On Point

State v. Christopher Lee Davis, 2001 WI 136, reversing 2001 WI App 61
For Davis: Jane Krueger Smith

Issue¹: Whether a circuit has discretion to dismiss a case with prejudice under § 971.11(7), for failure of the state to bring it on for trial within the 120-day period set by § 971.11(2).

Holding:

¶14. We agree with the court of appeals that ‘the legislature has left the matter up to the courts to exercise its [sic] discretion to dismiss with prejudice in a proper case lest the statute have no meaning at all.’ This interpretation of Wis. Stat. § 971.11(7) granting a circuit court the discretion to dismiss a criminal case with or without prejudice best serves the legislative purposes: First, this interpretation comports with the legislature’s goal to prevent ‘the potential injustices resulting from the practice of filing detainers.’ Second, it comports with the legislature’s objective to give an inmate ‘a greater degree of knowledge about his [or her] future [so that he or she] could begin more constructive planning and co-operate on a treatment program with the knowledge his [or her] efforts would not be minimized by the threat of unsatisfied charges.’ Third, it comports with the ‘legislative intent to provide the operation of a speedier disposition for inmates than for others charged with crimes.’ Fourth, it comports with the legislative purpose to prevent the State from repeatedly dismissing and refiling a criminal case after a dismissal without prejudice, rendering the 120-day time period set forth in § 971.11(2) a nullity. ‘The proper control of continued refiling of charges by the State is the authority of the courts to dismiss with prejudice.’ We further agree with the court of appeals that to interpret § 971.11(7) as requiring dismissal of a criminal case only without prejudice would deprive an inmate of prompt disposition of the case, which is the very purpose of § 971.11.

Issue²: Whether the trial court properly exercised discretion in dismissing the case with prejudice.

Holding: An exercise of discretion under § 971.11(7) should weigh various factors. ¶29. In this case, the circuit court believed that dismissal with prejudice was necessary as a matter of law; because this reasoning was not a proper exercise of discretion, the matter is remanded for such a determination. ¶¶33-34.For factors relevant to whether to dismiss with(out) prejudice for an Interstate Detainer Act violation, see U.S. v. Kelley, 402 F. 3d 39 (1st Cir. 2005) (“among others, each of the following factors: The seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of the agreement on detainers and on the administration of justice . . . .”).

State v. Mohammed A. Nonahal, 2001 WI App 39
For Nonahal: David R. Karpe

Issue: Whether the defendant waived a claimed violation of the Interstate Agreement on Detainers’ anti-shuttling provision, by requesting to be sent back to the sending jurisdiction before trial.

Holding:

¶8; … we conclude that rights granted under the anti-shuttling provision of the IAD are statutory in nature and may be waived if the prisoner requests a procedure inconsistent with the statute’s provisions….¶9; Turning to the facts of this case, we conclude that Nonahal affirmatively requested to be treated in a manner contrary to WIS. STAT. § 976.05(4)(e), the anti-shuttling provision of the IAD, and that his request constituted a waiver of these rights.

Note: The U.S. Supreme Court has now applied a strict reading of the anti-shuttling provision, so that a preserved violation requires dismissal with prejudice. Alabama v. Michael H. Bozeman, 533 US 146 (2001).

State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski

Issue: Whether Ramirez’s guilty plea waived an ex post facto challenge to the charged offense.

Holding: ¶4 n. 4:

We could invoke the guilty plea/waiver rule against Ramirez since he pled guilty to the charge after the trial court rejected his constitutional challenge. See State v. Schroeder, 224 Wis. 2d 706, 711, 593 N.W.2d 76 (Ct. App. 1999). However, the guilty plea/waiver rule is one of judicial administration, not one of the court’s power to act. See State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983). In prior cases, the supreme court has chosen not to invoke waiver where the defendant has entered a guilty plea but presented a constitutional challenge. See Flores v. State, 69 Wis. 2d 509, 510, 230 N.W.2d 637 (1975); Mack v. State, 93 Wis. 2d 287, 296-97, 286 N.W.2d 563 (1980). This is especially so where there are no factual questions presented, the parties have fully briefed the issue and the matter is of statewide importance. Mack, 93 Wis. 2d at 296-97. Those considerations prompt us to not invoke the guilty plea/waiver rule in this case. Not only have the parties fully briefed the issue on appeal, but they also litigated the issue in the trial court. In addition, the question of whether Wis. Stat. § 943.201(2) is a continuing offense is one of first impression and is of statewide importance.

State v. Juan M. Navarro, 2001 WI App 225
For Navarro: Joseph M. Moore, SPD Trial, Juneau

Issue: Whether the trial court is required to conduct an in camera inspection of confidential records of the complaining witness, a correctional officer, relating to his possible abusive treatment of inmates, in a battery-by-prisoner trial where the defendant alleges self-defense.

Holding: The trial court’s denial of in camera inspection without first conducting an evidentiary hearing on materiality was erroneous: Access may not be denied simply because the records aren’t within the state’s possession; disclosure isn’t limited to mental health records; and, § 971.23(1)(h) exculpatory evidence analysis isn’t relevant to the materiality inquiry. ¶¶9-10. Materiality in this case relates to supporting self-defense, in particular proof of the victim’s prior acts of violence within the defendant’s knowledge. ¶13. Navarro’s assertions, though general, sufficed to require an evidentiary hearing on materiality, as prelude to in camera inspection (though greater specificity will be required at the hearing). ¶¶13-17.

