                                                                       2019 WI 60

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:              2017AP741-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Javien Cajujuan Pegeese,
                                 Defendant-Appellant-Petitioner.

                            REVIEW OF DECISION OF THE COURT OF APPEALS
                            Reported at 383 Wis. 2d 601,918 N.W.2d 127
                                       (2018 – unpublished)

OPINION FILED:         May 31, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         April 10, 2019

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Rock
   JUDGE:              Richard T. Werner & John M. Wood

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

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed    by       Thomas   B.   Aquino,   assistant   state   public   defender.
There was an oral argument by Thomas B. Aquino.


       For the plaintiff-respondent, there was a brief filed by
Aaron R. O’neil, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general of Wisconsin. There
was an oral argument by Aaron R. O’neil.
                                                                        2019 WI 60
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.       2017AP741-CR
(L.C. No.    2015CF1244)

STATE OF WISCONSIN                            :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,                                  FILED
      v.                                                        MAY 31, 2019
Javien Cajujuan Pegeese,                                           Sheila T. Reiff
                                                                Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




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


      ¶1     ANNETTE KINGSLAND ZIEGLER, J.           This is a review of an
unpublished, per curiam decision of the court of appeals, State

v. Pegeese, No. 2017AP741–CR, unpublished slip op. (Wis. Ct.
App. Jun. 21, 2018), affirming the circuit court's1 order denying
Javien Cajujuan Pegeese's ("Pegeese") postconviction motion to
withdraw     his   guilty   plea.   Pegeese       claims     that    the    circuit



      1The Honorable Richard T. Werner initially presided,
accepting Pegeese's guilty plea and sentencing him.          On
November 17, 2016, the matter was transferred to the Honorable
John M. Wood, who presided over proceedings regarding Pegeese's
postconviction motion to withdraw his guilty plea.
                                                                          No.     2017AP741-CR



court's plea colloquy was defective under Wis. Stat. § 971.08
(2015–16)2 and State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12

(1986),        because    the     circuit         court    failed       to      sufficiently
explain,       and    Pegeese     did   not       understand,      the       constitutional
rights he would be waiving by entering a plea.                            As a result of
the claimed defects, Pegeese argues that he did not knowingly,
intelligently, and voluntarily enter his plea.                          Pegeese seeks to
withdraw his plea and asks that this court remand to the circuit
court for an evidentiary hearing under Bangert.                                 Pegeese also
requests that this court exercise its superintending authority
to require circuit courts to, at every plea colloquy, verbally
advise a defendant of each individual constitutional right being

waived and verify that a defendant understands the waiver of
each right.
      ¶2       The     State    asserts       that    the       circuit      court's     plea
colloquy was not defective because a "Plea Questionnaire/Waiver
of   Rights"      form     ("Form     CR-227"),       completed      by       Pegeese    with
counsel        prior      to    the     colloquy,         expressly           listed     each
constitutional         right    Pegeese       waived      and    required        Pegeese   to
indicate next to each right that he knew and understood the
right     he    was    waiving.       The   State      asserts      that       the   in-court
colloquy        otherwise       ensured        that       Pegeese        was      knowingly,
intelligently,           and    voluntarily          waiving      his        constitutional
rights.        The State therefore argues that Pegeese has not met his

      2All subsequent references to the Wisconsin Statutes are to
the 2015–16 version, unless otherwise indicated.


                                              2
                                                                         No.   2017AP741-CR



burden to show that he is entitled to a Bangert hearing, and

that       this        court    should      not     exercise      its     superintending
authority, as Pegeese proposes, that circuit courts be required
to   personally          advise      defendants     of   each    constitutional      right
being waived.
       ¶3        The    circuit      court's      colloquy   with   Pegeese      verified
that       the    constitutional         rights     at   issue    were     contained     in
Form CR-227, that Pegeese completed and signed the form with
counsel, and that he wanted no further time to discuss matters
with his lawyer.                The colloquy further verified that Pegeese
comprehended the contents of the form, and he and his lawyer
acknowledged that he understood each constitutional right he was

waiving by pleading guilty.                    The circuit court concluded that
Pegeese      was "freely, knowingly[,]                and    intelligently" entering
his plea.3
       ¶4        We conclude that Pegeese has not met his burden to
demonstrate        that        the   plea   colloquy     was     defective     so   as   to


       3
       We note that the transcript from the plea hearing reflects
that the circuit court used the phrase "freely, knowingly[,] and
intelligently" in describing Pegeese's plea. Form CR-227 uses a
slightly different phrase in the section titled "Attorney's
Statement," where the defendant's attorney states that the
defendant "is making this plea freely, voluntarily, and
intelligently."     Neither phrase is inconsistent with the
"knowingly, voluntarily, and intelligently" language this court
used in State v. Bangert, 131 Wis. 2d 246, 251–52, 389 N.W.2d 12
(1986), and this court has more recently used the phrase
"knowingly, intelligently, and voluntarily" in numerous cases.
See, e.g., State v. Sulla, 2016 WI 46, 369 Wis. 2d 225, 880
N.W.2d 659; State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829
N.W.2d 482.


                                               3
                                                                 No.     2017AP741-CR



entitle him to the relief requested.                    We further decline to
exercise   our    superintending       authority        to   impose     a   specific
requirement      that   at     a   plea       hearing    circuit       courts   must
individually recite and specifically address each constitutional
right being waived and then otherwise verify the defendant's
understanding      of   each       constitutional        right     being     waived.
Therefore, we affirm the court of appeals.
           I.    FACTUAL BACKGROUND AND PROCEDURAL POSTURE
     ¶5    On June 24, 2015, the State filed a criminal complaint
charging then-16-year-old Pegeese with armed robbery as a party
to a crime in violation of Wis. Stat. §§ 943.32(2) and 939.05.
The criminal complaint alleged that on April 24, 2015, three

individuals with their faces covered approached a pizza delivery
driver, who was making a delivery to a home.                 It further alleged
that one of the individuals ordered the delivery driver on the
ground, that another individual brandished a pistol and struck
the delivery driver in the head with the pistol, and that one of
the three stole $168 in cash and a key fob from the delivery

driver's pockets.       According to the criminal complaint, police
learned from the owner of the phone that was used to place the
order   for the pizza delivery that               she   overheard Pegeese and
another person talking the next day about how one of them had
"pistol whipped" the delivery driver.
     ¶6    On August 13, 2015, Pegeese pled guilty to robbery
with threat of force as a party to a crime, in violation of Wis.




                                          4
                                                         No.    2017AP741-CR



Stat. §§ 943.32(1)(b) and 939.05.          Prior to the plea hearing,
Pegeese    completed    Form    CR-227.4            Specifically,        the
"Constitutional   Rights"   section    of    Form     CR-227    states   as
follows:

     I understand that by entering this plea, I give up the
     following constitutional rights:

           I give up my right to a trial.

