State v. Caroline J. Arndt

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.
October 12, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2022AP450-CR Cir. Ct. No. 2020CM1470

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CAROLINE J. ARNDT,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for Racine
County: MARK F. NIELSEN, Judge. Reversed and cause remanded with
directions.

¶1 LAZAR, J.1 This case involves not only a plea bargain but the
corresponding responsibility of circuit courts to insure that plea colloquies with
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP450-CR

defendants establish that they actually understand and agree with the bargain
before the plea is accepted and a sentence is imposed. Without such a personal
colloquy and finding by the circuit court, the plea may be withdrawn upon the
motion of the defendant. In this case, the plea colloquy was inadequate in two
respects that together necessitate the withdrawal of Caroline J. Arndt’s plea and a
remand back to the circuit court to allow for that withdrawal.

¶2 In the midst of appellate briefing, this court issued two orders2
advising the State that its response brief was delinquent and that the matter may be
summarily disposed of, and possibly summarily reversed pursuant to WIS. STAT.
RULE 809.83(2), if no brief was filed. After the second order, the State, by letter
dated August 24, 2022, advised this court that it did not intend to file a brief, but
rather asked that the appeal be decided on just Arndt’s brief. Following the
August 30, 2022 letter, Arndt asked this court to conclude the State had conceded
her arguments and to summarily reverse the circuit court’s denial of her
postconviction motion. In that motion, she asked the court to allow her to
withdraw her plea and remand for an evidentiary hearing as well as to alter the
placement of the domestic abuse surcharge on the amended judgment of
conviction and then remand for a hearing on that issue.

¶3 Not only is it appropriate to summarily reverse the circuit court for a
failure to join issue by the State, but it is appropriate to do so on the merits on two
of the grounds asserted by Arndt for a plea withdrawal because the plea colloquy

2
The first order advised that the State’s brief was delinquent and was due within five
days absent a request for extension upon good cause shown. State v. Arndt, No. 2022AP450-CR,
order (WI App July 19, 2022). The second order advised that a response brief was required by
September 9, 2022, or this court may summarily reverse. State v. Arndt, No. 2022AP450-CR,
order (WI App Aug. 19, 2022).

2
No. 2022AP450-CR

was legally insufficient. That being said, the amended judgment of conviction
need not be amended yet again; it is void ab initio upon this reversal.

BACKGROUND

¶4 Arndt was charged on October 9, 2020, in Racine County with
disorderly conduct. The charge included two enhancers: domestic abuse and
repeater (for prior offenses). The details of Arndt’s conduct are not relevant.
Arndt spent fourteen days in custody while the case was pending.

¶5 Arndt entered into a plea bargain and signed3 a plea questionnaire
and waiver of rights form on April 9, 2021, in which she pled no contest to the
charge without the repeater enhancer. A copy of part of the disorderly conduct
jury instruction was attached to the plea questionnaire. See WIS JI—CRIMINAL
1900. It contains the statutory definition of the offense and lists the factors that
would have to be proved at trial.

3
On the form, Arndt signed beneath the following statements and declaration of her
voluntary, intelligent and knowing decision to enter in the plea bargain, to wit:

Voluntary Plea

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. The plea agreement will be stated in court or is as
follows: Plead to charge w/o repeater enhancer. State will
recommend 15 days jail CFTS and a fine. Defense free to argue.

Defendant’s Statement

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.

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No. 2022AP450-CR

¶6 On that same date, the circuit court4 conducted a very limited and
short plea colloquy and then issued a sentence after accepting Arndt’s plea. The
colloquy with Arndt was approximately two and one-half pages (out of a ten-page
transcript of the entire plea and sentencing). The length of a colloquy does not
necessarily indicate whether it is statutorily adequate, but it is worth noting.

¶7 Arndt was sentenced to fifteen days (time served due to good time
credit together with fourteen days in jail). The domestic abuse enhancer was
included with the offense.

¶8 Concerned that the judgment of conviction incorrectly identified the
offense as domestic abuse and that the circuit court had not complied with the
statutory requirements for a plea colloquy, Arndt filed a motion for postconviction
relief on January 31, 2022. She sought to withdraw her plea to avoid a manifest
injustice and, in the alternative, to correct the judgment of conviction with respect
to the reference to domestic abuse as an offense. Without holding any hearings,
the circuit court5 denied the motion to withdraw the guilty plea but granted the
motion to amend the judgment of conviction.

