¶2 We are asked to decide whether an otherwise satisfactory guilty plea is sufficient to relinquish a double jeopardy/multiplicity challenge upon direct appeal. We conclude that a guilty plea relinquishes the right to assert a multiplicity claim when the claim cannot be resolved on the record. When a defendant enters a knowing, intelligent, and voluntary guilty plea, the nature and effect of the plea necessarily mean that the defendant gives up the right to a fact-finding hearing on the propriety of multiple charges. United States v. Broce, 488 U.S. 563, 576 (1989).
¶3 Our decision should not be understood to render guilty pleas impervious to double jeopardy challenges. A defendant retains the right (1) to challenge whether a plea is knowing, intelligent, and voluntary by pointing to errors in the plea colloquy pursuant to State v. Brown, 2006 WI 100, __ Wis. 2d __, __ N.W.2d __ and State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986); (2) to claim the ineffective assistance of counsel pursuant to State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996); and (3) to challenge the authority of the state to prosecute her and the power of a court to enter the conviction or impose the sentence, where the existing record allows the court to determine whether the defendant’s double jeopardy rights have been violated. See Broce, 488 U.S. at 569, 574-75.  Because Kelty’s attempt to withdraw her guilty plea cannot meet any of these grounds for withdrawal,  we reverse the court of appeals.
The court undertakes an exploration of the “guilty plea waiver” rule. Highlights: the unembellished pronouncement of a number of reported Wisconsin cases that a guilty plea does not waive a double jeopardy claim turns out to be something of an overstatement. Surprisingly, no prior case discusses “whether a defendant who seeks to withdraw a guilty plea on double jeopardy grounds should be granted a fact-finding hearing, at which evidence will be presented, so that the court can determine whether the charges to which she pled are multiplicitous,” ¶14. The court now says there shouldn’t be a hearing in this situation. But first, the basics.
Generally a guilty plea waives all nonjurisdictional defects, ¶18, so why should there be an exception at all for double jeopardy? The court is less than clear on this point, but it is readily stated: because a double jeopardy claim is indeed in the nature of a jurisdictional defense; a claim that conviction (or sentence) violates double jeopardy is a challenge to the State’s power to exact punishment. (The court hints at this very doctrinal basis for the exception, ¶26, but no more than that.) As the court notes, the first Wisconsin case to recognize the exception was State v. Morris, 108 Wis. 2d 282, 284 n.2, 322 N.W.2d 264 (1982) which “was somewhat unusual in that it overruled, sub silentio, a number of Wisconsin cases,” ¶21. But this wasn’t really unusual, because in fact Menna v. New York, 423 U.S. 61, 62 (1975)—cited by Morris—did the overruling. And the passage from Menna relied on by Morris was: “Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.” That is simply another way of saying that where double jeopardy denies a state the power to proceed against a defendant then a guilty plea doesn’t bar a challenge to the state’s authority to impose punishment on the plea. That, then, is the background.
The wrinkle here is that Kelty’s claim involves a “unit-of-prosecution” claim (whether multiple counts under the same statute are distinct on the specific facts), which “is significant because resolving this type of claim often requires close scrutiny of the facts to determine whether the defendant’s underlying conduct was identical in fact. … Resolution of a unit-of-prosecution challenge is likely to be more fact dependent than other types of double jeopardy challenge, and thus, less susceptible to successful attack on appeal, since a guilty plea relinquishes a defendant’s right to fact-finding into disputed or uncertain facts,” ¶17 n. 9. Morris, by contrast, dealt with the purely legal question of whether separate convictions could be entered under separate statutes (no, because one was a penalty enhancer not a separate substantive offense); indeed, Morris correctly invoked Menna, and nothing in the present decision would affect Morris were it to be litigated today. But as just suggested, the unresolved fact-contingent nature of Kelty’s claim makes all the difference to waiver; the court now, in effect, applies Broce to limit the waiver exception to instances where the double jeopardy issue appears of record, ¶34. This means, more concretely, that a guilty plea waives the right to a fact-finding hearing on a double jeopardy claim, ¶38. Again: “a court will consider the merits of a defendant’s double jeopardy challenge if it can be resolved on the record as it existed at the time the defendant pled,” ¶38. Kelty’s claim was fact-contingent rather than established in the record and thus waived by her plea.
What, though, of a defendant who has raised but lost a DJ claim after a fact-finding hearing before entering a guilty plea? The issue would then expressly satisfy the condition just quoted in that it is capable of resolution on the record at the time of plea. See also ¶46 (“Absent an express waiver, a guilty plea relinquishes a double jeopardy claim if a court is unable to determine from the record whether there has been a constitutional violation. Our inquiry, therefore, is whether it is possible to resolve Kelty’s multiplicity claim on the current record”—if a pre-plea hearing has in fact been held then it would be possible to resolve the claim on review of the current record.) Such a claim might well be allowed to proceed.
Does the decision work any large changes? As noted, Morris itself isn’t overruled. The court does overrule the holding of State v. Hubbard, 206 Wis. 2d 651, 656, 558 N.W.2d 126 (Ct. App. 1996) that waiver of a double jeopardy claim must be express, ¶¶33-34, but goes on to urge that express waivers nonetheless be taken as a matter of practice, “to guard against the possibility of reversible error,” ¶45. Can you, though, waive a valid DJ claim that appears of record? If the defect is, as suggested above, tantamount to a subject-matter jurisdictional error (power of the state to hale the defendant into court on the charge), and if a subject-matter jurisdictional claim can’t be waived even by a guilty plea, then can it be waived by express consent of the defendant? Note the long-standing principle that “(a) complaint which charges no offense is jurisdictionally defective and void and the defect cannot be waived by a guilty plea; the court does not have jurisdiction,” Champlain v. State, 53 Wis. 2d 751, 754, 193 N.W.2d 868 (1972); restated recently in State v. Bush, 2005 WI 103, 283 Wis. 2d 90, 699 N.W.2d 80 as, “a … matter of subject matter jurisdiction … cannot be waived.” Cannot be waived; not, cannot be waived except upon express consent of the defendant. We’ll have to see then if the court can implement its proposed express-waiver fix. Otherwise, the court of appeals had previously moved toward limiting the waiver-exception to instances where “the potential double jeopardy violation is facially ascertainable on the record without supplementation,” State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89, so it’s hard to see any major changes being effectuated by this decision.
Two final points. First, the court takes pains to say that waiver of a DJ issue doesn’t necessarily inhibit an argument that the plea wasn’t knowing, intelligent or voluntary, nor an argument that the plea was induced by ineffective assistance of counsel, ¶43. Second, the court reminds that “forfeiture” has a different coloration than “waiver,” ¶18 n. 11, a distinction taken up by the Chief’s concurrence, ¶¶62-63. Maybe it’ll catch on with litigants; if so, keep in mind that the distinction is much more well-developed in federal court: for recent examples, see e.g. United States v. Hawk, 434 F.3d 959, 962 (7th Cir. 2006) (“One forfeits his rights by failing to assert them in a timely manner. Where waiver is accomplished by intent, forfeiture comes about through neglect.”) (cite and quotes omitted.); and United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005) (“A forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law.”)