COURT OF APPEALS

DECISION

DATED AND FILED

August 19, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP1752-CR Cir. Ct. No. 2014CF455

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

MICHAEL E. DOEGE,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Walworth County: KRISTINE E. DRETTWAN, Judge. Affirmed. 

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2018AP1752-CR

2

¶1 PER CURIAM. Michael E. Doege appeals from a judgment of 

conviction entered upon his guilty plea to one count of identity theft, and from an 

order denying his postconviction motion for plea withdrawal. According to 

Doege, his plea was unknowingly, unintelligently, and involuntarily entered 

because at the time he pled, he incorrectly believed he would be able to appeal the 

circuit court’s adverse other-acts ruling. For the reasons that follow, we affirm. 

Background

¶2 Doege was charged with two counts of unauthorized use of an 

individual’s personal identifying information (identity theft) based on allegations 

that in 2008, Doege twice used his brother’s identification to get out of a traffic 

ticket. 

¶3 On the morning set for trial, the State brought up its intent to 

introduce evidence of Doege’s driving record. At trial counsel’s request, the 

circuit court granted an adjournment, and the State filed a motion to introduce 

other-acts evidence, arguing that in two prior instances in Illinois, Doege “engaged 

in similar conduct on those cases as in the present case.” Trial counsel opposed 

the motion and, following a hearing, the circuit court ruled that the circumstances 

of Doege’s two prior Illinois convictions for using his brother’s name would be 

admissible at trial. 

¶4 Pursuant to a negotiated plea agreement, Doege pled guilty to one 

count of identity theft and the other count was dismissed and read in. The State 

agreed not to request a specific sentence. The presentence investigation report 

(PSI) was filed and its writer recommended a lengthy jail sentence. At Doege’s 

request, sentencing was adjourned and Doege filed a motion for plea withdrawal, 

alleging that he understood “there would be a joint recommendation of the parties 
No. 2018AP1752-CR

3

for probation,” and also that “[b]y some attorney client miscommunication or 

another, the Defendant understood that his plea agreement would not consider any 

recommendation by the State or the PSI for jail time.” 

¶5 At a hearing on the motion, Doege testified that he decided to plead 

guilty because when the other-acts evidence was ruled admissible, “I felt that it 

was prejudicial against the jury and that I didn’t have a chance. Plus, [defense 

counsel] recommended that I take it because the state said that they had no 

recommendation and it was pretty much up to the Judge....” On crossexamination, Doege confirmed that at the plea hearing, he understood that the 

judge was not bound by any sentencing recommendations and could impose the 

maximum, but said that he thought the PSI recommendation violated the State’s 

plea agreement. Doege also said that he did not understand various aspects of the 

plea colloquy; that he thought he could “within a reasonable time withdraw” his 

plea; that he felt pressured into pleading because of the court’s other-acts ruling; 

and that he had a “change of heart” regarding his plea once he saw the PSI writer’s

recommendation for jail time, which he did not like.

¶6 The circuit court denied the motion, finding that Doege was not 

credible and had not demonstrated a fair and just reason for plea withdrawal. The 

court viewed the crux of Doege’s claim as “whether or not he’s going to go to jail; 

that’s what has brought all of this about.” The court did not find credible Doege’s 

claims that he did not understand certain information at the plea hearing, reasoning 

at one point, “quite frankly, Mr. Doege, you want to throw your attorney under the 

bus because you don’t like the recommendation that came back in the PSI; that’s 

what this is all about here today.” The court found contradictory Doege’s 

statements that “[h]e didn’t know that probation was allowed to make a 

recommendation in their PSI” and “he thought he could withdraw his guilty plea if 
No. 2018AP1752-CR

4

he did not like the recommendation in the PSI.” The court continued, “You are 

basically grasping for anything here to be able to withdraw your plea and that 

makes you not credible to this Court.” The court sentenced Doege to thirty days in 

jail and imposed a $300 fine. 

¶7 Doege filed a postconviction motion for plea withdrawal, alleging 

that (1) his trial counsel was ineffective for misinforming him that he could appeal 

the circuit court’s other-acts ruling despite having entered a guilty plea, and (2) his 

plea was not knowing, intelligent, and voluntary because he believed he could 

appeal the circuit court’s other-acts ruling. 

¶8 At a postconviction evidentiary hearing, Doege testified that he pled 

because he knew that the other-acts ruling was harmful to his case. He said that he 

did not know that his guilty plea would waive his right to challenge the circuit 

court’s ruling and that his trial counsel told him he could appeal the adverse 

ruling. 

