On Point blog, page 1 of 20
COA agrees with circuit court that while attorney may have made improper promises, defendant’s “unclean hands” prohibit plea withdrawal
State v. Terron Anthony Clayborn, 2023AP283-CR, 8/20/24, District I (not recommended for publication); case activity
In a case presenting a common postconviction fact pattern alleging an improper promise by counsel, COA affirms despite postconviction testimony largely corroborating the defendant’s account.
COA issues published decision interpreting 971.365(1)(b) and rejects arguments for plea withdrawal
State v. Cordiaral F. West, 2022AP2196, 5/1/24, District II (recommended for publication); case activity
COA interprets a statute allowing aggregation of separate drug offenses into a single charge and holds that West is not entitled to plea withdrawal.
Defense Win! Circuit court’s failure to “personally ascertain” factual basis for pleas entitles defendant to Bangert hearing
State v. Megan E. Zeien, 2023AP1787-CR, 4/24/24, District II (one-judge decision, ineligible for publication); case activity
If you’ve ever wondered whether you have a Bangert claim concerning a circuit court’s failure to “ascertain personally whether a factual basis exists to support [your client’s] plea,” this unpublished but citable decision is worth a read. Unfortunately, the decision is a bit unclear about how exactly the state may seek to establish that Zeien’s pleas were knowing, intelligent, and voluntary at an evidentiary hearing. See Op., ¶¶19, 22.
D3 affirms denial of plea withdrawal claim under Cross’ “higher, but not substantially higher” rule
State v. Kasey Ann Gomolla, 2022AP199-CR, 2/6/24, District 3 (recommended for publication); case activity
Even if the court of appeals had not recommended this decision for publication, Gomolla’s case seems destined for further review. While the facts here are somewhat distinguishable from State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64, Cross’ counter-intuitive holding, even with arguably “better” facts, seems to have hamstringed the court of appeals from acknowledging that a plea cannot be said to be “knowing, intelligent, and voluntary” if the defendant does not know the correct maximum penalty. If we had to guess, SCOW will soon be considering whether to reconsider, limit, or overrule Cross.
COA holds that defendant’s misunderstanding about guilty plea waiver rule does not entitle him to plea withdrawal
State v. Matthew Robert Mayotte, 2022AP1695, 1/23/24, District 3 (not recommended for publication); case activity (including briefs)
Given the state of the postconviction record and COA’s narrow reading of precedent, Mayotte fails to establish he is entitled to plea withdrawal given his misunderstanding of the consequences of his Alford plea.
SCOTUS: Obstructing the report of a crime can be an aggravated felony justifying removal of noncitizen
Pugin v. Garland, USSC Nos. 22-23 & 22-331, 2023 WL 4110232 (June 22, 2023), affirming Pugin v. Garland, 19 F.4th 437 (4th Cir. 2021) and reversing Garland v. Cordero-Garcia, 44 F.4th 1181 (9th Cir. 2022); Scotusblog page (including links to briefs and commentary
Noncitizens convicted of an “aggravated felony” may be deported from the United States. The definition of “aggravated felony” includes federal or state offenses “relating to obstruction of justice.” 8 U. S. C. §1101(a)(43)(S). The question in these consolidate cases is whether an offense “relat[es] to obstruction of justice” even if the offense does not require that an investigation or proceeding be pending at the time of the defendant’s acts. In a 6 to 3 ruling, the Supreme Court holds that an investigation or proceeding need not be pending for the offense to be an aggravated felony.
Trial counsel’s advice about immigration consequences was sufficient
State v. Ahmed A.M. Al Bawi, 2021AP432-CR, District 3, 1/18/23 (not recommended for publication); case activity (including briefs)
Al Bawi’s trial attorney was not ineffective in advising him about the immigration consequences of his plea.
SCOTUS takes two cases having implications for our noncitizen clients
The Immigration and Nationality Act, 8 U.S.C. 1101 et seq. renders deportable noncitizens who are convicted of aggravated felonies after they admitted to the U.S.. Under the I.N.A., “an offense relating to the obstruction of justice” where the term of imprisonment is at least one year qualifies as an aggravated felony whether it is committed in violation of state or federal law. In Pugin v. Garland, Case No. 22-23,
Defense win: Defendant entitled to withdraw plea on count for which the circuit court failed to explain elements
State v. Damon D. Taylor, 2021AP272-CR, District 4, 12/30/22 (not recommended for publication); case activity (including briefs)
Taylor moved to withdraw his Alford pleas to three crimes. The court of appeals agrees his plea to one of the three crimes was not knowing and intelligent because the circuit court failed to ascertain that he understood the elements of the offense.
Defense win: Defects in plea colloquy require plea withdrawal
State v. Caroline J. Arndt, 2022AP450-CR, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Arndt pleaded no contest to disorderly conduct, but the circuit court’s plea colloquy was defective in two crucial ways, so on the merits—and because the state declined to file a brief in the court of appeals—she’s entitled to withdraw her plea.