On Point blog, page 17 of 25
Guilty Plea – Withdrawal – Presentence, Undisclosed Exculpatory Evidence, Waiver Rule; Ineffective Assistance of Counsel; Sentencing
State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Guilty Plea – Withdrawal – Presentence
The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.
The particular grounds asserted – no factual basis for plea;
Plea Bargain – Prosecutorial Compliance
State v. Christopher Jones, 2009AP2761-CR, District 1, 9/28/10
court of appeals decision (3-judge, not recommended for publication); for Jones: Jeremy C. Perri, SPD, Milwaukee Appellate; BiC; Resp.; Reply
The court rejects a claim of an “end-run” around the plea bargain, which limited the State’s recommendation to 10 years imprisonment while leaving the “configuration” of confinement and supervision to judicial discretion, based on prosecutorial comments:
- the “whole matter was “aggravated by the defendant’s record,”
SVP – Retroactivity of Qualifying Offense Legislation; State’s Waiver; Newly Discovered Evidence – Re-normed Actuarial
State v. Christopher Melendrez, 2009AP2070, District 4, 9/2/10
court of appeals decision (3-judge, not recommended for publication); for Melendrez: David R. Karpe; BiC; Resp.; Reply
SVP – Retroactivity of Qualifying Offense Legislation
Third-degree sexual assault wasn’t an SVP-qualifying offense when Melendrez plea-bargained a reduction of 2nd-degree sexual assault to 3rd. But by the time he was released from prison,
Plain Error Review: Continuing Offense and Ex Post Facto
U.S. v. Marcus, USSC No. 08-1341, 5/24/10
… (A)n appellate court may,in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness,
Appellate Procedure: State’s Waiver; Exculpatory Evidence: State’s Failure to Preserve
State v. Kyle Lee Huggett, 2010 WI App 69; for Huggett: Craig A. Mastantuono; BiC; Resp; Reply
The State forfeited a potential appellate argument by conceding it in the trial court, in response to Huggett’s postconviction motion, ¶14.
Unmentioned by the court: the State is the appellant. Why does that matter? Because the general rule is that the respondent on appeal may raise any argument,
Guilty Plea Waiver Rule: Detainer Act Claim
State v. Karon M. Asmus, 2010 WI App 48; for Asmus: Donald C. Dudley
Interstate Detainer Act claim is waived by guilty plea:
¶3 A guilty plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886. This rule applies even though the defendant attempts to preserve an issue by raising it in the circuit court.
State v. Robert L. Duckett, 2010 WI App 44
court of appeals decision; for Duckett: Michael K. Gould, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply Br.
Guilty Pleas – Breach – Lack of Contemporaneous Objection
Failure to object contemporaneously forfeits right of review of subsequently-asserted plea bargain breach. The issue therefore is reviewable only “in the context of a claim for ineffective assistance of counsel,” ¶6.
The court is fond of making this pronouncement,
Waiver – As Rule of Judicial Administration
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers
Issue/Holding:
¶43 Long did not advance this statutory interpretation argument at the circuit court or at the court of appeals. Normally, under such circumstances, we would conclude that an issue neither raised nor briefed is waived. Long’s sole recourse would be to file a motion for post-conviction relief,
Waiver of Issue, Generally – Authority to Review Despite Lack of Contemporaneous Objection
State v. Michael Lee Washington, 2009 WI App 148
For Washington: Christopher Lee Wiesmueller
Issue/Holding: ¶1 n. 1:
The State asserts that Washington is precluded from making this argument on appeal because he did not object when the prosecutor made his recommendation before the circuit court. Generally, the failure to object is a “dispositive infirmity.” State v. Grindemann,
Review of Waived Issue: Plain Error – Generally
State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09For Lammers: Amelia L. Bizzaro
Issue/Holding:
¶12 “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat. § 901.03(4) recognizes the plain error doctrine,