On Point: 21. Guilty pleas

court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; review granted, 3/15/12

Guilty Pleas – Plea Colloquy 

Certified Issue: 

Whether a plea colloquy’s understating the potential penalty is subject to harmless error analysis, such that if the subsequently-imposed sentence doesn’t exceed the misadvised maximum, plea-withdrawal isn’t supported.

The details: Taylor was charged as a repeater with an offense carrying an underlying maximum of 6 years with the enhancer adding a potential 2 years.

State v. Brian K. Little, 2011AP1740-CR, District 4, 1/26/12

court of appeals decision (1-judge, not for publication); for Little: Lane Fitzgerald; case activity

The court rejects  challenges to § 941.23, carrying concealed weapon, as facially violating the state and federal constitutional right to bear arms. (The statute presently allows concealed carry under specified circumstances, 2011 WI Act 35. Little was convicted under the prior version,

State v. James Lee Johnson, 2012 WI App 21 (recommended for publication); for Johnson: Melinda A. Swartz, SPD, Milwaukee Appellate; case activity

The guilty plea colloquy was defective, in that it failed to advise Johnson that the trial court wasn’t obliged to follow the terms of the plea bargain (here: to dismiss and read-in a count), contrary to State v. Hampton,

court of appeals decision (1-judge, not for publication); pro se; case activity

Plea Withdrawal – Nelson/Bentley Hearing – Exculpatory Evidence 

Ardell wasn’t entitled to a hearing on his postconviction plea-withdrawal motion premised on alleged suppression of exculpatory evidence. The court holds that, even assuming that the State did withhold exculpatory evidence, the motion failed to show that revelation of this evidence would have impacted Ardell’s plea decision,

State v. Charles A. Clayton-Jones, 2010AP2239-CR, District 4, 12/15/11

court of appeals decision (not recommended for publication); for Clayton-Jones: Martin E. Kohler, Craig S. Powell; case activity

 Clayton-Jones resolved a 2006 charge (involving sexual assault of a boy) with a plea bargain, in which the state was to recommend 12 years initial confinement. Before sentencing, he allegedly violated bond conditions, and the state sought to be relieved of its bargained-for allocution limit.

on review of unpublished decision; for Cain: Faun M. Moses, SPD, Madison Appellate; case activity; prior post

Guilty Plea Procedure – Defendant’s Denial of Element / Manifest Injustice

Issues (composed by On Point): 

1. Whether, if a defendant at the guilty-plea proceeding explicitly denies the existence of an elemental fact, the trial court must decline to accept the plea.

2.

Gregory L. Payne v. Basinger, 7th Cir No. 10-1869, 11/10/11

seventh circuit decision

Ineffective Assistance of Counsel – Guilty Pleas – Prejudice 

The state court erroneously concluded that, because Basinger would have been convicted anyway had he gone to trial, he suffered no prejudice from counsel’s erroneous advice as to the maximum sentence he faced on acceptance of the plea bargain:

That was a mistake.

court of appeals decision (1-judge, not for publication); for Wells: Matthew Murray; case activity

Plea Bargaining – Judicial Participation 

Neither the trial court’s allusion to the disposition it would impose if Wells pleaded guilty (“I’ll probably go along with the recommendation,” but proceeding to trial “would be a whole different ballgame”) nor its own assessment of the representation advice it would have given (“I’d probably tell that client to take the deal … because you got [] big exposure”) amounted to prohibited judicial participation in the plea bargaining process:

¶10      We conclude that,

State v. Christina L. Contizano, 2011AP477-CR, District 4, 10/27/11

court of appeals decision (1-judge, not for publication); for Contizano: Robert C. Howard III; case activity

At Contizano’s sentencing for obstructing, based on lying to the police about her daughter’s location, the trial court didn’t erroneously exercise discretion in allowing Contizano’s ex-husband to advocate as a “victim” of the offense, in favor of a term of incarceration.

¶7        We conclude the court did not erroneously exercise its discretion when it considered the Walworths’ statements at sentencing.  

on review of summary order (District 2); for Negrete: Jeffrey W. Jensen; case activity

Plea Withdrawal – Collateral Attack – Deportation Consequences 

Issues (Composed by On Point):

1. Whether the laches doctrine bars Negrete’s motion to withdraw his guilty plea, 18 years after he entered it.

2. Whether Negrete’s assertion that he didn’t know his plea exposed him to deportation entitles him to a hearing on his motion.