¶9 Still concerned that the judgment of conviction was not properly
amended, Arndt filed a motion to reconsider the order amending judgment of

4
The Honorable Stephen A. Simanek.
5
Now, the Honorable Mark F. Nielsen.

4
No. 2022AP450-CR

conviction on March 2, 2022. The circuit court summarily denied the motion on
that same date. This appeal followed.6

DISCUSSION

I. A summary reversal is appropriate.

¶10 A “[f]ailure to file a respondent’s brief tacitly concedes that the
[circuit] court erred,” State ex rel. Blackdeer v. Township of Levis, 176 Wis. 2d
252, 260, 500 N.W.2d 339 (Ct. App. 1993) (citation omitted), and allows this
court to assume the respondent concedes the issues raised by the appellant,
Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 108-09, 279
N.W.2d 493 (Ct. App. 1979). It is not the prerogative of parties who fail to file
briefs to ask this court to act as both advocate and judge, State v. Pettit, 171
Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992), by requiring the court to
independently develop a litigant’s arguments, Gardner v. Gardner, 190 Wis. 2d
216, 239-40 n.3, 527 N.W.2d 701 (Ct. App. 1994). “Judges are not like pigs,
hunting for truffles buried in briefs,” United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991), or in the record.

¶11 If a respondent fails to brief an appeal—as the State has done here
despite two orders seeking precisely that—this court may exercise its discretion
and summarily reverse the circuit court provided we determine that the respondent
has abandoned the appeal or has acted egregiously or in bad faith. Raz v. Brown,
2003 WI 29, ¶18, 260 Wis. 2d 614, 660 N.W.2d 647; see also Blackdeer, 176

6
The notice of appeal indicates that the appeal is of the amended judgment of
conviction, entered on February 28, 2022, and of the order denying motion to reconsider, entered
on March 9, 2022. However, the appellate brief seeks reversal of the earlier February 24, 2022,
order denying the initial postconviction motion to withdraw the guilty plea as well as the
March 2, 2022, order denying a motion to reconsider the order amending judgment of conviction.
Both orders were considered in this decision.

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No. 2022AP450-CR

Wis. 2d at 259-60. Here, the State has not acted egregiously or in bad faith, but it
has abandoned7 this appeal.

¶12 For that reason, summary reversal is appropriate in this case. This
court could conclude this opinion here, but it believes it is important to provide
further guidance as to why the plea colloquy was deficient and why the denial of
the motion seeking to withdraw the plea must be reversed.

II. Reversal is also appropriate on the merits.

¶13 “Plea agreements occur routinely as part of the work of prosecutors,
defense attorneys, and courts.” State v. Conger, 2010 WI 56, ¶15, 325 Wis. 2d
664, 797 N.W.2d 341. “The disposition of criminal charges by agreement
between the prosecutor and the accused, sometimes loosely called ‘plea
bargaining,’ is an essential component of the administration of justice.”
Santobello v. New York, 404 U.S. 257, 260 (1971). “Properly administered, it is
to be encouraged.” Id.

¶14 The United States Supreme Court has deemed the entry of a guilty
plea to be a “[c]ritical stage[]” in criminal proceedings. Missouri v. Frye, 566
U.S. 134, 140 (2012). In fact, plea bargains are now “so central to the
administration of the criminal justice system” that there is an argument to be made
that they now are the criminal justice system. Id. at 143-144 (citing Scott &
Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992)).

7
The State, unfortunately, did not indicate in its August 24, 2022 letter that it was taking
no position or that it was opposed (or even in favor) of Arndt’s issues on appeal. That could
easily have been done even though it would not have lessened the conclusion that the appeal had
been abandoned. While this court acknowledges that district attorneys’ offices (as well as public
defenders’ offices) are currently operating with significant backlogs and that time is precious, it
would behoove the State to file at least a short brief so as to stand up for the decisions made by
circuit courts. Summary reversals are somewhat drastic and do not necessarily or always reflect
the true status of the case on appeal.