State v. James G. Langenbach, 2001 WI App 222
For Langenbach: Patrick M. Donnelly, SPD, Madison Appellate

Issue: Whether the state may call a defendant to testify, as an adverse witness, at Phase II of an NGI trial, following Phase I guilty plea.

Holding: A guilty plea doesn’t necessarily result in loss of fifth amendment rights: The privilege continues at least until sentencing, ¶9; moreover, the privilege continues during the direct appeal, ¶¶10-11. Nor does it matter that this is an NGI trial:

¶13. Contrary to the State’s arguments, the United States Supreme Court has held that the availability of the Fifth Amendment privilege does not turn upon the type of proceeding in which the protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. Estelle, 451 U.S. at 462. To sustain the Fifth Amendment privilege, ‘it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ McConnohie, 121 Wis. 2d at 69 (citation omitted). ‘The privilege is not only intended to protect a defendant when his answers would lead to a conviction … but is intended to protect a defendant when the defendant “apprehends a danger from a direct answer.’” Marks, 194 Wis. 2d at 94 (citation omitted). The United States Supreme Court has recognized that a legitimate danger is that of incarceration or the impending threat of the deprivation of one’s liberty. Id. at 94-95. Here, there is a legitimate impending threat of the deprivation of Langenbach’s liberty, either through commitment to a mental hospital or imprisonment.

State v. Michael F. Howard, 2001 WI App 137, 630 N.W.2d 244

Issue: Whether the prosecutor breached a plea bargain calling for a maximum recommendation on multiple counts of concurrent terms of 25 years in prison, when the actual recommendation was for a total of 25 years but included consecutive terms.

Holding:

¶18 Undoubtedly, one of the most crucial issues in a plea agreement is the recommendation concerning length of time to be served on each count. However, whether sentences are to be concurrent or consecutive is also extremely important. The designation of concurrent or consecutive time can affect the actual amount of time served, the application of pre-sentence credit, parole eligibility dates, the date a defendant is allowed access to rehabilitative services, and other factors. See, e.g., State v. Tuescher, 226 Wis. 2d 465, 469, 595 N.W.2d 443 (Ct. App. 1999) (If the sentences are concurrent, time spent in pre-sentence custody is credited toward each sentence, but if the sentences are consecutive, time in pre-sentence custody is credited toward only one sentence.). A recommendation of concurrent sentences can also send a signal to the trial court that the agreement contemplates a lesser sentence than one where consecutive sentences are recommended.

¶19 Thus, there are a variety of important reasons why a defendant may choose to negotiate for a promise to recommend concurrent time. We conclude that where a plea agreement undisputedly indicates that a recommendation is to be for concurrent sentences, an undisputed recommendation of consecutive sentences that is not corrected at the sentencing hearing constitutes a material and substantial breach of the plea agreement as a matter of law.

State v. Dalvell Richardson, 2001 WI App 152
For Richardson: Richard D. Martin, SPD, Milwaukee Appellate

Issue: Whether the prosecutor breached a plea agreement “to leave the length of the incarceration entirely up to the Court, [without] any specific numerical type of recommendation” with allocution that clearly implied a request for a lengthy term.

Holding: The prosecutor’s comments (to the effect that this was one of the most serious cases the prosecutor had handled) didn’t breach an agreement to recommend incarceration without specifying length:

¶11. Without full context, a review of the prosecutor’s introductory sentencing remarks might very well lead one to conclude that the prosecutor was attempting an ‘end-run’ around the intent of the plea agreement. This first blush reaction, however, is not warranted when we consider the remarks in their full context. A complete review of the sentencing transcript reveals that Richardson’s defensive ploy was to divert attention to his unknown accomplice, and to deflect responsibility onto the accomplice as the mastermind because the accomplice knew the home was a drug house used by individuals with prior drug convictions and an easy mark. Viewed in this light, it is not unreasonable to conclude that the prosecutor’s comments were intended only to keep the factors for sentencing in their proper perspective. A fundamental element of due process is the right of each party to present evidence to rebut an opponent. Washington v. Texas, 388 U.S. 14, 19 (1967). When a party opens the door on a subject, he cannot complain if the opposing party offers evidence on the same subject to explain, counteract, or disprove the evidence. United State v. Touloumis, 771 F.2d 235, 241 (7th Cir. 1985).

¶12. Further, the court found that the plea agreement did not prohibit the prosecutor from ‘setting forth its honest opinion of the nature of the offense, i.e. that it was one of the most serious armed robberies it had dealt with.’ The plea agreement indicated the State would not make a specific recommendation. The State did not. The comments that Richardson refers to as attempting an ‘end-run’ around the agreement, taken in context, provided the trial court with relevant information, which cannot be immunized by a plea agreement or bargained away. Elias, 93 Wis. 2d at 285; McQuay, 154 Wis. 2d at 125-26.”

Compare with State v. John D. Williams, 2002 WI 1 (breach discerned, because the state “undercut the essence of the plea agreement”).

The principle that the prosecutor can’t withhold relevant information from the sentencing court sometimes offers an irresistable temptation — see, e.g., U.S. v. Vaval, 2nd Cir No. 04-0121-cr, 4/12/05 (government’s “highly negative characterizations” of defendant, such as “appalling” and “disingenuous” can’t be considered “information relevant to sentencing”).