State v. Megan E. Zeien

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 24, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1787-CR Cir. Ct. No. 2021CF185

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MEGAN E. ZEIEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: GERAD T. DOUGVILLO and BRUCE E. SCHROEDER,
Judges. Order reversed and cause remanded.

¶1 GROGAN, J.1 Megan E. Zeien appeals from a judgment of
conviction and a postconviction order denying her motion seeking to withdraw her
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2023AP1787-CR

guilty pleas to two misdemeanors. Zeien argues the circuit court erred in denying
her plea withdrawal motion without holding an evidentiary hearing because, she
says, the plea colloquy was deficient due to the circuit court’s purported failure to
comply with WIS. STAT. § 971.08’s plea colloquy requirements. Specifically, she
alleges the court: (1) failed to ask about her education level and relied on the
Plea Questionnaire instead of personally asking her if she understood each of the
constitutional rights she was waiving; and (2) failed to determine that a factual
basis existed to support her pleas. She contends these failures resulted in her
entering pleas that were not knowing, intelligent, and voluntary, and she therefore
asks this court to reverse the postconviction order and remand for an evidentiary
hearing.

¶2 This court agrees that Zeien sufficiently alleged a WIS. STAT.
§ 971.08 violation with respect to the absence of a factual basis for the plea.
Accordingly, the circuit court erred in denying her postconviction motion without
holding an evidentiary hearing, and this court reverses the circuit court’s order and

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No. 2023AP1787-CR

remands the matter for an evidentiary hearing as required by State v. Bangert, 131
Wis. 2d 246, 389 N.W.2d 12 (1986).2

I. BACKGROUND

¶3 In February 2021, the State charged Zeien with the following three
counts stemming from an altercation with her boyfriend: (1) first-degree
recklessly endangering safety, domestic abuse, with a dangerous weapon (felony),
contrary to WIS. STAT. §§ 941.30(1), 939.50(3)(f), 968.075(1)(a), and
939.63(1)(a); (2) battery, domestic abuse, with a dangerous weapon
(misdemeanor), contrary to WIS. STAT. §§ 940.19(1), 939.51(3)(a), 968.075(1)(a),
and 939.63(1)(a); and (3) disorderly conduct, domestic abuse, with a dangerous
weapon (misdemeanor), contrary to WIS. STAT. §§ 947.01(1), 939.51(3)(b),
968.075(1)(a), and 939.63(1)(a).

¶4 At the initial appearance, Zeien’s counsel advised that Zeien was
twenty-seven years old, had graduated from high school, and was a licensed real

2
This court is satisfied that no error occurred with respect to Zeien’s allegations that the
circuit court failed to adequately determine her education level and that it improperly relied on
the Plea Questionnaire/Waiver of Rights form regarding her knowledge of the specific
constitutional rights she was waiving. Although the circuit court did not personally ask Zeien
about her education level, that information was included on the Plea Questionnaire, and the
circuit court could rely on it. See State v. Moederndorfer, 141 Wis. 2d 823, 827, 416 N.W.2d
627 (Ct. App. 1987). With respect to the constitutional rights she was waiving, this court
concludes that the circuit court’s questions—together with the information on the Plea
Questionnaire and Zeien’s representations that she had gone over this with her counsel and
understood these rights—were sufficient in this case. See id. (permitting circuit court to
“‘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’” (citation omitted)). See also State v. Hoppe, 2009 WI 41, ¶32, 317 Wis. 2d 161,
765 N.W.2d 794 (providing that a completed plea questionnaire and waiver of rights form helps
to ensure a knowing, intelligent, and voluntary plea). This opinion is therefore limited to
addressing Zeien’s challenge as to the circuit court’s failure to sufficiently establish there was a
factual basis to support her pleas.

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No. 2023AP1787-CR

estate agent. After a series of delays not relevant to this appeal, Zeien ultimately
waived the preliminary hearing because the State offered a plea bargain wherein
she would plead guilty to counts two and three, and the State would dismiss count
one and would recommend probation. The State further explained that the offer
was subject to continued negotiations.

¶5 On August 11, 2021, the State, Zeien, and her counsel signed a
Stipulated Hold Open Agreement (Agreement) that set forth the terms of an
agreed-upon deferred prosecution agreement that deferred Zeien’s prosecution for
twelve months. As part of the Agreement, Zeien agreed to plead guilty to counts
two and three, the State agreed to dismiss count one, and Zeien agreed to, inter
alia, complete domestic abuse counseling, comply with the counselor’s
recommended treatment plan, and send a monthly letter updating the prosecutor
about her counseling. The Agreement also required that Zeien “not possess any
weapons or firearms[,]” refrain from consuming “alcohol or illegal drugs[,]” and
“pay any requested restitution.” The Agreement further indicated that if Zeien
failed to comply with its terms or committed any other offenses during the twelve-
month period, the prosecutor could move the circuit court to revoke the
Agreement, proceed with the prosecution, and file bail-jumping charges. The
parties filed the Agreement with the circuit court, together with a signed Plea
Questionnaire/Waiver of Rights form, that same day.

