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Guilty plea waiver rule +failure to respond = no decision on the merits

State v. Daniel W. Morse, 2018AP1293-CR, District 1, 3/19/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Morse challenges his convictions for three counts of misdemeanor theft by embezzlement, but the court of appeals holds he’s waived his challenges by pleading guilty.

Morse, a lawyer, was the personal representative of an estate, and used money from the estate account to pay some of his own bills and expenses. Eventually an heir got Morse replaced as PR and the new PR forced Morse to repay the money. (¶¶3-5). Morse was thereafter charged with eight counts of theft by embezzlement, five felonies and three misdmeanors. He filed a motion to dismiss, arguing the information failed to allege a violation of § 943.20(1)(b). (¶6). After the motion was denied he pled to the misdemeanors, and he now appeals, once again arguing “that the conduct in this case did not establish the elements of theft by embezzlement” under § 943.20(1)(b). (¶12).

The state argues Morse waived all his defenses by pleading guilty, and Morse doesn’t respond to this argument in his reply brief, so it’s taken as conceded. Thus, the court doesn’t reach the merits of Morse’s challenge. (¶¶12-13).

Is that right? Though it’s a bit hard to tell precisely given Morse’s failure to cite relevant case law, the challenge raised in his briefs looks like an attack on the pleas’ factual basis: Sure, says he, I engaged in the conduct alleged in the complaint, but that just ain’t embezzlement under § 943.20(1)(b) because a PR is actually the owner of the estate property and therefore, essentially, can’t steal from himself. If so, the challenge isn’t waived by his pleas, see, e.g., State v. Merryfield, 229 Wis. 2d 52, 60-61, 598 251 (Ct. App. 1999) (distinguishing between challenges to the truth of the facts alleged by the state and challenges to whether those facts constitute an offense), and the court could have reached it—had Morse responded to the state’s waiver/forfeiture argument. At the same time, it’s questionable he’d prevail on the merits, as the state also argued Morse’s challenge fails under State v. Doss, 2008 WI 93, 312 Wis. 2d 570, 754 N.W.2d 150

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