On Point blog, page 5 of 5
Plea-Withdrawal – Post-sentencing – Procedure – “Negative Inference” from Defendant’s Testimony Insufficient
State v. Robert J. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998)
For Nichelson: Paul M. Moldenhauer
Issue/Holding:
It therefore appears to be an issue of first impression in Wisconsin whether a court can accept a negative inference to establish proof by clear and convincing evidence. Under the beyond a reasonable doubt standard, a negative inference is sufficient only if there is independent support in the evidence.
Plea-Withdrawal, Post-sentencing — Procedure — Reliance on Counsel’s Expertise to Infer Understanding of Elements
State v. Robert J. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998)
For Nichelson: Paul M. Moldenhauer
Issue/Holding:
The State concedes that the discussion between Willett and Nichelson did not include a “complete catalogue of the elements of the offense.” It also appears to concede that, “examined in a vacuum, the above colloquy [between Willett and Nichelson] would not satisfy the [constitutional] requirements.”