On Point blog, page 409 of 484
§ 904.04 – Admissibility of Misconduct Evidence Despite Prior Acquittal
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding: Prior acquittal of sexual assault didn’t prevent admissibility of testimony from that trial: the test is whether a reasonable jury could find by preponderance of the evidence that the defendant committed the misconduct, State v. Landrum, 191 Wis. 2d 107, 117, 528 N.W.2d 36, 41 (Ct.
Plea Bargains – Validity: Reopen and Amend to Less Serious Offense if Restitution Made Before Sentencing
State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta
Issue: Whether a plea agreement, which provided that if Cash returned stolen goods prior to sentencing the State would request that the judgment be reopened and amended from burglary to Class E felony theft, was invalid and the guilty plea therefore invalid as well, under the logic of State v. Hayes,
Plea Bargains — Validity: Remedy for Invalid Plea Bargain
State v. Anthony L. Dawson, 2004 WI App 173
For Dawson: William E. Schmaal, SPD, Madison Appellate
Issue/Holding:
¶25. In sum, the State has not presented us with a valid rationale for upholding the denial of Dawson’s plea withdrawal motion. Dawson has established that his plea was not knowing and voluntary because it was induced by the promise of a possible future benefit that could never be conferred.
Plea Bargains — Validity: Reopen and Amend to Less Serious Offense Upon Successful Completion of Probation
State v. Anthony L. Dawson, 2004 WI App 173
For Dawson: William E. Schmaal, SPD, Madison Appellate
Issue: Whether a plea bargain under which the State agrees to subsequently reopen the case and amend it to a lesser charge is legally unenforceable and, thus, renders the plea unknowing and involuntary.
Holding: A reopen-and-amend provision in a plea agreement is unauthorized and unenforceable under State v.
Plea Agreements – Deferred Prosecution Agreement (§ 971.39) — Procedural Requirements
State v. Rex E. Wollenberg, 2004 WI App 20, PFR filed 1/8/04
For Wollenberg: Susan E. Alesia, SPD, Madison Appellate
Issue/Holding:
¶14. Wollenberg cites State v. Jankowski, 173 Wis. 2d 522, 528, 496 N.W.2d 215 (Ct. App. 1992), to support his claim that he cannot be convicted on the basis of a legal nullity. Jankowski, however, dealt with a different scenario.
Plea Agreements – Deferred Entry of Judgment, Contrasted with Deferred Prosecution Agreement (§ 971.39)
State v. Rex E. Wollenberg, 2004 WI App 20, PFR filed 1/8/04
For Wollenberg: Susan E. Alesia, SPD, Madison Appellate
Issue: Whether Wollenberg is entitled to withdraw his plea because the procedure for a deferred prosecution agreement (DPA), § 971.39, wasn’t followed.
Holding:
¶6. Wollenberg presents no evidence, other than his own arguments, that there was a DPA under Wis. Stat.
Particular Examples of Misconduct, § 904.04(2) – “Reverse” Misconduct – Admissibility Test of “Other Acts” of Another
State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz
Issue/Holding (General Standards):
¶14. There are three hurdles that evidence of a person’s other acts must clear: (1) the evidence must be “relevant,” Wis. Stat. Rules 904.01 & 904.02; (2) the evidence must not be excluded by Wis. Stat. Rule 904.04(2); and (3) the “probative value”
Guilty Pleas – Plea Bargains – Breach: By Prosecutor – End-Run (“Negative Allocution”)
State v. Rudolph L. Jackson, 2004 WI App 132, PFR filed 6/15/04
For Jackson: Andrea Cornwall, SPD, Milwaukee Appellate
Issue: Whether the prosecutor violated an agreement not to make a specific sentencing recommendation by expressing outrage at recommendations proffered on Jackson’s behalf and by urging the court to take into account the deterrent effect of its sentence.
Holding:
¶14. Jackson contends that the prosecutor breached the plea negotiation as his statements constituted an “end-run”
Privilege – Counselor-Patient – Waiver: Volitional, Not Intentional
State v. Denis L.R., 2004 WI App 51, affirmed as modified, 2005 WI 110
For Denis L.R.: Richard Hahn; Dwight D. Darrow
Issue/Holding:
¶15. This court recently analyzed whether waiver of the attorney-client privilege must be intentional under Wis. Stat. § 905.11. Sampson Children’s Trust v. Sampson 1979 Trust, 2003 WI App 141, 265 Wis.
Guilty Pleas – Required Knowledge – Collateral & Direct Consequences – As Affected by Misstatements in Plea Bargain
State v. Charles Brown, 2004 WI App 179
For Brown: John J. Grau
Issue: Whether a plea bargain that cannot be fulfilled results in an unknowing and involuntary plea, notwithstanding that the terms incapable of fulfillment are collateral consequences of the plea (sex offender registration and SVP eligibility).
Holding:
¶6 … (S)ince Brown’s misunderstanding involved the collateral consequences of his pleas,2 the State contends that Brown cannot prove that his pleas were not knowing and voluntary.