State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.
Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”
¶15 The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder; (2) Bembenek would be eligible, under her new sentence for second-degree murder, for immediate release from prison to parole; (3) the State would no longer need to devote significant resources to Bembenek’s numerous collateral attacks on her convictions; and (4) Bembenek had been punished proportionately to the crime for which she was now convicted. Additionally, the plea agreement provided a final disposition in the murder case of Schultz for both parties and the community at large. There was a mutuality of assent to the terms of the plea agreement which was respected by Bembenek for ten years, until 2002, when she filed her motion for DNA testing and acquittal.
¶16 Bembenek’s no contest plea is equivalent to a guilty plea. “The general rule is that a guilty, no contest, or Alford  plea ‘waives all nonjurisdictional defects, including constitutional claims[.]’” State v. Kelty, 2006 WI 101, ¶18, ___ Wis. 2d ___, 716 N.W.2d 886 (citing State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437). This is known as the guilty-plea-waiver rule. Kelty, 716 N.W.2d 886, ¶18.  Here Bembenek entered into a legally valid plea agreement. She entered into it knowingly, voluntarily and intelligently. See State v. Bangert, 131 Wis. 2d 246, 267-72, 389 N.W.2d 12 (1986) (holding that guilty and no contest pleas are constitutionally valid if entered knowingly, intelligently and voluntarily). She received substantial benefits from that agreement. In that plea agreement, Bembenek specifically waived her right to claim her innocence, and her right to collaterally attack any evidence which was underlying the conviction. Accordingly, Bembenek waived any right to DNA testing of that evidence or court action to pursue such tests.
As the court suggests (fn. 7), plea-bargained waiver of the right to appeal is a relative commonplace in federal practice. One thing sticks out, though: there is no federal constitutional right to appeal—put aside the idea that where the state does grant such a right it can’t as a matter of due process or equal protection impose arbitrary barriers—but there is a state constitutional right. State v. McDonald, 144 Wis.2d 531, 536-37, 424 N.W.2d 411 (1988) (“This court has consistently recognized that a defendant has a constitutional as well as a statutory right to an appeal. Art. I, sec. 21, Wis. Const.; sec. 808.03(1), Stats.”). Does this distinction matter? Hard to say; the court of appeals doesn’t mention it. There are, to be sure, recognized limits on enforceability, but they exist at the margins, see block quote in fn. 7, and the well-developed body of caselaw on bargained appeal-waiver will have to be reviewed for particular examples.
The net result of this case seems clear, though: the mere possibility of actual innocence is not a basis to obviate waiver. It’s not a far stretch from that idea to the idea that even a compelling showing of actual innocence isn’t enough, but that suggests another wrinkle. Plea agreements that are clearly against public policy are “illegal” and “cannot be respected by the courts,” Grant v. State, 73 Wis.2d 441, 448, 243 N.W.2d 186 (1976)); distinguished in and further explicated by State v. McQuay, 154 Wis.2d 116, 124, 452 N.W.2d 377 (1990). Is it against public policy to preclude a defendant from establishing actual innocence through DNA testing; and, if so, does that make a no-appeal plea bargain unenforceable? You’ll have to decide for yourself.