On Point: 2. Nelson/Bentley Motion

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.

Jae Lee v. United States, USSC No. 16-327, 2017 WL 2694701 (June 23, 2017), reversing Lee v. United States, 825 F.3d 311 (6th Cir. 2016); Scotusblog page (including links to briefs and commentary)

Lee’s lawyer told him he would not be deported if he pleaded guilty to a drug charge. His lawyer was wrong, so he performed deficiently under Padilla v. Kentucky, 559 U.S. 356 (2010). But can Lee establish his lawyer’s indisputably wrong advice prejudiced him, i.e., that he would have gone to trial had he known he would be deported even though he had no real prospect of acquittal? Yes, says a majority of the Supreme Court, rejecting the approach urged by the Government and adopted by some federal circuits.

State v. Eugene B. Santiago, 2016AP1267, District 2, 5/3/17 (not recommended for publication); case activity (including state’s brief)

Santiago’s trial lawyer missed a charging error that led to an overstatement of the penalties Santiago faced; this failure doesn’t allow Santiago to withdraw his plea, however, because he fails to sufficiently allege that he would not have entered a plea if his lawyer had caught the mistake.

State v. Erika Lisette Gutierrez, 2014AP1983-CR, 3/7/2017 (not recommended for publication); case activity (including briefs)

Gutierrez pleaded guilty to intentional physical abuse of a trial and had a bench trial on her plea of not guilty by reason of mental disease or defect. She asserts she should be allowed to withdraw her guilty plea because the circuit court didn’t give the full § 971.08(1)(c) immigration warning and because her plea was premised on incorrect advice from her lawyer. The court of appeals disagrees.

State v. William J. Drake, II, 2016AP724-CR, District 4, 2/2/17 (one-judge decision; ineligible for publication); case activity (including briefs)

It may be that Drake’s lawyer could have done a better job of looking into and advising him about the possibility his Huber privileges would be revoked, but that doesn’t mean counsel was ineffective. Thus, Drake doesn’t get to withdraw his pleas.

Lee v. United States, USSC No. 16-327, cert. granted 12/14/16

Question presented (based on the cert. petition):

To establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984), a defendant who has pleaded guilty based on deficient advice from his attorney must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Under this standard, is it always irrational for a noncitizen defendant with longtime legal resident status and extended family and business ties to the United States to reject a plea offer despite strong evidence of guilt because the plea would result in mandatory deportation or permanent exclusion?

State v. Jeremy Wand, 2015AP2344-CR, District 4, 8/25/16 (not recommended for publication); case activity (including briefs)

The court of appeals holds that Wand’s postconviction motion for plea withdrawal failed to allege sufficient facts to merit an evidentiary hearing on his claims that his plea was coerced and that his trial lawyers were ineffective by failing to retain certain experts to assist in his defense.

State v. Richard J. Sulla, 2016 WI 46, 6/14/16, reversing an unpublished per curiam court of appeals decision; case activity (including briefs)

Sulla entered a plea agreement requiring him to plead “no contest” to two counts and the State to dismiss and “read in” two other counts for purposes of sentencing and restitution. But after he was sentenced to 20 years of imprisonment, Sulla moved for plea withdrawal arguing that he was misinformed of, and did not understand, the effect that a read-in charge could have at sentencing. The circuit court denied the motion without a hearing. Don’t be fooled. SCOW’s decision here affects more than plea withdrawal. It changes appellate procedure.

State v. Martin F. Kennedy, 2015AP475-CR, District 1, 9/29/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court erred in denying Kennedy’s plea withdrawal motion without a hearing, as the record of the plea shows he wasn’t advised about the domestic abuse modifier at the time of his plea and Kennedy alleged his trial lawyer was ineffective for failing to advise him of the modifier.

Review of an unpublished per curiam court of appeals decision; case activity

Issues (derived from the court of appeals opinion):

Whether, in order to get an evidentiary hearing, a defendant’s postconviction motion to withdraw his plea because he did not understand the “read-in” concept  must allege that he would have pled differently if  he had understood the “read-in” concept? See State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).