On Point

State ex rel. Kenneth Onapolis  v. State, 2006 WI App 84, PFR filed 5/25/06
Pro se

Issue/Holding: Extradition from Australia to Wisconsin to face bank fraud and federal tax charges did not preclude, under the Rule of Specialty, Onapolis’s return on an outstanding parole violation warrant, at least where the parole violations included the fraud and tax offenses. (“The Rule of Specialty generally requires that an extradited defendant be tried for the crimes on which extradition has been granted, and none other,” ¶7).

The holding isn’t easily summarized, probably because the issue is technical. The operative principle is this:

¶7        The Rule of Specialty generally requires that an extradited defendant be tried for the crimes on which extradition has been granted, and none other.United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987). The enforcement of the rule is founded primarily on international comity. United States v. Thirion, 813 F.2d 146, 151 (8th Cir. 1987). The requesting court must “live up to whatever promises it made in order to obtain extradition” because preservation of the institution of extradition requires the continuing cooperation of the surrendering state. United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986). Because the doctrine is grounded in international comity rather than in some right of the defendant, the Rule of Specialty may be waived by the asylum state.  Id.

…

¶9        In the final analysis then, the inquiry into the Rule of Specialty comes down to whether, under the totality of the circumstances, the court in the requesting state reasonably believes that prosecuting the defendant on particular charges contradicts the surrendering state’s manifest intentions. SeeUnited States  v. Cuevas, 847 F.2d 1417, 1427-28 (9th Cir. 1988). Phrased another way, the question is whether the surrendering state would deem the conduct for which the requesting state actually prosecutes the defendant as interconnected with (as opposed to independent from) the acts for which he was extradited. See id.

The court then adopts the two-part test of U.S. v. Sensi, 879 F.2d 888 (D.C. Cir. 1989): the charge must be 1) “an extradictable offense,” and 2) established by the facts in respect of which extradition was granted, ¶14. The court stresses that the language of this particular treaty explicitly allows extradition for theft by any form of deception, ¶17 and id. n. 3, thus the offense was “extradictable.” And, Onapolis’s detention was based on the same facts as supported the extradition, thus satisfying the 2^nd part of the test, ¶19. Left a bit unclear: whether the court is referring to the parole revocation or the fraud-related offenses. However, the court stresses that the revocation was in fact premised on the fraud and tax offenses, ¶¶23-25, something therefore presumably crucial to the holding.

Although in the nature of things, deportation from the U.S. will comprise the bulk of SPD cases there will be the occasional extradition to this country, as Onapolis illustrates. Although his case raises an obscure (to the non-specialist on the Rule of Specialty) issue, it is nonetheless one that does recur. “Rauscher established the doctrine of specialty, 119 U.S. at 412, which provides that an extradited defendant may not be prosecuted ‘for any offense other than that for which the surrendering country agreed to extradite,’” Benitez v. Garcia, 495 F.3d 640 (9th Cir. 2007) (discussing possibility of treaty/extradition-enforced sentencinglimitations [“Agreed-upon sentencing limitations are generally enforceable”], though denying relief on particular facts).

Standard of review articulated:

¶5        A trial court’s order denying a petition for a writ of habeas corpuspresents a mixed question of fact and law. State ex rel. McMillian v. Dickey, 132 Wis. 2d 266, 276, 392 N.W.2d 453 (Ct. App. 1986).  Factual determinations will not be reversed unless clearly erroneous. Id. Whether a writ of habeas corpus is available to the party seeking relief is a question of law, which we review independently. Id.; see State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 537, 591 N.W.2d 922 (Ct. App. 1999). With rare exception, most published cases considering the issues of specialty and extradition in ahabeas corpus challenge are adjudicated in federal courts and subject to plenary review. See United States v. Saccoccia, 58 F.3d 754, 767 (1st Cir. 1995). Where, as here, we are reviewing the trial court’s interpretation of the principles of specialty, we concur with the position of the State and shall apply a plenary or independent standard of review.

State v. Sean M. Daley, 2006 WI App 81, on remand, PFR filed 5/10/06; prior history: 2005 WI App 260, decision vacated and remanded, 2006 WI 25
For Daley: Kirk B. Obear

Issue/Holding: Motion for plea-withdrawal following revocation of a deferred prosecution agreement but before sentencing has been imposed is gauged by the manifest injustice test for post-sentencing plea withdrawal, rather than the fair-and-just reason test applicable to pre-sentencing motions, under the rationale of State v. Barney, 213 Wis. 2d 344, 353, 570 N.W.2d 731 (Ct. App. 1997):

¶16      It is true that sentencing, as it is commonly understood, did not occur until after the trial court denied the motion for plea withdrawal, revoked the deferred prosecution agreement, and entered the judgment of conviction against Daley based on his underlying no contest plea.  However, prior case law compels the conclusion that “sentencing,” when a deferred prosecution agreement is involved, encompasses the initial disposition of the case after the parties enter the agreement and the agreement is ratified by the trial court.  See id. at 354.

