On Point: B. Published opinions

Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder

Issue/Holding:

¶11. The trial court ruled and the County now argues that Terrance’s substitution request was untimely because it was not filed before “hearing of any preliminary contested matters” under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which allows a request “either before or during the plea hearing ….”

State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams

Issue/Holding: Defendant’s withdrawal of his NGI plea prevented him from later invoking the right of judicial substitution provided by § 971.20(5), where a new judge was subsequently assigned and no prior right to substitution invoked.

The court’s analysis doesn’t track the actual language of the statute – “Because Norwood’s plea withdrawal constitutes a ‘proceeding’ within the meaning of § 971.20(5),

State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial

Issue/Holding:

¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496,

State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215
For Pharm: Roisin H. Bell (Pro Bono)

Issue/Holding( Dicta): ¶12, n. 6:

The State also draws a distinction between statutory habeas corpus and common law habeas corpus, contending that the circuit court properly ruled that Pharm was not entitled to statutory habeas corpus relief because he was committed under a valid judgment of commitment.

State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey

Issue/Holding:

¶45      We further reject Stank’s argument that insufficient evidence existed to support the “intent to deliver” element of count two. According to Peasley v. State, 83 Wis. 2d 224, 229, 231-32, 265 N.W.2d 506 (1978), the finder of fact may consider many factors indicative of intent to deliver,

State v. Rickey Eugene Pinkard, 2005 WI App 226
For Pinkard: John J. Grau

Issue/Holding: Someone holding drugs for another person and planning to return the drugs to that person intends to deliver within the meaning of § 961.41(1m). State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995) (conspiracy to deliver not supported where only evidence is that seller intended to sell small amount for buyer’s personal use) distinguished,

State v. Jarmal Nelson, 2005 WI App 113
For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue/Holding:

¶11      “A defendant seeking to withdraw a plea of guilty or no contest prior to sentencing must show that there is a ‘fair and just reason,’ for allowing him or her to withdraw the plea.” State v. Kivioja, 225 Wis. 2d 271, 283,

State v. Jeremy K. Morse, 2005 WI App 223
For Morse: Amelia L. Bizarro

Issue/Holding:

¶10      Here, the record reflects that Morse failed to demonstrate either a statutory or a Bangert violation. The plea hearing addressed all the appropriate issues and contains no statutory violations. The plea was extensive and complete. The fact that Morse now contends that he lied in answering the trial court’s questions during the plea colloquy cannot operate to create an unconstitutional plea.

State v. Jarmal Nelson, 2005 WI App 113
For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue/Holding: Given that the record established Nelson’s ignorance of the potential for commitment as a sexually violent person (ch. 980) as a result of his guilty pleas, the trial court’s conclusion that he presented a “fair and just” reason for pre-sentencing plea withdrawal is sustained:

¶14      In determining whether the trial court properly determined that a fair and just reason was established,

State v. Jarmal Nelson, 2005 WI App 113
For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue: Whether, after Nelson demonstrated a “fair and just” reason for pre-sentencing plea withdrawal, the State satisfied is concomitant burden of showing “substantial prejudice” in order to defeat the motion, where the principal complainant could no longer be found.

Holding:

¶17      We next turn to the question of whether the State met its burden of proof.