On Point blog, page 3 of 14
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.
Defendant pleading NGI doesn’t need to know maximum length of commitment
State v. Corey R. Fugere, 2018 WI App 24, affirmed, 2019 WI 33; case activity (including briefs)
Because civil commitment is neither punishment nor a direct consequence of a guilty or no contest plea, a defendant entering an NGI plea does not have to be advised during the plea colloquy of the maximum term of commitment that could be ordered.
Court of Appeals certifies new case addressing whether court must advise defendant of DNA surcharge during plea colloquy
State v. Arthur Allen Freiboth, 2015AP2535-CR, District IV, 2/26/18; case activity (including briefs)
Issue:
…[W]e certify the present appeal to the Wisconsin Supreme Court to decide whether a defendant who was not advised at the time of the plea that he or she faced multiple mandatory DNA surcharges has grounds for plea withdrawal.
SCOW: Plea colloquy need not address mode of commission of charged crime
State v. Shannon Olance Hendricks, 2018 WI 15, 2/20/18, affirming an unpublished court of appeals opinion, case activity (including briefs)
Can a defendant knowingly and intelligently plead guilty to a charge that requires proof of intent to do “X” if the defendant does not know what “X” is? The majority answers “yes.” Justice Abrahamson (joined by A.W. Bradley) answers “no.” Kurt Vonnegut fans will Shirley enjoy the dissent. 🙂
Must a defendant be informed that a guilty plea will result in a loss of the 2nd Amendment right to bear arms?
State v. Amanda L. Longley, 2017AP659-CR, District 4, 2/8/18 (1-judge opinion. ineligible for publication); case activity (including briefs)
The court of appeals here answers this questions “no,” based on SCOW’s recent and narrow reading of Padilla in State v. Le Mere, 2016 WI 41, 368 Wis. 2d 624, 879 N.W.2d 580. See Mike Tobin’s post on Le Mere here). But Wisconsin’s case law is conflicting, suggesting that this issue may be worthy of scrutiny by a higher court.
Court of appeals clarifies “guilty plea waiver” rule, says lawyers needn’t advise clients about DACA consequences of plea
State v. Marcos Rosas Villegas, 2018 WI App 9; case activity (including briefs)
This opinion resolves 2 issues worthy of publication and has already generated a petition for review (from an earlier version of the opinion, which was withdrawn and has now been replaced). According to the court of appeals, an attorney does not perform deficiently by failing to inform his client, an undocumented immigrant, that a plea would render him inadmissible to the U.S. and ineligible for DACA. Furthermore–for the first time–the court of appeals holds that the “guilty plea waiver” rule applies to claims of ineffective assistance of counsel, unless such a claim is offered as a reason to overturn the plea itself.
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?
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.