On Point

State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding:

¶74      The Bangert and Nelson/Bentley motions, however, are applicable to different factual circumstances. ^[47] A defendant invokes Bangert when the plea colloquy is defective; a defendant invokes Nelson/Bentley when the defendant alleges that some factor extrinsic to the plea colloquy, like ineffective assistance of counsel or coercion, renders a plea infirm. ^[48] A “dual purpose” motion would include allegations of a defective plea colloquy and allegations of some other injustice that renders the plea infirm. We again state that a defendant may include both Bangert andNelson/Bentley claims in a single motion to withdraw a plea of guilty or no contest.

The court goes on to summarize the higher pleading standard for a Nelson/Bentleymotion, namely to “allege sufficient, nonconclusory facts” that would lead to relief, ¶76. If the pleading falls short then “the circuit court in its discretion may nevertheless grant or deny an evidentiary hearing.” But, even if the pleading does pass muster, “an evidentiary hearing is not mandatory if the record as a whole conclusively demonstrates that defendant is not entitled to relief, even if the motion alleges sufficient nonconclusory facts,” ¶77 n. 51. And that said, “An adequate and accurate plea colloquy does not foreclose a Bentley challenge. The court of appeals recently explained that “[t]he State is simply incorrect that a good and sufficient plea colloquy, one that concededly complies with the requirements of Bangert, can be relied on to deny an evidentiary hearing for a defendant who seeks to withdraw his or her plea on non-Bangert grounds. The entire premise of a Nelson/Bentley plea withdrawal motion is that something not apparent from the plea colloquy may have rendered a guilty or no contest plea infirm.” State v. Basley, 2006 WI App 253, ¶15, ___ Wis. 2d ___, 726 N.W.2d 671,” ¶77 n. 52. The court says that, even though it need not on these facts reach the issue, that in this instance “the record as a whole does nor conclusively demonstrate that Howell is entitled to no relief,” ¶¶84-85.

State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: On the particular facts (illiterate defendant, no written questionnaire, perfunctory colloquy) the defendant was entitled to a Bangert hearing on whether the understood the nature of the rights waived by his guilty plea.

With respect to waiver of right to jury trial, the court intriguingly hints—but no more than that—that failure to explain “the possibility of a hung jury” might be required, ¶70 n. 28. The court also “suggest(s) that the Judicial Conference Forms Committee review the wording of this point,” id.

State v. James E. Brown, 2006 WI 100, reversing summary order

For Brown: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: The defendant demonstrated a prima facie showing that his guilty plea was inadequate, where he was illiterate (such that a plea questionnaire wasn’t even prepared) and the trial court’s colloquy was superficial, ¶¶53-58.

The facts are sufficiently extreme that recurrence is highly unlikely and they therefore won’t be detailed in this summary; sufficiently extreme that this case surely exists at the outer margins of what any circuit court would have deemed acceptable before, and is inconceivable after, the decision was released.

State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro

Issue: Whether the phrase “reasonable expectation of privacy” in § 942.09 is unconstitutionally vague, where the conduct involved videotaping women in a second-floor bathroom in their own house.

Holding:

¶39      However, this court and the supreme court have already concluded in several different contexts that the term “reasonable” does not render a statute unconstitutionally vague.

…

¶44      Following the reasoning of these cases, we conclude that use of “reasonable” to describe “expectation of privacy” in the context of Wis. Stat. § 942.09 provides sufficient notice of the conduct proscribed by the statute. Use of the word “reasonable” in § 942.09 requires that a person refrain from videotaping a person who is nude, as specifically defined in Wis. Stat. § 948.11(1)(d), without the person’s knowledge and consent, when that person is nude in circumstances in which the person has an expectation of privacy that is reasonable under the circumstances. The use of the word “reasonable” means that Nelson is not at the mercy of people who are nude in situations that a reasonable person would not expect to be private; rather, Nelson can determine, based on the circumstances he himself was aware of and able to observe, whether a reasonable person would have an expectation of privacy in the circumstances in which he videotaped the women nude, without their knowledge and consent, in their bathroom.

¶45      We recognize that in Wis. Stat. § 942.09(2)(a), the word “reasonable” does not modify terms describing the conduct of the defendant, but instead modifies the victim’s expectation of privacy. However, as the court in Baumann explained, reasonableness as applied to the person who is disturbed by the defendant’s conduct—in this sense, the victim—is in essence the same as applying the reasonableness standard to the defendant’s conduct ….