           I give up my right to remain silent and I
           understand that my silence could not be used
           against me at trial.

           I give up my right         to    testify    and     present
           evidence at trial.

           I give up my right to use subpoenas to require
           witnesses to come to court and testify for me at
           trial.

           I give up my right to a jury trial, where all 12
           jurors would have to agree that I am either
           guilty or not guilty.

           I give up my right to confront in court the
           people who testify against me and cross-examine
           them.

           I give up my right to make the State prove me
           guilty beyond a reasonable doubt.

     I understand the rights that have been checked and
     give them up of my own free will.
Waiver of each of these constitutional rights is acknowledged by
marking the box next to each with an "X."

     4 Form CR-227 is a single page, two-sided document. Circuit
courts will often attach other documents to the form.        The
circuit court here attached a document titled "Elements of
Common Criminal Offenses," which included the elements of the
offense to which Pegeese pled guilty.


                                 5
                                                               No.     2017AP741-CR



       ¶7     In the form, Pegeese confirmed his understanding of
his plea agreement with the State:                a joint recommendation of
three       years    of   probation.         Pegeese    acknowledged     that   he
understood "the judge is not bound by any plea agreement or
recommendations and may impose the maximum penalty," and that he
understood the maximum penalty he faced was 15 years in prison,
a $50,000 fine, or both.         In the "Voluntary Plea" section of the
form, Pegeese acknowledged, "I have decided to enter this plea
of my own free will.           I have not been threatened or forced to
enter this plea.          No promises have been made to me other than
those contained in the plea agreement."
       ¶8     Pegeese signed and dated the form, which stated by the

signature block:

       I have reviewed and understand this entire document
       and any attachments.     I have reviewed it with my
       attorney (if represented).      I have answered all
       questions truthfully and either I or my attorney have
       checked the boxes. I am asking the court to accept my
       plea and find me guilty.
Pegeese's attorney also signed the form, acknowledging that he
discussed the form with Pegeese, believed Pegeese understood the
form    and    the   plea   agreement,   and     that   Pegeese   was    pleading
"freely, voluntarily, and intelligently."
       ¶9     During the August 13 plea hearing, the circuit court
conducted the following plea colloquy with Pegeese:

            THE COURT: Have you had enough time to talk to
       [your attorney] Mr. Hoag about your cases?

              THE DEFENDANT:     Yes, sir.



                                         6
                                                           No.    2017AP741-CR


     THE COURT:      Has     he   answered     all   the    questions
you've had?

     THE DEFENDANT:        Yes, sir.

     THE COURT:      Do you need more time to talk with
him today?

     THE DEFENDANT:        No, sir.

     THE   COURT:      Are        you     satisfied        with     his
representation?

     THE DEFENDANT:        Yes, sir.

     THE COURT: You have provided me today with a
Plea Agreement and Waiver of Rights document; correct?

     THE DEFENDANT:        Yes, sir.

     THE   COURT:    That's       your   signature    on    the    back
side?

     THE DEFENDANT:        Yes, sir.

     THE COURT:      Did you read that document before you
signed it?

     THE DEFENDANT:        Yes, sir.

     THE COURT: Do you understand all the statements
made in that document?

     THE DEFENDANT:        Yes, sir.

     THE COURT:      Any questions about anything in that
document?

     THE DEFENDANT:        No, sir.

     THE COURT: Mr. Hoag,                you   reviewed     the    Plea
Questionnaire with him?

     MR. HOAG:      I read it to him, Your Honor.

     THE COURT:      Do you believe he understands it?

     MR. HOAG:      I do.



                                   7
                                                                        No.   2017AP741-CR


          THE COURT: Mr. Pageese [sic], do you understand
     the Constitutional Rights you give up when you enter a
     plea today?

            THE DEFENDANT:            Yes, sir.

            THE COURT:         Any questions about those rights?

            THE DEFENDANT:            No sir.
     ¶10    After confirming again with                     Pegeese's    attorney      that
Pegeese's        plea         was     given        "freely,         knowingly[,]        and

intelligently,"         the     circuit       court       accepted      the    plea     and
specifically found that Pegeese's plea was "freely, knowingly[,]
and intelligently made."                  The circuit court withheld sentence,
and instead put Pegeese on probation for three years consistent
with the parties' joint recommendation.
     ¶11    On     December         12,    2016,    Pegeese    filed     a    motion    for
postconviction          relief        pursuant       to      Wis.     Stat.      § (Rule)
809.30(2)(h), seeking withdrawal of his guilty plea.                              Pegeese

argued      that        the     circuit           court's     plea      colloquy        was
constitutionally deficient because the circuit court failed to
properly ensure on the record that Pegeese fully understood all
of the constitutional rights he was waiving when he entered his
guilty     plea.        Specifically,         Pegeese        asserted     that   despite
completing Form CR-227, consulting with counsel, and engaging in
the plea colloquy with the circuit court, he did not understand
his constitutional rights to "(1) remain silent or testify, (2)
use subpoenas to require witnesses to testify, (3) have a jury
trial where all 12 jurors have to agree on guilt, (4) confront
and cross-examine people who testify against him, and (5) make
the [S]tate prove him guilty beyond a reasonable doubt."                               As a

                                              8
                                                         No.   2017AP741-CR



result, Pegeese sought to withdraw his plea and requested an
evidentiary hearing pursuant to Bangert.

     ¶12   On March 31, 2017, the circuit court denied Pegeese's
motion for postconviction relief.         The circuit court noted that
the plea colloquy in Pegeese's case was "almost identical" to
the plea colloquy that occurred in State v. Moederndorfer, 141
Wis. 2d 823, 416 N.W.2d 627 (Ct. App. 1987), where the court of
appeals    concluded     that       the   plea      colloquy   was     not
constitutionally defective.     The circuit court determined that a
hearing was not necessary as both Pegeese and his counsel stated
at   the   plea    hearing   that     they   went    through   the    plea
questionnaire, and Pegeese stated that he did not need more time

to talk with his attorney.      The circuit court noted that Pegeese
had not attached an affidavit to support his assertions.               The
circuit court concluded that based on the record, which included
both the plea colloquy and Form CR-227, Pegeese had not met his
burden to establish there was a deficiency in the plea hearing
so as to entitle him to a Bangert hearing.             The circuit court
noted that it specifically asked Pegeese on the record if he
read Form CR-227 and understood it, and further ensured that
Pegeese understood the constitutional rights he was waiving by
pleading guilty.     The reviewing circuit court further explained
as follows:

