On Point blog, page 7 of 11
Plea Bargains — Judicial Participation – Discretion to Inform Will Not Follow Sentencing Recommendation
State v. Miguel E. Marinez, Jr., 2008 WI App 105, (AG’s) PFR filed 7/15/08; prior history: certification, denied 4/3/08
For Marinez: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶1 At issue here is whether a trial judge is prohibited from informing a defendant that the judge intends to exceed a sentencing recommendation in a plea agreement and offering the opportunity of plea withdrawal.
Plea Bargains – Breach: By Prosecutor, Recommending Lengthy Terms of Supervision – Non-Material Where Confinement Defendant’s Main Concern
State v. David C. Quarzenski, 2007 WI APP 212, PFR filed 9/21/07
For Quarzenski: Martin E. Kohler, Christopher M. Eippert
Issue: Whether counsel was ineffective for failing to object to the State’s sentencing recommendation where: under the plea bargain the State agreed to and in fact “capped” its recommendation on several counts to a total of “7 years in prison” but “additionally asked for an extensive period of extended supervision and consecutive long-term probation.”
Holding: The State did not materially and substantially breach the agreement,
“Alford” Plea – Challenge to Trial Court’s Refusal to Accept
State v. William F. Williams, 2000 WI App 123, 237 Wis.2d 591, 614 N.W.2d 11
For Williams: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether the trial court’s express policy of never accepting an “Alford” plea worked an erroneous refusal to accept such a plea.
Holding:
¶8 Even if we were to determine that the trial court erred in rejecting the tendered Alford plea,
Deferred Prosecution Agreement (Domestic Abuse), § 971.37 – Post-Revocation Withdrawal Comes within Test for Post-Sentencing Motion
State v. Sean M. Daley, 2006 WI App 81, on remand, PFR filed 5/10/06; prior history: 2005 WI App 260, decision vacated and remanded, 2006 WI 25
For Daley: Kirk B. Obear
Issue/Holding: Motion for plea-withdrawal following revocation of a deferred prosecution agreement but before sentencing has been imposed is gauged by the manifest injustice test for post-sentencing plea withdrawal,
Plea Bargains — Validity: Waiver of Right to Appeal or Collateral Attack
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;
Deferred Prosecution Agreement (Domestic Abuse), § 971.37 – Validity
State v. Sean M. Daley, 2006 WI App 81, on remand, PFR filed 5/10/06; prior history: 2005 WI App 260, decision vacated and remanded, 2006 WI 25
For Daley: Kirk B. Obear
Issue/Holding: A deferred prosecution agreement, whereby the defendant enters no contest pleas but entry of judgment of conviction is stayed,
Plea Bargains – Breach: By Defendant – Attack on Conviction Contrary to Terms of Agreement – Remedy: Dismissal of Appeal
State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Mary L. Woehrer
Issue/Holding: Bembenek breached her plea agreement (which contained a no-attack or appeal clause) by filing a motion for DNA testing to establish her innocence; the remedy for this breach is dismissal of her appeal of the denial of the motion:
¶17 By filing motions to reexamine the evidence in 2002,
Guilty Pleas – Plea Bargains – Breach: By Prosecutor: State’s Allocutionary Presentation of Victim and Others
State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose
Issue/Holding: Plea bargain, which permitted State to comment on facts but not to make specific sentencing recommendation was not violated by State’s presentation of victim and others who themselves asked for maximum penalty:
¶40 We first disagree that the State breached the plea agreement by going beyond factual argument with its comments about evidence it would have introduced had there been a trial.
Guilty Pleas – Factual Basis – Alford Plea – Generally
State v. Anna Annina, 2006 WI App 202
For Annina: Robert R. Henak
Issue/Holding:
¶9 Annina seeks to withdraw her Alford plea on the grounds that a manifest injustice has occurred. “Withdrawal of a plea following sentencing is not allowed unless it is necessary to correct a manifest injustice.” State v. Smith, 202 Wis. 2d 21, 25, 549 N.W.2d 232 (1996).
Plea Agreements — Judicial Participation
State v. Antoine T. Hunter, 2005 WI App 5
For Hunter: James R. Lucius
Issue: Whether the trial court’s observation to defendant, following denial of an assertedly “dispositive” suppression motion, that acquittal was “unlikely,” but that “coming forward and admitting your guilt” would provide “the opportunity to get some credit,” amounted to judicial participation in plea bargaining as banned by State v. Corey D. Williams,