6
No. 2022AP450-CR

¶15 The United States “Constitution sets forth the standard that a guilty
or no contest plea must be affirmatively shown to be knowing, voluntary, and
intelligent.” State v. Bangert, 131 Wis. 2d 246, 260, 389 N.W.2d 12 (1986); State
v. Howell, 2007 WI 75, ¶23, 301 Wis. 2d 350, 734 N.W.2d 48. Without those
three basic prerequisites, “a defendant is entitled to withdraw the plea as a matter
of right because such a plea ‘violates fundamental due process.’” State v. Brown,
2006 WI 100, ¶19, 293 Wis. 2d 594, 716 N.W.2d 906 (quoting State v. Van
Camp, 213 Wis. 2d 131, 139, 569 N.W.2d 577 (1997)); see also Boykin v.
Alabama, 395 U.S. 238, 242-43 (1969) (“[A] plea of guilty is more than an
admission of conduct; it is a conviction. Ignorance, incomprehension, coercion,
terror, inducements, subtle or blatant threats might be a perfect cover-up of
unconstitutionality.” (footnote omitted)).

¶16 Wisconsin requires a circuit court to conduct a personal colloquy
with the defendant in order to memorialize what the defendant knew at the time of
the plea itself. WIS. STAT. § 971.08(1); Bangert, 131 Wis. 2d at 256-57. The
reason for this personal touch is to “assist the [circuit] court in making the
constitutionally required determination that a defendant’s plea is voluntary.”
Bangert, 131 Wis. 2d at 261.

¶17 As well, there must be “manifest injustice” to warrant the
withdrawal of a plea after sentencing:

When a defendant moves to withdraw a plea after
sentencing, the defendant “carries the heavy burden of
establishing, by clear and convincing evidence, that the
[circuit] court should permit the defendant to withdraw the
plea to correct a ‘manifest injustice.’” Here, the burden is
on [the defendant] to prove that plea withdrawal is
warranted because “the state’s interest in finality of
convictions requires a high standard of proof to disturb that
plea.” Therefore, in order to disturb the finality of an
accepted plea, the defendant must show “a serious flaw in
the fundamental integrity of the plea.”

7
No. 2022AP450-CR

State v. Cain, 2012 WI 68, ¶25, 342 Wis. 2d 1, 816 N.W.2d 177 (citations
omitted). In addressing whether there is manifest injustice, a court may go beyond
the plea colloquy itself and look to the totality of the circumstances. Id., ¶31;
Bangert, 131 Wis. 2d at 274-75.

¶18 Here, Arndt raises six requirements that she asserts the circuit court
failed to meet in her plea colloquy. Two of these are easily set aside.8 One raises
potential concerns, but is not sufficient on its own to warrant withdrawal. One is a
concern but has been held not to be fatal. And, the last two tilt the scale in favor
of reversal.

¶19 Turning to the requirement raising a potential concern, Arndt is
correct that the circuit court did not advise or personally establish that she
understood the court was not bound by the terms of any plea bargain. This is

8
Arndt’s first assertion is that the circuit court did not “determine the extent of
Ms. Arndt’s education and general comprehension to assess her ability to understand the issues at
the hearing,” but this concerns information already on Arndt’s plea questionnaire. While it is best
practice to personally inquire about this, the court’s failure to do so is not enough to warrant a
plea withdrawal or a remand to consider the same, especially when Arndt acknowledged and
agreed that she had gone over the plea questionnaire with her attorney and responded negatively
to the question of whether “there is anything on [the plea questionnaire] that confused [her] or
that [she didn’t] understand?” See State v. Bangert, 131 Wis. 2d 246, 285-86, 389 N.W.2d 12
(1986). In addition, she did sign beneath the two attestations as to her “Voluntary Plea” and the
“Defendant’s Statement.” See supra note 3. These both indicate that she had reviewed the entire
form and had gone over it with her attorney. Her counsel also signed a corresponding statement:
“I am the attorney for the defendant. I have discussed this document and any attachments with
the defendant. I believe the defendant understands it and the plea agreement. The defendant is
making this plea freely, voluntarily, and intelligently. I saw the defendant sign and date this
document.”

