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Guilty Plea Waiver Rule

Columbia County v. Fred A. Ederer, 2010AP2369, District 4, 5/12/11

court of appeals decision (1-judge, not for publication); for Ederer: John Smerlinski; case activity

Ederer’s no contest plea waived his right to appeal suppression issue in this OWI-1st (therefore, civil) case. His reliance on County of Ozaukee v. Quelle, 198 Wis. 2d 269, 275-76, 542 N.W.2d 196 (Ct. App. 1995) (court should consider 4-factor test in determining whether to impose waiver bar) is misplaced:

¶5        Ederer acknowledges that Quelle was partially overruled on other grounds by Washburn County v. Smith, 2008 WI 23, ¶64, 308 Wis. 2d 65, 746 N.W.2d 243, but argues as though the case were still authority for other propositions not specifically overruled by the supreme court.  However, when a court of appeals case is overruled by the supreme court, it no longer possesses any precedential value.  Blum v. 1st Auto and Cas. Ins. Co., 2010 WI 78, ¶46, 326 Wis. 2d 729, 786 N.W.2d 78.  Thus, Quelle is no longer authority for anything.

¶6        In the absence of Quelle, the rule remains that “a plea of [no contest], knowingly and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses, including claimed violations of constitutional rights.”  Countyof Racine v. Smith, 122 Wis. 2d 431, 434, 362 N.W.2d 439 (Ct. App. 1984).

The court’s analysis on this point might be subject to question. True, as indicated above, a decision “overruled” by the supreme court no longer bears “any” precedential effect. But the court of appeals distinguishes between decisions merely “reversed” and “expressly overruled.” Briefly put, the former result has much narrower effect: it alters the particular matter but leaves undisturbed other principles enunciated by the decision; the latter, contrastingly, globally eliminates precedential value. (Whether the supreme court ultimately will uphold this distinction is something else; point is, the distinction presently is valid.)

Which brings us to the immediate point of contention: Washburn County v. Smith did not “overrule” Quelle, expressly or otherwise, but instead only held that certain “(l)anguage in Quelle … is withdrawn.” Apparently, then, this particular panel of the court of appeals doesn’t buy the overrule-reverse divide. If the supreme court disturbs part of a decision it disrupts all of it. (“An egg that is at all bad, is all bad.” Apologies to Justice Hansen.) Such a divergent view among panels on a recurrent and significant question of law ought to be a basis for supreme court review. Indeed, at least one panel has held that Quelle was only “partially overruled on other grounds bySmith, and proceeded to apply its multi-factor test for waiver, City of Menasha v. Liebhauser, 2007AP2874, ¶¶9, 12-13 (10/1/08). That is a pre-7/1/09 unpublished decision that may not be cited to the court of appeals – but it may be cited to the supreme court in support of review, State v. Higginbotham, 162 Wis.2d 978, 997-98, 471 N.W.2d 24 (1991). With all that said, note that the court here says that even if it were to apply Quelle to the present facts, it would still decline to review the issue, ¶¶7-8.

Finally, it may be worth mentioning that § 971.31(10) provides an exception to the guilty plea waiver rule for suppression issues in criminal cases. However, as a statutorily-created exception, it is narrowly construed and doesn’t apply to civil forfeitures, Smith, 122 Wis. 2d at 436, such as this one.

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