     The Plea Questionnaire, Waiver of Rights form is
     not . . . a substitute for sufficient and adequate
     plea colloquy.   It is a tool to be used to ascertain
     whether or not the defendant understands what he is
     doing by entering a plea.       And I believe that's
     exactly what [the judge who took the plea] did in this

                                     9
                                                                            No.   2017AP741-CR


          particular case. He used that plea colloquy as a tool
          to have this conversation on the record with the
          defendant.   [The judge who took the plea] asked, Did
          you have any questions about those Constitutional
          Rights?    And the defendant said, No, he had no
          questions.
As    a    result,    the    circuit       court        denied    Pegeese's       motion   for
postconviction relief and concluded that no Bangert hearing was
necessary.
          ¶13   Pegeese     appealed       the    circuit        court's    denial    of    his

motion to withdraw his plea, asserting the same arguments he
made before the circuit court.                        On June 21, 2018, the court of
appeals issued an unpublished, per curiam decision affirming the
circuit court.         Pegeese, No. 2017AP741-CR, unpublished slip op.,

¶1.       Specifically, the court of appeals concluded that "the plea
colloquy here was adequate as to the constitutional rights.                                The
[circuit] court properly used the plea questionnaire form to
establish context about those rights, and then asked Pegeese

directly whether he understood the rights that he was waiving by
pleading guilty."           Id., ¶17.
          ¶14   Pegeese     petitioned       this        court     for     review,   and    we

granted his petition.
                              II.    STANDARD OF REVIEW
          ¶15   We   must   determine       whether        the    circuit     court's      plea
colloquy was sufficient and whether an evidentiary hearing is
required.        "'When a defendant seeks to withdraw a guilty plea
after       sentencing,      he     must     prove,       by     clear     and    convincing
evidence, that a refusal to allow withdrawal of the plea would
result in "manifest injustice."'"                       State v. Taylor, 2013 WI 34,


                                                 10
                                                                      No.       2017AP741-CR



¶24, 347 Wis. 2d 30, 829 N.W.2d 482 (quoting State v. Brown,

2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906).                         A defendant
may show manifest injustice by proving "that his plea was not
entered knowingly, intelligently, and voluntarily."                         Id. (citing
Brown, 293 Wis. 2d 30, ¶18).
       ¶16    Where a defendant does not enter his plea knowingly,
intelligently,      and       voluntarily,         his    fundamental       due    process
rights    are    violated      such       that    the    defendant    is    entitled     to
withdraw his plea.         Id., ¶25 (citing State v. Cross, 2010 WI 70,
¶14,    326   Wis. 2d 492,          786    N.W.2d 64).        Whether       a    defendant
entered his plea knowingly, intelligently, and voluntarily is a
question of constitutional fact that this court reviews de novo.

Id.    (citing    Cross,      326    Wis. 2d 492,         ¶14).      "In    making     this
determination, this court accepts the circuit court's findings
of    historical    or     evidentiary           facts    unless    they    are    clearly
erroneous."      Id. (quoting Cross, 326 Wis. 2d 492, ¶14).
       ¶17    Whether Pegeese has shown that the plea colloquy was
deficient such that Wis. Stat. § 971.08 or another mandatory
plea hearing requirement was violated is a question of law that
this court reviews independently.                    Id., ¶26 (citing Brown, 293
Wis. 2d 594, ¶21).
                                    III.     ANALYSIS
       ¶18    Pegeese contends that he should be allowed to withdraw
his plea because he did not understand the constitutional rights
he was waiving when he entered his plea.                           He argues that the
circuit court did not sufficiently explain or verify that he
understood——and          in      fact        he         did   not     understand——the
                                             11
                                                                    No.       2017AP741-CR



constitutional rights he waived by entering a plea.                              Pegeese
asserts that the plea questionnaire alone is insufficient, and
that the plea colloquy here was deficient because the circuit
court    failed   to    individually       review    and    specifically         address
each constitutional right and verify that he knew he would be
waiving each right.           Pegeese argues that he is thus entitled to
a remand for a Bangert hearing.                In addition, Pegeese asserts

that this court should exercise its superintending authority to
"adopt a clear rule that the plea judge has a duty to inform and
verify that the defendant understands each constitutional right
waived by the plea."
      ¶19    The State argues that the plea colloquy with Pegeese

was     sufficient      and    that    the    circuit       court     appropriately
incorporated Form CR-227 into the colloquy.                      The State asserts
that Pegeese has not met his burden, and that his plea was
entered knowingly, intelligently, and voluntarily.                            The State
urges this court to decline Pegeese's invitation to impose on
circuit     courts     the    additional     duty    when    taking       a    plea,    to
independently review and specifically address the constitutional
rights being waived.           Alternatively, the State avers that even
if the circuit court's plea colloquy was deficient, the circuit
court's error was harmless such that Pegeese still would not be
entitled to a Bangert hearing.
      ¶20    We   conclude      that   Pegeese      has    not   demonstrated          the
right to a Bangert hearing as the circuit court's plea colloquy
and use of the plea questionnaire sufficiently explained and
verified that Pegeese did understand the constitutional rights
                                        12
                                                                            No.    2017AP741-CR



he was waiving so as to fulfill the requirements of Wis. Stat.
§ 971.08 and Bangert.              Accordingly, we need not reach the issue

of    harmless     error.           We    further          decline    to      exercise       our
superintending authority to impose a specific requirement that
circuit courts individually recite each constitutional right and
then otherwise verify the defendant's understanding that those
rights are waived.
                      A.     Plea Colloquy Requirements
       ¶21     It has long been recognized that under the Due Process
Clause,      a   defendant's        guilty       or    no     contest       plea     must     be
knowingly,       intelligently,          and    voluntarily         entered.         State    v.
Bollig, 2000 WI 6, ¶15, 232 Wis. 2d 561, 605 N.W.2d 199 (citing

Boykin    v.     Alabama,    395     U.S.      238,    242     (1969));       Bangert,       131
Wis. 2d at 257.           Wisconsin imposes certain statutory and common
law duties on circuit courts to ensure that a defendant's plea
is given knowingly, intelligently, and voluntarily.                               See Taylor,
347 Wis. 2d 30, ¶¶30–31.
       ¶22     Wisconsin         Stat.      § 971.08         sets      forth        mandatory
requirements       that     must    be    met       before    the    circuit        court    may
accept a defendant's guilty or no contest plea.                             Section 971.08
"is not a constitutional imperative," but rather is a procedural
statute      "designed      to     assist      the    trial    court        in    making     the
constitutionally required determination that a defendant's plea
is    voluntary."         Bangert,       131    Wis. 2d       at     261.         Among   other
things, circuit courts must "[a]ddress the defendant personally
and    determine      that         the     plea       is     made     voluntarily           with


                                               13
                                                    No.   2017AP741-CR



understanding    of the nature of the    charge and the potential
punishment if convicted."5    § 971.08(1)(a).
     ¶23    This court has recognized that circuit courts have a
number of duties at a plea hearing to ensure that a defendant's

     5   Wisconsin Stat. § 971.08 states in full as follows:

          (1) Before the court accepts a plea of guilty or
     no contest, it shall do all of the following:

          (a) Address    the    defendant personally and
     determine that the plea is made voluntarily with
     understanding of the nature of the charge and the
     potential punishment if convicted.