…

¶18      … The same rationale applies here:  acceptance and ordered implementation of the deferred prosecution agreement constitutes sentencing for purposes of determining which standard to apply. We thus apply the manifest injustice standard in reviewing Daley’s motion for plea withdrawal.

No manifest injustice shown, where the principal ground was merely an assertion of innocence; other, conclusory claims of coercion and dissatisfaction with counsel are undermined by the plea colloquy; and, the court is entitled to consider that he delayed the motion “until he faced the possibility of a prison sentence to cry foul,” ¶¶20-24.The original opinion, which denied relief under the test for pre-sentencing plea withdrawal, was “vacated and this matter … remanded to the court of appeals for further proceedings in light of Barney”—apparently a case that wasn’t brought to the court’s attention the first time around, but which the State argued in response to the PFR conflicted with the original opinion. The purpose of the remand was not to reconsider the grant of relief, but rather the basis for its denial (if Daley couldn’t win under the fair-just reason test, he surely couldn’t win under the much harsher manifest-injustice test). It isn’t good enough merely to deny relief, it has to be on just the right ground. The only reason for remand, in other words, was to say that if you attempt plea withdrawal following revocation of a deferred prosecution agreement you’re in a post-sentencing rather than pre-sentencing mode. The court of appeals obliges.

State v. Vanessa Brockdorf, 2006 WI 76, affirming unpublished decision
For Brockdorf: Martin E. Kohler, Brian Kinstler

Issue/Holding: ¶39 n. 6:

After oral argument and pursuant to an order dated October 14, 2005, the parties submitted to the court the relevant provisions of the MPD Policies and Procedures Manual. Pursuant to Wis. Stat. § 902.01, in our discretion, we elect to take judicial notice of this document, which is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Wis. Stat. § 902.01(2)(b) (2003-04).

State v. Eric D. Cooks, 2006 WI App 262
For Cooks: Joseph E. Redding

Issue/Holding: Failure to object to a witness’s reference to having known the defendant from jail was not deficient performance, because this evidence was admissible anyway:

¶47      Furthermore, Cooks’ ineffective assistance of counsel claim is premised on a correct trial court ruling and cannot succeed. See Ziebart, 268 Wis. 2d 468, ¶14. The probative value of Marshall’s testimony was not outweighed by any danger of unfair jury prejudice. The theory of defense was misidentification. The nature of the prior contacts between Marshall and Cooks was relevant to show Marshall had a sound basis for making his identification of Cooks at the crime scene. Moreover, Cooks testified to having eight prior convictions. This would have reasonably suggested to the jury that Cooks probably had been incarcerated in the past and therefore detracts from any additional prejudice Marshall’s testimony provided.¶48      Cooks also suggests that Barth could have stipulated that Marshall knew him from prior contacts and therefore prevented the jury from knowing that he had been in prison. However, even assuming Barth was deficient for failing to so stipulate, Cooks has not established prejudice. Again, the jury could have easily inferred that Cooks had been in prison from his own testimony regarding his eight criminal convictions.

State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson

Issue/Holding:

¶23      Here, the offered evidence (testimony of forced fellatio, performed by a five-year-old child victim, followed by urination in the victim’s mouth) undoubtedly aroused the jury’s “sense of horror” and “provoke[d] its instinct to punish.” See Sullivan, 216 Wis. 2d at 789-90. Revulsion as to this conduct is not significantly mitigated by the fact that McGowan was only ten years old at the time and the event was an isolated incident. Given the obvious probable prejudice to the defendant, the probative value of the evidence to prove a legitimate fact of consequence—which is not proof of the defendant’s character—should be strong indeed.  The slim reeds of probative value identified above crumble here under the weight of prejudice to the defendant.

State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.

Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”

Holding:

¶15      The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder; (2) Bembenek would be eligible, under her new sentence for second-degree murder, for immediate release from prison to parole; (3) the State would no longer need to devote significant resources to Bembenek’s numerous collateral attacks on her convictions; and (4) Bembenek had been punished proportionately to the crime for which she was now convicted. Additionally, the plea agreement provided a final disposition in the murder case of Schultz for both parties and the community at large. There was a mutuality of assent to the terms of the plea agreement which was respected by Bembenek for ten years, until 2002, when she filed her motion for DNA testing and acquittal.

