Submitted on Briefs: Oral Argument: April 15, 2 019
OF DECISION OF THE COURT OF APPEALS Reported at 380 Wis.2d
508, 913 N.W.2d 514 (2018 - unpublished)
Circuit Court Milwaukee county L.C. No. 2011CF2815 Joseph M.
the defendant-appellant-petitioner, there were briefs filed
by Nora E. Gierke and Gierke Law LLC, Wauwatosa. There was an
oral argument by Nora E. Gierke.
the plaintiff-respondent, there was a brief filed by Lisa
E.F. Kumfer, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Lisa E.F. Kumfer.
Mr. Tyrus Lee Cooper moved the circuit court, prior to
sentencing, to withdraw his guilty plea. The circuit court
refused his request. Two years later, we disciplined his
attorney (Michael J. Hicks) for professional misconduct that
included his handling of Mr. Cooper's
defense.Mr. Cooper believes our opinion in that
disciplinary proceeding proved his counsel had provided
ineffective assistance in his criminal case. That, he says,
is a "fair and just reason" for withdrawing his
plea. For the following reasons, we disagree.
Mr. Cooper was charged with a single count of armed robbery
as a party to a crime. The State Public Defender appointed Mr.
Hicks to represent Mr. Cooper after the circuit court
permitted his previous counsel to withdraw. Shortly
afterwards, Mr. Cooper wrote to Mr. Hicks (in January of
2013) requesting a copy of discovery materials and raising
concerns about his case-requests and concerns that he would
repeat in subsequent letters. On October 8, 2013, which was
approximately two weeks before his scheduled trial, Mr.
Cooper personally wrote to the circuit court to claim that
Mr. Hicks was interfering with his right to aid in his
defense. He said Mr. Hicks had not provided him with a copy
of the discovery materials and had failed to subpoena key
witnesses. He also said he had not spoken to Mr. Hicks, by
phone or in person, and therefore could not be prepared for
Shortly before trial, the State offered to recommend a
sentence of three years of initial confinement and three
years of extended supervision if Mr. Cooper pled guilty as
charged. He agreed, and on October 21, 2013, the circuit
court heard his plea. Prior to accepting it, the circuit
court confirmed that Mr. Cooper understood the
plea agreement, maximum penalties, and elements of the
charge. In response to the circuit court's questions, Mr.
Cooper affirmatively asserted that he was aware of the
constitutional rights he was waiving. The circuit court
confirmed on the record that Mr. Cooper was of sound mind and
capable of "freely, knowingly, and
voluntarily" entering the plea.
The circuit court specifically asked Mr. Cooper about the
allegations he made in his letter of October 8, 2013. Mr.
Cooper stated that he wanted the circuit court to take
"[n]o actions" with respect to the letter and
indicated that he wanted the letter "disposed of."
Mr. Cooper's final statement with respect to his plea was
"I fully understand. I feel confident in what I
did." The circuit court set sentencing for January 9,
Approximately three weeks before sentencing, Mr. Cooper
personally sent another letter to the circuit court, this
time asking to withdraw his plea "due to the fact of
ineffective assistance of counsel." Mr. Cooper wrote
that he was unaware that Mr. Hicks had been suspended from
practicing law during part of his
representation. And he claimed Mr. Hicks lied by failing
to notify him of his suspension. He also said Mr. Hicks
misled him into accepting the plea by stating he was destined
to lose at trial. The circuit court allowed Mr. Hicks to
withdraw as counsel and rescheduled the sentencing hearing.
Mr. Cooper's newly-appointed counsel formally moved to
withdraw the plea. The motion asserts that the issues raised
in the October 2013 letter were not resolved before the
circuit court accepted the plea. It repeats many of the
concerns Mr. Cooper listed in that letter, including that Mr.
Hicks had not met with him from December 2012 until October
8, 2013, to discuss his case, and that Mr. Hicks failed to
provide him with a copy of discovery materials. The motion
also repeats the assertion that he had been unaware that Mr.
