                                                             2019 WI 73

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2016AP375-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Tyrus Lee Cooper,
                                 Defendant-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 380 Wis. 2d 508,913 N.W.2d 514
                                     (2018 – unpublished)

OPINION FILED:         June 20, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         April 15, 2019

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Joseph M. Donald

JUSTICES:
   CONCURRED:
   DISSENTED:          DALLET, J. dissents, joined by A.W. BRADLEY, J.
                       (opinion filed).
  NOT PARTICIPATING:   ABRAHAMSON, J. did not participate.

ATTORNEYS:


       For 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.


       For 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.
                                                                         2019 WI 73
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.       2016AP375-CR
(L.C. No.    2011CF2815)

STATE OF WISCONSIN                             :              IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                      FILED
      v.                                                         JUN 20, 2019

Tyrus Lee Cooper,                                                   Sheila T. Reiff
                                                                 Clerk of Supreme Court

              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                  Affirmed.


      ¶1     DANIEL    KELLY,    J.   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.1
Mr. Cooper believes our opinion in that disciplinary proceeding
proved his counsel had provided ineffective assistance in his




      1See In re Disciplinary Proceedings Against Hicks, 2016
WI 31, 368 Wis. 2d 108, 877 N.W.2d 848.
                                                                         No.    2016AP375-CR



criminal case.         That, he says, is a "fair and just reason" for
withdrawing his plea.            For the following reasons, we disagree.2
                                    I.    BACKGROUND
      ¶2        Mr. Cooper was charged with a single count of armed
robbery     as    a party to       a     crime.3      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 trial.




      2This is a review of an unpublished court of appeals
decision affirming the Milwaukee County Circuit Court, the
Honorable M. Joseph Donald presiding.   State v. Cooper, No.
2016AP375-CR, unpublished slip op. (Wis. Ct. App. Feb. 27,
2018).
      3See Wis. Stat. § 943.32(1)(a), Wis. Stat. § 943.32(2), and
Wis. Stat. § 939.05 (2017-18). All subsequent references to the
Wisconsin Statutes are to the 2017-18 version unless otherwise
indicated.


                                             2
                                                      No.   2016AP375-CR



    ¶3         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 court4 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"5 entering the
plea.

        ¶4     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

    4  The Honorable Dennis Flynn presided over the plea hearing
while the Honorable M. Joseph Donald presided over the hearing
of Mr. Cooper's motion to withdraw his plea.
    5  Our statutes require that a plea be "made voluntarily with
understanding of the nature of the charge and the potential
punishment if convicted." Wis. Stat. § 971.08(1)(a). Wisconsin
courts typically express this standard as requiring a plea made
"knowingly, voluntarily, and intelligently," rather than one
that is "freely, knowingly, and voluntarily" made. But we have
concluded before that there is no substantive difference between
the two phraseologies. See State v. Hoppe, 2009 WI 41, ¶¶25, 57,
317 Wis. 2d 161, 765 N.W.2d 794 (concluding "that the defendant
entered his plea knowingly, intelligently, and voluntarily"
despite the circuit court finding "a free, knowing and voluntary
plea").


                                    3
                                                             No.     2016AP375-CR



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,
2014.
      ¶5     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.6          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.
      ¶6     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

      6Mr. Hicks' law license was temporarily suspended from
February 12, 2013, through March 11, 2013, for reasons unrelated
to his representation of Mr. Cooper.    Hicks, 368 Wis. 2d 108,
¶9.


                                       4
                                                                          No.    2016AP375-CR



had been suspended.            Finally, Mr. Cooper alleged that he did not
knowingly and voluntarily enter his plea.
       ¶7      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
offense.
       ¶8      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,
                                               5
                                                                No.    2016AP375-CR



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.
      ¶9    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.                   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.7                     Id., ¶¶6-7.
Based on that representation, the referee concluded that Mr.
Hicks had engaged in nineteen acts of misconduct, including five




      7The OLR complaint is not in the record in this proceeding.
However, the complaint was in the record in Hicks, 368
Wis. 2d 108.   This court has a practice of judicially noticing
files of cases that have previously come before this court. See
Deluhery v. Sisters of St. Mary, 244 Wis. 254, 255-56, 12
N.W.2d 49 (1943); see also Sisson v. Hansen Storage Co., 2008
WI App 111, ¶11, 313 Wis. 2d 411, 756 N.W.2d 667 ("'Judicial
notice may be taken at any stage of the proceeding,' . . . and
this means that an appellate court may take judicial notice when
that is appropriate[.]" (citations omitted)).


                                       6
                                                    No.   2016AP375-CR



that related to his representation of Mr. Cooper.    Id., ¶¶6, 28.8

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

     8 The OLR complaint's formal accusations of misconduct, as
far as they relate to Mr. Hicks' representation of Mr. Cooper,
are as follows:

     [Count Thirteen] 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).

     [Count Fourteen] By failing to timely provide [Mr.
     Cooper] with a complete copy of the discovery
     materials, despite [Mr. Cooper's] requests, [Attorney]
     Hicks violated SCR 20:1.4(a)(4).

     [Count Fifteen] By failing to provide a written notice
     to [Mr. Cooper] of his February 12, 2013 suspension,
     [Attorney] Hicks violated SCR 22.26(1)(a) and (b).

     [Count Sixteen] By failing to provide written notice
     to the court and opposing counsel in [Mr. Cooper's
     pending criminal case] that his license to practice
     law   had  been   suspended  on   February  12, 2013,
     [Attorney] Hicks violated SCR 22.26 (1)(c).

