On Point

State v. Wayne A. Sutton, 2006 WI App 118, PFR filed 6/18/06
For Sutton: William E. Schmaal, SPD, Madison Appellate

Issue: Whether the guilty plea to first-degree reckless endangering, amended from battery, was supported by a factual basis.

Holding:

¶21      At the plea hearing, the State presented the basis for the amended charge of first-degree reckless endangerment, relying in part on statements Sutton made to a West Bend police officer. In his statement, Sutton said that the victim lunged or tried to strike him while the two of them were in a small restroom at a bar. Sutton responded by pushing the victim. Defense counsel acknowledged that the victim may have hit the wall, toilet, urinal or sink after Sutton pushed him. Sutton then left the restroom without checking on the victim. …

¶22      Sutton argues on appeal that his defensive action in pushing the victim cannot form the basis for criminally reckless conduct. That argument would have been available to him at trial. However, Sutton exhorted the court to accept the version of facts that were presented in support of the reckless endangerment charge. “[A] factual basis for a plea exists if an inculpatory inference can be drawn from the complaint or facts admitted to by the defendant even though it may conflict with an exculpatory inference elsewhere in the record and the defendant later maintains that the exculpatory inference is the correct one.” State v. Black, 2001 WI 31, ¶16, 242 Wis. 2d 126, 624 N.W.2d 363. “The essence of what a defendant waives when he or she enters a guilty or no contest plea” is the opportunity to defend against the inculpatory inferences and advocate those that are exculpatory. See id.

¶23      Here, the circuit court properly scrutinized the information presented by both parties and questioned the attorneys extensively before determining that a sufficient factual basis existed for the plea. A circuit court fulfills its duty when it makes “such inquiry as satisfies [the court] that the defendant in fact committed the crime charged.” Wis. Stat. § 971.08(1)(b). Based upon the foregoing, we hold that the circuit court applied the proper legal standard and its decision is supported by the totality of the circumstances.

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue/Holding: Allegations in the complaint of repeated “dope dating” (giving a minor cocaine on multiple occasions in exchange for sex) established a factual basis for guilty plea to causing the child to practice prostitution within the meaning of § 948.08, ¶¶25-35.

State v. Reinier A. Ravesteijn, 2006 WI App 250
For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding: Kidnapping is mitigated from a Class B to Class C felony if the victim is released without permanent physical injury prior to the first witness’s testimony, ¶17. When accepting a guilty plea to Class B kidnapping the court must ascertain a factual basis for excluding the Class C offense, at least where there is some evidence in the record to support it, ¶18. However, the error in such an omission goes to the sentence rather than the plea, ¶¶19-20.

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

Issue/Holding: Bembenek breached her plea agreement (which contained a no-attack or appeal clause) by filing a motion for DNA testing to establish her innocence; the remedy for this breach is dismissal of her appeal of the denial of the motion:

¶17      By filing motions to reexamine the evidence in 2002, Bembenek breached her plea agreement. “A material and substantial breach of a plea agreement is one that violates the terms of the agreement and defeats a benefit for the non-breaching party.” State v. Deilke, 2004 WI 104, ¶14, 274 Wis. 2d 595, 682 N.W.2d 945 (citations omitted). Collateral attacks on convictions may be substantial and material breaches of a plea agreement.  Id., ¶¶22-24 ….

¶18      In evaluating the appropriate remedy for a material and substantial breach of a plea agreement by a defendant, “[a] court must examine all of the circumstances of a case to determine an appropriate remedy for that case, considering both the defendant’s and State’s interests.” Id., ¶25 (citation omitted). “One remedy is to vacate the negotiated plea agreement and reinstate the original charges against the defendant.” Id. Were we to order that remedy and reinstate the first murder conviction, it might well result in reincarceration of Bembenek to serve the remainder of her life sentence. We decline to impose so harsh a sanction in view of the State’s concession in the plea agreement. Alternatively, if the State were required to re-try Bembenek twenty years after the crime was committed, it would likely be seriously disadvantaged in locating witnesses and producing evidence no longer retained.

¶19      In the ten years following her original first-degree murder conviction, Bembenek filed numerous collateral attacks on her conviction. The State, in an attempt to bring closure for all involved, agreed to enter into this plea agreement with Bembenek. For the State to now be required to continue to litigate with Bembenek, or perhaps to re-try a case more than twenty years after the fact, is exactly the result that the State sought to avoid by its plea agreement. The State is entitled to the benefit of that agreement, just as Bembenek has already enjoyed its benefits. Under the circumstances of this case, in light of the significant passage of time—over twenty years since Bembenek’s original conviction and fourteen years since her plea agreement and no contest plea—we conclude that the most appropriate remedy for Bembenek’s breach is dismissal of this appeal.

State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose

Issue/Holding: Rejecting the JI Committee definition of “cunnilingus,” the court “ conclude(s) that the statutory scheme of the sexual assault law does not require proof of ‘stimulation of the clitoris or vulva,’” ¶¶11-21.

¶21      The complaint and the undisputed evidence presented at the preliminary hearing demonstrated that Harvey performed an act of nonconsensual cunnilingus by placing his mouth on the victim’s genital area. The sexual assault law does not require that the victim’s clitoris or vulva be stimulated as the result of such contact or that the victim experience stimulation in any other manner. We reject Harvey’s argument to the contrary as an offensive and perverse notion under current sexual assault law, and we refuse to endorse it. The trial court correctly found that the criminal complaint and the preliminary hearing evidence established a factual basis in support of the element of sexual intercourse by cunnilingus pursuant to Wis. Stat. § 940.255(3) [sic, 940.225(3)].

