379, ¶ 65.

20 Bangert, 131 Wis. 2d at 274-75.

21 Brown, 293 Wis. 2d 594, ¶ 21.

22 Brown, 293 Wis. 2d 594, ¶ 21; see also State v. Lackershire, 2007 WI 74, ¶ 25, 734 N.W.2d 23, 301 Wis. 2d 418.

23 Brown, 293 Wis. 2d 594, ¶ 21 (citing Bentley, 201 Wis. 2d at 310).

24 Id., ¶ 35 (citing Bangert, 131 Wis. 2d at 262; Wis. Stat. § 971.08(1)(a)).

25 Id. (citing Bangert, 131 Wis. 2d at 262; Wis. Stat. § 971.08(1)(b)).

26 Bangert, 131 Wis. 2d at 267. In Bangert, the court "characterize[d] this obligation as a duty to first inform a defendant of the nature of the charge or, alternatively, to first ascertain that the defendant possesses accurate information about the nature of the charge. The court must then ascertain the defendant's understanding of the nature of the charge ...." Id.

27 The final sentence of the instruction is to be used "if supported by the evidence." Wis JI — Criminal 400 (2005).

28 Bangert, 131 Wis. 2d at 268; Brown, 293 Wis. 2d 594, ¶¶ 46-51. These recommendations are not an exhaustive list of methods for circuit courts to ascertain a defendant's knowledge and understanding of the nature of the charge.

29 Brown, 293 Wis. 2d 594, ¶ 56.

30 Bangert, 131 Wis. 2d at 269.

31 Bangert, 131 Wis. 2d at 268-69. A circuit court may tailor a plea colloquy to the individual defendant. Brown, 293 Wis. 2d 594, ¶ 58. In "customizing a plea colloquy, however, a circuit court must 'do more than merely record the defendant's affirmation of understanding.'" Id., ¶ 58 (quoting Bangert, 131 Wis. 2d at 267).

32 Id. (quoting Bangert, 131 Wis. 2d at 268).

33 Wis. Stat. § 971.08(1)(b); Brown, 293 Wis. 2d 594, ¶ 35. The duty of the circuit court to ascertain whether a sufficient factual basis for the plea exists is an important statutorily and judicially required duty that cannot be shirked. State v. Lackershire, 2007 WI 74, ¶ 35, 301 Wis. 2d 418, 734 N.W.2d 23 (citing Brown, 293 Wis. 2d 594, ¶ 35, citing Bangert, 131 Wis. 2d at 262; Wis. Stat. § 971.08(1)(b)).

34 State v. Lackershire, 2007 WI 74, ¶ 52, 734 N.W.2d 23, 301 Wis. 2d 418.

35 State v. Lackershire, 2007 WI 74, ¶ 46, 734 N.W.2d 23, 301 Wis. 2d 418.

36 State v. Lackershire, 2007 WI 74, ¶ 50, 734 N.W.2d 23, 301 Wis. 2d 418; Wis. Stat. § 971.08(1).

37 Statement by the prosecutor in response to the circuit court.

38 At the preliminary hearing, Pearson was the only witness and he testified that Howell was the actual shooter. There is no discussion of Sharp's involvement or how Howell and Sharp interacted. There is also no testimony as to why Pearson was at the location of the shooting and thus no indication that Howell arranged for Pearson to be there.

39 Brown, 293 Wis. 2d 594, ¶ 77.

40 State v. Lackershire, 2007 WI 74, ¶ 35, 734 N.W.2d 23, 301 Wis. 2d 418 (internal citations omitted).

41 Hampton, 274 Wis. 2d 379, ¶ 72.

42 Brown, 293 Wis. 2d 594, ¶ 40 (emphasis added).

43 Id., ¶ 32 (quoting Bangert, at 270).

44 Id., ¶ 33 (quoting Bangert at 278-79 (quoting Boykin, 395 U.S. at 243-44)).

45 Brown, 293 Wis. 2d 594, ¶ 42. In Brown, we explained:

When the defendant files a dual purpose motion — that is, a Bangert motion combined with a [Nelson/Bentley] motion that alleges ineffective assistance of counsel or some other problem affecting the plea that is extrinsic to the plea hearing record — the court should make an initial ruling on whether an evidentiary hearing is required and, if it is, what the hearing will address.

Id.

46 Hampton, 274 Wis. 2d 379, ¶ 56 (discussing the similarities of motions brought under Bangert and Nelson/Bentley).

⁴⁷

48 Brown, 293 Wis. 2d 594, ¶ 42. Bentley, 201 Wis. 2d at 311 (ineffective assistance of counsel); State v. Basley, 2006 WI App 253, ¶ 9, 298 Wis. 2d 232, 726 N.W.2d 671 (coercion by defense counsel).

