On Point: 21. Guilty pleas

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Review of an unpublished per curiam court of appeals decision; case activity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Review of an unpublished per curiam court of appeals decision; affirmed 2016 WI 17; case activity (for 2014AP1248-CR, which links to the other consolidated cases)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

State v. Shata, 2015 WI 74, 7/9/15, reversing an unpublished court of appeals decision, 2013AP1437-CR; majority opinion by Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)

State v. Ortiz-Mondragon, 2015 WI 73, 7/9/15, affirming a published court of appeals decision, 2013AP2435-CR, majority opinion by Justice Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)

In a pair of 5-2 decisions, the Wisconsin Supreme Court held that defense attorneys provided adequate advice about immigration consequences.  In each case, the defendant sought withdrawal of his guilty plea because he had not been properly advised regarding the mandatory adverse immigration consequences of conviction.

As described below, the cases presented different circumstances regarding the nature of the convictions and the advice given by the attorney.  Nonetheless, the following points seem clear regarding the court’s interpretation of Padilla v. Kentucky: 1) the court is narrowly interpreting the obligations of defense attorneys under Padilla; 2) the court does not believe that deportation is ever automatic or mandatory; and 3) if the information or advice provided was accurate, the court will find that the attorney’s performance was adequate, regardless of extent of legal research that the attorney conducted.

State v. Warren E. Schabow, 2014AP1254-CR, District 3, 7/7/15 (not recommended for publication); case activity (including briefs)

Based on the entire sentencing proceeding, the state didn’t breach the plea agreement because the prosecutor’s remarks did not insinuate the state was distancing itself from, or casting doubt on, its own sentencing recommendation.

DeBartolo v. United States, 7th Circuit Court of Appeals No. 14-3579, 6/26/15

DeBartolo pleaded guilty to violating 21 U.S.C. § 841(a)(1) by growing more than 100 marijuana plants, “[b]ut unbeknownst to DeBartolo, and also it seems to his lawyer, the prosecutors, and the judge, his conviction of the drug offense made him deportable (‘removable’ is the official term) and, were he ordered removed, would prevent him from applying for cancellation of removal.” (Slip op. at 3). Trial counsel was deficient for failing to advise DeBartolo of the deportation consequences, Padilla v. Kentucky, 559 U.S. 356 (2010), but—in light of the strength of the state’s case and the very favorable plea agreement DeBartolo received—has he shown prejudice? Yes, says a three-judge panel, in an opinion worth reviewing if you are litigating a similar issue.

Question presented:

Whether a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks.

State v. Andre M. Chamblis, 2015 WI 53, 6/12/15, reversing an unpublished per curiam decision of the court of appeals; opinion by Justice Crooks; case activity (including briefs)

The supreme court unanimously holds that when the parties in an OWI prosecution are disputing the number of prior offenses, the circuit court can require the dispute to be resolved before it accepts the defendant’s plea; it doesn’t have to wait till sentencing to determine the number of prior offenses. And even if the court errs in denying the state the chance to prove an additional prior OWI conviction at sentencing, it violates due process to allow the circuit court to resentence the defendant on the basis of the additional conviction if the additional conviction would increase the penalty that could be imposed.

Mellouli v. Lynch, USSC No. 1034, 2015 WL 2464047 (June 1, 2015), reversing Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013); Scotusblog page (including links to briefs and commentary)

Resolving a split between federal circuit courts of appeal, the Supreme Court holds that the statute providing for deportation based on a violation of a state drug crime “relating to a controlled substance” is limited to “controlled substance” listed in the federal controlled substances schedule under 21 U.S.C. § 802. Thus, the Eighth Circuit was wrong to hold that any drug offense triggers the removal statute, without regard to the appearance of the drug on a § 802 schedule.

State v. Shaun M. Clarmont, 2014AP1043-CR, District 3, 5/19/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Even if trial counsel failed to investigate a defense to the charge to which Clarmont pled, Clarmont has not shown why he would have gone to trial and face the possibility of multiple convictions, including for two felony offenses, rather than accept a plea offer of a single misdemeanor conviction along with a very favorable sentencing recommendation from the state.