State v. Jenkins

LOUIS B. BUTLER, JR., J.

¶ 109. {concurring). I concur in the mandate. Barry Jenkins' plea agreement at the time he entered his guilty plea did not include a provision that called for him to receive some benefit at sentencing in exchange for divulging relevant information about other drug perpetrators. While he may have had a "hope" for some sort of leniency should he provide assistance to law enforcement in apprehending other drug dealers, that was not a part of the negotiation he entered into. He cannot now assert that he misunderstood an agreement that he acknowledges he never had. *206Consequently, I conclude that the circuit court did not erroneously exercise its discretion when it denied Jenkins' motion to withdraw his guilty plea. State v. Canedy, 161 Wis. 2d 565, 579-80, 469 N.W.2d 163 (1991).

¶ 110. I write separately because a guilty plea withdrawal prior to sentencing is controlled by well-settled precedent. See State v. Bollig, 2000 WI 6, ¶ 28, 232 Wis. 2d 561, 605 N.W.2d 199; State v. Kivioja, 225 Wis. 2d 271, 287, 592 N.W.2d 220 (1999); State v. Garcia, 192 Wis. 2d 845, 861, 532 N.W.2d 111 (1995); and State v. Canedy, 161 Wis. 2d at 582. A defendant's assertion of a misunderstanding of a plea or plea agreement must be genuine to satisfy the fair and just reason standard for plea withdrawal. Kivioja, 225 Wis. 2d at 291; Canedy, 161 Wis. 2d at 585-86. The circuit court must determine whether the defendant's reason for withdrawal is credible or plausible or believable. Kivioja, 225 Wis. 2d at 291-92. We apply a clearly erroneous standard of review to the circuit court's findings of historical or evidentiary fact. State v. Turner, 136 Wis. 2d 333, 343-44, 401 N.W.2d 827 (1987).

¶ 111. In a letter prior to sentencing, Jenkins' attorney advised Jenkins about the possibility of working with the police as an informer in exchange for the possibility of some sort of sentence credit should the information prove useful and should he testify against other perpetrators. The plea agreement, however, was not predicated on Jenkins actually working for the police. The agreement Jenkins entered into was that, in exchange for a plea of guilty, the State would recommend 24 months' initial confinement, 24 months' extended supervision, and a $1000 fine, plus costs. The circuit court failed to see any misunderstanding about the plea or the plea negotiation on Jenkins' part. *207Jenkins was aware of the possibility that he might be able to earn a better sentencing recommendation from the State if everything worked out and he was able to assist the State in other prosecutions. Due to his continued incarceration, things did not work out, and he therefore was unable to secure a better recommendation. He received the recommendation he bargained for, no more, no less. That should be the end of the case.

¶ 112. Unfortunately, the majority has written an unnecessary and expansive opinion that might be misinterpreted to merge the manifest injustice standard for withdrawal of a guilty plea after sentencing with the fair and just reason standard for withdrawal prior to sentencing. Our standard for reviewing motions to withdraw guilty pleas prior to sentencing under the fair and just reason standard is a good one. Because the majority opinion might be misinterpreted as changing the law with respect to plea withdrawals prior to sentencing, I decline to join it.

¶ 113. For the foregoing reasons, I respectfully concur.

¶ 114. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this concurring opinion.