Wisconsin Court of Appeals rules fact clash voids guilty plea.

• Author: Ziemer, David

Byline: David Ziemer

Trial courts need to be careful when it comes to accepting guilty pleas based on something other than a stipulation to the facts in the criminal complaint.

On Feb. 19, the Wisconsin Court of Appeals held that a factual basis was lacking, where the state and defense agreed that defense counsel would state the factual basis, but that there was a factual disagreement between the parties.

Roy Kennard Weatherall, Jr., was charged with several crimes: soliciting a child for prostitution; child enticement; exposing a child to harmful material; and possession of marijuana.

The criminal complaint alleged (relevant to the appeal) that Weatherall encouraged a 15-year-old girl to engage in prostitution, with him acting as her pimp.

A plea agreement was reached under which Weatherall would plead guilty to a new charge of causing mental harm to a child, and the charged offenses would be dismissed.

When the circuit court indicated it would use the criminal complaint for the factual basis, the parties indicated that the defense attorney would state the factual basis, but that there was disagreement as to what actually occurred, and the parties would be arguing different facts at sentencing.

Regarding the element of causing mental harm, the state's position was that Weatherall did so by encouraging the girl to engage in prostitution.

Weatherall's attorney denied that occurred, but agreed the element could be met merely by her presence in his car at a time when she should have been in school.

Weatherall later moved to withdraw his plea, contending that there was an insufficient factual basis for the plea. The circuit court denied the motion, but, in a per curiam opinion, the Court of Appeals reversed.

The court began by setting forth the purpose of the factual basis requirement -- to protect defendants who are aware of the elements of a crime, but do not realize that their conduct does not satisfy those elements.

As a result, the court concluded that the only facts which may be used for establishing a factual basis are those which the defendant, personally or through counsel, admits are true, or agrees may be used for that purpose.

For support, the court relied on the Wisconsin Supreme Court opinion in State v. Thomas, 2000 WI 13, 232 Wis.2d 714, 605 W.W.2d 836.

The issue in Thomas was whether or not Thomas agreed to the stipulation of facts. From this, the Court of Appeals thus concluded that it must be relevant whether the defendant...