On Point blog, page 40 of 44
§ 941.29, Felon in Possession of Firearm – “Handling” = Element of “Possesses”
State v. Tyren E. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363
For Black: Michael S. Holzman
Issue: Whether the defendant’s admission of “handling” a gun established the element of “possesses” a firearm under § 941.29(2), for purposes of establishing a guilty plea factual basis.
Holding:
¶19 At the outset, we note the absence of any mens rea5 requirement in this statute.
Guilty Pleas – Plea-Withdrawal, Postsentence — Newly Discovered Evidence
State v. Dennis R. Fosnow, 2001 WI App 2, 240 Wis. 2d 699, 624 N.W.2d 883
For Fosnow: David D. Cook
Issue: Whether a postconviction diagnosis supporting an NGI defense amounted to newly discovered evidence, where the defendant had pled no contest after receiving unfavorable NGI evaluations.
Holding: The new diagnosis was merely a new appreciation of the importance of evidence previously known but not used and therefore didn’t satisfy the test for newly discovered evidence.
Plea-Withdrawal, Post-sentence – Procedure – Remedy, No Showing Defendant Understood All Elements
State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether plea withdrawal is the appropriate remedy where the record contains no evidence that Lopez understood all elements of the offense
Holding:
¶22. The proper remedy upon determining that the State failed to establish that Lopez understood the elements of the offense with which he was charged when he entered his no contest plea is to remand the case to permit Lopez to withdraw his plea.
Plea-Withdrawal, Post-sentence — Procedure — Burden of Proof: Spanish-speaking Defendant, Untranslated Questionnaire
State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether Lopez made a prima facie showing that the plea colloquy was inadequate.
Holding: The Spanish-speaking Lopez had problems, acknowledged by the trial court, communicating with his interpreter and necessitating a continuance of the plea hearing. At neither the aborted plea hearing or the subsequent one at which the plea was accepted did the trial court determine,
Guilty Plea Waiver Rule – Issues Waived — Ex Post Facto Challenge<
State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski
Issue: Whether Ramirez’s guilty plea waived an ex post facto challenge to the charged offense.
Holding: ¶4 n. 4:
We could invoke the guilty plea/waiver rule against Ramirez since he pled guilty to the charge after the trial court rejected his constitutional challenge. See State v.
Rights Waived – Self-Incrimination – Retention of Privilege – NGI Phase
State v. James G. Langenbach, 2001 WI App 222
For Langenbach: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether the state may call a defendant to testify, as an adverse witness, at Phase II of an NGI trial, following Phase I guilty plea.
Holding: A guilty plea doesn’t necessarily result in loss of fifth amendment rights: The privilege continues at least until sentencing, ¶9; moreover, the privilege continues during the direct appeal,
Plea Bargains — Breach: By Prosecutor — Recommendation of Consecutive Terms Where Agreements Required Recommendation of Concurrent Terms
State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244
Issue: Whether the prosecutor breached a plea bargain calling for a maximum recommendation on multiple counts of concurrent terms of 25 years in prison, when the actual recommendation was for a total of 25 years but included consecutive terms.
Holding:
¶18 Undoubtedly, one of the most crucial issues in a plea agreement is the recommendation concerning length of time to be served on each count.
Plea Bargains — Breach: By Prosecutor — “End-run” of Allocution Restrictions
State v. Dalvell Richardson, 2001 WI App 152
For Richardson: Richard D. Martin, SPD, Milwaukee Appellate
Issue: Whether the prosecutor breached a plea agreement “to leave the length of the incarceration entirely up to the Court, [without] any specific numerical type of recommendation” with allocution that clearly implied a request for a lengthy term.
Holding: The prosecutor’s comments (to the effect that this was one of the most serious cases the prosecutor had handled) didn’t breach an agreement to recommend incarceration without specifying length:
¶11.
Plea Bargains — Breach: Procedural Issues — Remedy
State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244
Issue: Whether the remedy for a plea bargain breach should be to vacate the plea or to resentence on the plea.
Holding:
¶36 Our reading of Bangert and Smith leads us to conclude that the remedies and procedures outlined in Santobello are consistent with Wisconsin law. Specifically, the sentencing court has discretion to determine the appropriate remedy for a breach.
Plea Bargains — Breach: Waiver
State v. Michael F. Howard, 2001 WI App 137
Issue/Holding: Failure to object to plea bargain breach waives the issue, leaving ineffective assistance of counsel the only mechanism for raising it. ¶21.
Also see, State v. Harold Merryfield, 229 Wis.2d 52, 598 N.W.2d 251 (Ct. App. 1999) (asserted plea bargain violation held waived, under State v. Smith, 153 Wis. 2d 739, 451 N.W.2d 794 (Ct.