Supreme Court Digest
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Note: Each case summarized in the Supreme Court Digest
includes its new public domain citation.
Criminal Procedure
Guilty Pleas - Sex Offender Registration Notification - Withdrawal
of Guilty/No Contest Pleas Prior to Sentencing - Proof Burdens
State v. Bollig, 2000
WI 6 (filed 4 Feb. 2000)
This case involves numerous issues relating to guilty pleas
and the withdrawal of guilty pleas prior to sentencing. First,
the supreme court considered whether, at the time the defendant
entered his no contest plea to a charge of attempted sexual assault,
the judge was required to inform him that he would be required
to register as a convicted sex offender under Wis. Stat. section
301.45. In a unanimous opinion authored by Justice Bradley,
the court concluded that sex offender registration is not punitive
because the underlying intent is public protection and safety.
Because the duty to register is not punishment, it is not a direct
consequence of the defendant's plea but only a collateral consequence.
Therefore the defendant did not have a due process right to be
informed thereof prior to entering his plea.
The court next considered whether the defendant should have
been allowed to withdraw his plea before sentencing on his claim
that he was unaware of the sex offender registration requirement
at the time he entered his plea. Prior to sentencing, the circuit
court is to apply the "fair and just reason" standard
in evaluating a motion to withdraw the plea. The state conceded
that if the defendant was not aware of his requirement to register
as a convicted sex offender, he presented a fair and just reason
for his plea withdrawal.
However, there is still the issue of whether the prosecution
would be substantially prejudiced by the withdrawal. In this
regard the court first considered the allocation of the proof
burden regarding prejudice and concluded that once the defendant
presents a fair and just reason for withdrawing his or her plea,
the burden shifts to the state to show substantial prejudice
so as to defeat the plea withdrawal. The court then concluded
that, in this case, that burden was met because the attempted
sexual assault to which the defendant entered his plea was committed
when the victim was only 4.5 years old and the litigation regarding
plea withdrawal occurred almost two years later. The circuit
court was concerned about the effect on the child's memory that
would occur as the result of the passage of this much time. The
supreme court concluded that the circuit judge properly found
that the state would suffer substantial prejudice if the defendant
were permitted to withdraw his plea. Said the court, it was reasonable
to consider the impact a plea withdrawal would have on the child
victim who was the state's key witness. Accordingly, the trial
court did not err in denying the motion to withdraw the plea.
Finally, the court considered whether the defendant was aware
of the elements of the offense to which he entered his plea so
as to render the plea knowing and intelligent. At the plea hearing
the court gave an incomplete recitation of the elements of the
crime. Therefore, the defendant satisfied his burden of showing
that the court did not comply with its statutory duty to inform
him of the elements of the crime. The burden then shifted to
the state to demonstrate by clear and convincing evidence that
the plea was nevertheless entered knowingly, voluntarily, and
intelligently. The state may use the entire record to demonstrate
the defendant's knowledge of the nature of his or her offense.
In this case the guilty plea questionnaire that the defendant
signed and later acknowledged in open court contained a complete
recitation of the elements of attempted sexual assault. Further,
there was evidence that the missing element had been the subject
of a pretrial hearing at which the defendant was present. On
these bases the court concluded that despite the circuit judge's
failure to advise the defendant of one of the essential elements
of the crime at the plea hearing, the state had demonstrated
by clear and convincing evidence that the defendant was nevertheless
aware of the nature of his offense.
Search and Seizure - Curtilage
State v. Martwick,
2000 WI 5 (filed 19 Jan. 2000)
The defendant was convicted of manufacturing marijuana. The
court of appeals reversed the conviction on the ground that police
had illegally entered and seized evidence from the curtilage
of the defendant's home. The supreme court, in an opinion written
by Justice Crooks, reversed the court of appeals.
The court first addressed the proper standard of review. It
held that curtilage issues present questions of "constitutional
fact" that mix evidentiary/historical facts with the "ultimate
issue" of constitutionality. Different standards of review
apply to each set of facts. Appellate courts defer to the trial
court's finding of historical facts; they are not set aside unless
clearly erroneous. But the questions of constitutional fact (for
example, where does the curtilage extend?) are determined independently
upon appeal.
In concluding that the marijuana plants in question were observed
outside the defendant's curtilage, the supreme court examined
various factors. First, the court looked at the plants' proximity
to the house and how the land was used. Although the distance
between the two was "not vast," the court noted that
the property was not used as a farm. Hence, the curtilage did
not automatically extend to several nearby ginseng sheds. Second,
the defendant had not erected any fence or other enclosure to
ensure a privacy expectation in the spot in question. Although
he had mowed the "weeds" around his house, the plants
in question did not fall within that area. Nor did the thickly
wooded area - a product of natural forestation - create an expectation
of privacy. Third, the record failed to disclose that the area
was used for "intimate activity associated with the 'sanctity
of a man's home and the privacies of life'" (for example,
it was not in or near a "garden"). Fourth, the defendant
did not exercise "dominion over his woods, so as to make
the woods an intimate part of his home."
Justice Prosser concurred, responding to several points urged
by the dissenters. Chief Justice Abrahamson, joined by Justices
Bablitch and Bradley, dissented. They emphasized that the police
search and seizure occurred about 20 feet from the defendant's
home and that the record did not support the majority's determinations
of fact.
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