Under Padilla, 559 U.S. 356
, counsel's failure to advise a defendant concerning clear deportation consequences of a plea bargain is prejudicial if the defendant shows that "a decision to reject the plea bargain would have been rational under the circumstances." The defendant is not required to show that "there would be a different outcome" or that he or she had "real and viable challenges to the underlying veracity of the conviction." State v. Mendez, 2014 WI App 57
, 354 Wis. 2d 88
, 847 N.W.2d 895
Under s. 972.14 (3) (a), “If a victim wants to make a statement, the court shall allow the victim to make a statement in court or to submit a written statement to be read in court." Section 972.14 does not specify any particular party to read a victim's statement. The sole limitation on the victim's statement is that it be relevant to the sentence. If a judge does not ensure compliance with the victims' rights statutes, the judge can be fined under s. 950.11. A prosecutor's reference to a victim's letter will not automatically operate as a breach of a plea agreement. In fact, a victim's wishes may often come to bear in considering the need to protect the public and it was incumbent on both the court and the prosecutor to ensure compliance with the victims' rights statutes. State v. Bokenyi, 2014 WI 61
, 354 Wis. 2d 51
, 847 N.W.2d 855
To withdraw a guilty plea after sentencing, a defendant must show by clear and convincing evidence that a refusal to allow withdrawal of the plea would result in manifest injustice, that is, that there are serious questions affecting the fundamental integrity of the plea. The defendant has the burden to establish manifest injustice. State v. Dillard, 2014 WI 123
, 358 Wis. 2d 543
, 859 N.W.2d 44
Under the totality of the circumstances of this case, in which a no-contest plea was entered to avoid a consequence that was a legal impossibility, the defendant had the right as a matter of law to withdraw his no-contest plea on the ground that it was not entered knowingly, intelligently, and voluntarily. When deciding whether to accept the state's plea offer or go to trial, the state, the court, and the defendant's trial counsel mistakenly advised the defendant that he was facing a mandatory sentence of life in prison without the possibility of extended supervision. The fundamental error of law about the applicability of the persistent repeater enhancer to the defendant that pervaded the plea negotiations and sentencing rendered the defendant's plea unknowing, unintelligent, and involuntary. State v. Dillard, 2014 WI 123
, 358 Wis. 2d 543
, 859 N.W.2d 44
While a defendant may generally be able to wait until after sentencing to decide whether to allege a deficiency in the plea colloquy, that proposition does not apply when a concern about the defendant's understanding of the plea has been raised prior to sentencing and the defendant specifically elects to proceed with sentencing. The defendant in this case, after being made aware that the state believed the plea agreement allowed it to make a specific recommendation and that the state intended to do so, waived his right to seek plea withdrawal when he elected to move forward with sentencing. State v. Fortes, 2015 WI App 25
, 361 Wis. 2d 249
, 862 N.W.2d 154
Negrete, 2012 WI 92
, governs a non-citizen's motion to withdraw a guilty plea under sub. (2) based on “likely" deportation. It does not govern “
likely" exclusion from admission. Under Negrete
the defendant must allege facts demonstrating a causal nexus between the entry of the guilty plea and the federal government's likely institution of deportation proceedings. Sub. (2) does not require a showing that the federal government has taken steps to exclude the defendant from admission. In this case, the text of the federal statute and the necessity that a defendant take affirmative steps to leave the country in order to actually be excluded from admission satisfy the “likely" test. State v. Valadez, 2016 WI 4
, 366 Wis. 2d 332
, 874 N.W.2d 514
When a plea agreement is silent regarding concurrent or consecutive sentences, the defendant has not bargained for the state's promise to refrain from recommending the sentences be served consecutively. Whether a sentence recommendation involves four charges or one charge in addition to a sentence already being served, a recommendation of consecutive sentences has the same effect on the defendant. State v. Tourville, 2016 WI 17
, 367 Wis. 2d 285
, 876 N.W.2d 735
test has 2 prongs: 1) if a motion to withdraw a guilty plea after judgment and sentence alleges facts which, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing; and 2) if the defendant fails to allege sufficient facts in his or her motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing. The correct interpretation of this test is that an evidentiary hearing is not mandatory if the record as a whole conclusively demonstrates that the defendant is not entitled to relief, even if the motion alleges sufficient nonconclusory facts. State v. Sulla, 2016 WI 46
, 366 Wis. 2d 332
, 874 N.W.2d 514
The phrase “potential punishment" in sub. (1) (a) has not been defined in the statutes or the case law. In analyzing whether a defendant was correctly advised of the potential punishment, cases have looked to the maximum statutory penalty, that is, the maximum sentence provided for by statute. The opinion in this case provides a glossary of terms to assist readers and the courts in using and understanding the correct terminology for discussing the duty of circuit courts to advise a defendant of the potential punishment before accepting a plea. State v. Finley, 2016 WI 63
