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.

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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