Hicks' law license had been suspended. Finally, Mr.
Cooper alleged that he did not knowingly and voluntarily
enter his plea.
At the hearing on the plea-withdrawal motion, Mr.
Cooper's new counsel said that if Mr. Cooper had known
Mr. Hicks' license had been suspended, he would have
asked for another lawyer. He also asserted that Mr. Cooper
entered his plea in haste because he believed his attorney
was not prepared for trial. However, Mr. Cooper's counsel
also indicated that, if the circuit court granted his motion,
Mr. Cooper might just enter the same plea because he was
satisfied with the State's recommendation. Mr. Cooper
testified at the hearing and claimed that he had believed
part of the plea agreement included reducing the armed
robbery charge to something with a lower maximum penalty. He
did not say what he believed the reduced charge would have
been. The circuit court questioned Mr. Cooper on this point,
noting that the charge to which he pled had been read to him
at the plea hearing, as well as its elements and the maximum
penalty, and that he had affirmatively responded that he
understood and wanted to enter his plea. Mr. Cooper said he
thought the circuit court was required to read the original
charge, but that he would actually be convicted of a lesser
The circuit court denied Mr. Cooper's motion on June 27,
2014 (a date that will have some significance to our
analysis). It concluded that the plea colloquy demonstrated
that Mr. Cooper knowingly, intelligently, and voluntarily
entered his plea, and that the matters in the October 8,
2013, letter had been properly addressed. It also concluded
that granting Mr. Cooper's motion would cause substantial
prejudice to the State. The circuit court made no factual
findings regarding communications between Mr. Hicks and Mr.
Cooper. In due course, the circuit court sentenced Mr. Cooper
to five years of confinement and five years of extended
supervision. Mr. Cooper appealed.
Two years after Mr. Cooper moved to withdraw his plea (and
while his appeal was pending), we decided a disciplinary case
brought by the Office of Lawyer Regulation (OLR) against Mr.
Hicks. See In re Disciplinary Proceedings Against
Hicks, 2016 WI 31, 368 Wis.2d 108, 877 N.W.2d 848');">877 N.W.2d 848. After
initially contesting the charges, Mr. Hicks withdrew his
answer and filed a written "no contest" plea,
agreeing that the referee could use the complaint's facts
as a basis for identifying violations of the Rules of
Professional Conduct for Attorneys. Id.,
¶¶6-7. Based on that representation, the referee
concluded that Mr. Hicks had engaged in nineteen acts of
misconduct, including five that related to his representation
of Mr. Cooper. Id., ¶¶6, 28.The OLR's
complaint said that Mr. Hicks had failed to provide requested
discovery documents to Mr. Cooper and failed to notify him
and the circuit court of his license suspension for part of
the time he was representing Mr. Cooper. Id.,
¶¶23, 26. The complaint also said that Mr. Hicks
did not discuss preparation for trial with Mr. Cooper, nor
did he address the issues raised in Mr. Cooper's letters.
Id., ¶¶23-24. Based on these facts, the
OLR referee concluded, as a matter of law, that Mr.
Hicks' misconduct "prevent[ed] [Mr. Cooper] from
adequately understanding and participating in his own
defense" in violation of SCR 20:1.4(a) (2)
Hicks, 368 Wis.2d 108, ¶28.
After reviewing the referee's report, we accepted his
"factual findings as taken from the OLR's
complaint." Id., ¶39. We also agreed
"with the referee that those factual findings are
sufficient to support a legal conclusion that Attorney Hicks
engaged in the professional misconduct set forth in the 19
counts" contained in the OLR's complaint.
On appeal, Mr. Cooper argued (in part) that our decision in
Hicks established that he had received ineffective
assistance of counsel prior to entering his guilty plea. The
court of appeals considered the well-known analytical
structure we use to assess such claims and concluded
that Mr. Cooper had failed to show the allegedly deficient
performance caused him prejudice. Therefore, the court of
appeals affirmed the circuit court. State v. Cooper,
No. 2016AP375-CR, unpublished slip op. (Wis. Ct. App. Feb.
