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Guilty Pleas – Suppression Appeal (§ 971.31(10)) – Harmless Error Analysis

State v. Jerome G. Semrau, 2000 WI App 54, 233 Wis. 2d 508, 608 N.W.2d 376
For Semrau: John D. Lubarsky, SPD, Madison Appellate

Issue: Whether (assumed) erroneous refusal to suppress evidence was harmless on appeal following guilty plea, under Wis. Stat. § 971.31(10).

Holding: Strength of admissible evidence, apart from unsuppressed evidence, placed Semrau in “significant risk of conviction,” so that there was no reasonable probability that the suppression ruling caused him to plead guilty, and the any error in the ruling was therefore harmless, ¶26.

The supreme court previously held – without benefit of full briefing of the point; and overruling a couple of decades’ worth of cases – that § 971.31(10) appeals (suppression rulings where defendant pleads guilty) are subject to harmless error analysis. State v. Armstrong, 225 Wis. 2d 121, 591, N.W.2d 604 (1999), on reconsideration of 223 Wis. 2d 331, ¶¶57-61, 588 N.W.2d 606. The court didn’t say what informs this harmless error analysis, and the court of appeals now rushes to fill the vacuum.

The court analogizes to a plea-withdrawal request based on the state’s failure to disclose exculpatory evidence (requiring reasonable probability that, but for failure to disclose, defendant wouldn’t have pleaded guilty), ¶22. Various factors go into this determination – strength of case and defense; persuasiveness of disputed evidence; defendant’s expressed reasons for pleading guilty; benefits flowing from plea; adequacy of plea colloquy. Id. Applying this test, the court finds harmless any error in the refusal to suppress, based largely on the strength of the indisputably admissible evidence and the weakness of the potentially suppressible evidence.

This is a problematic analysis. Analogy of attack on a guilty plea made after exculpatory evidence is withheld to attack on a suppression ruling isn’t immediately apparent. The former explicitly attacks the plea’s voluntariness, requiring an evidentiary hearing that necessarily delves into the factors enumerated above. The latter simply reviews the record of a pre-plea hearing which litigates issues having nothing to do with the plea; the record ordinarily will be silent on the impact on the plea. A defendant attacking a guilty plea generally must show a manifest injustice, a stringent test that, by presuming the integrity of pleas, respects their finality. But that is not really the concern of a § 971.31(10) appeal, which is to reduce the number of contested trials by permitting appellate review of a pretrial ruling, thereby encouraging guilty pleas in the expectation that genuine review will be taken of the ruling. Importing an inapposite, overly strict test into § 971.31(10) will only work at cross-purposes to the statute by encouraging “sham” trials. That said, counsel is now constrained to consider ways to make a record as to the impact of the suppression ruling on the plea decision. Presumably, in the great majority of cases the suppression ruling will resolve the case definitively, and counsel will now want to express that notion on the record.


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