          (b) Make such inquiry as satisfies it that the
     defendant in fact committed the crime charged.

          (c) Address the defendant personally and advise
     the defendant as follows: "If you are not a citizen of
     the United States of America, you are advised that a
     plea of guilty or no contest for the offense with
     which you are charged may result in deportation, the
     exclusion from admission to this country or the denial
     of naturalization, under federal law."

          (d) Inquire of the district attorney whether he
     or she has complied with s. 971.095 (2).

          (2) If a court fails to advise a defendant as
     required by sub. (1)(c) and a defendant later shows
     that the plea is likely to result in the defendant's
     deportation, exclusion from admission to this country
     or denial of naturalization, the court on the
     defendant's   motion   shall  vacate    any   applicable
     judgment   against   the  defendant   and   permit   the
     defendant to withdraw the plea and enter another plea.
     This subsection does not limit the ability to withdraw
     a plea of guilty or no contest on any other grounds.

          (3) Any plea of guilty which is not accepted by
     the court or which is subsequently permitted to be
     withdrawn shall not be used against the defendant in a
     subsequent action.

                                 14
                                                       No.   2017AP741-CR



guilty   or   no   contest   plea    is   knowing,   intelligent,     and
voluntary, which include conducting a colloquy to:

          (1) Determine the extent of the defendant's
     education and general comprehension so as to assess
     the defendant's capacity to understand the issues at
     the hearing;

          (2) Ascertain whether any promises, agreements,
     or   threats  were   made   in   connection  with the
     defendant's anticipated plea, his appearance at the
     hearing, or any decision to forgo an attorney;

          (3) Alert the defendant to the possibility that
     an attorney may discover defenses or mitigating
     circumstances that would not be apparent to a layman
     such as the defendant;

          (4) Ensure the defendant understands that if he
     is indigent and cannot afford an attorney, an attorney
     will be provided at no expense to him;

          (5) Establish the defendant's understanding of
     the nature of the crime with which he is charged and
     the range of punishments to which he is subjecting
     himself by entering a plea;

          (6) Ascertain personally whether a factual basis
     exists to support the plea;

          (7) Inform the defendant of the constitutional
     rights he waives by entering a plea and verify that
     the defendant understands he is giving up these
     rights;

          (8) Establish personally that the defendant
     understands that the court is not bound by the terms
     of any plea agreement, including recommendations from
     the district attorney, in every case where there has
     been a plea agreement;

          (9) Notify    the   defendant        of    the     direct
     consequences of his plea; and

          (10) Advise the defendant that "If you are not a
     citizen of the United States of America, you are
     advised that a plea of guilty or no contest for the

                                    15
                                                                    No.    2017AP741-CR


     offense [or offenses] with which you are charged may
     result in deportation, the exclusion from admission to
     this country or the denial of naturalization, under
     federal    law,"   as    provided   in    Wis.   Stat.
     § 971.08(1)(c).
Taylor,    347     Wis. 2d 30,     ¶31   (quoting    Brown,        293    Wis. 2d 594,

¶35).
           B.    Standards For Plea Withdrawal Post-Sentencing
     ¶24    Here, Pegeese brings a            post-sentencing challenge              to
his guilty plea.        See State v. Booth, 142 Wis. 2d 232, 237, 418

N.W.2d 20 (Ct. App. 1987) ("[W]e conclude that the withholding
of   sentence        and    the     imposition          of     probation . . . are
functionally       equivalent      to    sentencing          for   determining       the
appropriateness of plea withdrawal.").                  As noted previously, to
withdraw a plea after sentencing, the defendant must show by
clear   and convincing evidence that               refusing        to allow    him    to
withdraw     his    plea   would    result    in    a    "manifest        injustice."
Taylor, 347 Wis. 2d 30, ¶24.             Wisconsin courts have delineated

the following circumstances where a manifest injustice occurs
such that a plea may be withdrawn post-sentencing:

     (1) ineffective assistance of counsel; (2) the
     defendant did not personally enter or ratify the plea;
     (3) the plea was involuntary; (4) the prosecutor
     failed to fulfill the plea agreement; (5) the
     defendant did not receive the concessions tentatively
     or fully concurred in by the court, and the defendant
     did not reaffirm the plea after being told that the
     court no longer concurred in the agreement; and, (6)
     the court had agreed that the defendant could withdraw
     the plea if the court deviated from the plea
     agreement.




                                         16
                                                                   No.    2017AP741-CR



State v. Daley, 2006 WI App 81, ¶20 n.3, 292 Wis. 2d 517, 716

N.W.2d 146 (quoting State v. Krieger, 163 Wis. 2d 241, 251 n.6,
471 N.W.2d 599 (Ct. App. 1991)).
       ¶25    In support of his claim for plea withdrawal, Pegeese
asserts      that    manifest   injustice        resulted   because      he    did    not
understand the constitutional rights he waived and his plea was
unknowing, unintelligent, and involuntary.                     Where a defendant
seeks to withdraw a guilty or no contest plea post-sentencing
due to a claimed error in the plea colloquy, the proper analysis
has    two    steps.         Taylor,    347      Wis. 2d 30,     ¶27.         We    first
"determine if the defendant should be allowed to withdraw the
plea   because the circuit             court     violated its duty        under      Wis.

Stat. § 971.08 or other court-mandated duty."                     Id.     Second, we
"determine, if necessary, whether the failure to withdraw the
plea would otherwise result in a manifest injustice."                     Id.
       ¶26    Defendants such as Pegeese who move to withdraw a plea
based on a defective plea colloquy have the initial burden to
meet a two-prong test:               (1) the defendant must "make a prima
facie showing of a violation of Wis. Stat. § 971.08 or other
court-mandated duty"; and (2) the defendant must "allege that
the    defendant       did    not,     in   fact,    know   or     understand         the
information         that   should    have   been    provided     during       the    plea
colloquy."         Id., ¶32 (citing Bangert, 131 Wis. 2d at 274).                     In
order to make a prima facie showing, the defendant may not rely
on conclusory allegations.              Id.      The defendant "must point to
deficiencies in the plea hearing transcript" to meet his initial
burden.      Id.     If the defendant fails to meet his initial burden,
                                            17
                                                                          No.    2017AP741-CR



then the circuit court must deny the defendant's plea withdrawal
motion.    See id.

