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    Wisconsin Lawyer
    January 01, 2015

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel Blinka & Thomas Hammer

    Criminal Procedure

    Guilty Pleas – Plea Negotiations – Illusory Benefits

    State v. Dillard, 2014 WI 123 (filed 26 Nov. 2014)

    HOLDING: A plea negotiation for an illusory benefit entitled the defendant to withdraw his no-contest plea.

    SUMMARY: Defendant Dillard was charged in this case with two counts: armed robbery in violation of Wis. Stat. section 943.32(2), as a persistent repeater under Wis. Stat. section 939.62(2m)(c); and false imprisonment in violation of Wis. Stat. section 940.30, as a repeater under Wis. Stat. section 939.62(1)(b). Throughout the proceedings, all parties mistakenly believed that because of the “persistent-repeater” penalty enhancer, Dillard was facing mandatory life imprisonment.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    With that understanding and on the advice of his attorney, Dillard accepted the state’s offer to drop the persistent-repeater penalty enhancer as well as the false-imprisonment charge in exchange for him pleading no contest to the armed-robbery charge. Dillard believed that he was reducing his maximum exposure from mandatory imprisonment for the remainder of his life to a bifurcated 40-year term of imprisonment (that is, a maximum initial confinement of 25 years plus 15 years of extended supervision). Dillard was convicted per his plea and was sentenced to the maximum 40-year term.

    Dillard subsequently discovered that the mandatory life-imprisonment sentence never applied to him because his prior record did not subject him to persistent-repeater status under Wis. Stat. section 939.62(2m)(c). He sought to withdraw his plea on grounds of manifest injustice and ineffective assistance of counsel. The circuit court denied his motion.

    In a published decision, the court of appeals reversed the circuit court. See 2013 WI App 108. In a majority decision authored by Chief Justice Abrahamson, the supreme court affirmed the court of appeals.

    The defendant testified that the main reason he accepted the plea offer was to avoid the mandatory life imprisonment associated with the persistent-repeater charge; his trial counsel confirmed that withdrawal of the persistent-repeater enhancer was the most significant factor motivating her recommendation that the defendant accept the state’s plea offer.

    Under all the circumstances in this case, the majority concluded that “the defendant entered into the plea agreement without knowing the actual value of the State’s plea offer and relying on misinformation from the court, the State, and trial counsel about the applicability of the persistent repeater enhancer. As a result, the defendant was prevented from making a reasoned decision whether to proceed to trial or plead. The misinformation undermined the defendant’s capacity to knowingly, intelligently, and voluntarily choose between accepting the State’s plea offer and proceeding to trial. Thus, we conclude that the defendant established that he did not knowingly, intelligently, and voluntarily enter the plea of no contest” (¶ 69).

    The majority further concluded that the defendant had a right to withdraw his no-contest plea because he demonstrated ineffective assistance of counsel. Applying the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984), the court held that the defendant established that 1) trial counsel performed deficiently when she failed to ascertain that the persistent-repeater enhancer was inapplicable to the defendant as a matter of law, and 2) the defendant was prejudiced by counsel’s deficient performance inasmuch as he established that there was a reasonable probability that he would not have pleaded no contest and would instead have gone to trial had he known he did not face a mandatory sentence of life in prison without the possibility of extended supervision (see ¶ 104).

    Justice Roggensack filed a dissenting opinion that was joined by Justice Prosser and Justice Ziegler.


    Physical Appearance – Nontestimonial Evidence

    State v. Gonzalez, 2014 WI 124 (filed 3 Dec. 2014)

    HOLDING: Compelling a defendant to display his teeth for purposes of identification in court did not violate his right against self-incrimination.

    SUMMARY: The defendant was convicted of battery by inmate as the result of an attack that occurred in a jail. Identification of the attackers was the key issue; the defendant was linked to the assault based on his unique platinum teeth. During trial, the judge compelled the defendant, over objection, to smile at the jurors to display his platinum teeth
    (see ¶ 5). In an unpublished opinion, the court of appeals affirmed the conviction.

    The supreme court also affirmed the conviction in a unanimous opinion authored by Justice Crooks. The defendant’s platinum teeth are a physical characteristic in the same manner as scars, tattoos, or other physical attribute; thus, his display of them was nontestimonial. The court distinguished the defendant’s in-court smile from a testimonial act of production, as when a person is compelled to produce certain documents and thereby acknowledge their existence, authentication, and possession. The defendant’s teeth were also “material” to the issue of identification (see ¶ 23).

    Chief Justice Abrahamson joined the court’s opinion but wrote separately to explain and critique the supreme court’s new procedures for circulating and mandating opinions.

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