Plea Withdrawal – Ineffective Assistance of Counsel

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WI Supreme Court

Case Name: State of Wisconsin v. Patrick H. Dalton

Case No.: 2018 WI 85

Focus: Plea Withdrawal – Ineffective Assistance of Counsel

The petitioner, Patrick Dalton, seeks review of an unpublished court of appeals decision affirming his judgment of conviction and sentence and upholding the circuit court’s order denying his postconviction motion. Dalton asserts that he is entitled to withdraw his no contest pleas because his trial counsel was ineffective for failing to move to suppress blood evidence collected without a warrant. In the alternative, he argues that he is entitled to resentencing because the circuit court relied on an improper sentencing factor.

Specifically, Dalton contends first that because police lacked the exigent circumstances necessary to draw his blood without a warrant, his counsel was ineffective for failing to move to suppress the evidence. He asserts next that the circuit court impermissibly lengthened his sentence for exercising his constitutional right to refuse a warrantless blood draw.

We conclude that exigent circumstances existed, permitting police to draw Dalton’s blood absent a warrant. Accordingly, his counsel was not ineffective for failing to file a meritless motion to suppress. We further conclude that the circuit court violated Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2185- 86 (2016), by explicitly subjecting Dalton to a more severe criminal penalty because he refused to provide a blood sample absent a warrant. Consequently, Dalton is entitled to resentencing.

Accordingly, although we agree with the court of appeals that Dalton’s counsel was not ineffective, we nevertheless reverse and remand to the circuit court for resentencing.

Reversed and Remanded

Concur:

Dissent: ROGGENSACK, C.J., dissents, joined by GABLEMAN, J. (opinion filed). ZIEGLER, J., dissents, joined by GABLEMAN, J. (opinion filed).

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.