On Point: B. Procedure and colloquy

State v. Frederick L. Lucht, 2011AP1644-CR, District 4, 9/27/12

court of appeals decision (not recommended for publication); case activity

The record supports the existence of an agreement between Lucht and another to commit the crime of first-degree intentional homicide.

¶28      Lucht refers us to cases standing for propositions that a conspiracy cannot be based on a mere “agreement to negotiate,” see United States v.

on review of unpublished decision; case activity

Issues (composed by on Point) 

1. Whether Burton is entitled to a Machner hearing on his postconviction motion asserting that counsel was ineffective for failing to advise that Burton could pursue a bifurcated (NGI) plea along with his guilty plea, and have a jury determine whether he was not responsible by reason of mental disease or defect.

State v. Alvin C. Harris, 2012AP518-CR, District 2, 9/12/12

court of appeals decision (1-judge, ineligible for publication); case activity

Plea-Withdrawal 

Harris failed to make a prima facie showing that his plea colloquy was defective, therefore his motion to withdraw plea was properly denied without an evidentiary hearing:

¶7        Here, Harris’s motion alleged that his plea was not entered knowingly, intelligently, and voluntarily because of a defect in the plea colloquy.  

State v. Michael L. Frey, 2012 WI 99, affirming unpublished decision; case activity

Sentencing Discretion – Reliance on Dismissed Charge 

The sentencing court may consider charges “dismissed” or “dismissed outright” (as opposed to read-ins)

¶47  To discharge its obligation to discern a defendant’s character, “[a] sentencing court may consider uncharged and unproven offenses,” State v. Leitner,

State v. Abraham C. Negrete, 2012 WI 92, affirming summary order; case activity

Negrete’s motion to withdraw his 1992 guilty plea, on the ground that he wasn’t personally advised of deportation consequences, § 971.08(2), was denied by the circuit court without a hearing. The court upholds that result:

¶2   In support of his motion, Negrete stated in an affidavit that he “do[es] not recall”

State v. Lee Roy Cain, 2012 WI 68, affirming unpublished decision; case activity

Post-Sentencing Plea-Withdrawal, Generally 

When a defendant satisfies the burden of showing, by clear and convincing evidence, the existence of a “manifest injustice,” the plea should be withdrawn as a matter of right:

¶26  …  State v. Daley sets out the following list of circumstances where manifest injustice occurs:[6]

1.

Holder v. Carlos Martinez Gutierrez, USSC No. 10-1542, 5/21/12, reversing 411 Fed. Appx. 121 and 399 Fed. Appx. 313

The Attorney General has discretion under 8 U.S.C. §1229b(a) to allow otherwise-removable aliens to remain in the U.S., if the alien satisfies three criteria: minimum of five years as a lawful permanent resident; continuous residence in the U.S. for at least seven years after lawful admission,

court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; prior post

Issue (from Certification): 

Whether understating the potential penalty during a plea colloquy can properly be deemed harmless error, and if so, where in the analytical framework of Bangert such a determination should be made.

The guilty plea court misinformed Taylor that the maximum he faced was 6,

court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; review granted, 3/15/12

Guilty Pleas – Plea Colloquy 

Certified Issue: 

Whether a plea colloquy’s understating the potential penalty is subject to harmless error analysis, such that if the subsequently-imposed sentence doesn’t exceed the misadvised maximum, plea-withdrawal isn’t supported.

The details: Taylor was charged as a repeater with an offense carrying an underlying maximum of 6 years with the enhancer adding a potential 2 years.

State v. James Lee Johnson, 2012 WI App 21 (recommended for publication); for Johnson: Melinda A. Swartz, SPD, Milwaukee Appellate; case activity

The guilty plea colloquy was defective, in that it failed to advise Johnson that the trial court wasn’t obliged to follow the terms of the plea bargain (here: to dismiss and read-in a count), contrary to State v. Hampton,