     [Count Seventeen] By failing to timely file a response
     to [Mr. Cooper's] grievance, [Attorney] Hicks violated
     SCR 22.03(2) and (6), enforced via SCR 20:8.4(h).

Hicks, 368 Wis. 2d 108, ¶28 (some alterations in original).


                                7
                                                             No.    2016AP375-CR



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).9       Hicks, 368 Wis. 2d 108, ¶28.
     ¶10    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.           Id.
     ¶11    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 claims10 and concluded that Mr. Cooper had


     9 Supreme Court Rule 20:1.4(a)(2) provides in pertinent
part:   "(a) A lawyer shall: . . . (2) reasonably consult with
the client about the means by which the client's objectives are
to be accomplished . . . ."
     10 "First,  the   defendant  must   show  that  counsel's
performance was deficient. . . .   Second, the defendant must
show that the deficient performance prejudiced the defense.
This requires showing that counsel's errors were so serious as
to deprive the defendant of a fair trial, a trial whose result
is reliable."    Strickland v. Washington, 466 U.S. 668, 687
(1984).


                                      8
                                                                     No.   2016AP375-CR



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. 27, 2018).
       ¶12    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 sentencing?

       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 (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 State?
For the reasons set forth below, we affirm the court of appeals.
                              II.      STANDARD OF REVIEW
       ¶13    "[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


                                             9
                                                                         No.    2016AP375-CR



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).
       ¶14    "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.
                                     III. ANALYSIS
       ¶15    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
                                           10
                                                                           No.     2016AP375-CR



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.
       ¶16    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 (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
                                               11
                                                                  No.   2016AP375-CR



accept as adequate.         At a minimum, a "fair and just reason" must
be something other than a bare desire to have a trial.                   Id.

       ¶17   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.").
       A.    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).



                                        12
                                                                    No.      2016AP375-CR



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.
       ¶19    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 adequately understanding and participating in his
own defense . . . ."            See Hicks, 368 Wis. 2d 108, ¶28.                     That




                                            13
                                                                          No.     2016AP375-CR



statement appears in the referee's conclusions of law.11                                So it
cannot be said that we adopted the statement on which Mr. Cooper
relies as a factual matter.
       ¶20        Nor could it be said that we adopted the referee's
statement as a conclusion of law.                    Our analysis in Hicks started

with        the        usual    assertion     that    we    "review        the     referee's
conclusions of law on a de novo basis."                                Id., ¶38 (citation
omitted).          We did not deviate from that standard practice.                           Our
terse        conclusion          did   not    comment      on     whether        Mr.   Hicks'
misconduct interfered with Mr. Cooper's defense.                                Instead, we
said we "agree with the referee that [the] factual findings are
sufficient to support a legal conclusion that Attorney Hicks

engaged       in       the     professional   misconduct         set    forth    in    the    19
counts described above."                Id., ¶39.       The professional misconduct
to which the complaint and referee referred in Count 13 was a
violation of SCR 20:1.4(a)(2).                      So our conclusion of law, as
relevant here, was that Mr. Hicks failed to "reasonably consult
with the client about the means by which the client's objectives
are     to        be     accomplished . . . ."             SCR    20:1.4(a)(2).              The
referee's statement that the misconduct had also "prevent[ed]
[Mr. Cooper] from adequately understanding and participating in



       11
       Mr. Hicks predicated, and we accepted, his no contest
plea on the facts as contained in the complaint. As the referee
recognized, the OLR complaint's accusation of misconduct was not
a factual assertion, but an asserted legal conclusion.     So it
would have been inappropriate for us treat the accusation as a
factual finding.


                                               14
                                                                    No.     2016AP375-CR



his own defense" had no necessary bearing on whether Mr. Hicks
had violated SCR 20:1.4(a)(2).                See Hicks, 368 Wis. 2d 108, ¶28.

Our opinion did not specifically address that statement, analyze
it, or in any other fashion suggest it was a conclusion we were
adopting.12        Our conclusion went no further than a judgment that
the   referee's findings          of   fact described       a     violation     of   SCR
20:1.4(a)(2).13
      ¶21        The    second   reason   Hicks      does   not     stand     for    the
proposition that Mr. Cooper received ineffective assistance of
counsel bears a close relation to the first.                        Our purpose in
Hicks      was    not   to   inquire   into    the   validity     of   Mr.    Cooper's


      12One of the dissent's key foundational assertions is that
"[w]e agreed with the referee that the factual findings support
the   conclusion   that . . . Mr.  Cooper   was   prevented  from
'adequately   understanding   and   participating   in   his  own
defense.'" Dissent, ¶1. But as described above, we did not say
we agreed with that conclusion.   We agreed only that the facts
in the complaint (which do not contain this statement) described
a violation of SCR 20:1.4(a)(2).
      13
       The dissent is concerned we are ignoring what we said in
Hicks:    "Mr. Cooper's case is notable because this court
accepted the legal conclusion that a defendant was prevented
from 'adequately understanding and participating in his own
defense.' This court should not now pretend our words in Hicks
were meaningless."   Dissent, ¶15.   We are not pretending they
are meaningless; we are carefully distinguishing what we said
from what the referee said. They are not necessarily the same.
Our analysis establishes that we did not accept the referee's
statement as either a finding of fact or as a conclusion of law.
This should come as no surprise——the question before us was not
whether Mr. Cooper had been prejudiced in his case, it was
whether Mr. Hicks violated SCR 20:1.4(a)(2).          Those are
different questions with different legal standards and different
factual predicates.


