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Appellate Procedure – Harmless Error – Suppression issue – Guilty Plea

State v. Tonnie D. Armstrong, 223 Wis.2d 331, 588 N.W.2d 606 (1999), reconsideration denied, 225 Wis.2d 121, 591 N.W.2d 604 (1999)
For Armstrong: Steven A. Koch and Seymour, Kremer, Nommensen, Morrissy & Koch

Issue/Holding: Armstrong pleaded guilty, with suppression issues (admissibility of oral statements) preserved as matter of law under Wis. Stat. § 971.31(10). The supreme court holds that the trial court’s refusal to order suppression was error, but harmless, 223 Wis. 2d 331:

¶ 60. In this case, we conclude that the circuit court committed harmless error when it ruled that Armstrong’s oral statements were admissible. As a result of the circuit court’s ruling admitting the statements, Armstrong entered a plea agreement and was convicted on all counts. An examination of the entire proceeding leads us to conclude that there is no reasonable possibility that a different result would have been reached had the circuit court suppressed the oral statements.

Under prior case law, § 971.31(10) did not allow harmless error analysis; if the suppression order is reversed, then the guilty plea based conviction must be vacated. State v. Pounds, 176 Wis. 2d 315, 324-26, 500 N.W.2d 373 (Ct. App. 1993), and cases cited, including prior supreme court precedent. On reconsideration, the court makes clear that it was in fact overruling prior case law and explicitly “withdraw(ing) from Pounds all language” that would “preclude, in any way, the use of a harmless error approach in § 971.31(10) appeals[.]” To be replaced with what test? The decision doesn’t say. The original opinion applied the standard Dyess test of reasonable possibility that, but for the error, the result would have been different. 223 Wis. 2d at 369-70. The reconsideration decision doesn’t retract (or, for that matter, address) this test. The court seems to mean that the issue is whether the decision to plead guilty (not to say the ultimate outcome at some trial) would have been different. In Armstrong itself, the supreme court ruled that certain oral statements were erroneously admitted; Armstrong’s written statement not only was properly admitted, but also was mere repetition of the earlier oral statements. The supreme court concluded that since the improperly admitted statements were merely cumulative to an admissible one, it could “discern no basis for believing that Armstrong would not have entered his plea agreement or would not have been convicted had only the written statement been admitted by the circuit court.”

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