On Point blog, page 40 of 44
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.
Plea Agreements — Deferred-acceptance Agreement — Enforceability
State v. Brady T. Terrill, 2001 WI App 70, 242 Wis. 2d 415, 625 N.W.2d 353
For Terrill: Eileen Hirsch, SPD, Madison Appellate.
Issue: Whether the trial court properly reconsidered a deferred-acceptance agreement (which would have allowed the defendant to avoid conviction upon successful completion of supervision), entering judgement of conviction after deeming the offense more serious than originally thought.
Holding:
¶24. If the State had asked the circuit court to enter judgment on the felony after viewing the videotape,
Plea Bargains — Breach: Procedural Issues — Preservation by Objection
State v. John D. Williams, 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164, affirmed without discussing this issue, 2002 WI 1
For Williams: John A. Pray
Issue: Whether the defendant properly preserved objection to a prosecutorial breach of plea bargain.
Holding: ¶13:
(T)he trial court recognized it as an objection and initially agreed with Williams’s attorney. The objection was sufficient.
Plea Bargains — Breach: Materiality — Promise Must Induce Plea
State v. Anthony A. Parker, 2001 WI App 111
Issue: Whether transfer to an out-of-state prison breached the plea bargain.
Holding:
¶7 … (I)n order to prevail on a claim of breach of a plea agreement, Parker cannot rely on whatever his ‘reasonable expectations’ might have been at sentencing. Instead, he must show the violation of a specific prosecutorial promise that induced his plea. See State v.