On Point blog, page 7 of 44
Defendant not prejudiced by counsel’s failure to convey earlier plea offer
State v. Lorenzo D. Kyles, 2018AP296-Cr, District 1, 11/20/18, (not recommended for publication); case activity (including briefs)
This appears to be Wisconsin’s second application of Lafler v. Cooper, 566 U.S. 156 (2012), which modified the prejudice prong of Strickland‘s ineffective assistance of counsel test for situations where defense counsel failed to convey a plea offer and thereby caused the defendant to accept subsequent, potentially less favorable offer.
Denial of plea withdrawal, sentence modification and postconviction discovery affirmed
State v. Darrick L. Bennett, 2016AP2209-CR, 9/18/18, District 1 (not recommended for publication); case activity (including briefs)
Bennett was charged with 1st degree intentional homicide, but pled guilty to 1st degree reckless homicide. In a decision turning on facts specific to this case, the court of appeals affirmed the trial court’s decision denying (a) plea withdrawal without a hearing, (b) sentence modification based on a new factors, and (c) postconviction discovery of evidence that might have affected his sentence.
SCOW will address whether defendants pleading NGI need to know maximum length of commitment
State v. Corey R. Fugere, 2016AP2258-CR, petition for review of a published court of appeals decision granted 9/4/18; case activity (including briefs)
Issue (composed by On Point):
When a person enters a guilty plea to a criminal charge coupled with the defense of not responsible due to mental disease or defect under § 971.15, is a circuit court required to advise the person of the maximum term of commitment under ¶ 971.17 in addition to the maximum penalties provided for the offense?
COA: No IAC for plea advice or lack of plea withdrawal; also no new factor
State v. Terrell Antwain Kelly, 2017AP1584, 7/31/18, District 1 (not recommended for publication); case activity (including briefs)
Kelly was charged with both a long-ago second-degree sexual assault of a child and several domestic violence counts (the victim was the same). The state offered him a choice between two plea deals: one in which he would plead to the sexual assault with the DV counts dismissed and read in, and one in which he would plead to the DV counts with the sexual assault dismissed and read in.
Identity theft statute applied to defendant’s forgery of documents he submitted at sentencing hearing
State v. Theoris Raphel Stewart, 2018 WI App 41; case activity (including briefs)
Facing sentencing for failure to pay child support, Stewart forged some documents to support his argument for probation rather than a prison sentence. For his trouble he was charged with and convicted of identity theft under § 943.203(2). The court of appeals rejects his argument that his use of the forged documents did not violate that statute.
Record showed plea was knowingly made and supported by a factual basis
State v. Laron Henry, 2017AP939-CR & 2017AP940-CR, District 1, 6/19/18 (not recommended for publication); case activity (including briefs)
Henry sought to withdraw his guilty pleas to three crimes. He claimed that with respect to one of the crimes, he didn’t “ratify” his guilty plea, he didn’t understand one of the elements of the crime, and there wasn’t a factual basis for the plea to the crime. The court of appeals rejects his claims.
Court of appeals applies new “prejudice” test to claim for ineffective assistance during plea bargaining
State v. Gitan Mbugua, 2017AP967, District 1, 6/12/18 (not recommended for publication); case activity (including briefs)
This appeal concerns ineffective assistance of counsel in connection with 2 plea offers. Mbugua claimed that his 1st lawyer provided him incorrect information about option 2 of “plea offer 1” and this caused him to reject “plea offer 1” altogether. He also claims that during a second round of plea bargaining, option 2 of “plea offer 1” remained on the table, and his second lawyer incorrectly advised him to reject it in favor of an entirely new plea offer (we’ll call it “plea offer 2”), which proved to be bad deal. The court of appeals denied both claims for lack of prejudice based upon Lafler v. Cooper, 566 U.S. 156 (2012). A quick Westlaw search suggests that this is the first Wisconsin case to apply Lafler (and it’s unpublished).
SCOW: Lifetime GPS monitoring is not a punishment the judge must cover in the plea colloquy
State v. DeAnthony K. Muldrow, 2018 WI 52, 5/18/18, affirming a published court of appeals decision, 2017 WI App 47; case activity (including briefs)
A unanimous supreme court holds that lifetime GPS monitoring is not punishment, so a judge doesn’t have to advise a defendant that he or she is pleading to a crime that will require lifetime monitoring.
Defense win in SCOTUS casts doubt on SCOW decision permitting counsel to concede client’s guilt
McCoy v. Louisiana, USSC No. 16 – 8255, 2018 WL 218-617, 5/14/18, reversing and remanding State v. McCoy, 2018 So.3d 535 (La. 2016); SCOTUSblog page (includes links to briefs and commentary).
In a 6-3 opinion written by Justice Ginsburg, SCOTUS holds that the Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his lawyer refrain from admitting that he is guilty of a charged crime when he objects to that admission. It further holds that if a lawyer concedes guilt in this situation, Strickland and the harmless error rule do not apply. The defendant automatically gets a new trial.
Plea to OWI was valid despite lack of challenge to stop
State v. Harlan L. Schultz, 2017AP2185, 4/26/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Schultz moved under § 974.06 to withdraw his no contest plea to OWI 4th. He argues that his trial lawyer was ineffective for failing to file a motion challenging the traffic stop and that he didn’t understand everything he was giving up when he entered a plea. The court of appeals rejects both claims.