On Point blog, page 4 of 5
Plea-Withdrawal, Post-sentencing – Procedure – Pleading Requirements – Sexual Assault
State v. Monika S. Lackershire, 2005 WI App 265, reversed, 2007 WI 74
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether Lackershire, an adult female convicted of sexual assault (intercourse) of a child, established a prima facie case for plea-withdrawal due to lack of adequate understanding of the elements.
Holding:
¶8 Initially, we note that in a plea withdrawal motion like Lackershire’s,
Evidentiary Hearing – Pleading Requirements
State v. John Allen, 2004 WI 106, affirming unpublished decision
For Allen: Michael J. Backes
Issue/Holding:
¶14 A hearing on a postconviction motion is required only when the movant states sufficient material facts that, if true, would entitle the defendant to relief. …¶15 It has been said repeatedly that a postconviction motion for relief requires more than conclusory allegations. Despite the repetitive theme that such motions require the allegation of sufficient material facts that,
Plea-Withdrawal, Post-Sentencing – Procedure – Proof of Knowledge of Elements / Remedy for Lack of Proof<
State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶16. Jipson’s answers, while incriminating, have no bearing on the focus here. That is, the answers do not establish Jipson knew the State had to prove the purpose of the sexual contact was an element of the crime. The critical inquiry is whether Jipson otherwise knew at the time of entering his plea all of the essential elements of the offense so that it can be said he knowingly pled guilty to the crime.
Plea-Withdrawal, Post-Sentencing – Procedure – Burden of Proof
State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶7. When challenging a guilty or no contest plea, the defendant has the initial burden to produce a prima facie case comprised of the following two parts. First, the defendant must show the trial court accepted the defendant’s guilty plea without conforming to Wis. Stat. § 971.08 or other mandatory procedures.
Plea-Withdrawal, Post-sentencing – Procedure – Pleading Requirements
State v. Corey J. Hampton, 2002 WI App 293, affirmed, 2004 WI 107
For Hampton: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue/Holding: The pleading requirements for a hearing imposed by State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996) aren’t applicable to a motion for plea-withdrawal based on defective colloquy:
¶20. Hampton responds that Bentley does not apply because the defendant in Bentley sought plea withdrawal based on ineffective assistance of counsel and,
Defendant’s Presence at Postconviction Hearing
State v. Paul L. Polak, 2002 WI App 120, PFR filed 5/3/02
For Polak: Philip J. Brehm
Issue/Holding: A defendant need not be produced for a postconviction hearing where there are no substantial issues of fact to resolve. ¶22.
Plea-Withdrawal, Post-sentence – Procedure – Remedy, No Showing Defendant Understood All Elements
State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether plea withdrawal is the appropriate remedy where the record contains no evidence that Lopez understood all elements of the offense
Holding:
¶22. The proper remedy upon determining that the State failed to establish that Lopez understood the elements of the offense with which he was charged when he entered his no contest plea is to remand the case to permit Lopez to withdraw his plea.
Plea-Withdrawal, Post-sentence — Procedure — Burden of Proof: Spanish-speaking Defendant, Untranslated Questionnaire
State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether Lopez made a prima facie showing that the plea colloquy was inadequate.
Holding: The Spanish-speaking Lopez had problems, acknowledged by the trial court, communicating with his interpreter and necessitating a continuance of the plea hearing. At neither the aborted plea hearing or the subsequent one at which the plea was accepted did the trial court determine,
Jury Waiver – Challenge – Applicability of State v. Bangert
.State v. Bobby G. Grant, 230 Wis.2d 90, 601 N.W.2d 8 (Ct. App. 1999)
For Grant: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether Grant’s waiver of jury trial was invalid because the trial court failed to advise that the verdict must be unanimous.
Holding: The procedure applicable to challenging guilty pleas, State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) applies to this context;
Plea-Withdrawal – Post-sentencing — Procedure — Waiver of Attorney-Client Privilege
State v. Robert J. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998)
For Nichelson: Paul M. Moldenhauer
Issue/Holding: fn. 8:
The State’s right to question a defendant’s attorney when the defendant alleges that the attorney failed to properly inform him or her before entering a plea is established in State v. Van Camp, 213 Wis.2d 131, 145, 569 N.W.2d 577,