Can I appeal a Wisconsin criminal conviction even though I entered a guilty plea?
The decision of whether to plead guilty to a criminal charge or to take the case to trial is sometimes very difficult. It is not uncommon for defendants to regret having entered a guilty plea. The question, then, is whether there is anything that can be done about it.
A validly-entered guilty plea waives all issues on appeal except pretrial motions to suppressThe law in Wisconsin is that a validly-entered guilty plea waives all issues on appeal except the denial of pretrial motions to suppress evidence. Thus, if you have entered a guilty plea, and there were no pretrial motions, there is nothing to appeal. Your only alternatives are to file a postconviction motion to either withdraw the guilty plea, or to modify the sentence.
Postconviction motion to withdraw a guilty pleaA motion to withdraw a guilty plea that is made prior to sentencing will be granted for any "just reason". In the law, this is a relatively low standard. However, if a defendant seeks to withdraw a guilty plea after sentencing, he or she must demonstrate that the withdrawal of the plea is necessary to correct a "manifest injustice." Some examples of a manifest injustice are: the defendant was denied some constitutional right, such as the right to counsel; the plea violates due process in that the plea was not knowingly, voluntarily, and intelligent entered; or there is affirmative newly-discovered evidence that the defendant is, in fact, actually innocent.
Procedurally, motions to withdraw a guilty plea are handled in one of two ways. First, if the basis of the motion is that the court's plea colloquy with the defendant fails to demonstrate that the judge provided the defendant with all of the necessary information prior to accepting the plea, then the motion must identify the defect in the plea colloquy and also allege that, had the defendant known of the missing information, he would not have pleaded guilty. If the motion is sufficient, the court will then conduct an evidentiary hearing into whether a manifest injustice has occurred.
The second type motion to withdraw a guilty plea alleges that there is some factor outside of the record that rendered the plea invalid. In other words, the court's plea colloquy was sufficient, but there is some extrinsic factor that demonstrates that the plea is invalid. An example of that would be where the defendant can demonstrate that he only pleaded guilty because some third party threatened to harm the defendant's family unless the defendant pleaded guilty. Again, if the motion alleges sufficient facts, the court is then obliged to conduct an evidentiary hearing.
Postconviction motion to modify sentenceThere are several legal bases for a motion to modify sentence: (1) the court considered some inappropriate factor (race, religion, etc.) or relied upon demonstrably inaccurate information; (2) the court failed to set forth on the record its reasons for imposing the sentence it did; (3) a new sentencing factor; and (4) the sentence is unduly harsh.
It is grounds for a sentence modification if the court relied upon some inappropriate factor such as race or religion. The judges are aware of this, and, even though the judge may harbor some subjective bias, they are usually very careful not to say anything that would reveal the bias. Thus, motions of this type are fairly rare.
The Wisconsin Supreme Court has repeatedly directed the circuit courts to carefully explain on the record its reasons for imposing the sentence it did. With some regularity, the courts fail to properly explain the bass for a sentence. This sort of motion, though, is usually not very helpful to the defendant. Most times, the judge will not modify the sentence, he or she will simply give a better explanation for the sentence.
A new sentencing factor is some information that is very important to the court's sentence, but was not made known to the court at the time of sentencing. An example of this is where, after sentencing, the defendant learns that he has some significant mental illness that contributed to the crime he committed. The existence of a new sentencing factor is probably the most common basis for a downward modification of a sentence.
Finally, a sentence may be modified if it is unduly harsh. Virtually every defendant who is sentenced to prison thinks that his sentence is unduly harsh; however, this is by far the most rare reason to modify a sentence. A sentence is unduly harsh if it is so excessive that it "shocks the conscience of the community." The primary protection against an unduly harsh sentence is the statutory maximum. In thirty-four years of practicing criminal defense I have never successfully argued that a sentence is unduly harsh. In fact, I have never even heard of such a motion being granted.