On Point blog, page 15 of 21
Guilty Pleas – Procedure – Plea Questionnaire, Generally
State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: A court may incorporate a plea questionnaire form into the guilty plea colloquy, but only up to a point:
¶32 The Plea Questionnaire/Waiver of Rights Form provides a defendant and counsel the opportunity to review together a written statement of the information a defendant should know before entering a guilty plea.
Guilty Pleas – Required Knowledge – Collateral Consequence: Firearm Possession Prohibition, Disorderly Conduct as “Crime of Domestic Violence”
State v. Joseph E. Koll, Jr., 2009 WI App 74, PFR filed 4/29/09
For Koll: Alexander L. Ullenberg
Issue: Whether Koll’s conviction of so-called “non-domestic” disorderly conduct was for a misdemeanor crime of domestic violence as defined 18 U.S.C. §921(a)(33)(A), so as to preclude him from obtaining a handgun.
Holding: The federal Gun Control Act bars gun possession to anyone convicted of a “misdemeanor crime of domestic violence,” 18 U.S.C.
Procedure – Read-In — Defendant’s Awareness of Implications re: Admission
State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm
Issue: Whether, for a guilty plea to be “knowing and intelligent,” the defendant must be aware that a read-in is deemed an admission for sentencing purposes.
Holding:
¶3 We conclude that the record clearly demonstrates that neither the State, nor trial defense counsel, nor the circuit court referred to the read-in charges as admitted or deemed admitted for sentencing purposes or for any other purpose.
Guilty Plea – Procedure – Read-In — Admission Unnecessary
State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm
Issue: Whether a guilty plea colloquy must include an explicit warning that the defendant’s agreement to read in a dismissed charge will be deemed an admission of that charge for sentencing purposes.
Holding:
¶5 Although the case law on read-in charges is neither consistent nor clear,
Guilty Pleas – “Remote” Appearance – Defendant’s Inability to Confer with Counsel during Colloquy
Wright v. Joseph L. Van Patten,552 US 120 (2008)
Prior history: Joseph Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), reinstated, 489 F. 3d 827, 2007, on remand from the Supreme Court for further consideration in light of Carey v. Musladin, 549 U. S. ___ (2006); on habeas review of,
Using Computer to Facilitate Child Sex-Crime, § 948.075(3) – Element of Act “Other Than … Computerized Communication”
State v. Eric T. Olson, 2008 WI App 171
For Olson: Byron C. Lichstein
Issue/Holding: The “act other than element” of § 948.075(3) isn’t satisfied by either transmission of live video of the shirtless defendant, or by his prior sexual encounters with others he met on-line:
¶11 Accordingly, we read the statute to require that, before the State may obtain a conviction under WIS. STAT.
§ 948.08, Causing Child to Practice Prostitution – Repeated Sex Acts in Exchange for Cocaine
State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro
Issue: Whether repeated “dope dating” (giving a minor cocaine on multiple occasions in exchange for sex) amounts to causing the child to practice prostitution within the meaning of § 948.08.
Holding1: “Practice” prostitution:
¶15 Payette is charged with violating Wis. Stat. § 948.08,
Plea-Withdrawal, Post-sentence: Prima Facie Showing, Plea Questionnaire
State v. Christopher S. Hoppe, 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate
Issue: Whether a plea colloquy that merely established that the defendant was “satisfied” he understood “everything in the questionnaire and waiver of rights and the elements of the charges” sufficed under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), given that the questionnaire covered these matters.
Guilty Pleas – Procedure – Factual Basis – Consideration of “Whole” Record
State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding:
¶26 As our supreme court explained in White, “[i]n applying the manifest injustice test on review, this court may consider the whole record since the issue is no longer whether the guilty plea should have been accepted, but rather whether there was an [erroneous exercise] of discretion in the trial court’s denial of the motion to withdraw.” Id.
Guilty Pleas – Factual Basis – Particular Instances: Using Computer to Facilitate Child Sex-Crime
State v. Eric T. Olson, 2008 WI App 171
For Olson: Byron C. Lichstein
Issue/Holding: The “act other than element” of § 948.075(3) isn’t satisfied by either transmission of live video of the shirtless defendant, or by his prior sexual encounters with others he met on-line:
¶11 Accordingly, we read the statute to require that, before the State may obtain a conviction under WIS. STAT.