     ¶27       When a defendant successfully meets both prongs, then
that defendant is entitled to an evidentiary hearing, also known
as a "Bangert hearing."              Id.       If a Bangert hearing occurs, the
burden    of    proof      shifts   to     the      State    to   show    "by     clear    and
convincing      evidence      that       the     defendant's       plea,        despite   the
inadequacy of the plea colloquy, was knowing, intelligent, and
voluntary."          Id.   (citing    Bangert,         131    Wis. 2d      at    274).     In
attempting      to    meet    its    burden,         "[t]he       State    may     use    'any
evidence'      to    prove    that       the     defendant's       plea     was     knowing,
intelligent,        and    voluntary,       including        any    documents        in   the

record and testimony of the defendant or defendant's counsel."
Id. (citing Bangert, 131 Wis. 2d at 274–75).                        If the State fails
to meet its burden at the Bangert hearing, then the defendant is
entitled to withdraw his guilty or no contest plea.                             See id.
                     C.    Application Of Legal Principles
     ¶28       We now analyze whether Pegeese has made a prima facie
showing that the circuit court violated a statutory or common
law duty in conducting the plea colloquy.6                          We begin with the
plea colloquy itself.           Pegeese claims that the plea colloquy was
deficient because the circuit court violated its duty to "inform


     6 Neither party disputes that Pegeese meets his burden as to
the second prong under Bangert, as he alleges that he failed to
know or understand the constitutional rights he was waiving by
entering a guilty plea. Accordingly, the focus of our analysis
is on the first prong.


                                               18
                                                                         No.    2017AP741-CR



the defendant of the constitutional rights he waives by entering
a plea and verify that the defendant understands he is giving up
these rights".       See Taylor, 347 Wis. 2d 30, ¶31.

       ¶29    However, the issue Pegeese raises is not necessarily a
novel one.       Wisconsin courts have considered the extent to which
a   circuit    court      may    rely    on    a    plea    questionnaire.         We     now
examine those cases.
       ¶30    In Moederndorfer the court of appeals concluded that
Moederndorfer was not entitled to a Bangert hearing even though
the    circuit      court       relied    in       part    on    a   form      instead     of
specifically addressing each constitutional right individually.
Moederndorfer,       141       Wis. 2d at      831.        Shortly      before the plea

hearing, Moederndorfer completed a three-page "waiver of rights"
form    with       his     lawyer.          Id.           The    form    detailed        each
constitutional right being waived, and Moederndorfer initialed
next to each.            Id. at 827.           At the plea hearing, the State
entered      the    form       as   an    exhibit,         and    the    circuit      court
specifically referred to the form during the plea colloquy with
Moederndorfer.           Id.    The following exchange occurred during the
plea colloquy:

            THE COURT: By entering that plea of guilty,
       Mr. Moederndorfer, you give up rights, and these
       rights have been detailed in this three-page waiver of
       rights form.    Your attorney has filed this on your
       behalf. Have you read this three-page form? You will
       have to answer out loud, sir.

              THE DEFENDANT:         Yes.

              THE COURT:        Have you read it this morning?


                                              19
                                                             No.        2017AP741-CR


             THE DEFENDANT:   Yes.

            THE COURT: In fact, you have read it within the
       last 15 minutes, I understand?

             THE DEFENDANT:   Yes, Your Honor.

            THE COURT: Do you understand what is in these
       three pages, Mr. Moederndorfer?

             THE DEFENDANT:   Yes.

            THE COURT: Has [your attorney] assisted you in
       understanding what is in these three pages?

             THE DEFENDANT:   Yes.

            THE COURT: Do you have any questions of me as to
       what is in these three pages?

             THE DEFENDANT:   No.

            THE COURT: Mr. Moederndorfer,              is    this        your
       signature on Page 3 of this form?

             THE DEFENDANT:   Yes.

            THE COURT: Are these your initials                     in     the
       columns of each of these three pages?

             THE DEFENDANT:   That's correct.

            THE COURT: And these initials signify that you
       have read each of the paragraphs and that you
       understand them before you placed your initials on
       them, is that correct?

            THE DEFENDANT:     Yes,    Your   Honor,    on    each        and
       every one.
Id. at 828 n.1.     The circuit court accepted the guilty plea and
sentenced Moederndorfer.      Id. at 825–26.
       ¶31   Moederndorfer subsequently moved to withdraw his plea,

and the circuit court denied Moederndorfer's motion.                        Id. at
826.    The court of appeals affirmed the circuit court, holding


                                      20
                                                                      No.     2017AP741-CR


       that [Moederndorfer] did not meet his prima facie
       burden [under Bangert] of showing that the plea
       hearing   record    was   defective.     The   record
       affirmatively    demonstrates   that  [Moederndorfer]
       understood the constitutional rights he waived and
       understood the nature of the charge of burglary when
       he entered the plea of guilty.
Id. at 831–32.
       ¶32     The court of appeals rejected Moederndorfer's argument
that    the circuit court         improperly        relied     upon the       waiver      of
rights    form    and   noted    that    in    fact,    defendants          may   be    more
likely to understand the rights being waived by reading a form
"in an unhurried atmosphere, as opposed to reliance upon oral
colloquy in a supercharged courtroom setting."                     Id. at 828.          The
court of appeals further explained:

       A trial court can accurately assess a defendant's
       understanding of what he or she has read by making a
       record that the defendant had sufficient time prior to
       the hearing to review the form, had an opportunity to
       discuss   the  form   with  counsel,   had  read  each
       paragraph, and had understood each one.
Id.      The    court   of   appeals     reasoned       that    the    circuit         court
expressly       referenced      the    form    on     the    record     and       inquired
specifically      as    to   whether     Moederndorfer       completed        the      form,
whether Moederndorfer's attorney assisted him in completing the
form,    and      whether     Moederndorfer           understood       each       of    the
paragraphs in the form.               Id. at 828–30.         The court of appeals
therefore       concluded     that      the    plea     colloquy      satisfied         the
requirements of Wis. Stat. § 971.08 and Bangert.
       ¶33     While a waiver of rights form may be used, circuit
courts are not to rely entirely on the form in a plea colloquy.
Nearly five years after Moederndorfer, in State v. Hansen, 168

                                          21
                                                                         No.     2017AP741-CR



Wis. 2d 749, 755–56, 485 N.W.2d 74 (Ct. App. 1992), the court of
appeals concluded that the circuit court's complete reliance on
a plea questionnaire and waiver of rights form rendered the plea
colloquy     defective.        In     Hansen the          circuit    court      only    asked

