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COA asks SCOW whether parties can hold stipulated trial to preserve issues for appeal

State v. Jacob Richard Beyer, 2019AP1983, 9/24/20, District 4; case activity (including briefs)

Wisconsin courts apply a robust guilty-plea waiver rule: in general, a plea will block a defendant from appealing any issue litigated before the plea. There is one important statutory exception: Wis. Stat. § 971.31(10) entitles a defendant to appeal the denial of a motion to suppress evidence or a motion to exclude his or her own statements, guilty plea or no. But other matters that may have arisen–pre-trial evidentiary decisions, fights over discovery, etc.–are typically not reviewable unless the defendant insists on a trial.

That legislature created the suppression/exclusion exception to solve a problem: stringent application of a waiver rule forces trials nobody wants. The point of the rule is to “reduce the number of contested trials when the only contested issue was whether or not the denial of the motion to suppress was proper.” Racine Cty. v. Smith, 122 Wis. 2d 431, 435, 362 N.W.2d 439, 441 (Ct. App. 1984). So, in a typical OWI case where the defendant claims there was no reasonable suspicion for the stop–but has no trial defense–he need not insist on a trial in order to appeal the Fourth Amendment claim. Thus are both sides (and the court) spared the time and expense of a pointless trial with no disputed issues.

But, the statutory exception is limited to two types of claims, so there’s still a problem: sometimes a defendant wants review of an important–perhaps dispositive–pretrial ruling on some other type of motion, but has no other defense. In this circumstance, must the defendant and the state–who may agree on factual guilt–engage in the empty exercise of calling witnesses to prove propositions on which everyone agrees? Some clever lawyers (and trial courts) have found a workaround: a “stipulated trial” or similar proceeding, wherein the parties agree on a set of facts and ask the court to reach a verdict based on those facts. The idea is that the person has not pleaded guilty, and so is free to appeal the salient issues, without the charade of a full-blown trial.

That’s what happened here. Beyer was charged with child-porn possession. He moved to suppress evidence claiming the search warrant for his home was invalid. Relatedly, he sought the opportunity to have an expert examine the state computer that had purportedly detected the pornography at his IP address (leading to the warrant). The court denied both motions and, to preserve the discovery issue for appeal, the parties presented presented stipulated facts to the court. The court obliged them and found Beyer guilty.

On appeal, the state claims that “oops, actually that was a guilty plea so that issue is waived.”

This is… bold. Generally, asking the trial court to take some action and then turning around and telling the court of appeals that action was error is rather frowned upon. “Judicial estoppel” is a term that comes to mind. “Sandbagging” is another. In fairness, the state isn’t trying to deprive Beyer of the issue; it says the case should go back for trial or for a valid (and thus claim-waiving) plea. But one can forgive Beyer for saying the state’s reversal “smacks of … bad faith and flagrant unfairness.” The court of appeals quotes him on that in a footnote, but doesn’t otherwise seem to mind. Any lawyer who doesn’t happen to represent the state would be wise not to expect similar treatment in similar circumstances.

Instead of applying judicial estoppel, the court of appeals asks the supreme court to decide whether the “stipulated trial” gambit can preserve issues for appeal. There’s a lot of law talk in the certification but the question really comes down to practicalities. The guilty-plea waiver rule is a court-made doctrine; there’s no reason it can’t accommodate the occasional exception for efficiency’s sake. The federal system (by rule) permits “conditional” guilty pleas, where the parties and court agree that the defendant may pursue an appeal of specific issues. That doesn’t (yet) fly in our state’s courts, State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983). But why force prosecutors, defendants and courts into pro-forma, unwanted, unnecessary trials (especially now)? We’ll see whether SCOW wants to take up the question, and whether they have an answer.

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