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    March
    13
    2012

    Wisconsin Supreme Court: Defendant can still challenge jury trial waiver

    Joe Forward
    Legal Writer

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    March 13, 2012 – Defendant Jeffrey Sutton wasn't aware of all his rights when he waived a jury trial on an alleged misdemeanor retail theft charge. An appeals court foreclosed a challenge to the waiver. But recently, the Wisconsin Supreme Court reversed.

    Wisconsin Supreme Court: Defendant can still challenge jury trial waiver

    A defendant waived a jury trial without knowing information he was entitled to know. Several “gaffes” later, the defendant was left with no way to challenge the waiver.

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    Wisconsin Supreme Court: Defendant can still 
challenge jury trial waiver March 13, 2012 – Defendant Jeffrey Sutton wasn't aware of all his rights when he waived a jury trial on an alleged misdemeanor retail theft charge. An appeals court essentially foreclosed a challenge to the waiver. But recently, the Wisconsin Supreme Court reversed.

    Wisconsin law requires circuit courts to conduct a personal colloquy with defendants attempting to waive their righty to a jury trial. Sutton signed a waiver, and the circuit court conducted a colloquy, but Sutton was not fully informed that a 12-person jury must unanimously agree on all the elements of the crime charged to be convicted.

    He was subsequently convicted after a bench trial, triggering a post-conviction motion for relief. However, Sutton’s post-conviction motion failed to allege that he was unaware of his right to a unanimous verdict when he waived his rights. Thus, the circuit court denied the motion.

    Attempts by post-conviction counsel to have the circuit court reconsider failed. Sutton’s counsel also submitted a no-merit report – a report to determine if an appeal is warranted – and urged the appeals court to reject it so Sutton could make his jury trial waiver argument.

    Ultimately, the court of appeals concluded that an appeal was not warranted and affirmed Sutton’s judgment of conviction, noting the jury trial waiver issue was not preserved.

    However, the appeals court ruled that Sutton could pursue an ineffective assistance of counsel claim under Wis. Stat. section 974.06, which allows prisoners in custody to challenge sentences on constitutional grounds. The problem: Sutton was no longer in custody.

    In State v. Sutton, 2012 WI 23 (March 8, 2012), the Wisconsin Supreme Court unanimously ruled that the appeals court should have remanded the case for reconsideration despite post-conviction counsel’s errors in preserving the jury waiver issue at the circuit court level.

    “The present case features compelling reasons why the court of appeals might have exercised its discretion to disregard the fact that the defendant had not properly preserved his claim … and offered the defendant a forum to raise the issue,” wrote Chief Justice Shirley Abrahamson.

    The supreme court noted that relief under section 974.06 was not available because Sutton was no longer in custody, leaving him with no other opportunity to litigate the claim that his jury trial waiver was defective. Thus, the supreme court remanded the case so Sutton can ultimately file a new or amended motion for post-conviction relief in the circuit court.

    Attorneys

    Kaitlin Lamb and Colleen Ball, assistant state public defenders, represented Jeffrey Sutton. James Freimuth and Christine Remington, assistant attorneys general, represented the state. The Wisconsin Association of Criminal Defense Lawyers filed an amicus curiae brief.