¶6 The Plea Questionnaire/Waiver of Rights form states that Zeien is
twenty-eight years old, has completed at least twelve years of schooling, has a
high school diploma or equivalent, understands English, “understand[s] the
charge(s) to which” she is pleading, is “currently receiving treatment for a mental
illness or disorder[,]” and has not “had any alcohol, medications, or drugs within
the last 24 hours.” The form also lists the constitutional rights Zeien agreed to

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No. 2023AP1787-CR

waive by entering a plea, and a handwritten mark next to each right listed
indicated that Zeien understood the rights, that she understood she was waiving
those rights, and that she was doing so of her “own free will.”3

¶7 In signing the Plea Questionnaire/Waiver of Rights form, Zeien also
acknowledged she understood that if she instead chose to go to trial, the State
would have to prove the relevant elements beyond a reasonable doubt and that her
attorney had discussed those elements with her as indicated on the attached sheet
identifying the criminal offenses and their corresponding elements. She also
confirmed that: (1) she was “enter[ing] this plea of [her] own free will”; (2) she
had “not been threatened or forced” to do so; (3) “[n]o promises [had] been made
to [her] other than those contained in the plea agreement”; (4) she had reviewed
the form and attachments with her attorney and understood them; and (5) she had
answered all questions truthfully. Zeien’s attorney also signed the Plea
Questionnaire/Waiver of rights form, thereby confirming these discussions had
occurred, that he believed Zeien understood the plea agreement, and that Zeien
was entering her plea freely, voluntarily, and intelligently.

¶8 The plea hearing occurred on August 16, 2021—just a few days after
Zeien signed and filed the Agreement and Plea Questionnaire/Waiver of Rights
form—at which time the prosecutor advised the circuit court about the Agreement.
The court thereafter asked Zeien if she understood what was happening and if this

3
The Plea Questionnaire/Waiver of Rights form identifies the following constitutional
rights: (1) “right to a trial”; (2) “right to remain silent”; (3) “right to testify and present evidence
at trial”; (4) “right to use subpoenas to require witnesses to come to court and testify for me at
trial”; (5) “right to a jury trial, where all 12 jurors would have to agree that [she is] either guilty or
not guilty”; (6) “right to confront in court the people who testify against me and cross-examine
them”; and (7) “right to make the State prove me guilty beyond a reasonable doubt.”

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No. 2023AP1787-CR

was how she wished to proceed, and Zeien answered affirmatively to both
questions. Zeien also confirmed she had reviewed and understood the Plea
Questionnaire/Waiver of Rights form and the Agreement and that she had signed
both documents. The court also asked Zeien if she understood the rights discussed
in the papers she signed and that she would be waiving those rights if she pled
guilty. Zeien responded, “Yes, sir, I do.”

¶9 The circuit court then addressed both crimes to which she was
entering pleas. With respect to the battery charge, the court said:

The crimes of battery -- battery is a misdemeanor which
can ordinarily be punished by up to nine months
imprisonment and a $10,000 fine. However, because it is
alleged that you were using a dangerous weapon, that
sentence could actually be as long as 15 months, and
disorderly conduct is a misdemeanor for which you could
ordinarily be imprisoned for up to 90 days and fined up to
$1,000. However, because it is alleged that you were using
a dangerous weapon, that sentence could be as long as nine
months. If you plead guilty to each of these counts and
ultimately are placed up for sentence because of
noncompliance with the agreement, you could be
imprisoned for a total of up to two years and fined up to
$11,000. Do you understand that?

Zeien answered: “Yes, I do.” When the court asked Zeien if “anybody promised
[her] that would not happen in this case”—in other words, whether she had been
promised that the maximum penalties would not be imposed—Zeien confirmed no
such promises had been made. The court then confirmed that Zeien understood
that the Agreement she entered was a contract between her and the district
attorney, that the court has almost no discretion regarding its terms, and that she
did not have any questions. The court thereafter advised Zeien that if she failed
“to comply with the agreement, then [she would] have no trial rights because [she]

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No. 2023AP1787-CR

will have already pled guilty and will go directly to sentencing as soon as the
period of deferral is reopened.” Zeien confirmed she understood this as well.

¶10 With respect to the disorderly conduct charge, the circuit court
explained:

It is further charged that you committed the crime of
disorderly conduct at the same time and place engaging in
violent, abusive, and other disorderly conduct under
circumstances in which that conduct tended to cause or
provoke a disturbance while you were armed with a
dangerous weapon, namely a knife. Do you understand the
charge?