Arndt also asserts that the circuit court did not “alert [her] that an attorney may discover
defenses or mitigating circumstances.” While true, this would not, standing alone, be a basis for
plea withdrawal since Arndt was represented by counsel and agreed that she had enough time to
talk to her lawyer. Her counsel agreed that she was “satisfied Ms. Arndt understands her rights,
the charge, [and] the penalty” and that Arndt “wishes to voluntarily enter a plea.” Arndt had
counsel, she had time to confer with counsel, and counsel indicated she was satisfied Arndt
understood the process.

8
No. 2022AP450-CR

troubling, but there are indications that the circuit court attempted to explain the
process to Arndt and then ended up accepting and imposing the joint
recommendations of the parties, even granting Arndt good time credit so that her
sentence was completely time served. That, especially in view of the verifications
spelled out above Arndt’s signature, is sufficient to refute any claim of manifest
injustice on this point.

¶20 Next, Arndt complains that the circuit court did not expressly go
over each and every constitutional right that she was waiving by entering her plea.
Arndt answered affirmatively when asked by the court if the questionnaire
explained her rights and that she had gone over it with her lawyer. She also
denied that there was anything on the form that confused her or that she did not
understand. She further agreed that she had enough time to talk with her lawyer
and that she didn’t have any questions about what was “going on.” In addition,
her attorney answered affirmatively when asked if she had “signed off” and was
“satisfied Ms. Arndt understands her rights, the charge, the penalty, and she
wishes to voluntarily enter a plea.”

¶21 Arndt, like the defendant in Bangert, signed the plea questionnaire
(with the two verifications), acknowledged in the plea colloquy that her
constitutional rights had been explained to her by her attorney and that she
understood them. And her attorney, having also signed the questionnaire, vouched
during the colloquy that Arndt understood her rights. Under similar facts, the
Bangert court found that the defendant was “aware of the constitutional rights
which he was waiving” and that his plea was “knowingly and voluntarily entered.”
Bangert, 131 Wis. 2d at 285-86. The same applies for Arndt.

¶22 Accordingly, this basis, too, is not sufficient to reverse the circuit
court as to whether the plea should be withdrawn.

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No. 2022AP450-CR

¶23 That brings this court to the last two alleged errors, each of which
are of great concern. The circuit court did not determine whether any promises,
agreements, or threats were made in connection with Arndt’s plea. This goes to
the very heart of the voluntary nature of a plea. Without such inquiry and the
ability of the circuit court to watch the defendant’s face and to scrutinize her
response to this question, how can it find that the plea is, indeed, voluntary? There
are certain flashpoints when defendants should be present in person before the
court, not just so they are able to see and hear the court, but so that the court can
see and hear them and assess their credibility. Pursuant to WIS. STAT.
§ 971.04(1)(g), a defendant has “a statutory right to be present in the same
courtroom as the judge when he made his guilty plea because the judge accepted
[the defendant’s] plea and pronounced judgment in regard to the crime to which
[the defendant] pled.” See State v. Soto, 2012 WI 93, ¶27, 343 Wis. 2d 43, 817
N.W.2d 848. This is especially important because it is critical for a circuit court to
determine the voluntariness of a plea while also personally observing the
defendant. There was no such inquiry of Arndt and no opportunity to assess her
credibility.

¶24 While these questions on voluntariness seem similar to not
specifically inquiring as to the constitutional rights Arndt was waiving, there is a
distinction. A circuit court has to ask the question about promises, agreements, or
threats to a defendant in order to fulfill its statutory duties under WIS. STAT.
§ 971.08(1)(a) to “[a]ddress the defendant personally and determine that the plea
is made voluntarily” before accepting a plea. While it may be statutorily sufficient
to not personally inquire as to the defendant’s age and educational background or
to spell out the constitutional rights she is waiving, there has to be some inquiry
into the voluntariness of the plea, however basic. Standing alone, however, there
is a question as to whether this failure would be sufficient to justify withdrawal of

10
No. 2022AP450-CR

a plea. This court need not answer that question here because there was another
inadequacy in the colloquy regarding the nature of Arndt’s charge.

