On Point: 21. Guilty pleas

State v. Lee Roy Cain, 2010AP1599-CR, District 4, 8/11/11, affirmed, 2012 WI 68

court of appeals decision (not recommended for publication), affirmed, 2012 WI 68; case activity

If, during a (non-Alford) guilty plea colloquy, the defendant denies the existence of an element of the charged the offense, the court must refuse to accept the plea:

¶28      However,

State v. John D. Tiggs, Jr., 2010AP1530, District 2, 6/29/11

court of appeals decision (1-judge, not for publication); pro se; case activity

Tiggs knew that DNA test results would be released in mere hours, yet chose to enter his no-contest plea. His postconviction motion to withdraw the plea, based on a theory that the test results amount to newly discovered evidence, fails to satisfy the requirements that the evidence was discovered after conviction and that the defendant wasn’t negligent in seeking the evidence. 

on certification; for Soto: Shelley Fite, SPD, Madison Appellate; case activity; prior post

Issues (composed by On Point):

Whether a defendant has a non-waivable right to be physically present at a §§ 971.04(1)(g) and 885.60.

If the right to physical presence at the plea proceeding can be waived or forfeited, whether a formal colloquy is nonetheless required before the defendant enters a plea via video conferencing.

State v. Yancy D. Freland, 2011 WI App 80 (recommended for publication); for Freland: Michael D. Zell; case activity

Conviction for an out-of-state sex offense comparable to a misdemeanor in Wisconsin will be treated as a misdemeanor for sex offender registration purposes, § 301.45(6).

¶12      Wisconsin Stat. § 301.45(1d)(am)1. specifically defines has been “[f]ound to have committed a sex offense by another jurisdiction” to include a person who has been convicted “for a violation of a law of another state that is comparable to a sex offense.”[7] Taken as a whole,

certification; for Soto: Shelley Fite, SPD, Madison Appellate; case activity, circuit court affirmed 2012 WI 93

Plea Procedure – Personal Presence

We certify this appeal to the Wisconsin Supreme Court to determine whether Jon Soto’s statutory right to be physically present during a plea hearing was violated when the judge conducted the hearing through video teleconferencing and whether this issue was properly preserved.

Columbia County v. Fred A. Ederer, 2010AP2369, District 4, 5/12/11

court of appeals decision (1-judge, not for publication); for Ederer: John Smerlinski; case activity

Ederer’s no contest plea waived his right to appeal suppression issue in this OWI-1st (therefore, civil) case. His reliance on County of Ozaukee v. Quelle, 198 Wis. 2d 269, 275-76, 542 N.W.2d 196 (Ct. App. 1995) (court should consider 4-factor test in determining whether to impose waiver bar) is misplaced:

¶5        Ederer acknowledges that Quelle was partially overruled on other grounds by Washburn County v.

State v. Eliseo Peralta, 2011 WI App 81(recommended for publication); for Peralta: Martin J. Pruhs; case activity

Conspiracy, § 939.31 – “Overt Act”

The “overt act” element of conspiracy, though it must go “beyond mere planning and agreement,” may be “virtually any act,” even if “insignificant,” ¶¶19-21. Thus, Peralta’s “communication to an undercover police detective that a large quantity of cocaine was ready for immediate delivery”

William Kerr v. Thurmer, 7th Cir No. 09-1032, 3/28/11 – Part III

7th circuit decision, on habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal)

Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part I (IAC – adequate provocation defense) is here; Part II (default; standard of review),

City of West Allis v. Susan Schneidler, 2010AP2531, District 1, 4/5/11

court of appeals decision (1-judge, not for publication); for Schneidler: Thomas C. Simon; case activity

Tip from an identified citizen informant – that she had seen Schneidler drinking alcohol before driving off – supported stop of Schneidler’s car, without requiring independent corroboration.

¶18      In short, Parr was a reliable witness who told police that she personally observed Schneidler drink alcohol and then drive and who made herself available to the police for questioning. 

State v. Robert S. Powless, 2010AP1116-CR, District 3/4, 2/24/11

court of appeals decision (not recommended for publication); for Powless: Leonard D. Kachinsky; case activity

At an evidentiary hearing on a “Hampton” violation (failure to assure defendant knows the judge isn’t bound by the plea agreement), the State satisfied its burden of proving that Powless in fact knew the judge could exceed the State’s sentencing recommendation.

¶37      Our conclusion is based on the following.