The court notes that “what is reasonable in the circumstances of a particular case is the type of common-sense determination that juries routinely make,” ¶47 and id., n. 9 (string-citing various examples). It ought not be forgotten that this principle applies defensively as well as offensively: self-defense, for example – see, e.g., State v. Jones, 147 Wis.2d 806, 816, 434 N.W.2d 380 (1989) (“This court has recognized that the determination of reasonableness is ‘peculiarly within the province of the jury,’” quoting State v. Mendoza, 80 Wis.2d 122, 156, 258 N.W.2d 260 (1977)). Further, Nelson’s challenge is limited to “only the facts in this case,” ¶45 n. 8—and taping into someone’s bathroom probably doesn’t present a sympathetic claim for lack of notice that your invading their privacy.

State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro

Issue/Holding:

¶19      The phrase “reasonable expectation of privacy” is not defined in Wis. Stat. § 942.09, nor are the individual words. However, the words “expectation of privacy” have a common meaning that can be ascertained with reference to a standard dictionary.

…¶

21      If we apply the common meanings of “expectation” and “privacy” and the well-established meaning of the term “reasonable,” Wis. Stat. § 942.09(2)(a) requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances, meaning that it is an appropriate one under all the circumstances according to an objective standard. We conclude this is a reasonable construction of “reasonable expectation of privacy” because it employs the common and well-established meanings of the words.

The court goes on to reject on both policy grounds, ¶¶22-25, and also as a matter of legislative history, ¶¶26-33, Nelson’s argument that fourth amendment case law construction of “reasonable expectation of privacy” is relevant to this statutory phrasing.

State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro

Issue/Holding: The evidence was sufficient to sustain conviction under § 942.09 for videotaping into a bathroom notwithstanding that the window was open, under the following circumstances:

¶53      Applying this standard, we conclude the evidence was sufficient for the jury to find Nelson guilty of violating Wis. Stat. § 942.09 beyond a reasonable doubt, and, specifically, that the women videotaped had a reasonable expectation of privacy. If a jury accepted the testimony of the women and the investigating officers, there was evidence that the bathroom was on the second floor of the building; Nelson’s house appeared vacant and actually was generally vacant that summer; there was a tree, located between Nelson’s house and their own house, that blocked the view of the bathroom window from the ground during the summer; over ten feet separated Nelson’s house from the women’s house, and the women were located four or five feet from the window when Nelson videotaped them. In addition, given the detail visible on the videotapes, a reasonable jury could infer that Nelson was using a zoom feature to see the women and that he would not have been able to see them in any significant detail otherwise. Considering this evidence together, we conclude it is sufficient for a jury to find beyond a reasonable doubt that, despite opening the window, the women had a reasonable expectation of privacy when they were videotaped.

State v. Timothy J. Goyette, 2006 WI App 178
For Goyette: E.J. Hunt, Kathleen M. Quinn

Issue: Whether Goyette was coerced into pleading guilty under a “package” agreement (one “contingent on two or more codefendants all entering pleas according to the terms of the agreement”), given the seriousness of the charges and the youthfulness (age 16) of the defendant.

Holding: In the absence of any evidence that Goyette was too young to understand the implications or that he was pressured by his attorney or unable to meet alone with him, the trial court finding of no coercion is unassailable, ¶¶23-26. Nor did the offer of a package deal pressurize him in such a way as to amount to illicit coercion:

¶31 Collectively, Craker, Seybold, and Drake reject the proposition that a plea is constitutionally involuntary if it is motivated by a desire to obtain a benefit for another. None of these cases involved a package plea agreement, but Goyette suggests no reason why their reasoning should not apply here. We agree with Goyette that package plea agreements carry with them the risk that one of the defendants will be improperly pressured into entering a plea. But the pressure Goyette describes is not improper pressure. It is the same type of self-imposed pressure at issue in Craker, Seybold, and Drake.¶32 Therefore, we agree with the State that, even if the package plea agreement’s offer of reduced charges, carrying with it limited exposure to imprisonment, had no effect on Goyette’s decision to plead guilty and that Goyette only entered his pleas to help his friends, such facts would not establish that Goyette’s pleas were involuntary.

The court declines to reach the question of whether a package plea agreement is necessarily invalid, or whether such an agreement requires that “plea hearings be held individually for each defendant,” ¶24, n. 13.