On Point

State v. Dwight M. Sanders, 2008 WI 85, affirming as modified, 2007 WI App 174
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding:

¶35      Accepting for the moment the State’s position that articulable facts exist to demonstrate that the officer had reasonable suspicion that other persons may be lurking in the defendant’s bedroom who would pose a danger to the officers and that a protective search of the bedroom was therefore justified, we nevertheless must conclude that Officer Garcia’s search of the canister and seizure of its contents clearly were not within the purpose of the protective sweep. The search of the canister and seizure of its contents were not part of a search for persons who might pose a danger to law enforcement officers or to others. No person could be hiding in the canister. Furthermore, the officers had no articulable suspicion that weapons were involved in the instant case. The search of the canister and seizure of its contents therefore do not fall within the “protective sweep” exception to the search warrant requirement.

“No person could be hiding in the canister.” About sums it up, doesn’t it? Of note, though: the court draws an analogy to Arizona v. Hicks, 480 U.S. 321, 324-25 (1987), to draw a larger principle:

¶39      Hicks teaches that even in the face of a lawful entry and reasonable suspicion that an object is evidence of a crime, a slight movement of the object is an impermissible search whenever it is “unrelated to the objectives of the authorized intrusion.” ^[23]

A lengthy, 3-Justice concurrence (¶¶61-136) joins the majority, making the holding unanimous, but would decide an issue not reached by the majority, “namely, whether warrantless police entry into a home under the exigency of “hot pursuit” to arrest a person for a misdemeanor violates the Fourth Amendment, as stated in State v. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132, 647 N.W.2d 421.” The concurring Justices would overrule that case, so as to allow warrantless hot pursuit entry into a home to arrest on probable cause for any “jailable offense.”

State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell

Issue/Holding:

¶62 …[E]vidence obtained in violation of a statute (or not in accordance with the statute) may be suppressed under the statute to achieve the objectives of the statute, even though the statute does not expressly provide for the suppression or exclusion of the evidence. …

The court of appeals had previously stated: “”wrongfully or illegally obtained evidence is to be suppressed only where the evidence was obtained in violation of an individual’s constitutional rights or in violation of a statute that expressly requires suppression as a sanction,” State ex rel. Jane Peckham v. Krenke, 229 Wis.2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999). The supreme court now says (¶65) that that statement is “too broad”:

¶68 Arnold, Raflik, Peckham, and Verkuylen, properly read, do not require the legislature expressly to require or allow suppression of unlawfully obtained evidence in order for a circuit court to grant a motion to suppress. In other words, the legislature need not express its intent to provide a remedy of exclusion or suppression of evidence with greater clarity than ordinarily required of any legislative enactment. The cases demonstrate that the circuit court has discretion to suppress or allow evidence obtained in violation of a statute that does not specifically require suppression of evidence obtained contrary to the statute, depending on the facts and circumstances of the case and the objectives of the statute.

…

¶70 The proposition of law that wrongfully or illegally obtained evidence may not be suppressed except when the evidence was obtained in violation of an individual’s constitutional rights or in violation of a statute that expressly requires suppression of evidence as a sanction has been carried expressly or impliedly from case to case without any support or reasoning. This proposition is an unsupported mistaken statement of the law. Mistaken statements of the law should not constitute precedent that binds this court. [39] We do more damage to the rule of law by refusing to admit error than by correcting an erroneous proposition of law. [40] The instant case presents an opportunity to correct an error of law that has been repeated in numerous cases, and we do so

State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate

Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled to relief on the ground of violation of right to confrontation, notwithstanding lack of objection?

Holding:

¶34      “‘The Confrontation Clause of the United States and Wisconsin Constitutions guarantee criminal defendants the right to confront witnesses against them.'” State v. Jensen, 2007 WI 26, ¶13, 299 Wis.  2d 267, 727 N.W.2d 518 (citation omitted); see also Crawford v. Washington, 541 U.S. 36, 42 (2004), U.S. Const. amend. VI; ^[10] Wis. Const. art. I, § 7. ^[11] By reading the November 10 hearing transcript at Jorgensen’s criminal trial, which essentially provided the jury with the judge’s and the prosecutor’s conclusions about Jorgensen’s guilt, the circuit court itself seemingly testified against the defendant, and the prosecutor essentially testified against the defendant by virtue of the judge reading the transcript from the November 10 hearing. This highly prejudicial and largely inadmissible evidence was not subject to cross-examination.¶35      Here, the circuit court seemed to testify against the defendant when it stated the following: (1) Jorgensen was having difficulty following simple instructions due to intoxication; and (2) Jorgensen violated the no alcohol provision of his bond. These statements directly related to Jorgensen’s alleged intoxication and the elements of the offenses charged for which Jorgensen was to be presumed innocent. …

¶36      The circuit court’s commentary essentially constituted unsworn testimony against the defendant, and it reached legal conclusions that should otherwise rest solely within the province of the jury. Jorgensen never had the opportunity to question the circuit court’s observations. …

¶37      Also, by virtue of the circuit court reading the November 10 hearing transcript, the prosecutor essentially “testified” against the defendant without being subject to confrontation. …

State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding: Where a charge dismissed by the plea bargain arguably lacks factual basis, but the defendant receives the full benefit of the plea agreement as to the counts of conviction, an argument in favor of plea-withdrawal on the basis of an “illusory” plea bargain isn’t supported:

¶69      Denk contends that § 961.573(3) does not criminalize possession of paraphernalia related to personal use. …

¶70      Neither this court nor the court of appeals has previously interpreted the proper scope of Wis. Stat. § 961.573(3) in this context, and we need not do so today. Our analysis instead focuses on whether Denk received the benefit of the bargain even if it is uncertain whether he could have been convicted of felony possession of paraphernalia.