Zeien answered, “Yes, sir, I do.” When asked how she pled to both the battery
and disorderly conduct charges, Zeien responded “Guilty, Your Honor.”

¶11 After the exchange with Zeien, the circuit court asked both the
prosecutor and Zeien’s attorney whether there was any reason it should not accept
the pleas, and both attorneys responded negatively. The court therefore accepted
the pleas, deferred further action on the case for twelve months, and set the next
court date for twelve months out. Before ending the hearing, the court indicated it
had forgotten to ask one thing and then addressed Zeien: “On your questionnaire,
you indicated that you were having some health care treatment at this time. Is that
impairing your reasoning power or judgment in any way?” Zeien answered, “No,
sir, it does not.”

¶12 In November 2021, the State filed a motion to revoke the Agreement
after Zeien committed new crimes and consumed alcohol in violation of the
Agreement’s terms. Zeien did not contest the motion. Instead, she entered into a
plea bargain with the State on the new charges and proceeded to sentencing on
both cases. At the August 2022 sentencing hearing, the circuit court withheld

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No. 2023AP1787-CR

sentence and placed Zeien on probation for two years.4 Following sentencing, the
court entered judgment on the battery and disorderly conduct pleas Zeien had
previously entered.

¶13 After obtaining an extension of time to file a notice of appeal or
postconviction motion from this court, Zeien filed her postconviction motion in
the circuit court in July 2023, seeking to withdraw her battery and disorderly
conduct pleas. As grounds for her plea, Zeien alleged the plea colloquy was
deficient because the circuit court failed to determine the extent of her education
and capacity to understand the issues, did not review each of the constitutional
rights she was waiving, and failed to determine whether there was a factual basis
to support her pleas. The postconviction court denied Zeien’s motion without
holding a hearing. Zeien now appeals.

II. DISCUSSION

¶14 The sole issue in this case is whether the postconviction court erred
when it denied Zeien’s postconviction motion without holding an evidentiary
hearing. Zeien is entitled to an evidentiary hearing on her plea withdrawal motion
if she: (1) “makes a prima facie showing that the circuit court’s plea colloquy did
not conform with [WIS. STAT.] § 971.08 or other procedures mandated at a plea
hearing;” and (2) alleges she “did not know or understand the information that
should have been provided at the plea hearing.” See State v. Brown, 2006 WI
100, ¶2, 293 Wis. 2d 594, 716 N.W.2d 906. Thus, this court’s task is to determine

4
The circuit court also imposed sentence on the operating under the influence (first
offense) charge at the sentencing hearing. Although the Honorable Bruce E. Schroeder presided
over most proceedings in this case and decided the postconviction motion, the Honorable
Gerad T. Dougvillo presided at the August 2022 sentencing.

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No. 2023AP1787-CR

whether Zeien “raised sufficient concerns about whether” her “pleas were
knowing, intelligent, and voluntary” so as to make the postconviction court’s
decision summarily denying her motion without holding a hearing erroneous. See
id., ¶20. This court does not decide whether Zeien entered her pleas knowingly,
intelligently, and voluntarily or whether a refusal to allow plea withdrawal would
result in a manifest injustice. See State v. Howell, 2007 WI 75, ¶70, 301 Wis. 2d
350, 734 N.W.2d 48.

¶15 Whether Zeien’s motion sufficiently identifies deficiencies in the
plea colloquy to establish a violation of WIS. STAT. § 971.08 or other mandatory
duties at a plea hearing is a question of law this court reviews independently. See
Brown, 293 Wis. 2d 594, ¶21. Similarly, this court’s review as to whether Zeien’s
motion sufficiently alleged that she did “not know or understand information that
should have been provided at the plea hearing is a question of law.” See id.

¶16 Our supreme court has repeatedly reminded circuit courts that
“WIS-JI CRIMINAL SM-32 (1995) summarizes the duties a circuit court should
complete in accepting a guilty, no contest, or Alford plea and prescribes a
recommended procedure to ensure no step is omitted. See North Carolina v.
Alford, 400 U.S. 25 (1970).” Brown, 293 Wis. 2d 594, ¶23 n.11. The Brown
court “strongly encourage[d] courts to follow these plea-acceptance procedures.”
Id. This court echoes those admonitions.

¶17 Brown specifically instructs that “[d]uring the course of a plea
hearing, the [circuit] court must address the defendant personally and [among
other duties] … [a]scertain personally whether a factual basis exists to support the
plea[.]” Id., ¶35. If a plea withdrawal motion establishes that the court failed to
do so “and makes the requisite allegations” that the defendant “did not know or

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No. 2023AP1787-CR

understand the information that should have been provided at the plea hearing,”
then “the court must hold a postconviction evidentiary hearing at which the state is
given an opportunity to show by clear and convincing evidence that the
defendant’s plea was knowing, intelligent, and voluntary despite the identified
inadequacy of the plea colloquy.” Brown, 293 Wis. 2d 594, ¶¶2, 40.

