On Point

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,

State v. Christopher Lee Davis, 2001 WI 136, reversing 2001 WI App 61
For Davis: Jane Krueger Smith

Issue1: Whether a circuit has discretion to dismiss a case with prejudice under § 971.11(7), for failure of the state to bring it on for trial within the 120-day period set by § 971.11(2).

Holding:

¶14. We agree with the court of appeals that ‘the legislature has left the matter up to the courts to exercise its [sic] discretion to dismiss with prejudice in a proper case lest the statute have no meaning at all.’ This interpretation of Wis.

State v. Mohammed A. Nonahal, 2001 WI App 39
For Nonahal: David R. Karpe

Issue: Whether the defendant waived a claimed violation of the Interstate Agreement on Detainers’ anti-shuttling provision, by requesting to be sent back to the sending jurisdiction before trial.

Holding:

¶8; … we conclude that rights granted under the anti-shuttling provision of the IAD are statutory in nature and may be waived if the prisoner requests a procedure inconsistent with the statute’s provisions….¶9;

State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski

Issue: Whether Ramirez’s guilty plea waived an ex post facto challenge to the charged offense.

Holding: ¶4 n. 4:

We could invoke the guilty plea/waiver rule against Ramirez since he pled guilty to the charge after the trial court rejected his constitutional challenge. See State v.

State v. Juan M. Navarro, 2001 WI App 225
For Navarro: Joseph M. Moore, SPD Trial, Juneau

Issue: Whether the trial court is required to conduct an in camera inspection of confidential records of the complaining witness, a correctional officer, relating to his possible abusive treatment of inmates, in a battery-by-prisoner trial where the defendant alleges self-defense.

Holding: The trial court’s denial of in camera inspection without first conducting an evidentiary hearing on materiality was erroneous: Access may not be denied simply because the records aren’t within the state’s possession;

State v. James G. Langenbach, 2001 WI App 222
For Langenbach: Patrick M. Donnelly, SPD, Madison Appellate

Issue: Whether the state may call a defendant to testify, as an adverse witness, at Phase II of an NGI trial, following Phase I guilty plea.

Holding: A guilty plea doesn’t necessarily result in loss of fifth amendment rights: The privilege continues at least until sentencing, ¶9; moreover, the privilege continues during the direct appeal,

State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244

Issue: Whether the prosecutor breached a plea bargain calling for a maximum recommendation on multiple counts of concurrent terms of 25 years in prison, when the actual recommendation was for a total of 25 years but included consecutive terms.

Holding:

¶18 Undoubtedly, one of the most crucial issues in a plea agreement is the recommendation concerning length of time to be served on each count.

State v. Dalvell Richardson, 2001 WI App 152
For Richardson: Richard D. Martin, SPD, Milwaukee Appellate

Issue: Whether the prosecutor breached a plea agreement “to leave the length of the incarceration entirely up to the Court, [without] any specific numerical type of recommendation” with allocution that clearly implied a request for a lengthy term.

Holding: The prosecutor’s comments (to the effect that this was one of the most serious cases the prosecutor had handled) didn’t breach an agreement to recommend incarceration without specifying length:

¶11.

State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244

Issue: Whether the remedy for a plea bargain breach should be to vacate the plea or to resentence on the plea.

Holding:

¶36 Our reading of Bangert and Smith leads us to conclude that the remedies and procedures outlined in Santobello are consistent with Wisconsin law. Specifically, the sentencing court has discretion to determine the appropriate remedy for a breach.

State v. Michael F. Howard, 2001 WI App 137

Issue/Holding: Failure to object to plea bargain breach waives the issue, leaving ineffective assistance of counsel the only mechanism for raising it. ¶21.

Also see, State v. Harold Merryfield, 229 Wis.2d 52, 598 N.W.2d 251 (Ct. App. 1999) (asserted plea bargain violation held waived, under State v. Smith, 153 Wis. 2d 739, 451 N.W.2d 794 (Ct.