On Point: 21. Guilty pleas

State v. Andre M. Chamblis, 2015 WI 53, 6/12/15, reversing an unpublished per curiam decision of the court of appeals; opinion by Justice Crooks; case activity (including briefs)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

Review of a court of appeals summary disposition; case activity

Issue (composed by On Point)

May a defendant seek to withdraw his guilty plea by claiming that his trial lawyer was ineffective for failing to advise him that, as a consequence of his plea, he could be subject to lifetime commitment as a sexually violent person under ch. 980?

On certification by the court of appeals; review granted 11/26/13; circuit court reversed 1/29/16; click here for docket and briefs

Issue (composed by the court of appeals):

How definite or imminent must deportation be in order for it to be “likely,” such that a defendant may withdraw a guilty or no contest plea on the basis that he or she was not informed of the immigration consequences at the plea colloquy?  If, in order to withdraw the plea, the defendant must show that deportation proceedings are underway, how does this standard fit in with the time limits for a motion to withdraw the plea?

State v. Jeromy Miller, 2014AP1246-CR, 2/24/15, District 2 (not recommended for publication); click here for docket and briefs

This decision smells like SCOW bait.  Miller pleaded guilty believing that he had the right to appeal the circuit court’s denial of his pre-trial motion to dismiss. Both the court and defense counsel told him so. The State concedes they were wrong. The court of appeals held the error harmless because the motion had no merit. In doing so it bungled case law re plea withdrawal and the “prejudice” prong of an ineffective assistance of counsel claim.

State v. Nelson Luis Fortes, 2015 WI App 25; case activity (including briefs)

A “misunderstanding” about what sentence the state could recommend under the plea agreement did not entitle Fortes to plea withdrawal or resentencing because after the misunderstanding became evident at the sentencing hearing, Fortes elected to proceed rather than seek an adjournment with a possible eye toward plea withdrawal.

State v. Johnny E. Miller, 2014AP1392-CR, 2/18/05, District 2 (1-judge opinion, ineligible for publication); case activity

Miller argued that the State breached its plea agreement with him when, at sentencing, it recommended that he be eligible for the Earned Release Program only after he served a specified period of prison time. The State, he claimed, impermissibly advocated a harsher sentence than recommended. The court of appeals rejected Miller’s argument because he and the State simply “did not have any agreement as to ERP eligibility.”

State v. Lavonte M. Price, 2014AP1189-CR, District 1, 2/13/15 (not recommended for publication); click here for briefs

This decision examines the line between a trial court’s active participation in the plea negotiation process, which Wisconsin law prohibits, and trial court’s comments, suggestions and lectures, which are permitted under Wisconsin law.  What the trial court did here was just fine, said the court of appeals.

State v. Melisa Valadez, 2014AP678, 2014AP679, 2014AP680; District 2, 1/21/15, certification granted 3/16/15; circuit court reversed 1/29/16; case activity

Issue presented (from certification):

How definite or imminent must deportation be in order for it to be “likely,” such that a defendant may withdraw a guilty or no contest plea on the basis that he or she was not informed of the immigration consequences at the plea colloquy?  If, in order to withdraw the plea, the defendant must show that deportation proceedings are underway, how does this standard fit in with the time limits for a motion to withdraw the plea?