On Point: 21. Guilty pleas

State v. Richard J. Sulla, 2016 WI 46, 6/14/16, reversing an unpublished per curiam court of appeals decision; case activity (including briefs)

Sulla entered a plea agreement requiring him to plead “no contest” to two counts and the State to dismiss and “read in” two other counts for purposes of sentencing and restitution. But after he was sentenced to 20 years of imprisonment, Sulla moved for plea withdrawal arguing that he was misinformed of, and did not understand, the effect that a read-in charge could have at sentencing. The circuit court denied the motion without a hearing. Don’t be fooled. SCOW’s decision here affects more than plea withdrawal. It changes appellate procedure.

State v. Stephen LeMere, 2016 WI 41, 05/12/2016,  affirming an unpublished court of appeals decision, case activity (including briefs)

In State v. LeMere, the Wisconsin Supreme Court held that the Sixth Amendment does not require defense counsel to advise a client that conviction for a pending charge of sexual assault could result in future commitment proceedings under chapter 980. The case could be appropriate for certiorari review in the U.S. Supreme Court regarding the scope of the right to counsel.

State v. Miguel Angel Langarica, 2015AP1546, 4/21/16, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Langarica’s misunderstanding about whether the conviction would require him to register as a sex offender under Illinois law doesn’t entitle him to withdraw his plea because he didn’t prove the misunderstanding was based on incorrect information from his trial lawyer.

State v. Henry J. Bloedorn, 2015AP953-CR, 4/6/2016, District 2 (not recommended for publication); case activity (including briefs)

Henry Bloedorn brought three ineffective assistance claims regarding the attorney who represented him during his plea and sentencing. That attorney’s unchallenged testimony at the Machner hearing convinced the circuit court, and now the court of appeals, that his performance gave no cause for complaint.

State v. Patrick K. Tourville, 2016 WI 17, 3/15/2016, affirming an unpublished court of appeals decision; case activity (including briefs)

Patrick Tourville pled to four crimes in a deal that called on the state to recommend a sentence no higher than the one recommended by the PSI. The PSI recommended a prison term for each count; the state recommended that these terms be run consecutively. So when the state asked for consecutive time even though the PSI didn’t, did it honor its commitment to follow the PSI? If you answered “no,” the one thing we know about you is that you’re not a member of the Wisconsin Supreme Court.

State v. Jason D. Henderson, 2015AP1740-CR, District I, 3/1/16 (1-judge decision; ineligible for publication); case activity (including briefs)

Henderson pled to two misdemeanor repeaters. He now seeks to withdraw his plea on the ground that counsel was ineffective for misinforming him that the two-year maximum sentence on each count was divided into one year of initial confinement and one year of extended supervision, rather than the correct 18 month/6 month split. 

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.