On Point: Published 2003

State v. Timothy M. Ziebart, 2003 WI App 258
For Ziebart: Robert R. Henak

Issue: Whether the holding of State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982) (re sexual assault where the defendant admits the act but claims consent: prior sexual misconduct has no probative value) imposes an absolute bar against admissibility of prior other-acts to prove the contested issue of consent.

State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry

Issue/Holding:

¶44. Alternatively, Wright argues that Lomack’s testimony was admissible as other acts evidence of a third-party perpetrator pursuant to Scheidell. Scheidell involved the admissibility of other acts evidence committed by an unknown third party, which was proffered by the accused on the issue of identity.

State v. Richard G.B., 2003 WI App 13, PFR filed 1/13/03
For Richard G.B.: Bridget E. Boyle

Issue: Whether the “third-party exception” to spousal privilege — which overrides the privilege for crimes committed “against” the spouse, § 905.05(3) — is triggered by sexual assault of a non-spouse, on the theory that such an act amounts to adultery, § 944.16(1), hence a crime against the spouse.

Holding:

¶15.

State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03
For Cooper: John A. Birdsall

Issue/Holding:

¶19. The test for determining if there has been an impermissible comment on a defendant’s right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant’s right to remain silent.

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,

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,

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.

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.

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.

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.