On Point blog, page 422 of 484
Plea Bargains – Breach: By Prosecutor – Pressuring PSI Agent to Change Favorable Recommendation Where State Had Agreed to Make No Recommendation
State v. Joshua L. Howland, 2003 WI App 104
For Howland: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding:
¶37. We conclude that the district attorney’s contacts with the Department of Probation and Parole, complaining about the PSI author’s sentence recommendation, when the plea agreement required the State to make no sentence recommendation, resulted in a material and substantial breach of the plea agreement. Consequently,
Guilty Pleas – Required Knowledge — Elements — 2nd-Degree Sexual Assault (by Contact), § 948.02(2) — “Knowing Contact” Insufficient
State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: On a charge of 2nd-degree sexual assault, § 948.02(2), the guilty plea court must ascertain the defendant’s knowledge of the element of intent, namely that the defendant had sexual contact for the purpose of sexual degradation, humiliation, arousal, or gratification. It is insufficient to advise the defendant merely that “knowing contact” was necessary,
Guilty Pleas – Required Knowledge — Elements — Referenced Document not Attached to Plea Questionnaire
State v. Richard A. Lange, 2003 WI App 2
For Lange: Daniel F. Snyder
Issue/Holding: Where the plea form made reference to an “attached sheet” which was not in fact attached, and the trial court did not go over the elements with the defendant, “the record is barren as to any explanation or detailing to Lange of the elements of the offense,” and Lange has established a prima facie case for plea-withdrawal.
Guilty Pleas – Required Knowledge — Rights
State v. Richard A. Lange, 2003 WI App 2
For Lange: Daniel F. Snyder
Issue/Holding: Trial court’s colloquy sufficiently established defendant’s understanding of rights waived by guilty plea. ¶¶23-27.
Guilty Pleas – Plea Bargains – Breach: By Prosecutor – Sentencing Recommendation by Police Officer Exceeding Bargained Length
State v. Leonard C. Matson, 2003 WI App 253
For Matson: Michael Yovovich, SPD, Madison Appellate
Issue/Holding:
¶13. Matson argues his due process rights were violated when Alstadt, the investigating detective in this case, gave a sentencing recommendation that undermined the State’s recommendation, in effect, breaching the plea agreement. The State counters that Alstadt was not a party to the plea agreement and thus his letter did not violate Matson’s due process rights.
Guilty Pleas – Plea Bargains – Breach: By Prosecutor — Remedy
State v. Leonard C. Matson, 2003 WI App 253
For Matson: Michael Yovovich, SPD, Madison Appellate
Issue/Holding:
¶33. Here, as he did before the circuit court, Matson seeks not to withdraw his plea, which is one remedy for a breach of a plea agreement. Santobello v. New York, 404 U.S. 257, 263 (1971). Matson instead seeks specific performance, a new sentencing by a different judge with a new presentence report.
Guilty Pleas – Required Knowledge — Collateral & Direct Consequences — Federal Health Care Ineligibility, 42 U.S.C., § 1320a-7(a)(4)
State v. Hank J. Merten, 2003 WI App 171
For Merten: Dana W. Duncan
Issue/Holding:
¶8. Accordingly, the resolution of this appeal requires us to determine whether the effect of 42 U.S.C. § 1320a-7(a)(4), which excludes individuals convicted of a felony related to a controlled substance from participating in federal health care programs, is a direct or a collateral consequence of Merten’s no contest plea.
Witness – Impeachment — Pending Charge — Accomplice
State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove
Issue/Holding:
¶44. The State charged Gundy as an accomplice to Ross’s criminal activity. Gundy was arrested in Maryland, and brought back to Milwaukee where he was held in custody. Ross contends that pursuant to a plea agreement, Gundy was released from custody, and secured leniency in return for his testimony against Ross.
Impeachment — Prior Convictions, § 906.09
State v. Gary M.B., 2003 WI App 72, affirmed, 2004 WI 33
For Gary M.B.: T. Christopher Kelly
Issue/Holding:
¶24. Wisconsin Stat. § 906.09 permits the admission of prior convictions for impeachment purposes. (See text of statute at ¶9.) The statute reflects the presumption that “a person who has been convicted of a crime is less likely to be a truthful witness than a person who has not been convicted.”
Opinion Testimony — Comment by One Witness on Whether Another Witness “Is Lying”
State v. Andre Bolden, 2003 WI App 155, PFR filed 7/2/03
For Bolden: Mark S. Rosen
Issue/Holding: A defendant may be asked whether another witness offering contradicting testimony “is lying,” ¶11.
The seminal case is State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984): one witness may not give an opinion as to whether another witness is telling the truth.