We granted Mr. Cooper's petition for review, which
presented the first and third of the following three issues.
We asked the parties to brief the second issue:
1. When Cooper's counsel engaged in serious professional
misconduct, preventing Cooper from adequately understanding
and participating in his own defense, did this constitute
ineffective assistance of counsel and provide Cooper with a
fair and just reason to withdraw his guilty plea prior to
2. In deciding whether Cooper may withdraw his guilty plea,
is the circuit court bound by the Supreme Court's
findings and/or conclusions in In re Disciplinary
Proceedings Against Hicks, 2016 WI 31, 368 Wis.2d 108,
877 N.W.2d 848');">877 N.W.2d 848 (2016), including, but not limited to,
language stating that the failure of Cooper's trial
counsel to properly communicate with him prevented him from
adequately understanding and participating in his own defense
. . . ?
3. Did the circuit court erroneously exercise its discretion
when it denied defendant's motion to withdraw his plea
prior to sentencing without a sufficient evidentiary record
to support a finding that withdrawal of the plea
pre-sentencing would result in substantial prejudice to the
reasons set forth below, we affirm the court of appeals.
STANDARD OF REVIEW
"[W]hether a defendant may withdraw his plea is left to
the sound discretion of the circuit court." State v.
Bollig, 2000 WI 6, ¶28, 232 Wis.2d 561, 605 N.W.2d
199 (citation omitted). We review the circuit court's
decision for an erroneous exercise of discretion. State
v. Jenkins, 2007 WI 96, ¶30, 303 Wis.2d 157, 736
N.W.2d 24. We will sustain an exercise of discretion if the
circuit court "examined the relevant facts, applied a
proper standard of law, and, using a demonstrated rational
process, reached a conclusion that a reasonable judge could
reach." Loy v. Bunderson, 107 Wis.2d 400,
414-15, 320 N.W.2d 175 (1982).
"A claim for ineffective assistance of counsel is a
mixed question of fact and law." State v. Wood,
2010 WI 17, ¶16, 323 Wis.2d 321, 780 N.W.2d 63. We
sustain the circuit court's factual findings "unless
they are clearly erroneous." State v. Doss,
2008 WI 93, ¶23, 312 Wis.2d. 570, 754 N.W.2d. 150.
"Whether counsel's performance was deficient and
prejudicial to his . . . client's defense is a question
of law that we review de novo." State v. Hunt,
2014 WI 102, ¶22, 360 Wis.2d 576, 851 N.W.2d. 434.
A court will generally grant a pre-sentencing request to
withdraw a guilty plea upon presentation of a fair and just
reason for doing so. State v. Canedy, 161 Wis.2d
565, 582, 469 N.W.2d 163 (1991) ("The appropriate and
applicable law in the case before the court, is that a
defendant should be allowed to withdraw a guilty plea for any
fair and just reason, unless the prosecution would be
substantially prejudiced.") (emphasis omitted) . This
has been described as a "liberal rule" that fosters
"the efficient administration of criminal justice"
by "reduc[ing] the number of appeals contesting the
'knowing and voluntariness' of a guilty plea . . .
." Libke v. State, 60 Wis.2d 121, 127-28, 208
N.W.2d 331 (1973) . If the defendant establishes an
appropriate reason by a preponderance of the evidence,
Canedy, 161 Wis.2d at 583-84, the State may
nonetheless defeat the motion by proving substantial
prejudice. Bollig, 232 Wis.2d 561, ¶34.