                                          15
                                                                  No.    2016AP375-CR



guilty plea.      It was to determine whether Mr. Hicks had engaged
in professional misconduct.            In particular, our inquiry into
Count    13's    allegations    required     us   to      go    no     further     than
considering the adequacy of Mr. Hicks' consultation with Mr.
Cooper about the "means by which the client's objectives are to
be accomplished."       SCR 20:1.4(a)(2).         Ineffective assistance of
counsel, on the other hand, arises only when a defendant suffers
prejudice as a result of his counsel's deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.

Thiel,    2003    WI 111,     ¶18,   264    Wis. 2d 571,         665    N.W.2d 305.
Although it is possible for an attorney's misconduct to be so
grave that it deprives a defendant of the effective assistance

of   counsel,    the   causal   link   between      the    two   is     not   one    of
necessity, but of possibility.             That is to say, it is possible
that an attorney could violate SCR 20:1.4(a)(2) without running
afoul of Strickland; not every violation of the Rules will rise
to the level of ineffective assistance of counsel.                       That is so
because    the     standards     established        by    the        Rules    do    not
necessarily       correlate     exactly      with        those       described       in
substantive areas of the law.

      Violation of a rule should not itself give rise to a
      cause of action against a lawyer nor should it create
      any presumption in such a case that a legal duty has
      been breached. . . . Furthermore, the purpose of the
      rules can be subverted when they are invoked by
      opposing parties as procedural weapons. The fact that
      a rule is a just basis for a lawyer's self-assessment,
      or for sanctioning a lawyer under the administration
      of a disciplinary authority, does not imply that an
      antagonist in a collateral proceeding or transaction
      has standing to seek enforcement of the rule.

                                       16
                                                             No.    2016AP375-CR


       Nevertheless, since the rules do establish standards
       of conduct by lawyers, a lawyer's violation of a rule
       may be evidence of breach of the applicable standard
       of conduct.
SCR Rules of Professional Conduct, Preamble, ¶20.
       ¶22   Therefore,    our   conclusion    that   Mr.   Hicks   failed   to
meet the demands of SCR 20:1.4(a)(2) cannot mean, ipso facto,
that he performed deficiently within Strickland's meaning.                 More

to the point, it may not be taken to mean we had specifically
measured the impact of Mr. Hicks' violation of SCR 20:1.4(a)(2)

on Mr. Cooper's ability to enter an appropriate plea.                We simply
did not address that subject, even tangentially.                  Nor could we
have done so based on the record before us in Hicks.                 The OLR's
complaint simply did not contain the information necessary for
us to evaluate whether Mr. Hicks' performance was so deficient
that    it    prejudiced     Mr.    Cooper's     ability     to     knowingly,
intelligently, and voluntarily enter a plea.
       ¶23   The third reason Hicks is uninstructive concerns its
temporal relationship to this case.            As we foreshadowed in our
recitation of the procedural          history,    the   date on which Mr.
Cooper's motion was denied is important.              We are reviewing the
circuit court's exercise of its discretion, which necessarily
means we focus on the facts available to the circuit court when
it made its decision.        Hartung v. Hartung, 102 Wis. 2d 58, 66,
306    N.W.2d 16   (1981)   ("A    discretionary      determination,    to   be
sustained, must demonstrably be made and based upon the facts
appearing in the record and in reliance on the appropriate and
applicable law.").        We did not decide Hicks, of course, until


                                      17
                                                                  No.     2016AP375-CR



almost two years after the circuit court denied Mr. Cooper's
motion.       And that means the referee's statement about the impact
of Mr. Hicks' misconduct on Mr. Cooper's defense was not part of
the record before the circuit court.                    We will not reverse a
circuit court's discretionary decision based on facts outside of
the record.         Although there are mechanisms by which to challenge
a court's judgment with facts discovered after its entry, Mr.
Cooper       does     not     engage    them   in     this     case.       This    is
understandable because Hicks does not really present anything

new, at least as it specifically relates to Mr. Cooper's plea
(as we will discuss further below).                 For these three reasons, we
conclude that Hicks has nothing instructive to say in evaluating

whether the circuit court erroneously exercised its discretion
when it denied Mr. Cooper's motion to withdraw his plea.
  B.       Hicks Adds Nothing to the Ineffective Assistance Analysis
       ¶24    Aside       from   the   referee's      statement    regarding      the
effect of Mr. Hicks' misconduct on Mr. Cooper's defense (which
we did not adopt), our opinion in Hicks suggests no additional
support      for    Mr.     Cooper's   claim   that   he     received    ineffective
assistance of counsel prior to entering his plea.                      To the extent
the opinion bears on Mr. Cooper's case, it reflects that Mr.
Hicks:

       •    had minimal communications with Mr. Cooper prior to the
            plea hearing;

       •    had not timely provided a copy of discovery material to
            Mr. Cooper; and



                                          18
                                                                          No.    2016AP375-CR


      •   had not notified his client, the circuit court, or
          opposing counsel that his license to practice law had
          been suspended for part of the time he had been
          representing Mr. Cooper.
Hicks,      368     Wis. 2d 108,           ¶28.          The     consequence       of    this

misconduct, Mr. Cooper tells us, is that he acted with such
haste and confusion in entering his plea that he genuinely did
not understand its consequences.                      He also claims Mr. Hicks gave
him misleading advice and coerced him into entering his plea.
      ¶25    All of these facts and allegations were already before
the   circuit court when              it    considered Mr.            Cooper's    motion    to

withdraw     his    plea.           Thus,    in       January    of    2014,     Mr.    Cooper
personally wrote to the circuit court asserting that Mr. Hicks
had misled him into pleading guilty and that Mr. Hicks had said
Mr. Cooper was destined to lose at trial.                            His formal motion to
withdraw his plea explained that the issues raised in his letter
of October 8, 2013, had not been resolved.                            It also faulted Mr.
Hicks     for     failing      to    disclose          that     his    license    had     been
suspended during part of the time the criminal case was pending.
Finally, Mr. Cooper's motion claimed his plea was not knowing or
voluntary,        had   been    given       in    haste,       and    without    sufficient
consultation       with     his     counsel       or    consideration       of    discovery
materials.