¶16      Bembenek’s no contest plea is equivalent to a guilty plea. “The general rule is that a guilty, no contest, or Alford ^[6] plea ‘waives all nonjurisdictional defects, including constitutional claims[.]’” State v. Kelty, 2006 WI 101, ¶18, ___ Wis. 2d ___, 716 N.W.2d 886 (citing State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437). This is known as the guilty-plea-waiver rule. Kelty, 716 N.W.2d 886, ¶18. ^[7] Here Bembenek entered into a legally valid plea agreement. She entered into it knowingly, voluntarily and intelligently. See State v. Bangert, 131 Wis. 2d 246, 267-72, 389 N.W.2d 12 (1986) (holding that guilty and no contest pleas are constitutionally valid if entered knowingly, intelligently and voluntarily). She received substantial benefits from that agreement. In that plea agreement, Bembenek specifically waived her right to claim her innocence, and her right to collaterally attack any evidence which was underlying the conviction. Accordingly, Bembenek waived any right to DNA testing of that evidence or court action to pursue such tests.

As the court suggests (fn. 7), plea-bargained waiver of the right to appeal is a relative commonplace in federal practice. One thing sticks out, though: there is no federal constitutional right to appeal—put aside the idea that where the state does grant such a right it can’t as a matter of due process or equal protection impose arbitrary barriers—but there is a state constitutional right. State v. McDonald, 144 Wis.2d 531, 536-37, 424 N.W.2d 411 (1988) (“This court has consistently recognized that a defendant has a constitutional as well as a statutory right to an appeal. Art. I, sec. 21, Wis. Const.; sec. 808.03(1), Stats.”). Does this distinction matter? Hard to say; the court of appeals doesn’t mention it. There are, to be sure, recognized limits on enforceability, but they exist at the margins, see block quote in fn. 7, and the well-developed body of caselaw on bargained appeal-waiver will have to be reviewed for particular examples.The net result of this case seems clear, though: mere possibility of actual innocence is not a basis to obviate waiver. It’s not a far stretch from there to the idea that even a compelling showing of actual innocence isn’t enough, which in turn suggests another wrinkle: Plea agreements that are clearly against public policy are “illegal” and “cannot be respected by the courts,” Grant v. State, 73 Wis.2d 441, 448, 243 N.W.2d 186 (1976)); distinguished in and further explicated by State v. McQuay, 154 Wis.2d 116, 124, 452 N.W.2d 377 (1990). Is it against public policy to preclude a defendant from establishing actual innocence through DNA testing; and, if so, does that make a no-appeal plea bargain unenforceable? You’ll have to decide for yourself.

State v. Sean M. Daley, 2006 WI App 81, on remand, PFR filed 5/10/06; prior history: 2005 WI App 260, decision vacated and remanded, 2006 WI 25
For Daley: Kirk B. Obear

Issue/Holding: A deferred prosecution agreement, whereby the defendant enters no contest pleas but entry of judgment of conviction is stayed, conditioned on compliance with terms of the agreement, satisfies § 971.37:

¶9        Daley implies that requiring a plea is not allowed because it is not specifically authorized in Wis. Stat. § 971.37. However, the legislature plainly contemplated that parties would negotiate appropriate conditions in a deferred prosecution agreement commensurate with the individual facts of each case. While § 971.37(1m)(b) specifies certain components that shall be in a deferred prosecution agreement, there is no indication these are to be the sole components. Indeed, § 971.37(1m)(c)1. indicates that the agreement may require payment of the domestic abuse surcharge. This indicates the legislature never intended § 971.37(1m)(b) to be exclusive. ^[2]

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^[2] This case is not similar to State v. Dawson, 2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12. There, as part of a plea agreement, the State agreed to reopen  Dawson’s judgment of conviction and amend a charge of first-degree sexual assault of a child if Dawson successfully completed probation. Id., ¶2. We allowed Dawson to withdraw his plea as unknowing because he had agreed to a legal impossibility. Id., ¶14. The State has no authority to reopen a judgment and the only legal reward for completing probation is discharge. Id., ¶¶9, 14. Here, Daley’s deferred prosecution agreement is permissible under the statute and the agreement’s completion does not present a legal impossibility.

The supreme court vacated the court of appeals’ decision and remanded for reconsideration of a separate issue (whether the motion to withdraw plea should be treated as pre- or post-sentencing; the issue summarized above is simply a reissuance of the original text; nothing has changed except the cite.