, ___ Wis. 2d ___, 882 N.W.2d 761
When, during the plea colloquy, the court erroneously informed the defendant that the maximum statutory penalty the defendant faced if convicted was lower than the maximum actually allowed by law, and the state failed to prove that the defendant knew the potential punishment he faced at the time he entered his plea, the defendant's plea was not entered knowingly, intelligently, and voluntarily, and he was entitled to withdraw his plea. Under those circumstances, the defect could not be remedied by reducing the sentence to the maximum the defendant was informed and believed he could receive instead of letting the defendant withdraw his plea. State v. Finley, 2016 WI 63
, 370 Wis. 2d 402
, 882 N.W.2d 761
The court shall permit plea withdrawal under sub. (2) if: 1) at the plea hearing, the circuit court fails to provide the required immigration consequences advisement; and 2) a defendant later shows that a plea is likely to result in one of the adverse immigration consequences listed in the required advisement. To show that a plea is “likely to result” in deportation or one of the other immigration consequences listed in sub. (2), the defendant has an initial pleading burden to make particularized allegations showing a “causal nexus” between the defendant's plea and likely deportation. If a defendant satisfies this initial pleading burden, then the defendant is entitled to an evidentiary hearing in order to prove the requisite causal nexus, that is, to prove that his plea is “likely to result in” deportation. State v. Reyes Fuerte, 2016 WI App 78
, ___ Wis. 2d ___, ___ N.W.2d ___, 15-2041
In this case, the court failed to give the defendant the advice required by sub. (1) (c) when the court said “not a resident” instead of “not a citizen.” The defendant sufficiently alleged that his plea to the charge made it likely that he would be deported because the plea took away his only defense to deportation in ongoing proceedings. The burden on the defendant was to sufficiently allege that his plea made the difference between there being a chance that he would be deported and it being likely that he would be deported in the ongoing proceedings. State v. Reyes Fuerte, 2016 WI App 78
, ___ Wis. 2d ___, ___ N.W.2d ___, 15-2041
When the accused rejected a plea bargain on a misdemeanor charge and instead requested a jury trial, the prosecutor did not act vindictively in raising the charge to a felony. United States v. Goodwin, 457 U.S. 368
The defendant's acceptance of the prosecutor's proposed plea bargain did not bar the prosecutor from withdrawing the offer. Mabry v. Johnson, 467 U.S. 504
When a defendant knowingly entered a guilty plea and the state's evidence supported a conviction, the conviction was valid even though the defendant gave testimony inconsistent with the plea. Hansen v. Mathews, 424 F.2d 1205
Following a guilty plea, the defendant could not raise a speedy trial issue. United States v. Gaertner, 583 F.2d 308
Guilty pleas in Wisconsin. Bishop, 58 MLR 631.
Pleas of guilty; plea bargaining. 1971 WLR 583.
Plea of guilty to offenses committed in several counties. 971.09(1)(1)
Any person who admits that he or she has committed crimes in the county in which he or she is in custody and also in another county in this state may apply to the district attorney of the county in which he or she is in custody to be charged with those crimes so that the person may plead guilty and be sentenced for them in the county of custody. The application shall contain a description of all admitted crimes and the name of the county in which each was committed.
Upon receipt of the application the district attorney shall prepare an information charging all the admitted crimes and naming in each count the county where each was committed. The district attorney shall send a copy of the information to the district attorney of each other county in which the defendant admits he or she committed crimes, together with a statement that the defendant has applied to plead guilty in the county of custody. Upon receipt of the information and statement, the district attorney of the other county may execute a consent in writing allowing the defendant to enter a plea of guilty in the county of custody, to the crime charged in the information and committed in the other county, and send it to the district attorney who prepared the information.
The district attorney shall file the information in any court of the district attorney's county having jurisdiction to try or accept a plea of guilty to the most serious crime alleged therein as to which, if alleged to have been committed in another county, the district attorney of that county has executed a consent as provided in sub. (2)
. The defendant then may enter a plea of guilty to all offenses alleged to have been committed in the county where the court is located and to all offenses alleged to have been committed in other counties as to which the district attorney has executed a consent under sub. (2)
. Before entering a plea of guilty, the defendant shall waive in writing any right to be tried in the county where the crime was committed. The district attorney of the county where the crime was committed need not be present when the plea is made but the district attorney's written consent shall be filed with the court.
