Criminal Procedure – Waiver

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Wisconsin Court of Appeals

Criminal

Criminal Procedure – Waiver

Where the defendant proceeded with sentencing despite knowing that there may have been a breach of the plea agreement, he waived any objection to any error.

“[W]e conclude that even if we accept Fortes’s assertion that the trial court, the State, and trial counsel erred at the plea hearing when they failed to accurately state the plea agreement and ascertain Fortes’s understanding of that agreement, Fortes waived his right to pursue that issue when he elected to proceed with sentencing instead of seeking plea withdrawal or an opportunity to determine the plea agreement. While a defendant may generally be able to wait until after sentencing to decide whether to allege a deficiency in the plea colloquy, see Brown, 293 Wis. 2d 594, ¶38, we are not convinced that proposition applies where a concern about the defendant’s understanding of the plea has been raised prior to sentencing and the defendant specifically elects to proceed with sentencing. Indeed, our supreme court has recognized that a defendant can waive his right to object if he ‘persist[s] in a plea strategy after the basis for the claim of error is known to [the] defendant.’ See Farrar v. State, 52 Wis. 2d 651, 660, 191 N.W.2d 214 (1971). Here, Fortes explicitly elected to proceed with the sentencing, despite knowing that he had a different understanding of the plea agreement than the State and that the State intended to recommend a specific sentence. In doing so, Fortes waived his right to subsequently seek plea withdrawal based on his misunderstanding of the plea agreement, the trial court’s plea colloquy, or the State’s decision to recommend a specific sentence. See id.”

Affirmed.

Recommended for publication in the official reports.

2014AP714-CR State v. Fortes

Dist. I, Milwaukee County, Wagner, J., Kessler, J.

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