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SCOW clarifies Nelson/Bentley test and read-in procedure; muddles rules on petitions for review again

State v. Richard J. Sulla, 2016 WI 46, 6/14/16, reversing an unpublished per curiam court of appeals decision; case activity (including briefs)

Sulla entered a plea agreement requiring him to plead “no contest” to two counts and the State to dismiss and “read in” two other counts for purposes of sentencing and restitution. But after he was sentenced to 20 years of imprisonment, Sulla moved for plea withdrawal arguing that he was misinformed of, and did not understand, the effect that a read-in charge could have at sentencing. The circuit court denied the motion without a hearing. Don’t be fooled. SCOW’s decision here affects more than plea withdrawal. It changes appellate procedure.

Plea withdrawal.  The official issue for review was whether the circuit court was required to hold an evidentiary hearing per Nelson/Bentley before it determined that Sulla had entered his plea in a knowing, intelligent and voluntary fashion. In a unanimous decision, SCOW says “no.”

Under Nelson/Bentley, a defendant seeking to withdraw his guilty plea after sentencing must allege facts that, if true, would entitle him to relief. If he alleges who, what, where, when, why and how, then he gets an evidentiary hearing on his motion. ¶26 (citing State v. Allen, 2004 WI 106, 274 Wis. 2d 568, 682 N.W.2d 433). If the defendant fails to allege sufficient facts, or presents only conclusory allegations, or or if the record conclusively demonstrates that he is not entitled to relief, then the circuit court may exercise its discretion to deny the motion without a hearing. ¶27.

SCOW held that Sulla failed the first prong of Nelson/Bentley because his trial counsel correctly informed him of the law–that the court would look at the read-in charge for purposes of imposing a sentence:

Stated simply, Attorney De La Rosa’s alleged statements to Sulla (1) “that agreeing to the read-in offense of arson was not admitting guilt,” and (2) that the read-in offense was something the court would “look at” at sentencing are correct statements of the law under our precedent. ¶39.

SCOW further found that the record conclusively refuted Sulla’s claim that he did not understand the effect that read-in charges could have at sentencing. Specifically, Sulla read and signed a Plea Questionanaire/Waiver of Rights form that explained these consequences. The circuit court discussed them at the plea hearing and at sentencing. Sulla agreed to pay over $460,000 in restitution, a sum that clearly factored in a dismissed arson charge. And Sulla had an extensive criminal record and past experience with 17 other charges that had been dismissed and read in. ¶¶44-48.

Finally, SCOW held that the circuit court appropriately exercised its discretion when it denied Sulla an evidentiary hearing because it examined the relevant facts, applied the proper legal standard and engaged in a rational decision-making process. ¶52.

Read-in charges.  The concurring opinion by Justice A.W. Bradley is a must-read. It explains the history of Wisconsin’s read-in procedure, highlights inconsistencies and uncertainties in the case law, and calls on circuit courts and attorneys to make additional efforts to ensure that defendants understand the consequences of read-in charges. And she specifically recommends that circuit courts engage in a personal colloquy with defendants to establish that they do.

Shame on the court of appeals?  If you are wondering why SCOW took this case, the answer appears in ¶28 where it scolds the court of appeals because:

[It] neglected to examine any recent case law from this court. Indeed, the only law cited in the court of appeals’ opinion is Nelson (1972), Bentley (1996), and Bangert (1986). Absent from the court of appeals’ opinion is any reference to our recent explanations of the Nelson/Bentley standard, which include State v. Allen, 2004 WI 106, 274 Wis. 2d 568, 682 N.W.2d 433, State v. Howell, 2007 WI 75, 301 Wis. 2d 350, 734 No. 2013AP2316-CR 21 N.W.2d 48, State v. Straszkowski, 2008 WI 65, 310 Wis. 2d 259, 750 N.W.2d 835, and State v. Frey, 2012 WI 99, 343 Wis. 2d 358, 817 N.W.2d 436.

Had the court of appeals been so inclined, it could have read and applied these cases, and a costly, time-consuming appeal to this court could have been avoided¶29 (Emphasis supplied).

Seriously. Those costly, time-consuming proceedings could have been avoided if SCOW had just denied the State’s petition for review, which is customary when a criminal defendant petitions for review of a per curiam opinion. When the State loses in the court of appeals, these inconsequential, uncitable per curiams suddenly become review worthy.

Appellate procedure. Be sure to take a look at footnote 5:

Sulla also raises issues related to judicial bias and ineffective assistance of counsel in his briefing; however, these arguments were not raised in the petition for review. We did not order that any issues presented outside of the petition for review be granted and briefed. Therefore, we do not address Sulla’s additional arguments. See Jankee v. Clark Cty., 2000 WI 64, ¶7, 235 Wis. 2d 700, 612 N.W.2d 297 (“Generally, a petitioner cannot raise or argue issues not set forth in the petition for review unless the court orders otherwise. If an issue is not raised in the petition for review or in a cross petition, ‘the issue is not before us.'” (citation and footnote omitted) (quoting State v. Weber, 164 Wis. 2d 788, 791 n.2, 476 N.W.2d 867 (1991) (Abrahamson, J., dissenting))).

Sulla’s response to the State’s petition for review is not online so On Point contacted his appellate attorney, Scott Szabrowicz, and learned that he in fact raised judicial bias and ineffective assistance of counsel in his response. Consequently, footnote 5 really confuses the procedure respondents must follow in order to argue alternative grounds for affirming the court of appeals’ decision. Just this term, State v. Jimmie Lee Smith (also citing Jankee) indicated that a respondent must raise them in his response to the petition for review. Footnote 5 suggests respondents must file a cross-petition for review. If so, then SCOW is contradicting itself, Wis. Stat. §809.62(3)(d) and (3m)(b), and Appellate Practice and Procedure in Wisconsin, §23.13 (State Bar of Wisconsin 2011) which advises lawyers:

A petition for cross-review is not necessary to defend the result or outcome based on any ground, whether or not that ground was ruled on by either the court of appeals or the circuit court, so long as the supreme court’s acceptance of that ground would not change the result or outcome below.

Query whether SCOW read these authorities before writing footnote 5.  Costly, time-consuming proceedings may be necessary to straighten things out. For more on this debate see then Chief Justice Abrahamson’s concurrence in In Re Ambac Assur. Corp., 2012 WI 22, 339, ¶43, Wis. 2d 48, 810 B.W.2d 450 (2012), which calls for a rules petition to clean up these inconsistencies and Rob Henak’s post on State v. Jimmie Lee Smith here.


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