¶18 Based on a review of the plea hearing transcript, this court concludes
that Zeien has established a prima facie showing that the circuit court did not fully
comply with WIS. STAT. § 971.08 and Bangert because it failed to address
whether there was a factual basis to support Zeien’s pleas. “The factual basis
requirement ‘protect[s] a defendant who is in the position of pleading voluntarily
with an understanding of the nature of the charge but without realizing that his
conduct does not actually fall within the charge.’” State v. Thomas, 2000 WI 13,
¶14, 232 Wis. 2d 714, 605 N.W.2d 836 (alteration in original). Although a
defendant does not need to personally admit to the facts alleged, the court must—
on the record—establish that a factual basis exists before accepting the plea. Id.,
¶¶20-21. This can be accomplished in a number of ways: “A factual basis may …
be established through witnesses’ testimony, or a prosecutor reading police reports
or statements of evidence.” Id., ¶21. It can also be “established when counsel
stipulate[s] on the record to facts in the criminal complaint.” Id. None of that
occurred at the plea colloquy at issue. This deficiency alone, however, does not in
and of itself require an evidentiary hearing on Zeien’s motion. Rather, in addition
to identifying a plea colloquy deficiency, Zeien’s motion must also allege what
she “did not understand, and connect [her] lack of understanding to the
deficiencies.” See Brown, 293 Wis. 2d 594, ¶67.

¶19 In her plea withdrawal motion, Zeien asserted she told the
presentence investigation agent that “the criminal complaint [was] ‘a tale of lies’”

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No. 2023AP1787-CR

and said that “[b]ecause the [circuit] court did not personally question [her]
regarding the facts that led to her plea, the court could not personally ascertain
whether there was a factual basis to accept [her] plea.” She further asserted that
“because there [was] no discussion of the facts alleged in this matter in the plea
hearing, there is no way to determine whether [she] understood those facts that she
was entering a plea of guilt to.”

¶20 The State, in response, argues that the Plea Questionnaire/Waiver of
Rights form confirms that Zeien understood “that if the judge accept[ed] [her]
plea, the judge will find [her] guilty of the crime(s) to which [she was] pleading
based upon the facts in the criminal complaint and/or the preliminary examination
and/or as stated in court.” (Emphasis added.) Despite this statement on the form,
the law nevertheless requires that the circuit court personally ascertain a factual
basis for the plea on the Record, and relying solely on the Plea Questionnaire’s
compound statement—which gives three possibilities with reference to the
criminal complaint, the preliminary examination, and statements made during
court proceedings—fails to satisfy this requirement.

¶21 The State also points to the circuit court’s recitation of the charges at
the plea hearing and argues that the court, in doing so, “directly appl[ied] [Zeien’s]
actions to the elements of the crime[s] [with] which she was charged” and
“highlight[ed] [the] case-specific details such as the type of weapon she allegedly
used,” and that in response, Zeien confirmed “the nature of her actions, the
weapon used, the date, and geography in which these events all took place.” In
reviewing the plea hearing transcript, however, it is clear that the court did nothing
more than recite the charges and then ask Zeien either “Do you understand this
charge against you?” or “Do you understand that?” (Emphasis added.) While the
State suggests this was sufficient to establish that Zeien confirmed there was a

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No. 2023AP1787-CR

factual basis to support her pleas, this court disagrees. Rather, the court’s
recitation of the charges and ensuing confirmation that Zeien understood did
nothing more than confirm that Zeien understood the charges—it was neither
confirmation nor affirmation that she engaged in the actual conduct itself for
purposes of satisfying the factual basis requirement.

¶22 Accordingly, this court reverses the postconviction court’s order
denying the plea withdrawal motion and remands for an evidentiary hearing at
which the State will have the opportunity to prove that, despite the plea colloquy
deficiency, Zeien’s pleas were entered knowingly, voluntarily, and intelligently.5
See Bangert, 131 Wis. 2d at 274-75.

By the Court.—Order reversed and cause remanded.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

5
To the extent the State’s argument can be read as suggesting this court should review
the Record as a whole and conclude that Zeien’s pleas were in fact entered knowingly,
voluntarily, and intelligently, it is clear that this court may not do so. See State v. Howell, 2007
WI 75, ¶70, 301 Wis. 2d 350, 734 N.W.2d 48 (“In a Bangert motion, a … reviewing court
examine[s] only whether ‘a defendant is entitled to an evidentiary hearing when the court errs at a
plea hearing.’ The State cannot circumvent a defendant’s right to an evidentiary hearing under
Bangert by arguing that based on the record as a whole the defendant, despite the defective plea
colloquy, entered a constitutionally sound plea.” (footnote omitted)); see also state v. Bangert,
131 Wis. 2d 246, 389 N.W.2d 12 (1986).

12