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State v. Richard J. Sulla, Case No. 2013AP-CR, petition for review granted 9/14/15

Review of an unpublished per curiam court of appeals decision; case activity

Issues (derived from the court of appeals opinion):

Whether, in order to get an evidentiary hearing, a defendant’s postconviction motion to withdraw his plea because he did not understand the “read-in” concept  must allege that he would have pled differently if  he had understood the “read-in” concept? See State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).

The defense won in a per curiam decision. The State filed a petition for review and, of course, SCOW granted it.  The court of appeals correctly observed that the idea of a defendant admitting to charges that the State dismisses but then “reads in” is not intuitive to non-lawyer. In fact, it is confusing. Slip op. ¶12-13. Here, defense counsel’s explanation of the concept could be interpreted 2 different ways. The State didn’t disagree. The court of appeals felt troubled because a circuit court should grant a hearing if such a  motion alleges facts that, if true, would entitle the defendant to relief but it may deny a hearing if the record conclusively demonstrates that the defendant is not entitle to relief. Because it couldn’t find any case law on point, the court of appeals proceeded to reconcile the two standards and ruled for the defense (yay!). Slip op. ¶¶17-21. But if the court of appeals assessment of the state of the law is correct, then can someone please explain it issued this decision as an uncitable per curiam opinion?!!!

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