Background
Osman A. Mirza, himself a criminal defense attorney, was charged in August 2020 in Waukesha County with stalking, battery, intimidation of a victim, disorderly conduct, criminal trespass, false imprisonment, and related offenses—all arising from a prolonged pattern of abuse against his estranged wife, Sally, after she filed for divorce in October 2019. The alleged conduct included repeated uninvited entries into Sally’s home, physical and sexual violence, threats to kill her communicated to her brother in a recorded phone call, and nighttime surveillance of her residence captured on her home security system.
On the eve of trial, Mirza agreed to a plea bargain and pleaded guilty to one count of felony stalking and one count of misdemeanor criminal trespass, both as acts of domestic abuse. He subsequently retained new counsel and moved to withdraw his plea before sentencing on two grounds: (1) that trial counsel coerced him by yelling at him the morning before he entered the plea, and (2) that he did not understand the plea. The Waukesha County Circuit Court (Judge Paul Bugenhagen, Jr.) denied the motion after an evidentiary hearing at which both Mirza and trial counsel testified.
After the United States Supreme Court decided Counterman v. Colorado, 600 U.S. 66 (2023), Mirza filed a second motion to withdraw his plea, arguing that the Wisconsin stalking statute’s negligence mens rea standard was unconstitutional under Counterman‘s requirement that the State prove recklessness in true-threats cases. The circuit court denied that motion as well, and Mirza appealed both rulings.
The Court’s Holding
The Court of Appeals affirmed the judgment of conviction on both issues. On the plea-withdrawal question, the court applied the erroneous-exercise-of-discretion standard and found no basis to disturb the circuit court’s factual findings. The circuit court had credited trial counsel’s testimony over Mirza’s, noted that the heated exchange occurred hours before—not moments before—the plea hearing, that the parties had cooled off and resumed trial preparation, and that Mirza (as a practicing criminal defense attorney who had immersed himself in the case) plainly understood what he was pleading to. The appellate court also declined to address new arguments Mirza raised for the first time on appeal—including that he had “serious reservations” about counsel’s ability to try the case—because those arguments were not presented to the circuit court.
On the Counterman issue, the court held that Counterman simply did not apply. Counterman requires the State to prove recklessness when criminal liability is predicated on speech that constitutes a “true threat.” Here, however, Mirza’s stalking conviction rested on a broad course of conduct—breaking into Sally’s home, surveilling her at night, physical and sexual violence, withholding their children to coerce sex—that went far beyond the single recorded phone call. Because the plea was grounded in non-speech conduct rather than the content of that call, no First Amendment issue arose and Counterman was inapplicable.
Key Takeaways
- A defendant seeking to withdraw a guilty plea before sentencing must show a “fair and just reason”; an attorney raising his or her voice at a client, without more, does not establish coercion—particularly where hours elapsed, tensions cooled, and the defendant (here, a lawyer himself) proceeded deliberately.
- Arguments not raised before the circuit court on a plea-withdrawal motion will not be considered for the first time on appeal in Wisconsin.
- Counterman v. Colorado‘s recklessness requirement is confined to cases where criminal liability is imposed because of the content of speech constituting a “true threat”; it does not invalidate a stalking conviction premised predominantly on physical conduct and a course of non-speech behavior.
- This opinion is unpublished and may not be cited as precedent in Wisconsin courts except as permitted by Wis. Stat. Rule 809.23(3).
Why It Matters
The decision offers a practical illustration of the limits of Counterman v. Colorado in state domestic-abuse prosecutions. Defendants convicted under stalking statutes that carry a negligence mens rea have argued that Counterman requires those statutes to be rewritten or that prior pleas should be vacated. This court’s analysis makes clear that Counterman‘s reach is cabined to cases where speech is the crux of liability; where a stalking charge is built on a pattern of physical intrusion, violence, and harassment, a threatening communication is merely one brick in the wall—not the foundation—and the First Amendment does not come to the defendant’s rescue.
For practitioners, the case also reinforces Wisconsin’s demanding standard for pre-sentencing plea withdrawal. Even where a defendant can show that counsel acted unprofessionally during plea negotiations, courts will look to the full timeline and the defendant’s evident understanding of the proceedings. A defendant with legal training who actively participated in his own defense faces an especially steep credibility hurdle when claiming ignorance of the charges to which he pleaded.