On Point: 21. Guilty pleas

Review of a per curiam court of appeals decision; case activity

Issues (composed by SCOW). See order granting review.

1.  Where a defendant seeks to plead guilty or no contest to a charge of operating a motor vehicle while under the influence of an intoxicant (OWI), or with a prohibited alcohol concentration (PAC), do State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986) and due process principles require that the number of prior offenses that count for sentence enhancement be determined prior to entry of the defendant’s plea?

2.  Is a court of appeals’ decision ordering remand to the circuit court with instructions to: (1) issue an amended judgment of conviction reflecting a conviction for operating with a PAC, as a seventh offense, and (2) hold a resentencing hearing, and impose a sentence consistent with the penalty ranges for a seventh offense, constitutionally impermissible under Bangert and due process principles where the defendant specifically entered a plea of guilty to PAC as a sixth offense, where the circuit court sentenced the defendant in accordance to proper penalties for PAC as a sixth offense, and where the defendant has already served the confinement portion of such sentence?

State v. Stephanie M. Przytarski, 2014AP1019-CR, District 1, 11/18/14 (1-judge decision; ineligible for publication); case activity

Przytarski can’t withdraw her plea even if her trial lawyer erroneously told her that she could appeal the trial court’s pretrial order that barred her from introducing certain evidence to defend against charges of interference with child custody.

State v. David M. Carlson, 2014 WI App 124; case activity

Note to trial courts: When ineffective assistance of counsel claims are based what trial counsel said to his client, hold an evidentiary hearing. Note to defense counsel: Data showing the sentences received by defendants charged with the same crimes as your client is about as useful as data showing a patient diagnosed with a lethal illness the survival rates of similarly-diagnosed patients.  Note to all: A single, inaccurate, hyperbolic remark during the course of a long sentencing explanation is harmless even if the trial court relied upon it.

State v. Lawrence L. Holmes, 2013AP2342-CR, District 4, 10/30/14 (not recommended for publication); case activity

Because Holmes can’t show that the court would have granted his motion to dismiss the misdemeanor charges in the case with prejudice, he hasn’t shown he was prejudiced by trial counsel’s advice to enter into a plea agreement because he was going to lose the motion to dismiss.

State v. Isaiah N. Triggs, 2014AP204-CR, District 1, 10/28/14 (not recommended for publication); case activity

Trial counsel wasn’t ineffective for waiving a preliminary hearing in Triggs’s homicide prosecution or for failing to move to suppress Triggs’s confession. Further, the circuit court’s plea colloquy with Triggs was not defective and the circuit court didn’t erroneously exercise its sentencing discretion.

State v. Fernando Ortiz-Mondragon, 2014 WI App 114, petition for review granted 12/18/14, affirmed, 2015 WI 73; case activity

Ortiz-Mondragon’s trial counsel wasn’t ineffective under Padilla v. Kentucky, 559 U.S. 356 (2010), for failing to advise Ortiz-Mondragon that his convictions were “crimes involving moral turpitude” (CIMT) and would result in mandatory deportation and a permanent bar on reentry. Unlike the conviction in Padilla, CIMT is a “broad classification of crimes” that escapes precise definition, and there’s no clear authority indicating any of the crimes to which Ortiz-Mondragon pled were crimes of moral turpitude. Thus, the deportation consequences of Ortiz-Mondragon’s plea was unclear and uncertain, and his attorney wasn’t deficient in failing to unequivocally inform him that his plea would result in deportation and inadmissibility.

State v. Andres Romero-Georgana, 2014 WI 83, 7/23/14, affirming an unpublished court of appeals opinion; majority opinion by Justice Prosser, dissenting opinion by Justice Bradley; case activity

Oliver Wendell Holmes said “hard cases make bad law.”  This decision proves that simple cases can too.  If you thought winning a §974.06 postconviction motion or a § 971.08(2) motion for plea withdrawal due to the trial court’s failure to give deportation warnings was tough before, wait until you read this decision.

State v. Hatem M. Shata, 2013AP1437-CR, District 1, 7/15/14 (not recommended for publication), petition for review granted, 12/18/14, reversed, 2015 WI 74; case activity

Trial counsel was ineffective for failing to inform Shata, an Egyptian foreign national, that pleading guilty to possession of more than 1,000 but less than 2,500 grams of THC with intent to deliver would result in his deportation.

State v. William F. Bokenyi, 2014 WI 61, 7/11/14, reversing an unpublished per curiam court of appeals decision; majority opinion by Justice Ziegler; case activity

In a decision that plows no new legal ground, a divided supreme court holds that a prosecutor’s remarks at sentencing did not breach the plea agreement, but were instead within the proper bounds of argument in support of a permitted recommendation for imprisonment. Because the prosecutor didn’t breach the plea agreement, the court doesn’t decide the primary issue presented for review: Whether the court should overrule State v. Sprang, 2004 WI App 121, ¶29, 274 Wis. 2d 784, 683 N.W.2d 522, which held that if defense counsel does not consult with the defendant when foregoing an objection to a breach of the plea agreement, counsel performs deficiently because that is “tantamount to entering a renegotiated plea agreement without [the defendant’s] knowledge or consent.”

Question presented:

To trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), must the government prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act?