On Point: 21. Guilty pleas

According to a cert petition that SCOTUSblog has named a “petition of the week,” courts are split on this issue. See the question presented below. This petition is pending (not granted). We’ll keep you posted on its status.

In Padilla v. Kentucky, 559 U.S. 356 (2010) and Lee v. United States, 137 S. Ct. 1958 (2017), this Court held that lawful permanent residents that received deficient advice regarding immigration-law consequences of a plea can assert claims under Strickland v. Washington, 466 U.S. 668 (1984). Although this Court has not yet addressed how these precedents apply to unlawfully present aliens, the lower courts are deeply divided as to how they do.

State v. Kevin L. Nash, 2018AP731-CR, petition for review of a per curiam opinion granted 12/10/19, case activity (including briefs)

Issue presented:

When accepting a guilty plea under Alford v. North Carolina, 400 U.S. 25 (1970), a circuit court may find there is a factual basis for the plea only if there is “strong proof of guilt.” May a court find “strong proof of guilt” based only on the information contained in the criminal complaint, or must the court hear additional evidence before it can make that finding?

State v. Jonathan A. Ortiz-Rodriguez, 2018AP2401-CR, District 1, 11/26/19, (not recommended for publication); case activity (including briefs)

The State charged the defendant with repeated sexual assault of a child, which carries a 25-year minimum term of initial confinement. Trial counsel told the defendant that the State had offered to recommend 5 to 8 years if he would plead to one count of child sexual assault.  But then at sentencing the State argued for 20 years IC and 20 years ES.

State v. Orlando Davis, 2018AP2326-CR, 10/1/19, District 1, (1-judge opinion, ineligble for publication) case activity (including briefs)

Davis filed a Bangert motion alleging that (1) the trial court failed to advise him of the elements of the offense to which he pled guilty, and (2) he did not understand those elements. At the postconviction hearing, Davis and his trial lawyer testified about Davis’s understanding of the elements. The postconviction court found counsel more credible, and the court of appeals affirms.

State v. Amy Joan Zahurones, 2019 WI App 57; case activity (including briefs)

Zahurones was charged with several drug-related counts along with resisting an officer and physical abuse of a child. All the counts arose out of a single encounter with the police. She ultimately pleaded to four counts. On three of those counts she got probation, but on Count 2–the felony child-abuse count–she entered a deferred-judgment agreement with the state. The court put her on a signature bond with respect to that last count, since she wouldn’t otherwise be supervised. Over the next couple of years, Zahurones spent a total of about 9 months in jail on probation holds. Ultimately both the probation and the deferred-judgment agreement were revoked. So, does she get credit for those probation holds against her sentence on Count 2, even though she was technically on a signature bond for that count when she was in jail?

State v. Craig L. Miller, 2018AP2161-CR, 7/18/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Miller pled guilty to disorderly conduct as a domestic abuse incident and as a repeater. He appealed arguing that his plea was not knowing, intelligent and voluntary because of his schizophrenia diagnosis and the medication he was taking. The court of appeals ruled against him due to a lack of evidence.

State v. Tyrus Lee Cooper, 2016AP375-CR, 6/20/19, affirming a per curiam court of appeals opinion, case activity (including briefs)

Cooper moved for pre-sentencing plea withdrawal and filed an OLR grievance because his lawyer failed to provide him with discovery, contact witnesses, and communicate with him. Days before trial, his unprepared lawyer misled him about the strength of the State’s case and rushed him into a plea. The circuit court denied Cooper’s motion, but OLR later concluded that the lawyer committed 19 acts of misconduct, 5 directly relating to Cooper’s plea. Consequently, SCOW suspended his license. Now, in 4-3 decision SCOW holds that the lawyer’s professional misconduct does not satisfy the requirements for an ineffective assistance of counsel claim.

James P. Moran v. Wisconsin Department of Justice, 2019 WI App 38; case activity (including briefs)

James Moran was convicted of a felony in Virginia. That state has a procedure by which a person can petition to have his or her right to own a gun restored, and Moran’s petition was successful. So he can buy a gun there. Can he buy one here?

State v. Javien Cajujuan Pegeese, 2019 WI 60, 5/31/19, review of an unpublished court of appeals decision; case activity (including briefs)

Pegeese pleaded guilty to a robbery and received probation. He later sought plea withdrawal, asserting the circuit court’s colloquy had been deficient because it didn’t inform him of the constitutional rights he was waiving, and further alleging that he actually did not understand those rights–that is, he asserted a Bangert-type plea-withdrawal claim. The supreme court now holds the colloquy not deficient, because the court referred to the plea questionnaire form on which the rights were listed, asked Pegeese’s attorney whether he believed Pegeese understood the questionnaire, and asked Pegeese himself whether he understood “the Constitutional Rights you give up when you enter a plea” and confirmed that Pegeese had no questions about those rights.

State v. Corey R. Fugere, 2019 WI 33, 3/28/19, affirming a published court of appeals decision; case activity (including briefs)

Pretend you’re a defendant trying to decide whether to enter a plea. You know that maximum term of imprisonment you face. You also know that pleading NGI is one of your options. However, the circuit court doesn’t tell you (or perhaps misinforms you) about the nature and length of the commitment that will follow from pleading NGI. How can you make a knowing, intelligent, and voluntary NGI plea if you don’t know the consequences of it?