On Point blog, page 125 of 214
Plea Agreements — Partial Withdrawal Doesn’t Necessarily Work Repudiation of Entire Bargain
State v. Jarmal Nelson, 2005 WI App 113
For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue: Whether Nelson’s successful attempt to withdraw three of five bargain-based guilty pleas had the effect of abrogating the entire agreement so as to require withdrawal of the other two pleas.
Holding:
¶23 Finally, Nelson asserts that if he is successful in withdrawing some of his pleas,
Particular Examples of Misconduct, § 904.04(2) – Intent — Child Abuse
State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas
Issue/Holding: Other acts evidence that on two prior occasions the defendant, while disciplining her child, had struck the child with sufficient force to cause injury and require government intervention, was relevant and admissible under § 904.04 to prove the intent element of the charged offense of abuse of a child, § 948.03(2)(b), and also to disprove the defense of reasonable discipline.
§ 904.10, Defendant’s Unsolicited Statement to Court Asking for Care by “Mental Doctors”
State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams
Issue: Whether defendant’s letter to the trial court, stating that he did not want the case to go to trial; that he wished to be placed in a facility in the care of “mental doctors”; and that the court sentence him for a Class B felony, was admissible.
Holding:
¶20 We agree with Norwood that Wis.
Guilty Pleas – Plea Bargains – Breach: By Prosecutor: Immediate Correction of Breach
State v. Richard L. Bowers, 2005 WI App 72
For Bowers: George Tauscheck
Issue/Holding: The State’s immediate correction of recommended disposition in excess of the plea bargain’s limit rendered the breach insubstantial and therefore not actionable; State v. Knox, 213 Wis. 2d 318, 321, 570 N.W.2d 599 (Ct. App. 1997), followed:
¶12. We reach the same conclusion here. While the State did not correct itself with tremendous enthusiasm and zeal and while the trial court did not reflect upon the State’s “earnest”
Plea Bargains — Breach: By Defendant – Failure to Appear at Sentencing – Renegotiation: Defendant’s Assent, not Knowledge of Specific Performance, Required
State v. Brad S. Miller, 2005 WI App 114
For Miller: William E. Schmaal, SPD, Madison Appellate
Issue/Holding:
¶8 In State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522, we explained that when a prosecutor breaches a plea agreement by arguing for a harsher sentence than the one the prosecutor agreed to recommend and defense counsel fails to object,
Privilege – Comment on Silence, Permissible Impeachment, § 905.13
State v. Maurice S. Ewing, 2005 WI App 206
For Ewing: David R. Karpe
Issue/Holding: Where the defendant waived his rights and gave pre-trial statements to the police and presented an alibi defense at trial, prosecutorial evidence that the defendant had not revealed the alibi during those statements, and exploitation of that omission during closing argument, did not amount to impermissible comment on silence. “Rather, the prosecutor was highlighting the inconsistency between what Ewing did say and what his alibi witnesses testified to at trial.” ¶¶10-13.
Guilty Pleas – Required Knowledge — Collateral & Direct Consequences – TIS Confinement Time, Set by Court
State v. Richard C. Plank, 2005 WI App 109
For Plank: Jamy Richard Johansen
Issue: Whether a voluntary guilty plea to a TIS offense requires knowledge of ineligibility for parole or good-time credit.
Holding:
¶15 Plank contends that because Byrge holds that parole eligibility is a direct consequence, the lack of parole eligibility under truth-in-sentencing is also a direct consequence.
Guilty Pleas – Required Knowledge – Direct and Collateral Consequences – Maximum Punishment
State v. Kenneth V. Harden, 2005 WI App 252
For Harden: Ralph Sczygelski
Issue/Holding: Misinformation with respect to the maximum punishment (defendant was told the maximum was 19 years, 6 months when the correct maximum was 16 years) necessarily renders the guilty plea invalid, without regard to whether the misinformation affected the decision to plead guilty, ¶¶5-6, effectively overruling State v. Paul Delao Quiroz,
“Maday” Examination of Complainant Where State’s Expert Never Conducted Exam
State v. Lionel N. Anderson, 2005 WI App 238
For Anderson: Harry R. Hertel; Steven H. Gibbs
Issue/Holding: Where the State’s expert witness never interviewed the victim (nor viewed a videotape of the victim’s statement), the defendant wasn’t entitled to a psychological examination of the victim pursuant to State v. Maday, 179 Wis. 2d 346, 359-60, 507 N.W.2d 365 (Ct. App. 1993), ¶27.
Controlled Substance – Sufficiency of Evidence, Proof of Substance — Presumptive and Confirmatory Testing
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
Issue/Holding: Proof of the controlled substance is sufficient where a “presumptive” test is followed by a “confirmatory” one (State v. Dye, 215 Wis. 2d 281, 572 N.W.2d 524 (Ct. App. 1997), followed), with the PDR being used to establish the presumption:
¶42 Here,