COURT OF APPEALS

DECISION

DATED AND FILED

April 24, 2024

Samuel A. Christensen

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. 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

2

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 
No. 2023AP1787-CR

3

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. 
No. 2023AP1787-CR

4

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 twelvemonth 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 
No. 2023AP1787-CR

5

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.” 
No. 2023AP1787-CR

6

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] 
No. 2023AP1787-CR

7

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 
No. 2023AP1787-CR

8

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. 
No. 2023AP1787-CR

9

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 
No. 2023AP1787-CR

10

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’” 
No. 2023AP1787-CR

11

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 
No. 2023AP1787-CR

12

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).