On Point blog, page 20 of 25
Guilty Plea Waiver Rule – Generally, Exception for IAC Claim
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd
Issue/Holding:
¶13 A valid guilty or no contest plea waives all nonjurisdictional defenses to a conviction, including constitutional violations. See State v. Riekkoff, 112 Wis. 2d 119, 122-23, 332 N.W.2d 744 (1983). One exception to this rule is the claim of ineffective assistance of counsel under the Sixth Amendment.
Judicial Estoppel Bar to Argument, General Principles
Olson v. Darlington Mutual Ins., 2006 WI App 204
Issue/Holding:
¶4 … The required elements of judicial estoppel are:
First, the later position must be clearly inconsistent with the earlier position; second, the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the first court to adopt its position—a litigant is not forever bound to a losing argument.
Counsel – Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Pretrial Motion to Disqualify, Timeliness
State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan
Issue: Whether a motion to disqualify a prosecutor because of representation of defendant in a prior case, brought immediately before jury selection, may be deemed waived on timeliness grounds.
Holding:
¶24 We conclude the circuit court may, in the proper exercise of its discretion, deny a motion to disqualify a prosecutor under the substantial relationship standard if the motion is untimely.
Waiver – Closing Argument: Failure to Move for Mistrial
State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis
Issue/Holding: Failure to move for mistrial waives objection to closing argument, ¶28, citing State v. Dale H. Davidson, 2000 WI 91, ¶86, 236 Wis.
Guilty Plea Waiver Rule – Plea Bargain Agreement to Relinquish Attack on Guilty Plea
State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.
Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”
Holding:
¶15 The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder;
Waiver of Argument: Constitutionality of Statute – Facial Challenge
State v. Thomas H. Bush (III), 2005 WI 103, reversing in part and affirming on the merits, 2004 WI App 193
For Bush: Robert G. LeBell
Issue/Holding: Although an “as applied” challenge to a statute may be waived, a facial challenge, in contradistinction, is not waivable, ¶17:
¶18 This rule is also entirely consistent with our line of cases that recognize that a criminal complaint which fails to allege any offense known at law is jurisdictionally defective and void.
Waiver of Issue: Jury Polling: Response Indicating Non-Unanimous Verdict
State v. Eric W. Raye, 2005 WI 68, reversing unpublished decision of court of appeals
For Raye: Brian C. Hough
Issue: Whether the defendant failed to lodge contemporaneous objection (which would have waived appellate challenge) to a non-unanimous verdict revealed during jury polling when a juror indicated he did not in fact subscribe to the purported guilty verdict.
Holding:
¶29 Ultimately,
Appellate Procedure – Waiver of Argument: Confrontation – Relevance Objection Insufficient
State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall
Issue/Holding: An objection on relevancy grounds does not preserve a confrontation-based argument, ¶14.
Waiver of Issue: Challenge to Delinquency Placement Order, Timeliness
State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05
For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee Trial
Issue: Whether challenge to an earlier change-of-placement delinquency order, as a means of challenging the jurisdictional basis for the current ch. 980 commitment petition, comes too late to be entertained.
Holding:
¶8 The State first responds that Tremaine’s challenge to the 2001 change of placement order is too late,
Waiver of Issue: Failure to Obtain Ruling by Trial Court on Objection
State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski
Issue/Holding: Where the State admitted to breaching the plea bargain, and the defendant was explicitly offered the option of seeking plea-withdrawal but personally affirmed that he did not wish that remedy, the appellate court has “nothing to review on this issue since the trial court was never asked to make a ruling on the question,” ¶12.