Thereupon the court shall enter such judgment, the same as though all the crimes charged were alleged to have been committed in the county where the court is located, whether or not the court has jurisdiction to try all those crimes to which the defendant has pleaded guilty under this section.
The county where the plea is made shall pay the costs of prosecution if the defendant does not pay them, and is entitled to retain fees for receiving and paying to the state any fine which may be paid by the defendant. The clerk where the plea is made shall file a copy of the judgment of conviction with the clerk in each county where a crime covered by the plea was committed. The district attorney shall then move to dismiss any charges covered by the plea of guilty, which are pending against the defendant in the district attorney's county, and the same shall thereupon be dismissed.
History: 1979 c. 31
; 1993 a. 486
It was not error for the court to accept a plea before an amended complaint was filed when the defendant waived the late filing and was not prejudiced thereby. Failure to prepare an amended information prior to obtaining consents by the district attorneys involved did not invalidate the conviction when the consents were actually obtained and the defendant waived the defect. Failure to dismiss the charges in one of the counties did not deprive the court of jurisdiction. Failure of a district attorney to specifically consent to one offense did not invalidate the procedure when the error was clerical. Peterson v. State, 54 Wis. 2d 370
, 195 N.W.2d 837
Although the statute requires a plea of guilty to both the primary case and the case being consolidated, it is a logical extension to allow the defendant to ask for the consolidation of a case from another county to which a guilty plea has been entered with a case in which guilt was found by the court. State v. Rachwal, 159 Wis. 2d 494
, 465 N.W.2d 490
In a consolidated case, amendment of the charges from another county is not permissible. When amendment of those charges occurs after consolidation, the original trial court retains jurisdiction. If the original charge does not have the identical elements of the amended charge, double jeopardy does not prevent prosecution of the original charge in the original county although a guilty plea was entered to the amended charge in the other court. State v. Dillon, 187 Wis. 2d 39
, 522 N.W.2d 530
(Ct. App. 1994).
Consultation with and notices to victim. 971.095(2)
In any case in which a defendant has been charged with a crime, the district attorney shall, as soon as practicable, offer all of the victims in the case who have requested the opportunity an opportunity to confer with the district attorney concerning the prosecution of the case and the possible outcomes of the prosecution, including potential plea agreements and sentencing recommendations. The duty to confer under this subsection does not limit the obligation of the district attorney to exercise his or her discretion concerning the handling of any criminal charge against the defendant.
At the request of a victim, a district attorney shall make a reasonable attempt to provide the victim with notice of the date, time and place of scheduled court proceedings in a case involving the prosecution of a crime of which he or she is a victim and any changes in the date, time or place of a scheduled court proceeding for which the victim has received notice. This subsection does not apply to a proceeding held before the initial appearance to set conditions of release under ch. 969
If a person is arrested for a crime but the district attorney decides not to charge the person with a crime, the district attorney shall make a reasonable attempt to inform all of the victims of the act for which the person was arrested that the person will not be charged with a crime at that time.
If a person is charged with committing a crime and the charge against the person is subsequently dismissed, the district attorney shall make a reasonable attempt to inform all of the victims of the crime with which the person was charged that the charge has been dismissed.
A district attorney shall make a reasonable attempt to provide information concerning the disposition of a case involving a crime to any victim of the crime who requests the information.
History: 1997 a. 181
In misdemeanor actions trial shall commence within 60 days from the date of the defendant's initial appearance in court.
The trial of a defendant charged with a felony shall commence within 90 days from the date trial is demanded by any party in writing or on the record. If the demand is made in writing, a copy shall be served upon the opposing party. The demand may not be made until after the filing of the information or indictment.
If the court is unable to schedule a trial pursuant to par. (a)
, the court shall request assignment of another judge pursuant to s. 751.03
A court may grant a continuance in a case, upon its own motion or the motion of any party, if the ends of justice served by taking action outweigh the best interest of the public and the defendant in a speedy trial. A continuance shall not be granted under this paragraph unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of the continuance outweigh the best interests of the public and the defendant in a speedy trial.
The factors, among others, which the court shall consider in determining whether to grant a continuance under par. (a)
Whether the failure to grant the continuance in the proceeding would be likely to make a continuation of the proceeding impossible or result in a miscarriage of justice.
Whether the case taken as a whole is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation within the periods of time established by this section.