49 Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972).

50 We reject Howell's contention that the court changed the Bangert and Nelson/Bentley tests when it wrote the following in Hampton:

The defendant must make specific allegations [in a Bangert motion] such as "at no point during the plea colloquy did the court explain that it was not hound by the plea bargain and was free to disregard the prosecutor's sentencing recommendation." In addition, the defendant must allege that he did not in fact understand that the court was not bound by the plea agreement because that information/explanation was not provided. We think a motion of this nature passes the test of Nelson and Bentley: a motion to withdraw a plea that alleges facts which, if true, would entitle the defendant to relief. The allegation that the defendant did not understand is, admittedly, conclusory; but the allegation raises a question of fact and perhaps law that requires resolution.

Hampton, 274 Wis. 2d 379, ¶ 57 (emphasis added).

We disagree with Howell's claim that this language renders unnecessary the "non-conclusory" requirement of the Nelson/Bentley test. First, Hampton was a Bangert case, and thus did not change the law of the Nelson/Bentley line of cases. Second, the language does not eliminate the "non-conclusory" requirement of Nelson/Bentley; rather, it explains that certain conclusory statements are acceptable in Bangert cases. See also State v. Goyette, 2006 WI App 178, ¶ 17 n.8, 296 Wis. 2d 359, 722 N.W.2d 731 (citing to this passage and explaining that "the second Bangert prong is satisfied by a conclusory allegation that the defendant did not know or understand").

51 The Nelson court addressed a postconviction motion to withdraw a guilty plea pursuant to Wis. Stat. § 974.06, which governs collateral attacks brought after the time for appeal has expired. This statute provides that "[u]nless the motion and the files and records of the action conclusively show that the person is entitled to no relief, the court shall.. . grant a prompt hearing." Wis. Stat. § 974.06(3)(c).

The Bentley court extended the Nelson test to other post-conviction motions to withdraw guilty pleas, including those brought pursuant to Wis. Stat. (Rule) § 809.30 and § 974.02. The Bentley court, although recognizing the difference between a § 974.02 and a § 974.06 motion, announced that "our standard of review is dictated by Nelson." Bentley, 201 Wis. 2d at 310. The Bentley court explained that "the test is the same for a direct challenge to the conviction on a motion to withdraw a guilty plea as for a collateral challenge pursuant to § 974.06." Id. at 310 n.6 (internal citations omitted).

The Bentley court interpreted Nelson as follows: "If the motion on its face alleges facts which would entitle the defendant to relief, the circuit court has no discretion and must hold an evidentiary hearing." Bentley, 201 Wis. 2d at 310, citing Nelson, 54 Wis. 2d at 497 (emphasis added). In phrasing the Nelson test this way, Bentley might be interpreted to make an evidentiary hearing mandatory whenever the motion contains sufficient, nonconclusory facts, even if the record as a whole would demonstrate that the defendant's plea was constitutionally sound. Such an interpretation of Nelson and Bentley, however, is not correct. The correct interpretation of Nelson/Bentley is that an evidentiary hearing is not mandatory if the record as a whole conclusively, demonstrates that defendant is not entitled to relief, even if the motion alleges sufficient nonconclusory facts.

52 An adequate and accurate plea colloquy does not foreclose a Bentley challenge. The court of appeals recently explained that "[t]he State is simply incorrect that a good and sufficient plea colloquy, one that concededly complies with the requirements of Bangert, can be relied on to deny an eviden-tiary hearing for a defendant who seeks to withdraw his or her plea on non -Bangert grounds. The entire premise of a Nelson/Bentley plea withdrawal motion is that something not apparent from the plea colloquy may have rendered a guilty or no contest plea infirm." State v. Basley, 2006 WI App 253, ¶ 15, 298 Wis. 2d 232, 726 N.W.2d 671.

53 Bentley, 201 Wis. 2d at 310 (citing Nottelson v. DILHR, 94 Wis. 2d 106, 116, 287 N.W.2d 763 (1980) (whether facts fulfill a particular legal standard is a question of law)).

54 Nelson, 54 Wis. 2d at 497-98. See ¶¶ 76-78, supra.

55 Brown, 293 Wis. 2d 594, ¶ 2 (citing Hampton, 274 Wis. 2d 379, ¶ 46; Bangert, 131 Wis. 2d at 274).