¶9 Trial counsel testified that he told Doege that the other-acts ruling 

was “very bad” for his chances at trial. When asked whether he talked to Doege 

about appealing the ruling, he stated, “This is honestly where it gets a little sketchy 

for me. I ... believe so, but I’m not completely certain of that fact.” Counsel said 

he “definitely did not advise” Doege that pleading guilty waived all challenges to 

evidentiary rulings.

¶10 Counsel acknowledged that his notes evidenced no “meeting, or 

phone call, or written communication with the defendant of any kind about 

preserving an appellate right on the other acts motion ruling,” and that it would be 

normal practice for him to document issues for appeal both in his notes and in a 

letter to the client. However, he testified that he wrote Doege’s postconviction 
No. 2018AP1752-CR

5

counsel an email stating, “I think that I did not believe [Doege] would be waiving 

that argument while pleading guilty.... As such, I believe I gave [Doege] wrong 

advice as to the ability ... to appeal that issue.” When pressed, he reiterated that he 

could not recall whether he actually told Doege that he could appeal the other-acts 

ruling if he pled guilty. 

¶11 After briefing, the postconviction court denied the plea-withdrawal 

motion. As with Doege’s presentencing claim for plea withdrawal, the court 

found Doege not credible, noting “inconsistencies and ... probably lies” in his 

testimony. The court reasoned that it could not “rely on his testimony then in 

trying to determine whether or not a manifest injustice has occurred here such that 

[it] should allow him to withdraw his plea.” The court continued, “I find that his 

testimony is completely self-serving, self-interested, and ... it changes for 

whatever legal theory his defense is asserting on that particular day.” The court 

wanted “the record to reflect the depth of the court’s concern with regard to 

[Doege’s] veracity in these matters.” 

¶12 As for defense counsel’s testimony, the circuit court found it “wishywashy” and “very murky.” The court had “the distinct impression that [defense 

counsel] was inclined to help Mr. Doege with” the motion. In fact, the court “felt 

like [defense counsel] ... threw himself under the bus” for Doege. The court 

concluded that defense counsel’s testimony did not provide clear and convincing 

evidence of a manifest injustice, either in the context of ineffective assistance, or 

regarding the claim that Doege’s plea was not knowing, intelligent, and voluntary. 
No. 2018AP1752-CR

6

Discussion

¶13 It is well established that a defendant loses his or her right to appeal 

most1evidentiary rulings by entering a guilty or no-contest plea. See State v. 

Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886 (resolving a case by 

entry of a plea waives all nonjurisdictional defects, including constitutional 

claims). This is often referred to as “the guilty-plea-waiver rule.” On appeal, 

Doege abandons his ineffective assistance of counsel claim2and argues that his 

plea was not knowingly, voluntarily, and intelligently entered because he believed 

he could appeal the circuit court’s other-acts evidentiary ruling despite having 

entered a guilty plea pursuant to a plea agreement. 

¶14 A defendant seeking to withdraw his or her plea after sentencing 

must prove by clear and convincing evidence that plea withdrawal is necessary to 

correct a manifest injustice. State v. Dillard, 2014 WI 123, ¶36, 358 Wis. 2d 543, 

859 N.W.2d 44. “A manifest injustice occurs when there are serious questions 

affecting the fundamental integrity of the plea which rendered it unknowing, 

involuntary, and unintelligently entered.” State v. Denk, 2008 WI 130, ¶71, 315 

Wis. 2d 5, 758 N.W.2d 775.

 

1

 Pursuant to WIS. STAT. § 971.31(10) (2017-18), orders denying suppression motions 

are reviewable on appeal from a final judgment or order that was entered upon the defendant’s 

plea of guilty or no contest. All references to the Wisconsin Statutes are to the 2017-18 version 

unless otherwise noted.

2

 Doege’s appellate brief asserts that he is no longer pursuing this claim “[d]ue to the 

credibility findings made by the circuit court.” Given that Doege’s remaining claim also relies on 

the circuit court’s credibility findings, it would appear that Doege is distancing himself from the 

court’s finding that he did not “intend [] all along to appeal the other acts motion,” and therefore 

could not demonstrate prejudice. 
No. 2018AP1752-CR

7

¶15 In deciding whether to allow a defendant to withdraw a plea, the 

circuit court may also assess the credibility of the proffered explanation for the 

plea withdrawal request. See State v. Kivioja, 225 Wis. 2d 271, 291, 

592 N.W.2d 220 (1999). We will not overturn credibility determinations on 

appeal unless the testimony upon which they are based is inherently or patently 

incredible or in conflict with the uniform course of nature or with fully established 

or conceded facts. Global Steel Prods. Corp. v. Ecklund Carriers, Inc., 2002 WI 

App 91, ¶10, 253 Wis. 2d 588, 644 N.W.2d 269. 

