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Plea Bargains — Breach: Proecdural Issues — Waiver of Objection — Renegotiated Plea

State v. David W. Oakley, 2001 WI 103, 629 N.W.2d 308, reconsideration denied, 2001 WI 123, affirming unpublished decision of court of appeals
For Oakley: Timothy T. Kay

Issue: Whether a claim of plea bargain error was waived by a subsequent renegotiation of the plea bargain and entry of no contest plea on that new agreement.


¶23  As this court has previously stated, “[i]t is well-established that a plea of no contest, knowingly and understandingly made, constitutes a waiver of non-jurisdictional defects and defenses, including claimed violations of constitutional rights.”  Lechner, 217 Wis. 2d at 404 n.8.  Therefore, when a defendant pleads no contest, he or she waives all defenses based on a denial of due process because the prosecutor breached an earlier plea agreement.  In the instant case, Oakley pled no contest based on his second plea agreement. By doing so, he waived any claim of error that may have occurred when the circuit court permitted the State to withdraw from the first plea agreement.[32]  As the court of appeals noted in State v. Paske, 121 Wis. 2d 471, 474, 360 N.W.2d 695 (Ct. App. 1984), “[i]t is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired.”  There is no indication here that Oakley’s plea was nonconsensual.  Accordingly, we find that Oakley, by pleading no contest to the second plea agreement, waived his claim of error that the State was impermissibly allowed to withdraw from the earlier plea agreement.

It is probably significant that part of Oakley’s second agreement was “that he would not complain on appeal about the State’s withdrawal from the first plea agreement.” ¶4. And, for another case illustrating an involuntary plea following a withdrawn agreement, on the basis that the defendant wasn’t advised that the withdrawn agreement was enforceable, see State v. Antonio A. Scott, 230 Wis.2d 643, 602 N.W.2d 296 (Ct. App. 1999).)


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