No continuance under par. (a)
may be granted because of general congestion of the court's calendar or the lack of diligent preparation or the failure to obtain available witnesses on the part of the state.
Every defendant not tried in accordance with this section shall be discharged from custody but the obligations of the bond or other conditions of release of a defendant shall continue until modified or until the bond is released or the conditions removed.
A federal court applied balancing test is applicable to review the exercise of a trial court's discretion on a request for the substitution of trial counsel, with the associated request for a continuance. Phifer v. State, 64 Wis. 2d 24
, 218 N.W.2d 354
A party requesting a continuance on grounds of surprise must show: 1) actual surprise from an unforeseeable development; 2) when surprise is caused by unexpected testimony, the probability of producing contradictory or impeaching evidence; and 3) resulting prejudice if the request is denied. Angus v. State, 76 Wis. 2d 191
, 251 N.W.2d 28
A delay of 84 days between a defendant's first court appearance and trial on misdemeanor traffic charges was not so inordinate as to raise a presumption of prejudice. State v. Mullis, 81 Wis. 2d 454
, 260 N.W.2d 696
A stay of proceedings caused by the state's interlocutory appeal stopped the running of the time period under sub. (2). State ex rel. Rabe v. Ferris, 97 Wis. 2d 63
, 293 N.W.2d 151
Following a guilty plea, the defendant could not raise a speedy trial issue. United States v. Gaertner, 583 F.2d 308
Child victims and witnesses; duty to expedite proceedings.
In all criminal and delinquency cases, juvenile fact-finding hearings under s. 48.31
and juvenile dispositional hearings involving a child victim or witness, as defined in s. 950.02
, the court and the district attorney shall take appropriate action to ensure a speedy trial in order to minimize the length of time the child must endure the stress of the child's involvement in the proceeding. In ruling on any motion or other request for a delay or continuance of proceedings, the court shall consider and give weight to any adverse impact the delay or continuance may have on the well-being of a child victim or witness.
Prompt disposition of intrastate detainers. 971.11(1)(1)
Whenever the warden or superintendent receives notice of an untried criminal case pending in this state against an inmate of a state prison, the warden or superintendent shall, at the request of the inmate, send by certified mail a written request to the district attorney for prompt disposition of the case. The request shall state the sentence then being served, the date of parole eligibility, if applicable, or the date of release to extended supervision, the approximate discharge or conditional release date, and prior decision relating to parole. If there has been no preliminary examination on the pending case, the request shall state whether the inmate waives such examination, and, if so, shall be accompanied by a written waiver signed by the inmate.
If the crime charged is a felony, the district attorney shall either move to dismiss the pending case or arrange a date for preliminary examination as soon as convenient and notify the warden or superintendent of the prison thereof, unless such examination has already been held or has been waived. After the preliminary examination or upon waiver thereof, the district attorney shall file an information, unless it has already been filed, and mail a copy thereof to the warden or superintendent for service on the inmate. The district attorney shall bring the case on for trial within 120 days after receipt of the request subject to s. 971.10
If the crime charged is a misdemeanor, the district attorney shall either move to dismiss the charge or bring it on for trial within 90 days after receipt of the request.
If the defendant desires to plead guilty or no contest to the complaint or to the information served upon him or her, the defendant shall notify the district attorney thereof. The district attorney shall thereupon arrange for the defendant's arraignment as soon as possible and the court may receive the plea and pronounce judgment.
If the defendant wishes to plead guilty to cases pending in more than one county, the several district attorneys involved may agree with the defendant and among themselves for all such pleas to be received in the appropriate court of one of such counties, and s. 971.09
shall govern the procedure thereon so far as applicable.
The prisoner shall be delivered into the custody of the sheriff of the county in which the charge is pending for transportation to the court, and the prisoner shall be retained in that custody during all proceedings under this section. The sheriff shall return the prisoner to the prison upon the completion of the proceedings and during any adjournments or continuances and between the preliminary examination and the trial, except that if the department certifies a jail as being suitable to detain the prisoner, he or she may be detained there until the court disposes of the case. The prisoner's existing sentence continues to run and he or she receives time credit under s. 302.11
while in custody.
If the district attorney moves to dismiss any pending case or if it is not brought on for trial within the time specified in sub. (2)
the case shall be dismissed unless the defendant has escaped or otherwise prevented the trial, in which case the request for disposition of the case shall be deemed withdrawn and of no further legal effect. Nothing in this section prevents a trial after the period specified in sub. (2)
if a trial commenced within such period terminates in a mistrial or a new trial is granted.