Hansen if he went over the form with his attorney and understood
the form when he signed it, unlike in Moederndorfer where the
circuit      court         specifically           asked       whether      Moederndorfer
understood the constitutional rights he was waiving.                                   Id. at
752, 755–56.       The court of appeals thus clarified as follows:

      Here, [the circuit court's] personal colloquy with
      Hansen did not include any discussion as to the
      constitutional  rights   which  Hansen   was  waiving.
      Instead, the colloquy was limited to whether Hansen
      had gone over the Moederndorfer form with his attorney
      before he signed it and whether Hansen understood the
      form. We conclude that such limited personal colloquy
      is not the substantive kind of personal exchange
      between the trial court and the defendant which
      Bangert, [Wis. Stat. § 971.08], and Moederndorfer
      require.
Hansen, 168 Wis. 2d at 755.
      ¶34    The     court       of        appeals           explained         that     while
Moederndorfer's       approval      of     the     form      "certainly    lessened       the
extent and degree of the colloquy otherwise required between the
trial court and the defendant, it was not intended to eliminate
the   need   for     the    court     to    make    a     record    demonstrating         the
defendant's understanding that the plea results in the waiver of
the   applicable     constitutional          rights."           Id. at 755–56.            The
court   of    appeals       concluded      that     Hansen's        plea   colloquy       was
defective because it established only that Hansen had read and
understood     the    form,     but        failed       to    establish        that    Hansen

                                             22
                                                                     No.     2017AP741-CR



"understood that by entering his no contest plea he was waiving
his applicable constitutional rights."                   Id. at 756; see also

State v. Hampton, 2004 WI 107, ¶¶14–17, 66–73, 274 Wis. 2d 379,
683   N.W.2d 14      (holding      that   circuit     courts       must    specifically
inquire as to whether defendants understand the circuit court is
not bound by a plea agreement sentence recommendation, and that
simply asking defendants whether they understand a waiver of
rights form is not sufficient).
      ¶35    Since        Moederndorfer     and      Hansen,       this     court     has
examined both cases and concluded that they exist in harmony,
stating as follows:

           Moederndorfer does not support the position that
      so long as the circuit court ascertains that the
      defendant     generally     understands     the     Plea
      Questionnaire/Waiver of Rights Form, the contents of
      that Form may be viewed as intrinsic to the plea
      colloquy.    The circuit court in Moederndorfer used
      substantive colloquy during the plea hearing to
      establish   Moederndorfer's    understanding    of   the
      information that Moederndorfer claimed on appeal not
      to understand.   As the court of appeals explained in
      Hansen,   the   Moederndorfer   decision   is   properly
      interpreted to mean that although use of the Plea
      Questionnaire/Waiver of Rights Form "lessen[s] the
      extent and degree of the colloquy otherwise required
      between the trial court and the defendant," the Form
      is "not intended to eliminate the need for the court
      to make a record        demonstrating the defendant's
      understanding" of the particular information contained
      therein.
State   v.       Hoppe,     2009   WI     41,    ¶¶42,   317       Wis. 2d 161,       765
N.W.2d 794.
      ¶36    A    plea     questionnaire        is   indeed    a    useful     tool    to
supplement a plea colloquy, but it alone does not replace a plea


                                           23
                                                                        No.    2017AP741-CR



colloquy during which the circuit court must determine whether a
plea is being made knowingly, intelligently, and voluntarily.
       ¶37     Contrary      to     Pegeese's      position,       we    conclude        that
Moederndorfer informs our analysis and that the colloquy that

occurred       here    is   not     defective.      Like     the   circuit      court      in
Moederndorfer, the circuit court here specifically asked Pegeese
if he read and completed a waiver of rights form——in this case,
Form    CR-227——and         also     asked    Pegeese      if     he    understood       the
entirety of the form and if he had any questions about the form.
Pegeese responded that he read and completed the form, that he
understood all of it, and that he had no questions.                           The circuit
court then asked Pegeese's counsel if he reviewed the form with

Pegeese      and      if    he     believed    Pegeese      understood        the    form's
contents.          Pegeese's       counsel    responded     affirmatively           to   both
questions.         Somewhat like Moederndorfer but unlike the circuit
court     in    Hansen,          after   addressing       Pegeese's      attorney,       the
circuit court here directly asked Pegeese, "[D]o you understand
the [c]onstitutional [r]ights you give up when you enter a plea
today?"        Pegeese responded affirmatively, and the circuit court
followed up by asking if he had "[a]ny questions about those
rights."        Pegeese stated that he had no questions.                            This is
similar to the circuit court asking Moederndorfer whether he
read and understood each paragraph on the waiver of rights form,
to which Moederndorfer responded that he had read and understood
"each and every one."                Moederndorfer, 141 Wis. 2d at 828 n.1.
If   anything,        the    circuit     court     here    went    further      than      the
circuit court did in Moederndorfer, by expressly referencing the
                                              24
                                                                            No.        2017AP741-CR



"constitutional rights" in the form and asking Pegeese if he
understood them.           The circuit court in Moederndorfer referenced

the waiver of rights form in more general terms.
       ¶38   Pegeese        further      asserts      that       the        circuit            court
addressed his attorney and not him, when the circuit court asked
of Pegeese's understanding of Form CR-227.                           He argues that the
circuit court somehow disconnected the discussion of the form
from the circuit court's follow-up questions regarding Pegeese's
constitutional        rights      such    that      the    colloquy              was     rendered
defective.      Pegeese specifically claims that "[a]ny person in
Pegeese's     shoes    would      have    thought        that    by    asking           Pegeese's
attorney     about     Pegeese's      understanding             of    the        questionnaire
after asking Pegeese about the questionnaire, the circuit court
was signaling that it was concluding its questions about the
questionnaire        and     moving      on    to    a     new       topic."              We     are
unpersuaded.         The circuit court's questions were intended to
ascertain      Pegeese's          understanding           of         the         contents         of
Form CR—227.        That form lists each of the constitutional rights
Pegeese waived and an "X" was placed next to each right so as to
indicate his understanding.              The circuit court then specifically
asked Pegeese about whether he understood that he was waiving
those constitutional rights.              While circuit courts are to ensure
that    a    plea     is    knowingly,        intelligently,               and     voluntarily
entered,     there     is    no   specific         formula       required          to     do     so.
Circuit courts are vested with the responsibility to communicate
with the defendant and counsel to effectuate that purpose and if
done, to then make the finding that a plea is indeed knowing,
                                              25
                                                               No.     2017AP741-CR



intelligent, and voluntary.          Plea forms such as Form CR-227 are
tools to be utilized in that process.
     ¶39    We   therefore     reaffirm     that   the     circuit     court     may
utilize a waiver of rights form such as Form CR-227, but the use
of that form does not otherwise eliminate the circuit court's
plea colloquy duties.          While the circuit court must exercise
great care when conducting a plea colloquy so as to best ensure
that a defendant is knowingly, intelligently, and voluntarily
entering a plea, a formalistic recitation of the constitutional
rights being waived is not required.               State v. Imani, 2010 WI

