On Point: B. Procedure and colloquy

State v. Ali Mursal, 2013 WI App 125; case activity

Before accepting a defendant’s guilty or no contest plea the court is required to advise the defendant there may be immigration consequences. Wis. Stat. § 971.08(1)(c). While that statute prescribes a text for the required warning—complete with quotation marks—the court of appeals holds in this case that a judge’s failure to repeat that language verbatim is not by itself grounds for plea withdrawal.

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.

State v. Julius C. Burton, 2013 WI 61, affirming unpublished court of appeals decision; unanimous opinion by Justice Prosser; case activity

In a case of interest primarily, if not exclusively, to lawyers handling postconviction proceedings in state courts, the supreme court holds Burton’s plea withdrawal motion was insufficient to merit an evidentiary hearing because it failed to allege sufficient facts to support either the ineffective assistance of counsel claim or the claim Burton’s plea was invalid because of a defective plea colloquy.

State v. Juan M. Rodriguez-Faustino, 2012AP2777, District 1, May 29, 2013; court of appeals decision (1-judge; ineligible for publication); case activity

Rodriguez-Faustino pled to a misdemeanor drug offense and, in January 2007, was placed on probation for 12 months. (¶¶4-5). In September 2012 he filed a motion to withdraw his plea, asserting his attorney was ineffective under Padilla v. Kentucky, 130 S.Ct. 1473, 1475‑1476 (2010),

State v. Nely B. Robles, 2013 WI App 76; case activity.

Issue:  When accepting a guilty plea is the circuit court required to specify whether the defendant is pleading to a felony or a misdemeanor?

Robles sought to withdraw her guilty plea on the grounds that the circuit court’s failure to specify the designation of the charged crime violated Wis. Stats.  § 971.08(1)(a)’s requirement that she be informed of the “nature of the charge.”  

State v. Lisa A. Brabazon, 2012AP1171-CR, District 4, 3/28/13; court of appeals decision (not recommended for publication); case activity

Guilty plea — factual basis; value of stolen property

The victim’s statements as to the value of the stolen property (which were set forth in the complaint) provided a sufficient factual basis for concluding that the value exceeded the $5,000 threshold for felony theft:

¶19      ….

State v. Stephen Robert Felix Schurk, 2012AP1501-CR, District 1, 3/5/13; court of appeals decision (1 judge; ineligible for publication); case activity

Schurk was not entitled to plea withdrawal even though the judge did not specifically inform Schurk that he was not bound by the parties’ plea agreement because the information was conveyed to Schurk in other ways:

¶11      …. [The court’s] colloquy advised Schurk that with regard to certain aspects of the sentencing,

State v. Ryan L. Kohlhoff, 2012AP1144-CR, 2/14/13; court of appeals decision (1-judge, ineligible for publication); case activity

Plea withdrawal – information about collateral consequences of plea

Plea colloquy telling Kohlhoff that, if he pled no contest to a misdemeanor crime involving domestic violence, he would “lose [his] right to carry a firearm under federal law” accurately informed Kohlhoff of the collateral consequences of his plea,

Chaidez v. United States, USSC No. 11-820, affirming 655 F.3d 684 (7th Cir. 2011)

Issue:  We know that Padilla v. Kentucky, 559 U.S. 356 (2010) requires counsel to advise a defendant about the risk of deportation arising from a guilty plea.  The question presented by Chaidez is whether or not that rule applies retroactively so that a person whose conviction became final before Padilla can benefit from it. 

Jamerson v. Dep’t of Children and Families, 2013 WI 7

Wisconsin supreme court decision, affirming 2012 WI App 32, 340 Wis. 2d 215, 813 N.W.2d 221

This case is not directly applicable to SPD practice, but it is a useful reminder of the multitudinous collateral consequences that may attend a criminal conviction. Here’s the gist:

¶2   The new [2009] caregiver law [relating to child care licenses] imposes a lifetime ban on licensure,