…

¶72      When a prosecutor induces a plea based on a promise that is legally unenforceable, a manifest injustice occurs. …

¶73      Additionally, in some situations, a mistaken understanding of the law can result in manifest injustice. …

…

¶75      In each of those cases, the dispute involved the charge to which the defendant actually pled. Likewise, in each of those cases, the consequence for which the defendant had bargained when he entered the plea to the charge was a legal impossibility. However, the defendant failed to understand the inevitable consequences of his plea to that charge, thus rendering his plea to the charge unknowing and involuntary.

¶76      In contrast, Denk did not plead to the charge in question, rather, his argument relates to his understanding of the charge that was dismissed. …

…

¶78      Unlike the cases upon which Denk relies, this was not a plea based on an illusory promise, but rather it was a plea where the promise was realized. At sentencing, Denk received the benefits of his bargain. He avoided exposure to a substantial period of incarceration. As agreed, the State dismissed the three charges and argued for a withheld sentence, three years probation, and six months in jail. The judge sentenced consistent with the State’s argument, except Denk received only five months in jail as a condition of probation. Thus, we determine that Denk failed to meet his burden of showing a manifest injustice, entitling him to a plea withdrawal.

State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup

Issue/Holding:

¶20      Principles applicable to polygraph testing are equally applicable to voice stress analysis. See Wis. Stat. § 905.065(1); 7 Daniel D. Blinka,Wisconsin Evidence § 5065.1 (2d ed. 2001) (concluding that there is little reason to treat the forms of honesty testing mentioned in § 905.065 differently, “at least under the present state of the scientific art”). We see no reason at this time to treat these two methods of “honesty testing” differently.¶21      Our analysis, as detailed below, primarily requires us to determine whether a defendant’s statement was given at an interview totally discrete from the voice stress analysis. If the defendant’s statement was given at an interview that was totally discrete from the voice stress analysis test, its admission is not automatically precluded. The statement, however, is also subject to ordinary principles of voluntariness. Therefore, if the statement is given at an interview that is totally discrete from the voice stress analysis test and the statement is voluntarily given, the statement is admissible.

…

¶44      While some prior precedent from this court and the court of appeals may not have clearly or perhaps even properly articulated the underlying rationale for excluding statements made during honesty testing, ^[16] the underlying rationale is simply that our state legislature has generally precluded such a scenario under the plain language of Wis. Stat. § 905.065.^[17] Wisconsin Stat. § 905.065(2) states, “[a] person has a privilege to refuse to disclose and to prevent another from disclosing any oral or written communications during or any results of an examination using an honesty testing device in which the person was the test subject.”

¶45      Therefore, the legislature has decided that statements made during honesty testing are generally excluded, but if those statements are given at an interview that is totally discrete from the honesty testing, under the factors articulated in this opinion, and the statement was given voluntarily, then the statement is admissible. However, if the statements and examination are not totally discrete events but instead are considered one event, then the statements must be excluded by virtue of Wis. Stat. § 905.065.

State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm

Issue: Whether, for a guilty plea to be “knowing and intelligent,” the defendant must be aware that a read-in is deemed an admission for sentencing purposes.

Holding:

¶3   We conclude that the record clearly demonstrates that neither the State, nor trial defense counsel, nor the circuit court referred to the read-in charges as admitted or deemed admitted for sentencing purposes or for any other purpose.  Nowhere in the plea questionnaire, in the transcript of the plea hearing, or in the transcript of the sentencing hearing did the State, trial defense counsel, or the circuit court refer to the read-in charges as admitted or deemed admitted.  Rather, the circuit court explicitly advised the defendant at sentencing (and repeated this explanation at the postconviction motion hearing) that it understood that the defendant was not admitting the read-in charge and that the circuit court would consider the read-in charge for purposes of sentencing the defendant on the charge to which the defendant pled guilty.  Because the circuit court did not consider the read-in charge to be admitted for sentencing purposes, we conclude that the defendant has failed to show that his guilty plea was not entered knowingly, intelligently, and voluntarily when he asserts that he was unaware that his agreement to have a sexual assault charge read in was an admission of the read-in charge for purposes of sentencing.

Though S. “limits his argument to the claim that he did not understand that the read-in charge was to be deemed admitted for sentencing purposes,” ¶27, the implications are potentially broad, as hinted at in this discussion:

¶33  The circuit court never deemed the read-in sexual assault charge to be admitted. …

¶34  The circuit court acknowledged that “[t]here is [sic] some denials with regard to the read-in” and that “there seems to be considerable dispute” over the charges pending in another county.  The circuit court explicitly advised the defendant at sentencing (and repeated this explanation at the postconviction hearing) that it understood that the defendant was not admitting the read-in charge.

