On Point blog, page 16 of 20
Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements, Generally: Bangert and Hampton, Compared
State v. Timothy J. Goyette, 2006 WI App 178
For Goyette: E.J. Hunt, Kathleen M. Quinn
Issue/Holding:
¶17 The purpose of filing a Bangert plea withdrawal motion is to obtain an evidentiary hearing at which the State bears the burden of producing evidence showing that, despite a defective plea colloquy, the defendant’s plea was nonetheless knowing and voluntary. State v.
Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements, Generally
State v. Donnell Basley, 2006 WI App 253
For Basley: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding1: The postconviction court erroneously denied without evidentiary hearing Basley’s motion for plea-withdrawal (on Nelson/Bentley rather than Bangert grounds):
¶8 Accompanying Basley’s motion is an affidavit from his postconviction counsel averring that the motion “summarizes … Basley’s expected testimony.” Counsel also acknowledges in the affidavit that Basley’s trial counsel will likely dispute that he threatened to withdraw unless Basley accepted the proffered plea bargain.
Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements, Dual Bangert and Nelson/Bentley Motion
State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶74 The Bangert and Nelson/Bentley motions, however, are applicable to different factual circumstances. [47] A defendant invokes Bangert when the plea colloquy is defective; a defendant invokes Nelson/Bentley when the defendant alleges that some factor extrinsic to the plea colloquy,
Plea-Withdrawal, Post-sentence — Procedure: Prima Facie Showing, Relative to Rights Waived – Illiterate Defendant, Perfunctory Colloquy
State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: On the particular facts (illiterate defendant, no written questionnaire, perfunctory colloquy) the defendant was entitled to a Bangert hearing on whether the understood the nature of the rights waived by his guilty plea.
With respect to waiver of right to jury trial,
Plea-Withdrawal, Post-sentence — Procedure: Prima Facie Showing, Relative to Knowledge of Charge – Illiterate Defendant, Perfunctory Colloquy
State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: The defendant demonstrated a prima facie showing that his guilty plea was inadequate, where he was illiterate (such that a plea questionnaire wasn’t even prepared) and the trial court’s colloquy was superficial, ¶¶53-58.
The facts are sufficiently extreme that recurrence is highly unlikely and they therefore won’t be detailed in this summary;
Postconviction Motions – § 974.06, Serial Litigation Bar, Penalty Enhancer Exception
State v. Thomas A. Mikulance, 2006 WI App 69
Pro se
Issue/Holding: A “narrow” exception to the serial litigation bar of § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) is established by State v. Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998), which “applies only where the defendant files a motion alleging that the State has failed to prove the prior conviction necessary to sustain the habitual criminal status (by proof or by admission) or when the penalty imposed is longer than permitted by law for a repeater,” ¶¶1,
No-Merit Report: No Serial Litigation Bar Where Arguably Meritorious Issue Overlooked
State v. Ricky J. Fortier, 2006 WI App 11
Issue/Holding: Fortier’s failure to respond to no merit report does not, under the circumstances, work serial litigation bar to subsequent, arguably meritorious challenge to sentence:
¶15 Fortier contends that he should not be precluded from raising the issue of a sentence illegally raised upon resentencing, even though he failed to raise it in a response to the no-merit report at the time of the original appeal.
Postconviction Motions — § 974.06, Supports Interest-of-Justice Review by Supreme Court
State v. Ralph D. Armstrong, 2005 WI 119, reversing unpublished decision
For Armstrong: Jerome Buting; Barry Scheck
Issue/Holding: Supreme court has both statutory and inherent authority to order new trial in the interest of justice, even on collateral review (as opposed to direct appeal), ¶¶119-24. (State v. Allen, 159 Wis. 2d 53, 464 N.W.2d 426 (Ct. App. 1990) (court of appeals has no authority under § 752.35 to engage in no authority to undertake interest-of-justice review on collateral attack) severely questioned if not explicitly overruled.
Discovery – DNA Testing, at Defendant’s Own Expense, § 974.07(6)
State v. James M. Moran, 2005 WI 115, reversing unpublished decision
For Moran: Colleen D. Ball, State Bar Pro Bono Project
Issue/Holding:
¶3 We conclude that the plain language of § 974.07(6) gives a movant the right to conduct DNA testing of physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material,
Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements for Evidentiary Hearing on Bangert Motion Relative to Nature of Charge
State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶59 To earn a Bangert evidentiary hearing, a defendant must satisfy a second obligation. In addition to making a prima facie case that the circuit court erred in the plea colloquy, a defendant must allege he did not enter a knowing,