The phrase "fair and just" is not, of course,
susceptible to precise definition, and our cases have
identified many reasons for withdrawing a plea that meet this
standard. For example, an adequate reason "will likely
exist if the defendant shows that the circuit court failed to
conform to its statutory or other mandatory duties in the
plea colloquy, and the defendant asserts misunderstanding
because of it." Jenkins, 303 Wis.2d 157,
¶62. See also Bollig, 232 Wis.2d 561, ¶31
("[I]f [the defendant] was unaware of his requirement to
register as a convicted sex offender, he presented a fair and
just reason for plea withdrawal."); State v.
Shanks, 152 Wis.2d 284, 290, 448 N.W.2d 264 (Ct. App.
1989) ("Genuine misunderstanding of a guilty plea's
consequences is a ground for withdrawal.") (citation
omitted). "[H]aste and confusion in entering the
plea" is a fair and just reason for withdrawing a plea,
as is "coercion on the part of trial counsel."
State v. Shimek, 230 Wis.2d 730, 739, 601 N.W.2d 865');">601 N.W.2d 865
(Ct. App. 1999) (citation omitted). Indeed, we have said that
"the mere showing of some adequate reason for
defendant's change of heart" will suffice.
Canedy, 161 Wis.2d at 583 (citation and internal
marks omitted) . But there are limits on the reasons we will
accept as adequate. At a minimum, a "fair and just
reason" must be something other than a bare desire to
have a trial. Id.
Mr. Cooper says he should be allowed to withdraw his plea
because he received ineffective assistance of counsel from
Mr. Hicks before he pled. If true, that would certainly
entitle him to relief because such a justification satisfies
even the more rigorous post-sentencing "manifest
injustice" plea-withdrawal standard. State v.
Dillard, 2014 WI 123, ¶84, 358 Wis.2d 543, 859
N.W.2d 44 ("One way to demonstrate manifest injustice is
to establish that the defendant received ineffective
assistance of counsel.").
Hicks as Proof of Ineffective Assistance of Counsel
¶18 The proof Mr. Cooper offers to establish the
deficiency of his counsel is of no small moment, for he
offers us the words of our own opinion in which we announced
Mr. Hicks' discipline for his misconduct in handling Mr.
Cooper's defense. Specifically, he says we conclusively
answered the deficiency question when we addressed Count 13
of the OLR's complaint, which says:
By failing between the date on which he received [Mr.
Cooper's] letter in January 2013 and February 12, 2013,
between March 11, 2013 and August 16, 2013, and between
August 18, 2013 and October 20, 2013, to communicate with
[Mr. Cooper] regarding the issues raised in [Mr.
Cooper's] January 2013 letter and to otherwise consult
with [Mr. Cooper] regarding trial strategy and preparation,
thereby preventing [Mr. Cooper] from adequately
understanding and participating in his own defense,
[Attorney] Hicks violated SCR 20:1.4(a)(2).
Hicks, 368 Wis.2d 108, ¶28 (quoting OLR's
complaint) (emphasis added) (some alterations in original).
However, for the following three reasons, we conclude that
our decision in Hicks has no material effect on the
resolution of Mr. Cooper's case.
First, with respect to what we said in Hicks, there
is a distinction to be drawn between our quotation of the
OLR's complaint, on the one hand, and on the other our
review of the referee's factual findings and our
independent conclusions of law. We said we would accept the
referee's "factual findings as taken from the
OLR's complaint," id., ¶39, which
means we must review the referee's findings of fact and
the OLR complaint's allegations to determine whether we
adopted the statement upon which Mr. Cooper relies. The
factual background supporting Mr. Hicks' misconduct
appears in paragraphs 52-62 of the OLR's complaint. The
passage on which Mr. Cooper relies appears in paragraph 63,
which is not part of the factual background but is the formal
accusation of misconduct against Mr. Hicks. The referee's
report tracked the complaint's distinction between the
facts, on the one hand, and on the other the formal
accusation of misconduct. Consequently, the referee's
findings of fact do not contain the assertion that Mr. Hicks
"prevent[ed] [Mr. Cooper] from ...