      ¶26    At the hearing on his motion, Mr. Cooper once again
asserted these deficiencies.                 He told the circuit court that he
was confused regarding the charge to which he was pleading and
the sentence range.               He argued that Mr. Hicks had misled him
about the nature of the charge, as well as the content of the


                                                 19
                                                                            No.     2016AP375-CR



plea agreement with the State.                      And he renewed his complaint
about Mr. Hicks' lack of communication and his dissatisfaction
with Mr. Hicks' failure to notify him of the temporary license
suspension.
       ¶27   Our        review    of    the    record     in    this   case,       therefore,
reveals      that       everything      in     Hicks      relating     to     Mr.     Cooper's

defense      had     already       been       brought      to    the   circuit         court's
attention       before       it        decided      the     plea-withdrawal            motion.
Everything, that is, but for the referee's statement regarding
the effect of Mr. Hicks' misconduct on Mr. Cooper's defense.
But we are not bound by the statements of referees, and as we
discussed above, we did not adopt the referee's statement as our

own.    Consequently, Hicks adds nothing relevant to the universe
of facts that the circuit court was responsible for considering.
                   C.    No Ineffective Assistance of Counsel
       ¶28   Hicks cannot do the work Mr. Cooper assigns to it.                              It
does not, of its own force, establish that Mr. Hicks provided
ineffective assistance of counsel.                       That leaves Mr. Cooper with
the    burden      of showing:           (1)     "that    counsel's performance             was
deficient"; and (2) "that the deficient performance prejudiced
the defense."            Strickland, 466 U.S. at 687.                   This analytical
structure       applies      specifically           in    the   context       of     the   plea
process:

       Although our decision in Strickland v. Washington
       dealt with a claim of ineffective assistance of
       counsel in a capital sentencing proceeding, and was
       premised in part on the similarity between such a
       proceeding and the usual criminal trial, the same two-


                                               20
                                                                           No.       2016AP375-CR


       part standard seems to us applicable to ineffective-
       assistance claims arising out of the plea process.
Hill v. Lockhart, 474 U.S. 52, 57 (1985).                              Even if we agreed

that    Mr.       Hicks'    misconduct     rose          to   the    level      of    deficient
performance         within    the    meaning        of    Strickland       (a    question        on
which we express no opinion), Mr. Cooper would nonetheless be
unable       to    prove      the    prejudice           element      of   the       Strickland
analysis.14
       ¶29    In considering whether counsel's deficient performance

prejudiced         the    defendant,     we    "evaluate            whether     'there      is   a
reasonable probability              that, but for counsel's                   unprofessional
errors,       the        result     of   the        proceeding         would         have    been
different.'"         State v. Sholar, 2018 WI 53, ¶33, 381 Wis. 2d 560,
912 N.W.2d 89 (quoting Strickland, 466 U.S. at 694).                                   When the
alleged      deficiency       concerns    the       plea      process,        Hill    says    the
prejudice         component       specifically requires that                 "the     defendant
must show that there is a reasonable probability that, but for


       14
       The nature of the dissent's analysis is unclear.      The
author says she would dispense with the "deficient performance"
component when assessing counsel's ineffectiveness with respect
to a plea withdrawal motion:      "[B]y requiring Mr. Cooper to
prove deficiency as part of a motion for plea withdrawal pre-
sentencing, the majority opinion equates the standard for
withdrawal of a plea post-sentencing, 'manifest injustice,' with
the lower pre-sentence standard of a 'fair and just reason.'"
Dissent, ¶39.    Whether the motion is pre-sentence or post-
sentence, the ineffective assistance paradigm established by
Strickland requires deficient performance as an indispensable
element of the analysis. So it seems the dissent is proposing a
relaxed standard for establishing ineffective assistance of
counsel when the underlying issue relates to a motion to
withdraw a plea before sentencing.


                                               21
                                                                     No.   2016AP375-CR



counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial."                    Hill, 474 U.S. at 59.              A

probability sufficient to undermine confidence exists when there
is "a 'substantial,' not just 'conceivable,' likelihood of a
different      result."        Cullen   v.     Pinholster,     563    U.S. 170,    189
(2011).
       ¶30    Determining      whether a       likelihood is      substantial,         as
opposed to merely conceivable, can be a difficult undertaking
when     evaluating      how   an    attorney's      performance       affects,    for
example,      a    jury's    verdict,    or    the   court's     imposition       of    a
sentence.         We cannot, of course, reassemble and poll the jury to
determine what it would have done in the absence of counsel's

deficient performance.              Neither do we return to the sentencing
court    to    inquire      into    whether    the   sentence    would     have   been
different if counsel had performed better.                      Here, however, we
need only know whether there is a substantial likelihood that
Mr. Cooper would have pled differently if Mr. Hicks' performance
did not fall below the Strickland standard.                      That information
is, obviously, readily available to Mr. Cooper, and he had an
opportunity to present it to the circuit court at the hearing on
his motion to withdraw his plea.                 He did not comment, however,
on whether his plea would have been different if Mr. Hicks had
not performed as he did.             To the contrary, his counsel said that
"if the Court were to allow Mr. Cooper to withdraw his plea, he
still might decide to enter a plea, because he does like——he's
satisfied, I guess, with the recommendation that [the State]
made."        This does not describe a substantial likelihood of a
                                          22
                                                                         No.   2016AP375-CR