66, ¶26, 326 Wis. 2d 179, 786 N.W.2d 40 (concluding that the
circuit court's colloquy regarding a defendant's waiver of right

to counsel was sufficient, and declining to "impose on circuit
courts the requirement of placing form over substance and using
'magic words' when the reality of the circumstances dictate the
answer").
     ¶40    To the extent Pegeese asserts that circuit courts must
verify    on the record       that defendants      understand        each   of    the
constitutional rights they waive when they enter a guilty or no
contest plea, the record reflects that the circuit court here
did so.     As noted previously, the circuit court utilized a plea
questionnaire form that specifically listed each constitutional
right    being waived.        Pegeese stated       that he    understood         each
right and did not wish to further discuss the matter with his
lawyer, and he indicated his understanding by checking off each
right listed on the form.            His counsel verified that he had
consulted    with   Pegeese    and   that   they    went    through     the      form
                                      26
                                                                       No.    2017AP741-CR



together.       Although     the    circuit    court        did    not       individually
recite and specifically address each constitutional right on the
record, the plea colloquy proceedings as a whole reflect that
Pegeese understood the constitutional rights he was waiving.
      ¶41   Perhaps      Pegeese's     argument        is       more     appropriately
construed   as   seeking      a    formalistic    requirement            that    circuit
courts read, verbatim and on the record, each constitutional
right defendants waive by entering a guilty or no contest plea.
We    decline    to   use     our    superintending             and     administrative
authority    under    Article       VII,     section        3     of   the     Wisconsin
Constitution, placing form over substance, in order to reach
such a holding.7      Pegeese presents no authority, and indeed there

is no indication that requiring the recitation of "magic words"
already contained on a plea questionnaire form, on the record,
would advance a defendant's understanding of the constitutional
rights waived by pleading guilty or no contest.                        We instead look
to the substance of the record as a whole to determine whether
the   circuit    court      sufficiently      ensured           that    the    defendant




      7Article VII, section 3(1) of the Wisconsin Constitution
states, "The supreme court shall have superintending and
administrative authority over all courts."    While this court's
superintending and administrative authority is "indefinite in
character, unsupplied with means and instrumentalities, and
limited only by the necessities of justice," this court does not
use such power lightly. Arneson v. Jezwinski, 206 Wis. 2d 217,
225–26, 556 N.W.2d 721 (1996).


                                        27
                                                                     No.   2017AP741-CR



understood the constitutional rights waived by entering a guilty
or no contest plea.8
       ¶42       Accordingly, we conclude that Pegeese has failed to
meet his initial burden to show that the circuit court violated
the requirements of Wis. Stat. § 971.08 or Bangert.                        Therefore,

Pegeese is not entitled to a Bangert hearing.                          As a result,
Pegeese is not entitled to withdraw his guilty plea.
                                   IV.   CONCLUSION
       ¶43       The   circuit   court's    colloquy    with    Pegeese      verified
that       the    constitutional    rights      at   issue    were     contained     in
Form CR-227, that Pegeese completed and signed the form with
counsel and that he wanted no further time to discuss matters

with his lawyer.            The colloquy further verified that Pegeese
comprehended the contents of the form, and he and his lawyer
acknowledged that he understood each constitutional right he was
waiving by pleading guilty.                The circuit court concluded that
Pegeese      was "freely, knowingly[,]           and   intelligently" entering
his plea.
       ¶44       We conclude that Pegeese has not met his burden to
demonstrate        that   the    plea    colloquy    was     defective     so   as   to
entitle him to the relief requested.                    We further decline to

       8
       Though today we do not require circuit courts to recite
any particular magic words when conducting a plea colloquy,
circuit courts should be mindful of the suggested plea colloquy
in Wis JI–Criminal SM-32 (2007).   See Bangert, 131 Wis. 2d at
268 (stating that circuit courts can use Wis JI–Criminal SM-32
(1985) as one method of fulfilling the requirements under
Bangert).


                                           28
                                                                        No.     2017AP741-CR



exercise    our    superintending        authority            to    impose     a   specific
requirement       that   at     a     plea        hearing      circuit        courts   must
individually recite and specifically address each constitutional
right being waived and then otherwise verify the defendant's
understanding       of   each        constitutional            right     being      waived.
Therefore, we affirm the court of appeals.


     By    the    Court.—The        decision       of   the    court     of    appeals   is
affirmed.
     ¶45    SHIRLEY       S.         ABRAHAMSON,              J.,      withdrew        from
participation.




                                             29
                                                                  No.      2017AP741-CR.rfd


       ¶46      REBECCA FRANK DALLET, J.             (concurring).             I agree with
the majority opinion that Javien Pegeese failed to demonstrate
that the circuit court's plea colloquy was defective.                              However,
I write separately because I urge this court to exercise its
superintending authority, pursuant to Article VII, Section 3(1)
of the Wisconsin Constitution, and prospectively require circuit
courts to advise a defendant of each constitutional right being
waived       by    pleading     guilty.          This     court's         superintending
authority "endows this court with a power that is indefinite in

character . . . and limited only by the necessities of justice."
Arneson      v.   Jezwinski,     206    Wis.    2d   217,     225,       556    N.W.2d    721

(1996).         It is in the interest of justice that a circuit court
advise a defendant of each constitutional right being waived to
ensure that his or her guilty plea is being entered knowingly,
intelligently, and voluntarily.
       ¶47      When   a      defendant        pleads     guilty,          he      or    she
"simultaneously waives several constitutional rights, including

[the]      privilege       against   compulsory         self-incrimination,             [the]
right to trial by jury, and [the] right to confront [his or her]
accusers."        McCarthy v. United States, 394 U.S. 459, 466 (1969).
Even       if     defense      counsel     diligently          reviews           the     Plea
Questionnaire/Waiver           of    Rights      form1    with       a     defendant,      a
defendant may not understand each right.                      It is the duty of the
circuit      court,    not    defense     counsel,       to    ascertain         whether   a
defendant is knowingly, intelligently, and voluntarily waiving

       1
       See Form CR-227.   This form was adopted by the Judicial
Conference pursuant to Wis. Stat. §§ 971.025 and 758.18(1).


