On Point blog, page 183 of 214
§ 961.41(2), Maintaining Drug Residence — Amendment of Information at Close of Case
State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
For Malcom: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the trial court properly amended the information, after close of evidence, to add a charge of keeping a place “which is resorted to by persons using controlled substances” to the charge of using the same place to manufacture, keep or deliver controlled substances (both charges being alternatives under § 961.41(2).
Guilty Pleas – Plea-Withdrawal, Postsentence — Newly Discovered Evidence
State v. Dennis R. Fosnow, 2001 WI App 2, 240 Wis. 2d 699, 624 N.W.2d 883
For Fosnow: David D. Cook
Issue: Whether a postconviction diagnosis supporting an NGI defense amounted to newly discovered evidence, where the defendant had pled no contest after receiving unfavorable NGI evaluations.
Holding: The new diagnosis was merely a new appreciation of the importance of evidence previously known but not used and therefore didn’t satisfy the test for newly discovered evidence.
Plea-Withdrawal, Post-sentence – Procedure – Remedy, No Showing Defendant Understood All Elements
State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether plea withdrawal is the appropriate remedy where the record contains no evidence that Lopez understood all elements of the offense
Holding:
¶22. The proper remedy upon determining that the State failed to establish that Lopez understood the elements of the offense with which he was charged when he entered his no contest plea is to remand the case to permit Lopez to withdraw his plea.
Plea-Withdrawal, Post-sentence — Procedure — Burden of Proof: Spanish-speaking Defendant, Untranslated Questionnaire
State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether Lopez made a prima facie showing that the plea colloquy was inadequate.
Holding: The Spanish-speaking Lopez had problems, acknowledged by the trial court, communicating with his interpreter and necessitating a continuance of the plea hearing. At neither the aborted plea hearing or the subsequent one at which the plea was accepted did the trial court determine,
Extradition – Waiver of IAD Violation
State v. Mohammed A. Nonahal, 2001 WI App 39
For Nonahal: David R. Karpe
Issue: Whether the defendant waived a claimed violation of the Interstate Agreement on Detainers’ anti-shuttling provision, by requesting to be sent back to the sending jurisdiction before trial.
Holding:
¶8; … we conclude that rights granted under the anti-shuttling provision of the IAD are statutory in nature and may be waived if the prisoner requests a procedure inconsistent with the statute’s provisions….¶9;
Guilty Plea Waiver Rule – Issues Waived — Ex Post Facto Challenge<
State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski
Issue: Whether Ramirez’s guilty plea waived an ex post facto challenge to the charged offense.
Holding: ¶4 n. 4:
We could invoke the guilty plea/waiver rule against Ramirez since he pled guilty to the charge after the trial court rejected his constitutional challenge. See State v.
Self-Defense – “McMorris” Acts of Prior Violence by Victim – Procedure on Determining Admisssibility
State v. Juan M. Navarro, 2001 WI App 225
For Navarro: Joseph M. Moore, SPD Trial, Juneau
Issue: Whether the trial court is required to conduct an in camera inspection of confidential records of the complaining witness, a correctional officer, relating to his possible abusive treatment of inmates, in a battery-by-prisoner trial where the defendant alleges self-defense.
Holding: The trial court’s denial of in camera inspection without first conducting an evidentiary hearing on materiality was erroneous: Access may not be denied simply because the records aren’t within the state’s possession;
Rights Waived – Self-Incrimination – Retention of Privilege – NGI Phase
State v. James G. Langenbach, 2001 WI App 222
For Langenbach: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether the state may call a defendant to testify, as an adverse witness, at Phase II of an NGI trial, following Phase I guilty plea.
Holding: A guilty plea doesn’t necessarily result in loss of fifth amendment rights: The privilege continues at least until sentencing, ¶9; moreover, the privilege continues during the direct appeal,
Plea Bargains — Breach: By Prosecutor — Recommendation of Consecutive Terms Where Agreements Required Recommendation of Concurrent Terms
State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244
Issue: Whether the prosecutor breached a plea bargain calling for a maximum recommendation on multiple counts of concurrent terms of 25 years in prison, when the actual recommendation was for a total of 25 years but included consecutive terms.
Holding:
¶18 Undoubtedly, one of the most crucial issues in a plea agreement is the recommendation concerning length of time to be served on each count.
Plea Bargains — Breach: By Prosecutor — “End-run” of Allocution Restrictions
State v. Dalvell Richardson, 2001 WI App 152
For Richardson: Richard D. Martin, SPD, Milwaukee Appellate
Issue: Whether the prosecutor breached a plea agreement “to leave the length of the incarceration entirely up to the Court, [without] any specific numerical type of recommendation” with allocution that clearly implied a request for a lengthy term.
Holding: The prosecutor’s comments (to the effect that this was one of the most serious cases the prosecutor had handled) didn’t breach an agreement to recommend incarceration without specifying length:
¶11.