On Point blog, page 9 of 44
Defense win: Inaccurate advice about consequences of going to trial invalidates plea
State v. Mario Douglas, 2018 WI App 12; case activity (including briefs)
Douglas got inaccurate advice about the prison time he faced if he went to trial instead of taking the State’s plea offer. The inaccurate advice makes his plea invalid.
SCOW: Judge’s failure to give mandated immigration warning was harmless
State v. Jose Alberto Reyes Fuerte, 2017 WI 104, reversing a published court of appeals decision, 12/19/17; case activity (including briefs)
A judge taking a guilty or no contest plea is required by § 971.08(1)(c) to warn the defendant that if he or she is not a U.S. citizen the plea might result in deportation, inadmissibility, or denial of naturalization. If the judge doesn’t comply with § 971.08(1)(c) and the defendant shows the plea is likely to result in one of those immigration consequences, the defendant can move to withdraw the plea under § 971.08(2). State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, held that harmless error principles don’t apply to § 971.08(2), so the defendant is entitled to withdraw the plea even if the state claims the defendant actually knew the immigration consequences. This decision overrules Douangmala and holds that the judge’s failure to comply with § 971.08(1)(c) in Reyes Fuerte’s case was harmless.
SCOW will decide if lifetime GPS monitoring is a penalty that judge must cover during plea colloquy
State v. DeAnthony K. Muldrow, 2017 WI App 47, petition for review granted 10/17/17; case activity (including briefs)
Issue (composed by On Point)
Does lifetime GPS monitoring mandated under § 301.48 constitute “punishment,” thus requiring a judge to advise a defendant that he or she will be subject to the monitoring as a consequence of a guilty or no contest plea?
SCOTUS will review concessions of guilt by trial counsel
McCoy v. Louisiana, USSC No. 16-8255, cert granted 9/28/17
Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?
Court of appeals finds faults in motion to withdraw plea, but not in colloquy
State v. Donald L. White, 2017AP188-CR, 8/23/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
White argued that his plea colloquy was defective because the circuit court did not (1) sufficiently describe the nature of the charge against him, (2) ascertain his education or level of comprehension, especially of the constitutional rights that he was waiving, (3) advise him that he was not bound by the plea agreement and could impose the maximum penalty. He relied primarily on State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716 N.W.2d 906. The court of appeals distinguished White from Brown and affirmed the decision to deny the motion for plea withdrawal without a hearing.
Defendant not entitled to plea deal where plea not yet accepted
State v. Derek Asunto, 2015AP50, 8/8/17, District 2 (recommended for publication); case activity (including briefs)
Derek Asunto and the state agreed to resolve several charges by dismissing some and having him plead to others. At the hearing where the deal was announced to the court, he entered a plea to one criminal count. The parties and court agreed the other counts would be held open until the sentencing hearing, but that at that hearing, Asunto would plead to an OWI-4th and the rest would be dismissed.
Defense win! “Woefully” inadequate advice about deportation is ineffective assistance
State v. Irvin Perez-Basurto, 2016AP2136, 7/18/2017, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)
Irvin Perez-Basurto was born in Mexico and brought to the United States by his mother when he was 14. He had been approved by the Homeland Security for Deferred Action for Childhood Arrivals status (he is, in common parlance, a “dreamer”) and was thus permitted to remain in this country.
Bill Poss and Bill Tyroler on plea agreements as “constitutional contracts”
If you missed the recent post on plea agreements as “constitutional contracts,” you might want to take a look at it now. In the comment section you’ll find the Bills bantering about how such an argument would play out in the trial courts AND ALSO a comment by Colin Miller, the professor who wrote the law review article at issue, reacting to the Bills’ banter. Click here for the post and comments.
Are plea agreements constitutional contracts?
Attorneys litigating the breach of a plea agreement might want to take a look at this new paper, Plea Agreements as Constitutional Contracts, by Professor Colin Miller of the University of South Carolina Law School. It highlights some interesting issues to raise on behalf of our clients–issues that could well make their way to SCOTUS. It seems Bill Tyroler was ahead of Professor Miller though. Years ago he did two posts regarding Wisconsin cases,
Plea withdrawal denied due to lack of evidence of intoxication during plea hearing
State v. Santos Lee Hernandez, 2017AP62-CR, 7/11/17, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)
Hernandez filed a postconviction motion arguing that he pled guilty to lewd and lascivious behavior while he was drunk–so drunk that he incorrectly told the court that he had not consumed alcohol within the previous 24 hours, that he understood the rights he was waiving, and that there was a factual basis for his plea. In rejecting his claim, the court of appeals commits an error that continues to dog postconviction motions.