¶16 “Whether a plea is knowing, intelligent, and voluntary is a question 

of constitutional fact. We accept the circuit court's findings of historical and 

evidentiary facts unless they are clearly erroneous but we determine independently 

whether those facts demonstrate that the defendant’s plea was knowing, 

intelligent, and voluntary.” State v. Brown, 2006 WI 100, ¶19, 293 Wis. 2d 594, 

716 N.W.2d 906.

¶17 We conclude that the circuit court properly denied Doege’s plea 

withdrawal motion on the ground that he failed to prove by clear and convincing 

evidence that he believed he could appeal the other-acts ruling even after pleading 

guilty. The court found Doege’s testimony patently incredible and Doege does not 

challenge the court’s factual findings. 

¶18 Doege argues that his trial counsel’s testimony, coupled with 

historical facts in the record, establish that Doege incorrectly believed he could 

appeal the other-acts ruling. We are not persuaded. Trial counsel’s statement that 

he “definitely” did not advise Doege about the effect of the guilty-plea-waiver rule 

does not establish what Doege believed at the time he entered his plea. To the 

extent Doege relies on trial counsel’s testimony that he believed he advised Doege 
No. 2018AP1752-CR

8

he could still appeal the adverse ruling, his reliance is misplaced. While it is true 

that the circuit court did not explicitly find trial counsel’s testimony incredible as a 

matter of law, it did find the testimony “wishy-washy” and “very murky” such that 

it believed counsel “threw himself under the bus” for Doege. On the record as a 

whole, the circuit court could not find that trial counsel affirmatively told Doege 

he would be able to appeal the other-acts ruling even if he pled guilty. Put 

differently, the court implicitly found that trial counsel did not misinform Doege 

about the consequences of his guilty plea. These findings are not clearly 

erroneous and support a determination that plea withdrawal is not necessary to 

correct a manifest injustice. 

¶19 Similarly, we reject Doege’s argument that historical record facts 

prove by clear and convincing evidence that his plea was infirm. That he pled 

guilty rather than going to trial due to the other-acts ruling does not remotely 

establish that he thought he could appeal that ruling upon pleading guilty. 

Additionally, the fact that he sought to withdraw his plea prior to sentencing only 

undermines his argument. It supports the postconviction court’s credibility 

findings that Doege’s testimony “changes for whatever legal theory his defense is 

asserting on that particular day,” and that trial counsel “threw himself under the 

bus” to help Doege. 

¶20 Finally, though not necessary to affirm, we find persuasive the 

State’s argument that even if Doege did not know about the guilty-plea-waiver

rule, he has not established a manifest injustice entitling him to plea withdrawal. 
No. 2018AP1752-CR

9

¶21 Not every misunderstanding of the law by a defendant negates the 

knowing and voluntary nature of a plea. Brown, 293 Wis. 2d 594, ¶11. The cases 

relied on by Doege— Riekkoff and Dawson3— are distinguishable. In each, the 

defendant explicitly bargained for an unenforceable, unattainable benefit. See 

Riekkoff, 112 Wis. 2d at 128-29 (plea conditioned on the unenforceable right to 

appeal an evidentiary ruling); Dawson, 276 Wis. 2d 418, ¶¶2-4 (plea induced by 

State’s unenforceable promise to reopen and amend the charges upon Dawson’s 

completion of probation). The records in both of those cases showed that the 

unenforceable benefit was a “primary inducement” for the defendants’ pleas, and 

that “the State and the trial court acquiesced in [the defendant’s] mistaken view.” 

Dawson, 276 Wis. 2d 418, ¶¶13-14. In the instant case, nothing suggests that 

Doege’s plea was induced by or conditioned upon his ability to appeal the otheracts ruling. As the postconviction court found, “there’s really no evidence in the 

record that the defendant intended all along to appeal the other acts motion,” and 

“the only indication ... that he wanted to appeal the other acts motion comes from 

his [postconviction hearing] testimony just a few weeks ago, which is different 

from his earlier testimony.” Under the circumstances of this case, plea withdrawal 

is not necessary to prevent a manifest injustice. 

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.

 

3

 See State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983); State v. Dawson, 

2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12.