State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: ¶28 n. 8:
We do not adopt the court of appeals’ determinations that read-in charges are merely “collateral consequences” of a plea, and that therefore information about read-ins “is not a prerequisite to entering a knowing and intelligent plea.” Lackershire, 288 Wis. 2d 609, ¶15 (citing State v. Byrge, 2000 WI 101, ¶61, 237 Wis. 2d 197, 614 N.W.2d 477). Those determinations appear to extend existing law. See Austin v. State, 49 Wis. 2d 727, 734, 183 N.W.2d 56 (1971) (stating that “[a] plea agreement should always be made a matter of record whether it involves a recommendation of sentencing, a reduced charge, a nolle prosequi of charges or read ins with an agreement of immunity.”); Garski v. State, 75 Wis. 2d 62, 77, 248 N.W.2d 425 (1977) (providing that “[t]he defendant should be advised by the trial court, on the record, of the effect of the read-ins . . . .”). We decline to engage in further analysis regarding the circuit court’s obligation to explain the nature of read-in offenses in a case where the record demonstrates that the dismissed charges were not treated as read-ins at either the plea or sentencing.
The court of appeals lacks power to withdraw any language, including mere dicta, from its own published decisions—that authority is reserved by the supreme court. E.g., American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18, 257 Wis. 2d 771, 783, 652 N.W.2d 123, 129 (“This court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so.”), reversed on other grds., 2004 WI 2; and State v. Andre Bolden, 2003 WI App 155, ¶¶9-10 (same). The court of appeals, as indicated in fn. 8 quoted above, held that a read-in is only a collateral consequence of a plea. Though the supreme court’s resolution of the issue isn’t explicit on the following point, the only fair reading is that this language in the court of appeals’ decision in fact has been withdrawn. Where does that leave you? With the pattern instruction, for starters, which the court of appeals simply ignored:
WIS JI-CRIMINAL SM-32 ACCEPTING A PLEA OF GUILTY, Comment, p. 17 fn. 10 (1995):
If there is a plea agreement, it is recommended that it be put in writing and that the written description made part of the record. If there is not a written agreement, it is essential that the agreement be carefully and completely described on the record. State ex rel. White v. Gray, 57 Wis.2d 17, 203 N.W.2d 638 (1973); State v. Lee, 88 Wis.2d 239, 26 N.W.2d 268 (1979).
If the plea agreement includes “read-ins,” the description of the agreement must include them. Austin v. State, 49 Wis.2d 727, 183 N.W.2d 56 (1971). The offenses which are “read in” should be identified as accurately as possible to avoid later questions about the scope of the prosecutor’s promise not to charge the other offenses.