On Point: 1. Validity

State v. Derek Asunto, 2015AP50, 8/8/17, District 2 (recommended for publication); case activity (including briefs)

Derek Asunto and the state agreed to resolve several charges by dismissing some and having him plead to others. At the hearing where the deal was announced to the court, he entered a plea to one criminal count. The parties and court agreed the other counts would be held open until the sentencing hearing, but that at that hearing, Asunto would plead to an OWI-4th and the rest would be dismissed.

State v. Stephen Toliver, 2014AP2939-CR, 12/15/15, District 1 (not recommended for publication);case activity

Here, in Wisconsin’s very own Jarndyce v. Jarndyce, the court of appeals upholds the denial of Toliver’s motion to withdraw his guilty plea, the circuit court’s refusal to vacate his felony murder plea, and the circuit court’s denial of his ineffective assistance of counsel claim.

State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding: Where a charge dismissed by the plea bargain arguably lacks factual basis, but the defendant receives the full benefit of the plea agreement as to the counts of conviction, an argument in favor of plea-withdrawal on the basis of an “illusory” plea bargain isn’t supported:

¶69      Denk contends that § 961.573(3) does not criminalize possession of paraphernalia related to personal use.

State v. Sou W. Her, 2008 WI 39, dismissing as improvidently granted, review of unpublished decision
For Her: Donald J. Chewning

Issue/Holding:

¶2        This case involves Her’s agreement to plead guilty in exchange for an aggregate 15-year sentence recommendation from the State (10-years initial confinement with 5-years extended supervision). The record clearly indicates that the district attorney intended Her’s 15-year sentence to match what was believed to be the sentence of Her’s co-defendant,

State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.

Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”

Holding:

¶15      The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder;

State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta

Issue: Whether a plea agreement, which provided that if Cash returned stolen goods prior to sentencing the State would request that the judgment be reopened and amended from burglary to Class E felony theft, was invalid and the guilty plea therefore invalid as well, under the logic of State v. Hayes,

State v. Anthony L. Dawson, 2004 WI App 173
For Dawson: William E. Schmaal, SPD, Madison Appellate

Issue/Holding:

¶25. In sum, the State has not presented us with a valid rationale for upholding the denial of Dawson’s plea withdrawal motion. Dawson has established that his plea was not knowing and voluntary because it was induced by the promise of a possible future benefit that could never be conferred.

State v. Anthony L. Dawson, 2004 WI App 173
For Dawson: William E. Schmaal, SPD, Madison Appellate

Issue: Whether a plea bargain under which the State agrees to subsequently reopen the case and amend it to a lesser charge is legally unenforceable and, thus, renders the plea unknowing and involuntary.

Holding: A reopen-and-amend provision in a plea agreement is unauthorized and unenforceable under State v.

State v. Robert S. Robinson, 2002 WI 9, on certification
For Robinson: Leonard D. Kachinsky

Issue/Holding:

¶2. The question of law raised on appeal is what is the appropriate remedy when an accused is convicted on the basis of a negotiated plea agreement and the counts later are determined to be multiplicitous, violating the accused’s state and federal constitutional guarantees against double jeopardy? ….

¶3.