¶25 The court in Bangert explains that there are several ways in which a
circuit court may ascertain a defendant’s understanding of a charge in a plea
colloquy. There are no “inflexible guidelines” that must be followed, but it is
“mandatory upon the trial judge to determine a defendant’s understanding of the
nature of the charge at the plea hearing.” Bangert, 131 Wis. 2d at 267. The court
then lists three possible methods—summarizing the elements of the crime from
the appropriate jury instructions, asking defense counsel if this information was
shared with the defendant and then obtaining from counsel a recitation of the
elements on the record in the defendant’s presence, and referring to the record or
other evidence of the defendant’s knowledge—each of which requires a summary
on the record that is acknowledged by the defendant. Id. at 267-68. This is not an
exclusive list. Id. at 268. The key is that the defendant must hear the elements
and acknowledge them, preferably during the plea colloquy.

¶26 The circuit court undertook none of these methods regarding Arndt’s
understanding of her disorderly conduct charge. It did not refer to the jury
instruction or the prior record in any respect. It did not reference the allegations in
the complaint. It did ask if defense counsel went over the plea questionnaire with
Arndt, but it did not ask counsel to summarize the elements on the record so that it
could ascertain if Arndt knowingly entered into the plea bargain. The fact that
part of the jury instruction was attached to the plea questionnaire is not sufficient;
the elements of Arndt’s crime were not addressed on the record. See id. at 267-68.
Without some type of inquiry into the nature of the charge, the circuit court failed
to meet its mandatory duties.

¶27 This court acknowledges that Arndt’s plea colloquy was cursory.
That alone does not make it statutorily invalid. These last two errors in this very

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No. 2022AP450-CR

critical stage of Arndt’s criminal case, together, do add up to a manifest injustice
that warrants the withdrawal of Arndt’s plea and a remand for further proceedings.

¶28 Arndt also contends9 that she was on medication that made it
impossible for her to understand what she was doing and saying at the plea
colloquy. This is potentially belied by the fact that, while she did check the box
on the questionnaire to indicate she had taken medication within the last twenty-
four hours, she expressly told the circuit court that this would not impact her
ability to proceed with the plea. This is no longer relevant.

¶29 Finally, Arndt asks that this court amend, again, her judgment of
conviction with respect to the nomenclature and placement of the term domestic
abuse, pursuant to statements made at the sentencing as well as the unpublished
case, State v. Neis, No. 2009AP1287-CR, unpublished slip op. ¶15 (WI App
July 15, 2010).10 It is not necessary, however, for this court to address this last
issue due to the reversal and grant of Arndt’s motion to withdraw her guilty plea.
Without a guilty plea, there can be no judgment of conviction to amend. It is void
ab initio.

9
This new assertion is, however, problematic. What must a circuit court do when a
defendant admits to having taken medication within the last twenty-four hours, but says it will not
impact her ability to continue the plea colloquy? Circuit courts are not omniscient. Obviously, if
a defendant appears groggy or has noticeably slurred speech—despite assurances that the plea
may continue—a circuit court can delay and reschedule. But, if a defendant appears coherent,
speaks clearly and states that she can continue, query whether that is sufficient to allow the plea
to be taken?
10
Unpublished cases may not be cited for precedential value, but may be cited for
persuasive value. See WIS. STAT. RULE 809.23(3)(a), (b).

12
No. 2022AP450-CR

CONCLUSION

¶30 This court concludes that Arndt’s appeal was abandoned by the State
and that, therefore, summary reversal is appropriate. In addition, upon a review of
the merits, this court also concludes that, based upon the circuit court’s failure to
ascertain that Arndt’s plea was voluntary and its additional failure to ensure that
Arndt understood the nature of the charge so as to enable her to enter a knowing
plea, the judgment and orders of the circuit court are reversed. There is no need to
address the domestic abuse enhancer’s placement on the amended judgment, as
this reversal renders it void ad initio.

¶31 Upon reversal (summarily or on the merits), this matter shall be
remanded to the circuit court for further proceedings, with the direction that Arndt
be allowed to withdraw her plea.

By the Court.—Judgment and orders reversed and cause remanded
with directions.

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

13