On Point: 21. Guilty pleas

State v. Melisa Valadez, 2016 WI 4, 1/28/2016, on certification from the court of appeals; case activity (including briefs)

What looked like a case about the meaning of “likely to result in … deportation” has turned into something else entirely: in a fractured decision, the court holds that the defendant has successfully shown she is likely to be excluded from admission to the country and raises, but does not resolve, the possibility that plea withdrawal claims for failure to give the required immigration warning must be brought within the time limits of Wis. Stat. Rule 809.30 (or perhaps within the strictures of Wis. Stat. § 974.06).

Review of a published court of appeals decision; case activity (including briefs)

Issue (from the State’s petition for review)

When a defendant who pleads guilty or no contest is misinformed that the maximum penalty that could be imposed is lower than the maximum actually allowed by law, and the sentence imposed is more than the defendant was told he could get, is the defendant entitled to withdraw his plea, or may the defect be remedied instead by reducing the sentence to the maximum the defendant was informed he could receive?

State v. Stephen Toliver, 2014AP2939-CR, 12/15/15, District 1 (not recommended for publication);case activity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

Speaking of Padilla (see below), yesterday the 9th Circuit Court of Appeals held in Dimaya v. Lynch that “the definition of a ‘crime of violence’ – one of over thirty categories of convictions that constitute an ‘aggravated felony’ under federal immigration law – is unconstitutionally void for vagueness.” Click here to see the ImmigrationProf Blog post about the decision and what it could mean for those of you defending immigrants.

This just in: “The Pressure Is On–Criminal Defense Counsel Strategies after Padilla v. Kentucky,” by Bill Ong Hing at the University of San Francisco Law School. When representing an immigrant defendant, trial counsel’s duties are now much more demanding than they were before Padilla. What qualifies as “competent” counsel in these circumstances? Click here for a new research paper attempting to answer this question.

State v. Timothy L. Finley, Jr., 2015 WI App 79, petition for review granted, 1/11/16, affirmed, 2016 WI 63; case activity (including briefs)

In an important decision addressing how to apply State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482, the supreme court’s recent muddling of plea withdrawal standards, the court of appeals holds that when a defendant is mistakenly told the maximum sentence is less than the law allows, the error “is not curable, after the fact, by ‘commutation’ of an otherwise lawful sentence down to the maximum amount of punishment the defendant was incorrectly informed he or she faced at the time of the plea.” (¶37). 

State v. Martin F. Kennedy, 2015AP475-CR, District 1, 9/29/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court erred in denying Kennedy’s plea withdrawal motion without a hearing, as the record of the plea shows he wasn’t advised about the domestic abuse modifier at the time of his plea and Kennedy alleged his trial lawyer was ineffective for failing to advise him of the modifier.

Percell Dansberry v. Randy Pfister, 7th Circuit Court of Appeals No. 13-3723, 9/15/15

The judge who took Dansberry’s guilty plea understated the mandatory minimum sentence Dansberry faced, and therefore Dansberry’s plea was not entered with a full understanding of the consequences, as required under Boykin v. Alabama, 395 U.S. 238 (1969), and Brady v. United States, 397 U.S. 742 (1970). But the Supreme Court has not held Boykin errors to be structural, so the state court’s rejection of his plea withdrawal motion on harmless error grounds was not an unreasonable application of clearly established federal law.

Review of an unpublished per curiam court of appeals decision; case activity

Issues (derived from the court of appeals opinion):

Whether, in order to get an evidentiary hearing, a defendant’s postconviction motion to withdraw his plea because he did not understand the “read-in” concept  must allege that he would have pled differently if  he had understood the “read-in” concept? See State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).

Review of an unpublished per curiam court of appeals decision; affirmed 2016 WI 17; case activity (for 2014AP1248-CR, which links to the other consolidated cases)

Issues (composed by On Point from the PFR)

Where the State agreed to cap its sentence recommendation on four cases at the “high end” of the recommendation of the presentence investigation (PSI) and the PSI did not recommend whether the sentences in the cases should be served concurrently or consecutively, did the State breach the plea agreement by recommending consecutive sentences?

Was there a sufficient factual basis for a plea to party to the crime of felony theft for “taking and carrying away” property when the defendant had no knowledge of the theft, but only received the stolen property and then moved it to a different location?