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SCOW disapproves “stipulated trial” workaround for guilty-plea waiver rule

State v. Jacob Richard Beyer, 2021 WI 59, 6/15/21, on certification from the court of appeals; case activity (including briefs)

On Point is proud to present a guest post by Tom Aquino of the Madison appellate office:

A unanimous Wisconsin Supreme Court holds: “we will not permit parties to stipulate to every fact that satisfies a defendant’s guilt and the defendant’s guilt as well.” (¶20 (emphasis in original)). That is, a defendant can stipulate to facts from which a court can find the defendant guilty, but the defendant cannot stipulate to the finding of guilt. Stipulating to facts from which a court can find guilt might still be considered a trial (see below). But stipulating to the defendant’s guilt is not a trial and is tantamount to a guilty plea. The distinction is important because a guilty plea generally waives all non-jurisdictional errors except those expressly preserved by statute or rule such as occurs with suppression issues per Wis. Stat. § 971.31(10).

Investigators supposedly determined that a computer at Beyer’s residence was hosting a video containing child pornography. Police obtained a search warrant for the computer, and found images of child pornography but not the video that prompted the search. A defense expert likewise was unable to find the video on the computer. Beyer filed a discovery motion aimed at the investigators’ computer system, ostensibly to support a Franks v. Delaware challenge to the affidavit supporting the search warrant.

The circuit court denied the discovery motion, as well as the subsequent suppression motion. While Beyer could have pleaded guilty or no contest and preserved the suppression issue for appellate review under Wis. Stat. § 971.31(10), there is no statutory provision guaranteeing review of discovery issues. And without that statutory guarantee, Wisconsin courts almost always deem an issue waived by the decision to enter a plea.

In order to get around the guilty-plea waiver rule and preserve the discovery issue for appeal, Beyer and the prosecutor agreed to a “stipulated bench trial,” where Beyer would stipulate to the elements of the offense as well as to guilt, so that the court would then find him guilty via a trial rather than a plea.

Note: Beyer would dispute this characterization of the stipulation. According to his brief, he stipulated to the existence of evidence supporting each element, and that the court could find him guilty based on this evidence. However, the supreme court apparently did not find this distinction relevant.

When Beyer appealed, the State reversed course and argued that Beyer had waived the discovery issue. The court of appeals certified for appeal the following question:

[W]hether the guilty-plea waiver rule applies when a defendant pleads not guilty to an offense, but stipulates to the inculpatory facts supporting each element of the offense, and explicitly agrees to a finding of guilt at a hearing before the circuit court at which no witness testifies.

The supreme court’s decision alters the question somewhat; it holds that the Wisconsin rules simply do not allow for the procedure followed here. While a defendant may stipulate to facts, a defendant cannot stipulate to “guilt.” Instead, guilt must be established via a plea or a trial, with all the attendant procedural requirements for each. Because Beyer was not aware that the procedure was invalid, the court reverses his conviction and remands so he can decide whether to enter a plea or go to trial.

So can a defendant preserve pre-trial issues by a bench trial that involves stipulation to facts, but not to guilt? This decision doesn’t expressly doesn’t say either way, (¶24 n.11), though it’s a practice that has some precedent in appellate cases. The court does express a clear antipathy to any attempt to import the federal “conditional plea” rule into the Wisconsin rules. Per the court, that task is up to the legislature, and it has declined to add a conditional plea option since the court first observed the lack of conditional pleas under the Wisconsin rules in State v. Riekkoff, 112 Wis. 2d 119, 124-25, 332 N.W.2d 744 (1983). See ¶24. The decision also goes into great detail into what distinguishes a “trial” from a “plea,” including noting that at a trial the defendant will contest facts and argue against a finding of guilt. In support of its conclusion that the procedure followed in the circuit court was not a “trial,” the court observes that “there were no witnesses sworn or examined, no additional evidence introduced and no arguments by the parties regarding the legal sufficiency of the State’s factual foundation.” (¶17). Thus, it’s not clear what SCOW would say about a defendant stipulating to all of the elements of a crime and staying silent as to guilt.

A stipulated bench trial seems most useful when there truly are no contested facts, but guilt is at issue. This can occur when the defense is that the facts do not meet the statutory definition of a crime, or that the agreed-on conduct is constitutionally protected. See, e.g., State v. Hermann, 2015 WI App 97, 366 Wis. 2d 312, 873 N.W.2d 257 (after the defense lost a motion to dismiss a possession-of-switchblade charge based on an as-applied constitutional challenge, there was a bench trial with stipulated facts and subsequent appeal); State v. Oatman, 2015 WI App 76, 365 Wis. 2d 242, 871 N.W.2d 513 (defendant had stipulated trial admitting to photographing minors, then appealed arguing the statute violated the First Amendment).  In either case, “guilt” is contested, even if the facts are not, potentially getting around Beyer.

Of course, a defendant who loses a preliminary motion can always file a petition for leave to appeal a nonfinal order. In the likely event that the petition is denied, though, the defendant is in the same position in which he or she started: having to choose either to go to trial or to enter a plea. And if the defendant enters a plea, the Wisconsin appellate courts will likely deem pretrial issue waived.



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