A request for prompt disposition under this section must comply with sub. (1) in order to impose on the state the obligation to bring the case to trial within 120 days. State v. Adams, 207 Wis. 2d 568
, 558 N.W.2d 923
(Ct. App. 1996), 96-1680
The responsibility for complying with the sub. (2) 120-day time limit for bringing a case to trial cannot be imposed on the defendant. Once the district attorney receives the request under sub. (1), the responsibility for prompt disposition is placed on the district attorney. The trial court erred when it failed to dismiss the case when the 120-day time limit was not met. State v. Lewis, 2004 WI App 211
, 277 Wis. 2d 446
, 690 N.W.2d 668
Violations of the right to a speedy trial are waived by entry of a guilty plea. When a defendant chooses to accept a plea agreement rather than inconveniencing the district attorney by requiring the filing of a new complaint, the protections of s. 971.11 are forfeited. State v. Asmus, 2010 WI App 48
, 324 Wis. 2d 427
, 782 N.W.2d 435
The specific conclusion by the Davis
courts was that the “subject to s. 971.10" language following the 120-day time period in sub. (2) refers to the court's authority to grant a continuance for the reasons specified in s. 971.10 (3) (a). The defendant's conclusion that the 120-day time period cannot be extended is fundamentally inconsistent with the Davis
court's conclusion that failure to bring a case to trial within 120 days triggers dismissal, which can be without prejudice and allow for refiling. State v. Butler, 2014 WI App 4
, 352 Wis. 2d 484
, 844 N.W.2d 392
Joinder of crimes and of defendants. 971.12(1)(1)
Joinder of crimes.
Two or more crimes may be charged in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. When a misdemeanor is joined with a felony, the trial shall be in the court with jurisdiction to try the felony.
(2) Joinder of defendants.
Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting one or more crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
(3) Relief from prejudicial joinder.
If it appears that a defendant or the state is prejudiced by a joinder of crimes or of defendants in a complaint, information or indictment or by such joinder for trial together, the court may order separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. The district attorney shall advise the court prior to trial if the district attorney intends to use the statement of a codefendant which implicates another defendant in the crime charged. Thereupon, the judge shall grant a severance as to any such defendant.
(4) Trial together of separate charges.
The court may order 2 or more complaints, informations or indictments to be tried together if the crimes and the defendants, if there is more than one, could have been joined in a single complaint, information or indictment. The procedure shall be the same as if the prosecution were under such single complaint, information or indictment.
History: 1993 a. 486
If 2 defendants were charged and the cases consolidated, and one then pleads guilty, there is no need for a severance, especially if the trial is to the court. Nicholas v. State, 49 Wis. 2d 678
, 183 N.W.2d 8
Severance is not required if the 2 charges involving a single act or transaction are so inextricably intertwined so as to make proof of one crime impossible without proof of the other. Holmes v. State, 63 Wis. 2d 389
, 217 N.W.2d 657
Due process of law was not violated, nor did the trial court abuse its discretion, by denying the defendant's motion to sever 3 counts of sex offenses from a count of first-degree murder. Bailey v. State, 65 Wis. 2d 331
, 222 N.W.2d 871
In a joint trial on charges of burglary and obstructing an officer, while evidence as to the fabrication of an alibi by the defendant was probative as to the burglary, the substantial danger that the jury might employ the evidence as affirmative proof of the elements of that crime, for which the state was required to introduce separate and independent evidence showing guilt beyond a reasonable doubt, required the court to administer a clear and certain cautionary instruction that the jury should not consider evidence on the obstructing count as sufficient in itself to find the defendant guilty of burglary. Peters v. State, 70 Wis. 2d 22
, 233 N.W.2d 420
Joinder was not prejudicial to the defendant moving for severance when the possibly prejudicial effect of inadmissible hearsay regarding the other defendant was presumptively cured by instructions. State v. Jennaro, 76 Wis. 2d 499
, 251 N.W.2d 800
If a codefendant's antagonistic testimony merely corroborates overwhelming prosecution evidence, refusal to grant severance is not an abuse of discretion. Haldane v. State, 85 Wis. 2d 182
, 270 N.W.2d 75
Joinder of charges against the defendant was proper when separate acts exhibited some modus operandi. Francis v. State, 86 Wis. 2d 554
, 273 N.W.2d 310
The trial court properly deleted implicating references from a codefendant's confession rather than granting the defendant's motion for severance under sub. (3). Pohl v. State, 96 Wis. 2d 290
, 291 N.W.2d 554