different outcome.              At best, it describes something conceivable.
Therefore, he has shown no prejudice.                      Without prejudice, there
can be no ineffective assistance of counsel.                             And because the
ineffectiveness of counsel is the only "fair and just reason"
Mr.   Cooper       gave    for       withdrawing    his    plea    (at    least    in    this
court), his argument cannot prevail.15
       ¶31       The dissent is of a different mind.                  The author says:
"I    disagree      with       the    majority    opinion's       conclusion      that   Mr.
Cooper       failed       to     allege     that        Attorney    Hicks'        deficient
performance        caused       prejudice.         Although   Mr.    Cooper's       counsel
stated at the hearing that Mr. Cooper still 'might' decide to
enter a plea, Mr. Cooper is now asking this court to 'allow him

to withdraw his guilty plea, and remand this case for further
proceedings and a trial on the merits.'"                      Dissent, ¶38 (emphasis
omitted).         Our project here, of course, is reviewing whether the
facts       of     record       demonstrate        "a     'substantial,'       not       just

'conceivable,' likelihood," Cullen, 563 U.S. at 189, that Mr.


       15
       In addition to his ineffective assistance of counsel
claim, Mr. Cooper says the circuit court erred in not allowing
him to withdraw his plea because he pled so hastily that it
caused him to be confused and to genuinely misunderstand the
plea's consequences.    He also said he was subject to the
coercion and misleading advice of his counsel. Those have been
recognized as adequate reasons for withdrawing a plea. State v.
Shimek, 230 Wis. 2d 730, 739, 601 N.W.2d 865 (Ct. App. 1999).
His only argument supporting this assignment of error is that,
in rejecting those grounds for withdrawal, the circuit court did
not account for our decision in Hicks.      But because we have
concluded that Hicks does not bear on the circuit court's
exercise of discretion (as described above), this argument
cannot succeed.


                                             23
                                                                    No.     2016AP375-CR



Cooper would demand a trial.                  Although he conversed with the
court at the hearing on his motion to withdraw his plea, he did
not say he wanted to go to trial.                   To the contrary, his counsel
told the circuit court that Mr. Cooper just might enter the plea
again because he was satisfied with the State's recommendation.16
       ¶32     In   any    event,     the    dissent    says,    United     States    v.

Davis, 428 F.3d 802, 808 (9th Cir. 2005), relieves defendants in
Mr.    Cooper's          position     of    the    obligation     to      even    allege
prejudice.17        The Ninth Circuit tried to reconcile its decision
with        Hill    by    distinguishing          between   pre-sentencing         plea-
withdrawal (Davis) and post-sentencing plea-withdrawal (Hill).
It said that requiring a showing of prejudice in the former

category       would      eliminate    the    distinction       between     the    tests
applied to each.            Davis, 428 F.3d at 806.             We disagree.         The
purpose of the "prejudice" component is to winnow the cases in
which counsel's deficient performance would have no effect on
the outcome of the proceedings:                     "This additional 'prejudice'
requirement was based on               our conclusion that         '[a]n error        by


       16
       Furthermore, the dissent's formulation of the "prejudice"
component of the Strickland test suggests the defendant can
satisfy it by merely "alleging" prejudice. But Strickland says
the defendant "must show that the deficient performance
prejudiced the defense." Id., 466 U.S. at 687 (emphasis added).
Mr. Cooper has not shown he was prejudiced.
       17
       Combined with the proposition that Mr. Cooper need not
establish deficient performance, dissent ¶39, the dissent would
apparently let defendants prove ineffective assistance of
counsel without satisfying any of its elements.   Not even Mr.
Cooper advanced such pioneering arguments.


                                             24
                                                                    No.    2016AP375-CR



counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.'"               Hill, 747 U.S. at 57 (quoting

Strickland, 466 U.S. at 691) (alteration in original).                       We agree
with Hill that Mr. Cooper cannot show prejudice unless "there is
a   reasonable      probability      that,    but   for    counsel's       errors,    he
would not have pleaded guilty and would have insisted on going
to trial."      Hill, 747 U.S. at 59.
                                          *
       ¶33    One   final    point   bears     mentioning.         The     dissent   is
embarking     on    a    significantly   different        project    from     the    one
presented by this case.           Our task here is to review the record

of Mr. Cooper's criminal proceedings.                     The dissent, however,
wants    to   create      and   review   a     hybrid     record    comprising       Mr.
Cooper's criminal case and Mr. Hicks' disciplinary proceedings.
To further complicate matters, this hypothetical record did not
become hybridized until after the circuit court completed its
work, so the author is retroactively reading into the Cooper
record information that was not available to the circuit court
when the actions and decisions under review occurred.                           Making
the dissent's proposed experiment in hybrid records even more
problematic is the fact that one is criminal and the other is
disciplinary.           The differences between the two types of cases
with    respect to evidentiary standards, procedural                       safeguards,
constitutional          requirements,    and    interests     of     the    different
parties are too vast to catalogue here.                 Neither the dissent nor
Mr. Cooper explain how we can iron out all of those differences
                                         25
                                                                      No.    2016AP375-CR



in a way that would allow one record to rationally inform the
other.      Ultimately,      the    dissent's       proposal    to     hybridize        the
record     simply    creates   a     path     for    collaterally           attacking    a
criminal conviction via our attorney disciplinary proceedings.
We are unwilling to blaze that trail.
                               IV.     CONCLUSION
     ¶34    Our     conclusions      with     respect      to   the     three    issues
presented by this case are as follows.                     First, the record does
not demonstrate that the professional misconduct described in
Hicks     prevented    Mr.     Cooper       from     receiving        the      effective

assistance of counsel.         Because that was the only rationale he
offered (in this court) for withdrawing his plea, we conclude

the circuit court did not erroneously exercise its discretion
when it denied Mr. Cooper's motion.                 Second, we conclude that we
did not adopt the referee's statement regarding the effect of
Mr. Hicks' professional misconduct on Mr. Cooper's defense.                             And
third, we need not determine whether the State would have been
prejudiced if Mr. Cooper had been allowed to withdraw his plea
because we conclude he did not present a "fair and just reason"
for doing so.
     By    the    Court.—The       decision    of    the    court     of     appeals    is
affirmed.
     ¶35    SHIRLEY S. ABRAHAMSON, J., withdrew from participation
prior to oral argument.




