On Point

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. Terrance W. Walther, 2001 WI App 23, 240 Wis. 2d 619, 623 N.W.2d 205
For Walther: Raymond M. Dall’Osto, Kathryn A. Keppel

Issue: Whether the defendant’s motion for in camera inspection of the child sexual assault complainant’s confidential records should have been granted.

Holding:

¶11 Here, Walther established more than the mere possibility that the requested records ‘may be necessary to a fair determination of guilt or innocence.’ See Shiffra, 175 Wis. 2d at 610. The information Walther provided, both in counsel’s affidavit and supplemental submissions, about the child’s background and treatment history, in combination with the information about the reported sexual assaults at St. Aemilian’s, established more than the mere possibility that the requested records would reveal information necessary to a fair determination of guilt or innocence.

…

¶14 … (W)e caution trial courts to carefully consider, in cases presenting ‘close call[s],’ the consequences of cutting off in camera review. As emphasized in Shiffra, and as reiterated in Munoz, a trial court’s in camera review ‘is a limited intrusion that often provides the best tool for resolving conflicts between the sometimes competing goals of confidential privilege and the right to put on a defense.’ Munoz, 200 Wis. 2d at 400 (quoting Shiffra, 175 Wis. 2d at 611-12).

State v. Earl Steele III, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595
For Steele: Timothy J. Gaskell

Issue: Whether felon in possession of firearm may be the underlying felony to burglary (entry with intent to commit felony), § 943.10(1)(a), when the defendant-felon was already in possession of the firearm before entry.

Holding: “(A) person commits a burglary when he or she unlawfully enters the premises with the intent to commit a felony while on the premises, regardless of whether the defendant’s actions while inside the premises constitute a new crime or the continuation of an existing offense.” ¶17. (The court also holds, ¶20, that felon-in-possession is a crime against persons or property, and therefore satisfies that qualification as well.)

State v. Earl Steele, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595
For Steele: Timothy J. Gaskell

Issue: Whether the colloquy on a guilty plea to burglary/intent-to-commit-felony must apprise the defendant of the specific felony.

Holding:

¶8                        The trial court chose to summarize WIS. STAT. § 943.10 during colloquy, in combination with questioning defense counsel.  Steele contends that this summary was inadequate, since he was not specifically informed that the underlying felony for the burglary charge was “felon in possession of a firearm.”  A plea is not voluntary if the defendant does not understand the essential elements of the charge at the time the plea was entered.  See Bangert, 131 Wis. 2d at 257-58.  In effect, Steele is asserting that the specific nature of the underlying felony is an essential element of the charge.  We disagree.

¶9                        In State v. Hammer, 216 Wis. 2d 214, 219, 221, 576 N.W.2d 285 (Ct. App. 1997), we held that a defendant is not entitled to jury unanimity on the underlying felony in a burglary charge.  The language of WIS. STAT. § 943.10 emphasizes the fact that the defendant intended to commit a felony; it does not matter which felony forms the basis of that intent.  Hammer, 216 Wis. 2d at 220.  Therefore, § 943.10 sets forth a “single offense with multiple modes of commission,” not multiple offenses defined by each possible underlying felony.  Hammer, 216 Wis. 2d at 220. It follows from our conclusion in Hammer that the nature of the particular underlying felony is not an essential element of a burglary charge and therefore need not be explained during colloquy in order to fulfill WIS. STAT. § 971.08(1)(a) requirements.

¶10                        Because we conclude that the trial court adequately explained the elements of the charge to Steele, we also conclude that its failure to specify the underlying felony was not a defect in the plea proceedings.

State v. Tyren E. Black, 2001 WI 31, 242 Wis. 2d 126, 624 N.W.2d 363, reversing unpublished court of appeals decision
For Black: Michael S. Holzman

Issue: Whether the trial court properly found a factual basis for the guilty plea, by relying solely on the criminal complaint, where extraneous information put one of the elements in doubt.

Holding:

¶14. In essence, Black urges us to overturn this rule and find that a circuit court cannot find a factual basis for a plea in the complaint alone. We find no law in support of Black’s position. To be sure, a circuit court may look beyond the complaint to the record in a Wis. Stat. § 971.08(1)(b) factual basis inquiry, but Black does not cite any authority that requires a circuit court to do so. We decline to hamstring circuit courts by overturning our precedent and ruling that they may not find a factual basis for a plea in the complaint. Moreover, we decline to rewrite § 971.08(1)(b) as requiring the circuit judge to conduct a mini-trial at every plea hearing to establish that the defendant committed the crime charged beyond a reasonable doubt. If the facts as set forth in the complaint meet the elements of the crime charged, they may form the factual basis for a plea.

