By: dmc-admin//November 23, 2005//
Although the court characterizes its decision as being required by prior precedent, it is actually a significant extension of prior court of appeals precedent, and conflicts with Supreme Court precedent that, at least arguably, requires that any read-in charges be placed on the record during the plea hearing.
The procedure for reading in charges was approved by the Wisconsin Supreme Court in Austin v. State, 49 Wis.2d 727, 183 N.W.2d 56 (1971).
The court wrote, We caution that when the plea agreement contemplates the nonprosecution of uncharged offenses the details of the plea agreement should be made a matter of record. A plea agreement should always be made a matter of record whether it involves a recommendation of sentencing, a reduced charge, a nolle prosequi of charges or read ins with an agreement of immunity. Austin, 183 N.W.2d at 60.
The phrase should always may not be as mandatory as must or must always, but it is nevertheless stronger than the purely aspirational, should. Arguably, Austin does preclude consideration of read-in charges at sentencing, if they were not placed on the record at the plea hearing.
The case at bar could also be distinguished from State v. Cleaves, 181 Wis.2d 73, 510 N.W.2d 143 (Ct.App.1993), which the court cited for authority. After conviction, Cleaves objected to restitution that had been ordered for charges that were dismissed but read in.
Affirming the award of restitution, the court of appeals wrote, He was present when the prosecutor and his attorney related the agreement on the record. He was there when his attorney told the court that the agreement as to the read-in was satisfactory to his client and to him. He heard the court and counsel discuss the amount that he would have to pay in restitution. While he had steadfastly denied committing counts 3 and 4 up to that time even though pleading guilty to counts 1 and 2, he did not object to the read-in procedure. Not once during this entire time did he voice objection to the read-in procedure. Since he did not object to the crimes being read in, he admitted them. Cleaves, 510 N.W.2d at 145.
Cleaves is distinguishable, however, because the circuit court stated on the record that counts 3 and 4 would be read in during the guilty plea hearing. Id., at 144.
In contrast, in the case at bar, it is undisputed that there was no mention of read-ins at the plea hearing.
Like Cleaves, Lackershire did not object to consideration of the read-ins at sentencing.
However, at the guilty plea hearing, there was nothing to object to in this case. Cleaves thus does not require the result in this case, but could have been distinguished on that ground.
Also troubling is the courts statement that Lackershire had completed and signed the plea questionnaire that explained the nature of read-ins. Instead of undercutting Lacker-shires argument, however, this fact is irrelevant, because there was no mention of read-ins at the plea hearing.
Knowing the consequences of read-in charges at the time of a plea can not render the plea intelligently entered, if the defendant does not know that other charges will be read in.
Nevertheless, even if the courts decision is not required by Cleaves, and is inconsistent with Austin, the decision may be required by the holding in State v. Byrge, 2000 WI 101, 237 Wis.2d 197, 614 N.W.2d 477, that understanding of collateral consequences of a plea is not a prerequisite for entering a voluntary plea.
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Byrge was decided well after Austin, and, even if the language in Austin is construed to be mandatory, rather than aspirational, the holding in Byrge could be construed as implicitly overruling that language (assuming that the court of appeals is correct in its assessment of read-ins as a collateral, rather than direct, consequence of a plea).
Furthermore, the court appears to be correct in finding that there is no manifest injustice as a result of the read-ins Lackershire has received a significant benefit in that the charges have been dismissed and the state is prohibited from recharging them.
Were Lackershire claiming actual innocence as to those charges, then their consideration would be an injustice, notwithstanding that benefit. However, the courts opinion suggests that she has never contested the truth of the allegations in the other three charges.
If a future case included a claim of actual innocence to consideration of read-in charges, and no mention was made of the read-ins at the plea hearing, defense counsel should preserve the issue of whether the decision in the case at bar can be reconciled with Austin.
– David Ziemer
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David Ziemer can be reached by email.