                                         26
                                                                No.    2016AP375-CR.rfd


     ¶36    REBECCA        FRANK        DALLET,         J.     (dissenting).        In
determining that Attorney Michael J. Hicks violated the Rules of
Professional Conduct for Attorneys in his representation of Mr.
Cooper,    we       accepted   and   relied      upon    the    referee's     factual
findings.       The referee found that during the 10 months leading
up to the trial date on which Mr. Cooper entered his guilty
plea, Attorney Hicks failed to consult with Mr. Cooper regarding
trial strategy and preparation and failed to provide Mr. Cooper
with requested discovery.1            We agreed with the referee that the

factual    findings      support     the   conclusion        that     Attorney   Hicks
engaged in the professional misconduct outlined by the referee,
including       a    statement   that      Mr.   Cooper      was    prevented     from
"adequately understanding and participating in his own defense."
In re Disciplinary Proceedings Against Hicks, 2016 WI 31, ¶28,
368 Wis. 2d 108, 877 N.W. 2d 848.2               I disagree with the majority
opinion's conclusion that this court's decision in Hicks "has no
material effect" on Mr. Cooper's motion to withdraw his plea

pre-sentencing.        Majority op., ¶18.         I therefore dissent.


     1 The referee found that Attorney Hicks failed between
"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 [requesting
discovery and raising concerns about his case] and to otherwise
consult   with  [Mr.   Cooper]  regarding   trial strategy  and
preparation."   In re Disciplinary Proceedings Against Hicks,
2016 WI 31, ¶28, 368 Wis. 2d 108, 877 N.W.2d 848.
     2 The majority opinion attempts to distance itself from our
language and holding in Hicks. The majority seems to be saying:
"just because we said it does not mean we actually meant it."


                                           1
                                                                 No.    2016AP375-CR.rfd


       ¶37   In Strickland v. Washington, 466 U.S. 668 (1984), the

United    States    Supreme   Court    adopted       a    two-part      standard    for
evaluating claims of ineffective assistance of counsel.                          First,
the     defendant     must    show    that         counsel's      performance       was
deficient, which requires showing that "counsel made errors so
serious      that   counsel   was    not       functioning       as    the    'counsel'
guaranteed the defendant by the Sixth Amendment."                         Id. at 687.
Second, the defendant must show that the deficient performance
prejudiced the defense, which requires showing that "there is a

reasonable probability        that, but for counsel's                  unprofessional
errors, the result of the proceeding would have been different.
A     reasonable    probability       is       a   probability         sufficient    to
undermine confidence in the outcome."                    Id. at 694.         In Hill v.

Lockhart, 474 U.S. 52, 58 (1985), the Court held that the two-
part Strickland test applied to a defendant's post-sentencing
motion to withdraw his plea based on ineffective assistance of
counsel.

       ¶38   The majority opinion ultimately determines that even
if Attorney Hicks' performance was deficient, Mr. Cooper failed
to allege prejudice resulting from that deficient performance,
and therefore his motion to withdraw his plea fails.                           Majority
op., ¶¶28-30.       I disagree with the majority opinion's conclusion
that Mr. Cooper failed to allege that Attorney Hicks' deficient
performance     caused   prejudice.            Although    Mr.    Cooper's      counsel
stated at the hearing that Mr. Cooper still "might" decide to
enter a plea, Mr. Cooper is now asking this court to "allow him
to withdraw his guilty plea, and remand this case for further

                                           2
                                                                           No.    2016AP375-CR.rfd


proceedings and a trial on the merits."                            (emphasis added).            Mr.

Cooper alleges sufficient prejudice that resulted from Attorney
Hicks'      deficient    performance,            namely,          hasty    entry      of   a   plea
because Attorney Hicks was not prepared to defend him on the day
of trial.
      ¶39     Moreover, by requiring Mr. Cooper to prove deficiency
as   part    of a     motion for       plea          withdrawal pre-sentencing, the
majority opinion equates the standard for withdrawal of a plea
post-sentencing,        "manifest          injustice,"             with     the       lower    pre-

sentencing standard of a "fair and just reason."                                  See State v.

Cain,    2012    WI     68,    ¶24,        342       Wis.     2d     1,     816       N.W.2d    177
(emphasizing that while a circuit court should "'freely allow a
defendant to withdraw his plea prior to sentencing for any fair
and just reason, unless the prosecution [would] be substantially
prejudiced,'"        this    standard       should          not    be     confused      with   the
post-sentencing         rule    "'where          the        defendant        must      show    the
withdrawal      is    necessary       to    correct          a     manifest       injustice.'")

