On Point blog, page 3 of 19
COA: No Machner hearing on trial counsel’s misstatement of DA’s plea offer
State v. Jonathan A. Ortiz-Rodriguez, 2018AP2401-CR, District 1, 11/26/19, (not recommended for publication); case activity (including briefs)
The State charged the defendant with repeated sexual assault of a child, which carries a 25-year minimum term of initial confinement. Trial counsel told the defendant that the State had offered to recommend 5 to 8 years if he would plead to one count of child sexual assault. But then at sentencing the State argued for 20 years IC and 20 years ES.
Client’s motion for plea withdrawal defeated by counsel’s testimony that he explained charges and elements
State v. Orlando Davis, 2018AP2326-CR, 10/1/19, District 1, (1-judge opinion, ineligible for publication) case activity (including briefs)
Davis filed a Bangert motion alleging that (1) the trial court failed to advise him of the elements of the offense to which he pled guilty, and (2) he did not understand those elements. At the postconviction hearing, Davis and his trial lawyer testified about Davis’s understanding of the elements. The postconviction court found counsel more credible, and the court of appeals affirms.
Defendant failed to show that schizophrenia and medication interfered with his plea
State v. Craig L. Miller, 2018AP2161-CR, 7/18/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
Miller pled guilty to disorderly conduct as a domestic abuse incident and as a repeater. He appealed arguing that his plea was not knowing, intelligent and voluntary because of his schizophrenia diagnosis and the medication he was taking. The court of appeals ruled against him due to a lack of evidence.
SCOW: professional misconduct warranting suspension does not demonstrate ineffective assistance of counsel
State v. Tyrus Lee Cooper, 2016AP375-CR, 6/20/19, affirming a per curiam court of appeals opinion, case activity (including briefs)
Cooper moved for pre-sentencing plea withdrawal and filed an OLR grievance because his lawyer failed to provide him with discovery, contact witnesses, and communicate with him. Days before trial, his unprepared lawyer misled him about the strength of the State’s case and rushed him into a plea. The circuit court denied Cooper’s motion, but OLR later concluded that the lawyer committed 19 acts of misconduct, 5 directly relating to Cooper’s plea. Consequently, SCOW suspended his license. Now, in 4-3 decision SCOW holds that the lawyer’s professional misconduct does not satisfy the requirements for an ineffective assistance of counsel claim.
SCOW: Courts taking guilty pleas needn’t cover each constitutional right being waived
State v. Javien Cajujuan Pegeese, 2019 WI 60, 5/31/19, review of an unpublished court of appeals decision; case activity (including briefs)
Pegeese pleaded guilty to a robbery and received probation. He later sought plea withdrawal, asserting the circuit court’s colloquy had been deficient because it didn’t inform him of the constitutional rights he was waiving, and further alleging that he actually did not understand those rights–that is, he asserted a Bangert-type plea-withdrawal claim. The supreme court now holds the colloquy not deficient, because the court referred to the plea questionnaire form on which the rights were listed, asked Pegeese’s attorney whether he believed Pegeese understood the questionnaire, and asked Pegeese himself whether he understood “the Constitutional Rights you give up when you enter a plea” and confirmed that Pegeese had no questions about those rights.
Pressure to plead to get out of jail didn’t amount to fair and just reason for plea withdrawal
State v. Arttistis B. Hall, 2018AP1522-CR, District 1, 3/19/19 (one-judge decision; ineligible for publication); case activity (including briefs)
After failing to comply with a family court child placement order, Hall was charged with two felony counts of interference with child custody; he ultimately pled to a reduced charge of contempt of court. (¶¶2-3). Though he expressed his displeasure with the situation, he got through what appears to be a pretty thorough plea colloquy. (¶¶4-6). Before sentencing he moved to withdraw his plea, but the court of appeals holds he didn’t show a fair and just reason for plea withdrawal.
COA: Defendant showed fair and just reason to withdraw pleas on all counts, not just one
State v. Devon Maurice Bowser, 2018AP313, 1/8/19, District 3 (not recommended for publication); case activity (including briefs)
Bowser was charged with several offenses in two cases; the two cases involved alleged drug sales on two different dates (one in 2015, one in 2016) to two different CIs. He and the state struck a deal in which he pleaded to some counts in each file with the rest dismissed. But before he could be sentenced, Bowser learned that the CI from the 2015 sale was recanting his claims that Bowser had sold him the drugs. Bowser moved to withdraw all his pleas in both cases.
Denial of plea withdrawal affirmed based on trial counsel’s notes and practice indicating that she discussed crime elements with client
State v. Dionte J. Nowels, 2018AP1171-CR, 1/8/19, District 1 (not recommended for publication); case activity (including briefs)
Nowels pled guilty to hit and run. He later sought plea withdrawal because during his colloquy the trial court failed to state 2 of the crime elements that the State would be required to prove at trial. The trial court agreed with him on this point, so for the plea withdrawal hearing the burden shifted to the State to prove that Nowles knew and understood those elements when he pled.
Defense win! Trial court erred in denying a Machner hearing and applying the wrong prejudice test to IAC claim
State v. Victor Yancey, Jr., 2018AP802-CR, 1/8/19, District 2 (1-judge opinion, eligible for publication); case activity (including briefs)
Stormy applause for Godfrey & Kahn who took this appeal pro bono and then won it! The court of appeals held that Yancey alleged a prima facie claim for ineffective assistance of counsel when he pled guilty and was entitled to a Machner hearing. It also held that the trial court incorrectly held that to establish prejudice Yancey had to show a “reasonable probability that he would have been able to mount a successful challenge to the State’s evidence at a trial.”
Federal district court grants habeas; vacates SCOW Padilla decision
Hatem M. Shata v. Denise Symdon, No. 16-CV-574 (E.D. Wis. Dec. 12, 2018)
Shata’s case was one of two our supreme court decided on the same day–both held counsel not ineffective for failing to give accurate advice on immigration consequences. You can see our prior post for the facts and our analysis of those decisions. Basically, counsel told Shata that pleading to the charged drug count would carry a “strong chance” of deporation, when in fact deportation was mandatory. Unlike our supreme court, the federal court now says that this wasn’t good enough–and further, that the supreme court’s conclusion that it was good enough was an unreasonable application of the law that SCOTUS clearly established in Padilla v. Kentucky, 559 U.S. 356 (2010).