                                           1
                                                                No.          2017AP741-CR.rfd


each right.      As explained by this court in State v. Bangert, 131

Wis. 2d 246, 272, 389 N.W. 12 (1986), "[i]t is incumbent upon
the   trial    court    to    inform   the        defendant    of       his     rights    and
ascertain that he understands they are being waived."
       ¶48    In Bangert, 131 Wis. 2d at 270-71, we exercised our
supervisory     powers       to   require       circuit   courts        to    "follow     the
provisions set forth in Wis. JI——Criminal SM-32 (1985), Part V,
Waiver of Constitutional Rights, or specifically refer to some
portion of the record or communication between defense counsel

and defendant which affirmatively exhibits defendant's knowledge
of    the    constitutional       rights     he    will   be   waiving."             As    in
Bangert, I reaffirm Special Materials 32 as the gold standard

for conducting a plea colloquy.
       ¶49    Special    Materials      32       illustrates        a    thorough        plea
colloquy.2      The "Waiver of Constitutional Rights" portion reads
as follows:

       By pleading guilty, you admit that you committed the
       crime and, thus, you relieve the state of proving at a
       trial that you committed the crime, and by pleading
       guilty you also waive——that is, you give up——important
       constitutional rights.

       First, you give up your right to have the state prove
       that you committed each element of the crime. The
       state must convince each member of the jury beyond a
       reasonable doubt that you committed the crime. Do you
       understand that?



       2
       The current section of Special Materials 32 addressing a
defendant's waiver of constitutional rights is nearly identical
to the version referenced in State v. Bangert, 131 Wis. 2d 246,
271 n.5, 389 N.W. 12 (1986).


                                            2
                                                   No.    2017AP741-CR.rfd

     You have a constitutional right not to incriminate
     yourself, which means, you have a right not to admit
     to a crime, not to say anything that will subject you
     to a criminal penalty. By pleading guilty, you give up
     this privilege not to incriminate yourself, and if the
     court accepts your plea of guilty, you will be
     convicted, and the court can impose sentence against
     you. Do you understand that?

     You have a constitutional right to confront your
     accusers, which means you have the right to face the
     witnesses against you, to hear their sworn testimony
     against you, and to cross-examine them by asking them
     questions to test the truth and accuracy of their
     testimony. If the court accepts your plea of guilty,
     you give up your right to confront your accusers. Do
     you understand that?

     You have the right to present evidence in your own
     behalf and to require witnesses to come to court and
     testify for you. Do you understand that?

     Knowing that by pleading guilty, you give up your
     constitutional right to a trial by jury, your
     constitutional right not to incriminate yourself, and
     your constitutional right to confront the witnesses
     against you and to subpoena witnesses, do you still
     wish to plead guilty?"

Wis JI——Criminal SM-32 (2007).
     ¶50   A requirement that a circuit court inform a defendant
of each constitutional right being waived by pleading guilty
does not put form over substance or require "magic words," as
the majority opinion suggests.       Majority op., ¶41.     The Special

Materials do not need to be read verbatim;3 instead, a circuit
court should verify that the defendant understands and agrees to
waive each constitutional right implicated in entering a guilty

     3 The Special Materials note that the questions and
statements are merely suggestions and that "judges will
undoubtedly want to tailor them to the case at hand and develop
others of their own." Wis JI——Criminal SM-32 (2007).


                                 3
                                                                 No.    2017AP741-CR.rfd


plea, as the Bangert court intended.                    The circuit court must be

more    than    just     "mindful"     of    the    suggested    plea    colloquy    in
Special Materials 32, majority op., ¶41 n.8, it should attempt
to encapsulate its thorough explanation of the waiver of rights.
       ¶51     The vast majority of states and the federal courts
have recognized the importance of requiring a circuit court to
advise a defendant of the constitutional rights being waived by
pleading guilty to a felony.                See Fed. R. Crim. P. 11(b)(1)(B)-
(F).         Some   states       implement       this   requirement      pursuant    to

statute.       See, e.g., Alaska R. Crim. P. 11; Ark. R. Crim. P.

24.4;    Colo.      R.   Crim.    P.   5(a)(2)      &   11;   Conn.    Practice     Book
§ 39-19; Del. Super. Ct. R. Crim. 11; Fla. R. Crim. P. 3.172;
Il. S. Ct. Rule 402; Ind. Code Ann. § 35-35-1-2; I. C. A. Rule
2.8; La. Code Crim. Proc. Ann. art. 556.1; Me. R. U. Crim. P.
11; Mass. R. Crim. P. 12; Minn. R. Crim. P. 15.01; Miss. R.
Crim. P. 15.3(d)(3); Mo. R. Crim. P. 24.02; N.C. Gen. Stat. Ann.
§ 15A-1022; N.D. R. Crim. P. 11; Ohio R. Crim. P. 11; O.R.S.

§ 135.385 (Oregon); S.D.C.L. § 23A-7-4; Tenn. R. Crim. P. 11;
Vt. R. Crim. P. 11; W. Va. R. Crim. P. 11; Wyo. R. Crim. P. 11.
       ¶52     Other states implement              this requirement      pursuant    to
case law.       See, e.g., People v. Cross, 347 P.3d 1130, 1132 (Cal.
2015) ("As a prophylactic measure, the court must inform the
defendant of three constitutional rights——the privilege against
compulsory self-incrimination, the right to trial by jury, and
the right to confront one's accusers——and solicit a personal
waiver of each"); Edmonds v. Commonwealth of Ky., 189 S.W.3d
558, 565 (Ky. 2006); State v. Solomon, 111 P.3d 12 (Haw. 2005);

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State ex rel. T.M., 765 A.2d 735, 739-740, 744 (N.J. 2001);

State   v.   Garcia,         915   P.2d    300,       303     (N.M.       1996);    State    v.
Anziana,     840      P.2d    550,   552       (Ct.        App.    Kan.     1992)    (reading
specific constitutional rights into statutory "consequences of
[] plea" language); State v. Irish, 394 N.W.2d 879, 883 (Neb.
1986); State v. Levario, 577 P.2d 712, 713 (Ariz. 1978) (partly
defining "constitutional rights" language in Ariz. R. Crim. P.
17.2); Commonwealth of Pa. v. Willis, 369 A.2d 1189 (Pa. 1977);
King v. State, 553 P.2d 529, 534–35 (Okla. 1976) (requiring an

advisement by the court as to the list of constitutional rights
being waived).
     ¶53     A requirement that a circuit court advise a defendant
of each constitutional right being waived by pleading guilty
would respect the gravity of a defendant's decision to plead
guilty and ensure that the decision is being made knowingly,
intelligently,        and     voluntarily.             Wisconsin      should        join    the
majority of jurisdictions from around the country and adopt this

requirement.
     ¶54     Accordingly, I respectfully concur.
     ¶55     I   am    authorized         to       state    that    Justice        ANN   WALSH
BRADLEY joins this concurrence.




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