State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose

Issue/Holding: Plea bargain, which permitted State to comment on facts but not to make specific sentencing recommendation was not violated by State’s presentation of victim and others who themselves asked for maximum penalty:

¶40      We first disagree that the State breached the plea agreement by going beyond factual argument with its comments about evidence it would have introduced had there been a trial. Harvey’s sole defense was that the sex was consensual. The State simply brought to the trial court’s attention evidence that would refute that claim. …

¶41      We also disagree with Harvey that Skinner’s role at the sentencing was as a “state’s witness” and that her statement amounted to an “end-run” or in any way rose to the level of a material and substantial breach of the plea agreement. … The State underscored that it in no way was encouraging Skinner, or others, to make any sort of penalty recommendation. In our view, both the trial court and the State demonstrated an exemplary effort to honor the plea agreement.

¶42      We reject Harvey’s argument on another basis as well. As the trial court aptly noted, Harvey’s objections to statements by the victim’s witnesses in essence asked the trial court to silence the victim and/or her family. The victim and her family members merely were afforded the same opportunity to speak as was offered, and accepted, by Harvey’s family. Moreover, a victim of a crime has an absolute right to make a statement at sentencing, and it is within the trial court’s discretion to “allow any other person to make or submit a statement” as long as the statement is relevant to the sentence. Wis. Stat. § 972.14(3)(a). Similarly, the “Basic bill of rights for victims and witnesses” statute guarantees a victim the right “[t]o provide statements concerning sentencing” and the right “[t]o have the court provided with information pertaining to the economic, physical and psychological effect of the crime upon the victim and have the information considered by the court.” Wis. Stat. § 950.04(1v)(m) and (pm). Finally, we observe that Wis. Stat. § 950.11 provides for a forfeiture penalty against a public official who intentionally fails to provide a right specified under § 950.04(1v).

¶43      Skinner’s statement offered the very kind of sentencing information contemplated by Wis. Stat. § 950.04(1v)(m) and (pm). ^[9] Skinner related that her sister had to move from a house she loved because of the memories associated with the assault and that her sister now is fearful, sometimes telephoning Skinner because she “thinks she hears things, and she’s afraid that someone is in her apartment.” Skinner stated that because the actions of Harvey, their stepbrother, “really had serious repercussions on the family as a whole,” such that “my sister and I have basically lost our family,” she was asking the court to consider giving the maximum penalty. Courts are encouraged to consider the rights and interests of the public when imposing sentence. State v. Johnson, 158 Wis.  2d 458, 465, 463 N.W.2d 352 (Ct. App. 1990).

There’s been surprisingly little litigation on victim’s allocution. Note the court’s observation that “a victim of a crime has an absolute right to make a statement at sentencing.” If you want to see just how “absolute” that right can be construed, take a look at Kenna v. U.S. District Court (II), 9^th Cir. No. 05-73467, 1/20/06 (under the very similar Crime Victims’ Rights Act, 18 U.S.C. § 3771: defendant’s sentence vacated and resentencing ordered to allow victim right to allocution, even though he had had that opportunity at an earlier sentencing of the codefendant); subsequent history, Kenna II, No. 06-73352, 7/5/06 (crime victim not entitled to general right of disclosure of entire PSR, but court seems to say that “specific portions” are subject to disclosure). As the court suggests, such statements must be relevant to sentence (§ 972.14(3)(a)), but given how broad the concept of sentencing relevance, that limitation is cold comfort at best. Victims’ right to allocution does, though, strengthen the argument that the defendant’s right to allocution is constitutional and not merely statutory, State v. Thomas A. Greve, 2004 WI 69, ¶43 (Crooks, J., conc.). And, of course, the exercise of this right heightens the defendant’s right to be sentenced only on accurate information, e.g., State v. Yolanda M. Spears, 227 Wis.2d 495, 596 N.W.2d 375 (1999).

State v. Reinier A. Ravesteijn, 2006 WI App 250
For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding:

¶6        Ravesteijn, a citizen of the Netherlands, argues that the trial court was obligated to consider whether he needed an interpreter and to obtain his personal waiver of the right to an interpreter. See State v. Neave, 117 Wis. 2d 359, 375, 344 N.W.2d 181 (1984), overruled on other grounds by State v. Koch, 175 Wis. 2d 684, 499 N.W.2d 152 (1993); Wis. Stat. § 885.38 (2003-04). ^[1] His argument fails, however, because the circuit court’s obligation to make a factual determination is triggered only when the court is put on notice that the defendant has a language difficulty. Neave, 117 Wis. 2d at 375. The court has notice of a language difficulty “when it becomes aware that a criminal defendant’s difficulty with English may impair his or her ability to communicate with counsel, to understand testimony in English, or to make himself or herself understood in English.” State v. Yang, 201 Wis. 2d 725, 734, 549 N.W.2d 769 (Ct. App. 1996).

…

¶9        The circuit court did not have an obligation to inquire about whether an interpreter was needed or personally waived by Ravesteijn. There was nothing to suggest that Ravesteijn had a difficulty with English that might impair his ability to communicate with counsel, understand proceedings in English, or make himself understood in English. See id. at 734. It follows that there is no manifest injustice supporting plea withdrawal. See State v. Booth, 142 Wis. 2d 232, 235, 237, 418 N.W.2d 20 (Ct. App. 1987) (to withdraw a guilty plea after sentencing, a defendant bears the burden to show by clear and convincing evidence that a manifest injustice would result if the withdrawal were not permitted).