¶35  The circuit court treated the read-in charge properly, not as an admitted crime but as an offense that may properly be considered for sentencing purposes.

¶36  The circuit court treated the read-in charge in the same way as it treated the sexual assault charges pending against the defendant in another county and did not give the read-in charge more weight than it gave the pending charges in the other county.  It is well established that “[a] sentencing court may consider uncharged and unproven offenses” whether or not the defendant consents to having the charge read in.^[20]

¶37  The circuit court’s consideration of the read-in charge when sentencing the defendant did not flow only from the parties’ agreement to read in the sexual assault charge for sentencing purposes.  The circuit court treated the read-in in the same manner as it treated other pending charges or unproven offenses.

In other words, a judge may assign sentencing weight to a read-in without an underlying admission. In some given case, to be sure, the factual support for the read-in might be so thin that, without an express admission of guilt, the “offense” can’t reliably be taken into sentencing account. But that is a matter of sentencing due process, and is almost certain to occur rarely if ever. In this particular instance, the read-ins related to dismissed charges — and, as the court plainly held, the sentencing judge could simply weigh them against the defendant precisely because they had been formally charged. What would be the outcome be, though, if they had been deemed admitted? The court doesn’t say, nor could it, given that that would require a different factual record. But it isn’t difficult to imagine the following line of thought: a sentencing “data point” need not be proven to any great extent, but need only be, for due process purposes, “minimally reliable”; there is, under this lax standard, sufficient indication of the defendant’s guilt on the read-in, independent of the (illusory) “admission”; therefore, the sentencing judge’s reliance on the admission was at worst harmless error. See ¶52 n. 31 (stressing “sentencing judge’s role, which is to assess the defendant’s character using all available information, unconstrained by the rules of evidence that govern the guilt-phase of a criminal proceeding”). In brief, there seem to be few if any procedural obstacles to consideration of read-ins, at least under some or another guise. That’s not necessarily a bad thing, in that the defendant does, after all, derive a distinct benefit (absolute bar on prosecution of the offense). It does, however, highlight counsel’s duty to make sure the defendant knows the sentencing implications — a point stressed by the concurrence, ¶113 n. 72.

State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm

Issue: Whether a guilty plea colloquy must include an explicit warning that the defendant’s agreement to read in a dismissed charge will be deemed an admission of that charge for sentencing purposes.

Holding:

¶5   Although the case law on read-in charges is neither consistent nor clear, a proper reading of the history of Wisconsin’s read-in procedure demonstrates that it is not a critical component of a read-in charge that the defendant admit guilt of the charge (or that the defendant’s agreement to read in the charge be deemed an admission of guilt) for purposes of sentencing.  In sum, no admission of guilt from a defendant for sentencing purposes is required (or should be deemed) for a read-in charge to be considered for sentencing purposes and to be dismissed.  To avoid confusion, prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid (as they did in the instant case) the terminology “admit” or “deemed admitted” in referring to or explaining a defendant’s agreement to read in a dismissed charge.  A circuit court should advise a defendant that it may consider read-in charges when imposing sentence but that the maximum penalty of the charged offense will not be increased; that a circuit court may require a defendant to pay restitution on any read-in charges; and that the State is prohibited from future prosecution of the read-in charge.

¶6   Although we hold that no admission of guilt from a defendant is required for a read-in offense to be dismissed and considered for sentencing purposes, this decision does not bar a circuit court from accepting a defendant’s admission of guilt of a read-in charge.  This decision does not address what plea colloquy duties a circuit court might have with respect to such an admission, the issue the defendant raises.^[5]  Our narrow holding is that an admission of guilt is not required by our read-in procedure and that the circuit court should avoid the terminology “admit” or “deemed admitted” in referring to or explaining a read-in charge for sentencing purposes except when a defendant does admit the read-in charge.

…

¶93  Except when a defendant does in fact admit guilt of a read-in charge, stating that a defendant “admits guilt” of a read-in charge for purposes of sentencing is more likely to confuse than to guide the decisions made by a defendant or a sentencing court.  It is a better practice for prosecuting and defense counsel and circuit courts to omit any reference to a defendant admitting a read-in crime, except when the defendant does admit guilt, and simply to recognize that a defendant’s agreement to read in a charge affects sentencing in the following manner: a circuit court may consider the read-in charge when imposing sentence but the maximum penalty of the charged offense will not be increased;^[66] a circuit court may require a defendant to pay restitution on the read-in charges;[67] and a read-in has a preclusive effect in that the State is prohibited from future prosecution of the read-in charge.^[68]

¶94  To avoid any confusion, prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid (as they did in the instant case) the terminology “admit” or “deemed admitted” in referring to or explaining a defendant’s agreement to read in charges.

¶95  We withdraw language in the case law that may be read as intimating that when a charge is read in a defendant must admit or is deemed to admit the read-in charge for sentencing purposes.