(quoted source omitted).               "A manifest injustice is a serious
flaw in the fundamental integrity of the plea, generally of a
constitutional        dimension"       and           must    be     shown        by    clear   and
convincing evidence.             State v. Shimek, 230 Wis. 2d 730, 740,
601 N.W.2d 865        (Ct.     App.    1999).           To        prove    that       ineffective
assistance of counsel resulted in a manifest injustice, this
court has required a defendant to demonstrate both prongs of an
ineffective assistance of counsel claim.                            See State v. Dillard,
2014 WI 123, ¶¶84-85, 358 Wis. 2d 543, 859 N.W.2d 44; see also
State v. Bentley, 201 Wis. 2d 303, 311-12, 548 N.W.2d 50 (1996).

                                                 3
                                                                   No.    2016AP375-CR.rfd


      ¶40    In contrast, to withdraw a plea prior to sentencing, a
defendant need only prove by a preponderance of the evidence a
"fair and just reason."             State v. Canedy, 161 Wis. 2d 565, 584,

469 N.W.2d 163 (1991).          A "fair and just reason" is defined as
"the mere showing of some adequate reason for the defendant's
change of heart."           Libke v. State, 60 Wis. 2d 121, 128, 208
N.W.2d 331 (1973).          Less proof is therefore needed to prevail on
a motion to withdraw a plea pre-sentencing than post-sentencing.
See, e.g., id. at 124 ("It should be easier to withdraw a plea

before     sentence than after.");              see    also State        v. Reppin,    35
Wis. 2d 377, 384, 151 N.W.2d 9 (1967).
      ¶41    Guidelines have emerged from appellate cases that aid
in   the    consideration      of    whether      the     reason     given     for   plea
withdrawal is fair and just.             See State v. Shanks, 152 Wis. 2d
284, 290, 448 N.W.2d 264 (Ct. App. 1989); see also United States
v. Barker, 514 F.2d 208, 220 (D.C. Cir. 1975) (noting that "the
terms      'fair    and     just'    lack       any      pretense        of   scientific

exactness.").             Several    factors          courts   consider         include:
assertion of innocence, a genuine misunderstanding of a plea's
consequences, hasty entry of a plea, confusion of the defendant,
coercion     by    trial     counsel,    and          expeditiously       seeking    plea
withdrawal.        See Shanks, 152 Wis. 2d at 290-91.                    If a defendant
proves by a preponderance of the evidence a fair and just reason
for withdrawal of his or her plea prior to sentencing, then the
burden     shifts to the       State    to show         substantial       prejudice    in
order to defeat the plea withdrawal.                     State v. Bollig, 2000 WI
6, ¶34, 232 Wis. 2d 561, 605 N.W.2d 199.

                                            4
                                                                    No.     2016AP375-CR.rfd


      ¶42   It     is     noteworthy       that        both    Strickland         and     Hill

involved a motion to withdraw a plea post-sentencing and that
there is no United States Supreme Court or Wisconsin precedent
requiring a defendant to show prejudice as a result of counsel's
deficient       performance       when     moving      to     withdraw      a    plea     pre-
sentencing.       In United States v. Davis, 428 F.3d 802, 808 (9th
Cir. 2005), the Ninth Circuit held that a defendant does not
have to show prejudice as a result of his counsel's deficient
performance,       instead       he   need      only    show    that      the     deficient

performance "could have motivated his decision to plead guilty"

(emphasis in original).               The Davis court concluded that "[t]o
require a defendant to satisfy the prejudice prong of Hill in
order to withdraw a plea based on counsel's erroneous advice
eviscerates the distinction between a motion to withdraw a plea
made pre-sentence and a post-sentence challenge to a plea."                                Id.
at 806.
      ¶43   I    therefore       focus     my    attention      not    on       whether    Mr.

Cooper must show prejudice, which may be inconsequential pre-
sentencing, but on whether the circuit court erred in finding
that Attorney Hicks' performance was not deficient.                               See State
v.   Turner,     136     Wis.    2d   333,       343-44,      401   N.W.2d 827          (1987)
(applying a clearly erroneous standard to the circuit court's
findings of fact).            By making factual findings now known to be
incorrect,       the     circuit      court        erroneously        determined          that
Attorney    Hicks       was     prepared     for    trial      at   the     time    of     Mr.
Cooper's plea.          This court should therefore remand this case for
a new plea withdrawal hearing.

                                             5
                                                                     No.   2016AP375-CR.rfd


     ¶44    At     the     plea    withdrawal           hearing,    Mr.     Cooper's    new
counsel     articulated         two    ways       in    which    Attorney      Hicks    was
deficient.       First, Attorney Hicks did not inform Mr. Cooper of
the suspension of his law license.                      Second, Mr. Cooper "entered
the plea in haste" based upon his belief that "he felt like his
attorney wasn't prepared" to proceed to trial.                         This belief led
Mr. Cooper to answer the circuit court's questions at the plea
hearing in the manner in which he did.
     ¶45    The majority opinion broadly discounts Attorney Hicks'

deficient performance and mistakenly states that "[a]ll of these
facts and allegations were already before the circuit court when
it considered Mr. Cooper's motion . . . ."                          Majority op., ¶25.
According    to    the     majority     opinion,         this   court's      disciplinary
decision    in     Hicks     "suggests        no       additional    support     for    Mr.

Cooper's     claim       that     he   received         ineffective        assistance    of
counsel prior to entering his plea."                      Id., ¶24.        However, it is
apparent    that     the    circuit     court          drew   conclusions     based     upon

incomplete and incorrect information.
     ¶46    Regarding Attorney Hicks' failure to inform Mr. Cooper
of his license suspension, the circuit court stated:

     I don't know what attempts Mr. Hicks made to
     communicate [his license suspension] or whether or not
     he did . . . I don't see anything in the record, at
     least at this point, to say that Mr. Hicks didn't
     communicate that or if he did communicate that whether
     or not Mr. Cooper cared.




