On Point blog, page 30 of 44
Guilty Pleas – Procedure – Read-In, Existence of
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: In order to trigger read-in procedure there must be a sufficient showing of an agreement to read in the offense at issue:
¶28 Nowhere in the transcript of the plea hearing, the transcript of the sentencing hearing, the transcript of the adjourned sentencing hearing,
Plea-Withdrawal, Pre-Sentencing – “Fair and Just Reason” – Claim of Innocence: Insufficient, Alone
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: “A claim of innocence, of course, is not sufficient as a stand-alone reason to permit a plea withdrawal even before sentencing. State v. Harvey, 2006 WI App 26, ¶23, 289 Wis. 2d 222, 239, 710 N.W.2d 482, 490 (‘An assertion of innocence,
Plea-Withdrawal – Pre-Sentence – “Fair and Just” Reason: Claim of Unrealized Benefit from Efforts to Cooperate with Law Enforcement
State v. Barry M. Jenkins, 2007 WI 96, reversing 2006 WI App 28
For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether Jenkins’ claim that he (wrongly) thought he would be guaranteed an opportunity to work with law enforcement in return for potential sentencing benefit was a fair and just reason to allow pre-sentencing plea withdrawal.
Holding:
¶71 First,
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,