On Point blog, page 30 of 44
Plea-Withdrawal – Pre-Sentence – “Substantial Prejudice” to State: Child Testimony, Difficulty Obtaining
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: Unrefuted indications of the child-complainant’s changed recollection of the details and reluctance to testify, ¶¶8-9, established “substantial prejudice” so as to defeat a pre-sentencing motion to withdraw plea:
¶16 A defendant seeking to withdraw a guilty plea before imposition of sentence must establish a fair and just reason and also “must rebut evidence of substantial prejudice to the State.” State v.
Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements, Bangert Motion, Generally
State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶27 A Bangert Motion. A defendant may invoke Bangert only by alleging that the circuit court failed to fulfill its plea colloquy duties. [16] A Bangert motion warrants an evidentiary hearing if (1) the motion makes “aprima facie showing that [the] plea was accepted without the trial court’s conformance with [Wis.
Plea-Withdrawal, Post-sentencing – Procedure – Challenge to Factual Basis
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Bangert procedure applies to challenge to failure to establish adequate factual basis where the facts are disputed:
¶50 In the present case, however, the facts are in dispute precisely because the circuit court failed to conduct a sufficient inquiry into the factual basis of the offense charged.
Guilty Pleas – Post-Sentencing Plea Withdrawal: Grounds — Coercion: Defendant’s Pregnancy
State v. Monika S. Lackershire, 2007 WI 74, affirming (this holding of) 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶62 Finally, we consider Lackershire’s argument that her plea was involuntary because she feared that the stress of trial would affect her pregnancy. …
…
¶64 Lackershire has raised no plausible argument that her plea was legally coerced.
Guilty Pleas – Withdrawal of Plea — Sua Sponte, by Court – Unauthorized
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding:
¶12 As the circuit court recognized after the State brought its motion for reconsideration, circuit courts in Wisconsin may not, absent circumstances not present here, sua sponte vacate guilty pleas validly accepted. State v. Comstock, 168 Wis.
Guilty Pleas – Required Knowledge — Elements (Understanding Nature of Charge) – Party-to-a-Crime Liability
State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: The court must address the defendant personally and establish his or her understanding of the nature of the charge, and if ptac liability is alleged then that theory must be included in the plea colloquy, ¶¶36-37, citing State v. James E. Brown,
Guilty Pleas – Required Knowledge — Read-Ins: Defendant’s Understanding of
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: ¶28 n. 8:
We do not adopt the court of appeals’ determinations that read-in charges are merely “collateral consequences” of a plea, and that therefore information about read-ins “is not a prerequisite to entering a knowing and intelligent plea.” Lackershire, 288 Wis. 2d 609,
Guilty Pleas – Procedure – Factual Basis, Relation to Knowing and Intelligent Plea – Sufficiency of Plea Colloquy
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding1:
¶33 Wisconsin Stat. § 971.08(1)(b) provides that before a circuit court accepts a defendant’s guilty plea, it must “make such inquiry as satisfies it that the defendant in fact committed the crime charged.” This court has determined that establishing a sufficient factual basis requires a showing that “the conduct which the defendant admits constitutes the offense charged .
Plea Bargains – Breach: By Prosecutor, Recommending Lengthy Terms of Supervision – Non-Material Where Confinement Defendant’s Main Concern
State v. David C. Quarzenski, 2007 WI APP 212, PFR filed 9/21/07
For Quarzenski: Martin E. Kohler, Christopher M. Eippert
Issue: Whether counsel was ineffective for failing to object to the State’s sentencing recommendation where: under the plea bargain the State agreed to and in fact “capped” its recommendation on several counts to a total of “7 years in prison” but “additionally asked for an extensive period of extended supervision and consecutive long-term probation.”
Holding: The State did not materially and substantially breach the agreement,
Finality of Order – Trial Court’s Inherent Authority to Reconsider Non-Final Order
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: Trial courts possess inherent authority to reconsider any non-final ruling prior to entry of final order or judgment, ¶13, citing State v. Bobby R. Williams, 2005 WI App 221, ¶17, 287 Wis. 2d 748, 706 N.W.2d 355.
The trial court reconsidered its own prior sua sponte vacatur of a guilty plea.