On Point blog, page 2 of 5
Court of Appeals rejects challenge to factual basis for territorial jurisdiction
State v. Erik M. Smith, 2016AP2453-CR, District 3, 2/13/18 (not recommended for publication); case activity (including briefs)
The body of Eric Volp, a resident of Michigan when he disappeared, was found in a creek in Marinette County. After a long investigation Smith was eventually charged in Marinette County with killing Volp by running over him with his car and then hiding his corpse and he eventually pleaded guilty to most of the charges. (¶¶2-9). But as the criminal complaint itself acknowledged (¶7), the investigation never resolved whether Volp was killed in Marinette County or in Michigan. Despite that uncertainty the court of appeals holds there was sufficient factual basis to establish Wisconsin had territorial jurisdiction.
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.
You can’t steal marital property, but you can criminally damage it
State v. Cynthia Hansen, 2016AP2114-CR, 6/14/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Hansen beat up a car that was marital property between her and her wife. She pled to criminal damage to property of another; on appeal she claims, inventively, that the theft statute gave her the right to do just as she did. The court of appeals disagrees.
Statutory amendment altering elements did not invalidate plea
State v. Richard J. Scott, 2017 WI App 40; case activity (including briefs)
Richard Scott seeks to withdraw his pleas to one count of repeated sexual assault of the same child and one count of possessing child pornography. As to the sexual assault count, he was charged under the wrong statute–a prior version. As to the child pornography, he argues that the complaint lacked a factual basis for the plea. The court of appeals rejects both challenges.
Complaint provided factual basis for pleas
State v. Noah M. Sanders, 2016AP2387-CR, 4/27/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
The complaint’s summary of the allegations in support of the charges provided a sufficient factual basis for Sanders’s pleas to intimidation of a victim.
No violation of DPA; charged offense was supported by factual basis
State v. Brandon E. Jordan, 2015AP2062-CR, 10/6/16, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)
Jordan violated the terms of his Deferred Prosecution Agreement and received a warning letter which resulted in a 6-month extension of the agreement with new conditions. He then violated the conditions of the extension, and was terminated from the Deferred Prosecution Program. He argued that his termination violated the terms of the DPA.
SCOW: No breach in recommending consecutive sentences
State v. Patrick K. Tourville, 2016 WI 17, 3/15/2016, affirming an unpublished court of appeals decision; case activity (including briefs)
Patrick Tourville pled to four crimes in a deal that called on the state to recommend a sentence no higher than the one recommended by the PSI. The PSI recommended a prison term for each count; the state recommended that these terms be run consecutively. So when the state asked for consecutive time even though the PSI didn’t, did it honor its commitment to follow the PSI? If you answered “no,” the one thing we know about you is that you’re not a member of the Wisconsin Supreme Court.
Counsel wasn’t ineffective for waiving prelim and not moving to suppress statement
State v. Isaiah N. Triggs, 2014AP204-CR, District 1, 10/28/14 (not recommended for publication); case activity
Trial counsel wasn’t ineffective for waiving a preliminary hearing in Triggs’s homicide prosecution or for failing to move to suppress Triggs’s confession. Further, the circuit court’s plea colloquy with Triggs was not defective and the circuit court didn’t erroneously exercise its sentencing discretion.
Victim’s injuries provided sufficient factual basis for plea to first degree reckless injury
State v. Antonio Reyes-Ortiz, 2013AP268-CR, District 1, 11/26/13; court of appeals decision (not recommended for publication); case activity
Reyes-Ortiz argued there was an insufficient factual basis for his plea to first degree reckless injury because the victim’s injuries rose only to the level of “substantial bodily harm” under § 939.22(38), not “great bodily harm” under § 939.22(14), as required by § 940.23(1)(a).
Securities fraud — factual basis for plea; definition of “security”
State v. James C. Hudson, 2013 WI App 120; case activity
Hudson’s untrue statements to persons to get them to invest in his country music career provided a factual basis for his plea to two violations of ch. 551’s prohibition against making untrue statements of material fact in connection with the sale of a “security” because his conduct involved “securities.” A security includes an “investment contract,” which under § 551.102(28)(d)1.