On Point: D. Plea withdrawal

State v. Nelson Luis Fortes, 2015 WI App 25; case activity (including briefs)

A “misunderstanding” about what sentence the state could recommend under the plea agreement did not entitle Fortes to plea withdrawal or resentencing because after the misunderstanding became evident at the sentencing hearing, Fortes elected to proceed rather than seek an adjournment with a possible eye toward plea withdrawal.

State v. Douglas E. Hanson, 2014AP623-CR, District 4, 12/11/14 (1-judge decision; ineligible for publication); case activity

Hanson failed to present sufficient credible evidence that he did not understand the consequences of pleading guilty to second offense OWI.

State v. Myron C. Dillard, 2014 WI 123, 11/26/14, affirming a published court of appeals decision, 2013 WI App 108; majority opinion by Chief Justice Abrahamson; case activity

Dillard accepted a plea bargain under which the state dropped a persistent repeater allegation, which carried a mandatory sentence of life without the possibility of release. But Dillard was never really subject to the persistent repeater law. When he discovered this fact after he was sentenced, he moved to withdraw his plea on the ground his decision to accept the plea bargain was based on his mistaken belief—one shared by the prosecutor, his lawyer, and the court—that he was facing a mandatory life sentence if he was convicted after a trial. The supreme court holds he is entitled to plea withdrawal because his plea was not knowing and voluntary and because his trial lawyer was ineffective for failing to discover the persistent repeater law never applied to Dillard.

State v. Stephanie M. Przytarski, 2014AP1019-CR, District 1, 11/18/14 (1-judge decision; ineligible for publication); case activity

Przytarski can’t withdraw her plea even if her trial lawyer erroneously told her that she could appeal the trial court’s pretrial order that barred her from introducing certain evidence to defend against charges of interference with child custody.

State v. David M. Carlson, 2014 WI App 124; case activity

Note to trial courts: When ineffective assistance of counsel claims are based what trial counsel said to his client, hold an evidentiary hearing. Note to defense counsel: Data showing the sentences received by defendants charged with the same crimes as your client is about as useful as data showing a patient diagnosed with a lethal illness the survival rates of similarly-diagnosed patients.  Note to all: A single, inaccurate, hyperbolic remark during the course of a long sentencing explanation is harmless even if the trial court relied upon it.

State v. Lawrence L. Holmes, 2013AP2342-CR, District 4, 10/30/14 (not recommended for publication); case activity

Because Holmes can’t show that the court would have granted his motion to dismiss the misdemeanor charges in the case with prejudice, he hasn’t shown he was prejudiced by trial counsel’s advice to enter into a plea agreement because he was going to lose the motion to dismiss.

State v. Fernando Ortiz-Mondragon, 2014 WI App 114, petition for review granted 12/18/14, affirmed, 2015 WI 73; case activity

Ortiz-Mondragon’s trial counsel wasn’t ineffective under Padilla v. Kentucky, 559 U.S. 356 (2010), for failing to advise Ortiz-Mondragon that his convictions were “crimes involving moral turpitude” (CIMT) and would result in mandatory deportation and a permanent bar on reentry. Unlike the conviction in Padilla, CIMT is a “broad classification of crimes” that escapes precise definition, and there’s no clear authority indicating any of the crimes to which Ortiz-Mondragon pled were crimes of moral turpitude. Thus, the deportation consequences of Ortiz-Mondragon’s plea was unclear and uncertain, and his attorney wasn’t deficient in failing to unequivocally inform him that his plea would result in deportation and inadmissibility.

State v. Andres Romero-Georgana, 2014 WI 83, 7/23/14, affirming an unpublished court of appeals opinion; majority opinion by Justice Prosser, dissenting opinion by Justice Bradley; case activity

Oliver Wendell Holmes said “hard cases make bad law.”  This decision proves that simple cases can too.  If you thought winning a §974.06 postconviction motion or a § 971.08(2) motion for plea withdrawal due to the trial court’s failure to give deportation warnings was tough before, wait until you read this decision.

State v. Hatem M. Shata, 2013AP1437-CR, District 1, 7/15/14 (not recommended for publication), petition for review granted, 12/18/14, reversed, 2015 WI 74; case activity

Trial counsel was ineffective for failing to inform Shata, an Egyptian foreign national, that pleading guilty to possession of more than 1,000 but less than 2,500 grams of THC with intent to deliver would result in his deportation.

State v. John Francis Ferguson, 2014 WI App 48; case activity

The circuit court did not erroneously exercise its discretion in denying Ferguson’s plea withdrawal motion, which was based on recantations by two witnesses who had previously said Ferguson fatally shot a man. The circuit judge applied the proper standard under State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997), when it found the recantations were incredible as a matter of law and uncorroborated by other newly-discovered evidence, and its findings are not clearly erroneous.