                                              6
                                                          No.   2016AP375-CR.rfd


It is now undisputed that Attorney Hicks never communicated the
fact that his law license was suspended to Mr. Cooper.3                      Mr.
Cooper further testified at the plea withdrawal hearing about
how   he    felt   misled   by   Attorney   Hicks   due   to    the   lack    of
disclosure regarding his law license suspension.                  The circuit
court's finding was therefore erroneous.
      ¶47    It is Mr. Cooper's second proffered reason, his hasty
entry of a plea because Attorney Hicks was not prepared and did
not turn over requested discovery, that causes even more concern

in light of this court's conclusions in Hicks, 368 Wis. 2d 108.

On October 8, 2013, Mr. Cooper wrote a letter to the circuit
court stating that "[t]here are approximately 13 days till trail
[sic] and I have yet to receive a copy of the discovery material
to review the evidence against me."           Mr. Cooper further stated
that he was not prepared for trial and that his alibi witness
was not subpoenaed.         In his December 21, 2013 letter to the
circuit court asking to withdraw his guilty plea, Mr. Cooper

said that he was never provided with the documents he sought and
that he "was misslead [sic] by my counsel that I was dstined
[sic] to loss [sic] my case if I go to trial, and [i]f I take
this plea I will still go home on time.               Even [i]f I didn't
commit this case a plea will be in my best interest."
      ¶48    Based upon Mr. Cooper's statements at the plea hearing
indicating that he wanted the circuit court to take "no actions"


      3In Hicks, we accepted the referee's factual finding that
Attorney Hicks failed to notify Mr. Cooper of his law license
suspension. Hicks, 368 Wis. 2d 108, ¶¶26, 28.


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with   respect       to    the   letters      he    had    sent,    the    circuit    court
discounted         the    letters.      The     circuit      court    made    no    factual
findings about whether or not Attorney Hicks had communicated
with Mr. Cooper regarding trial preparation or whether he had
turned over the requested discovery to Mr. Cooper.                           The circuit
court concluded that "prior to the plea Mr. Cooper is sitting,
they     weren't         ready   for    trial,       there    were    alibi      witnesses
available, he felt he had a defense, and all of those things
seem to be consistent with someone who is prepared and going to

trial."       The circuit court further emphasized the generous plea
deal   and        speculated     that    Attorney         Hicks    prevailed     upon     Mr.
Cooper to take the deal.
       ¶49    The circuit court erroneously found that Mr. Cooper
was prepared to proceed to a jury trial on October 21, 2013.
The factual findings accepted in Hicks establish that for the 10

months prior to trial, Attorney Hicks failed to communicate with
Mr. Cooper regarding trial strategy and preparation and failed

to give Mr. Cooper discovery that he had requested to review
prior to trial.             This court agreed with the referee that the
factual       findings       support    the        conclusion      that    the     lack    of
communication between Attorney Hicks and Mr. Cooper resulted in
Mr. Cooper being prevented from "adequately understanding and
participating in his own defense."                    Hicks, 368 Wis. 2d 108, ¶28.
The fact that Mr. Cooper took a plea on the day of trial to take
advantage of what the circuit court characterized as a "good
deal,"       is    inapposite.          Based       on    Attorney    Hicks'       lack    of
communication and consultation with Mr. Cooper and his failure

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to turn over discovery, the circuit court erroneously found that
Mr. Cooper was prepared to proceed to trial.4
     ¶50    The majority opinion claims that I am "hybridiz[ing]
the record" and creating "a path for collaterally attacking a
criminal conviction via our attorney disciplinary proceedings."
Majority    op.,     ¶33.         However,             Mr.    Cooper's      case       is    notable
because     this     court       accepted          the        legal       conclusion         that     a
defendant     was    prevented              from       "adequately         understanding            and
participating in his own defense."                            This court should not now

pretend     our     words        in        Hicks       were    meaningless.                 While     I

acknowledge        the    majority           opinion's          concern,          in     the     rare
situation that this issue arises again, the right to effective
assistance    of    counsel           is    fundamental         and       therefore      justifies
remand to the circuit court for a new plea withdrawal hearing.
     ¶51    For the foregoing reasons I would remand the case to
the circuit court for a new plea withdrawal hearing.                                        At that
hearing,    the circuit court should consider all of                                     these now

undisputed facts         and make a            determination as to                     whether      Mr.
Cooper offered a fair and just reason for withdrawal of his
plea.      Factors       for     the        circuit      court       to    consider         include:
Attorney Hicks' lack of communication and preparation for trial,
possible    coercion        by    Attorney             Hicks    to    accept       a    plea,       Mr.
Cooper's potentially hasty entry of a plea, and Mr. Cooper's


     4 Of note, Mr. Cooper filed a grievance with OLR against
Attorney Hicks well before his plea withdrawal hearing.      In
December 2013, OLR requested specific documents and information
from Attorney Hicks surrounding Mr. Cooper's claims.


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subsequent expeditious request to withdraw his plea.                   If the
circuit court determines Mr. Cooper has demonstrated a fair and
just reason to withdraw his plea, the burden shifts to the State
to show substantial prejudice to defeat the plea withdrawal.5
See Bollig, 232 Wis. 2d 561, ¶34.

     ¶52   Accordingly, I respectfully dissent.
     ¶53   I   am   authorized   to    state   that   Justice    ANN    WALSH
BRADLEY joins this dissent.




     5 The circuit court summarily stated "for purposes of the
record": "given the age of the case and the time lapse, I would
find that there would be a substantial prejudice to allow [Mr.
Cooper] to withdraw the plea at this point in time."    However,
because the circuit court did not find a fair and just reason to
support plea withdrawal, this analysis was incomplete.


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