¶16. … (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. See, e.g., State v. Spears, 147 Wis. 2d 429, 435, 433 N.W.2d 595 (Ct. App. 1988); In re Guilty Plea Cases, 235 N.W.2d 132, 145 (Mich. 1975). This is the essence of what a defendant waives when he or she enters a guilty or no contest plea. Therefore, the circuit judge properly utilized the complaint as a factual basis for the plea, thereby making ‘such inquiry as satisfies [the court] that the defendant in fact committed the crime charged.’ Wis. Stat. § 971.08(1)(b).

State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate

Issue:: Whether an expert witness’s testimony should have been struck retrospectively when it became known, after the proceeding had concluded, that he had lied about his credentials and background.

Holding:

¶33. We cannot conclude that the circuit court’s refusal to strike Thomalla’s testimony was improper. While Thomalla’s past misconduct and misleading testimony may have impaired his credibility, it does not make his testimony incredible as a matter of law. See In re Spengler, 228 Wis. 2d 250, 258, 596 N.W.2d 818 (Ct. App. 1999) (holding that court of appeals may not reverse circuit court’s determinations regarding credibility unless the witness is credible or incredible as a matter of law). First, we agree with the circuit court that although Thomalla may have given inaccurate testimony regarding his job titles and the length of time he held a particular job, there is no dispute that he is a licensed psychologist or that he has experience evaluating sexually violent persons. Second, we are not convinced that Thomalla’s dishonesty regarding his curriculum vitae suggests his opinion regarding the likelihood that Sprosty will reoffend is similarly unreliable.

Nor did belated revelation of these matters deny Sprosty effective cross-examination: The possibility that the witness thought he could save his job by giving favorable testimony to the state is speculation; and, there was no prejudice from being unable to cross-examine on inaccuracies in the witness’s curriculum vitae. ¶37.

State v. Jeremy J. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, affirming as modified State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388
For Byrge: Steven P. Weiss, SPD, Madison Appellate

Issue: “(W)hether a circuit court, before accepting a plea of guilty or no contest [to a crime punishable by life imprisonment], must inform a defendant that it possesses the authority to fix the parole eligibility date.”

Holding: § 971.08(1)(a) requires that the trial court inform the defendant of the “potential punishment,” before taking a guilty/no contest plea. ¶58. Moreover, defendants have a due process right to notice of the “direct consequences” of their pleas. ¶60. Where the maximum punishment is life, the trial court has the discretionary authority under § 973.014 to fix the parole eligibility date, beyond the minimum that would otherwise be set by statute. Where a trial court elects to exercise this option, the PED becomes linked to the period of incarceration, and thereby directly impacts the range of punishment. ¶67.

¶68 We therefore hold that in the narrow circumstance in which a circuit court has statutory authority under Wis. Stat. § 973.014(2) to fix the parole eligibility date, the circuit court is obligated to provide the defendant with parole eligibility information before accepting a plea. Parole eligibility in this discrete situation implicates punishment and constitutes a direct consequence of the plea.

The court goes on to hold that, although the trial court failed to provide this information, evidence in the record establishes that Byrge in fact knew about this option and was therefore not entitled to withdraw his plea. A concurrence by Justice Bradley expresses concern about both retroactive impact and implications for Truth in Sentencing procedure. ¶81.

The court of appeals subsequently certified, in State v. Douglas K. Uhde, 02-3135-CR, Dist. II, 3/25/04, the following question: “In Truth-in-Sentencing cases, must circuit courts, as part of the plea colloquy, personally inform defendants that initial confinement will not be reduced by good time or parole?” The supreme court granted review, on April 20, 2004, but subseuqently (9/16/04) dismissed the grant in light of the State’s concession that Uhde was for other reasons entitled to plea-withdrawal. (The court of appeals in an unpublished decision on remand indeed ordered plea-withdrawal, because Uhde didn’t understand all the elements.) Application of Byrge to TIS thus remains very much unresolved.It is worth keeping in mind the settled principle that a defendant’s mere misunderstanding of likelihood of parole doesn’t affect validity of the plea (though wrongful advice with respect to parole may establish ineffective assistance of counsel), McAdoo v. Elo, 365 F.3d 487 (6th Cir. 2004):

After an evidentiary hearing about whether McAdoo’s plea was entered knowingly, the state court found that his alleged misunderstanding did not invalidate the plea. The state court accepted as true McAdoo’s evidence (in the form of Carrico’s testimony) that he believed he would be paroled in seventeen years. This evidence, however, does not show that his plea was unknowingly entered, as the state court correctly found. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (“We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary.”); James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (“The United States Constitution does not require the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary.”).