2021 WI 59
SUPREME COURT OF WISCONSIN CASE NO.: 2019AP1983-CR
COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Jacob Richard Beyer, Defendant-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: June 15, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 15, 2021
SOURCE OF APPEAL: COURT: Circuit COUNTY: Dane JUDGE: William E. Hanrahan
JUSTICES: ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET, and KAROFSKY, JJ., joined, and in which HAGEDORN, J., joined with respect to Part I and Parts II.A., C., and D. NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs filed by Mark A. Eisenberg, Jack S. Linberg, and Eisenberg Law Offices, S.C., Madison. There was an oral argument by Jack S. Linberg.
For the plaintiff-respondent, there was a brief filed by Kara Lynn Janson, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Kara Lynn Janson.
An amicus curiae brief was filed on behalf of Wisconsin Association of Criminal Defense Lawyers by Ellen Henak and Ellen Henak Law Office, S.C., Milwaukee. 2021 WI 59 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP1983-CR (L.C. No. 2017CF2831)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED v. JUN 15, 2021
Jacob Richard Beyer, Sheila T. Reiff Clerk of Supreme Court
Defendant-Appellant.
ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET, and KAROFSKY, JJ., joined, and in which HAGEDORN, J., joined with respect to Part I and Parts II.A., C., and D.
APPEAL from a judgment and order of the Circuit Court for
Dane County. Reversed and cause remanded.
¶1 PATIENCE DRAKE ROGGENSACK, J. This case is before us
on certification from the court of appeals1 pursuant to Wis. Stat.
§ (Rule) 809.61 (2019-20).2 The certified issue is: "whether the
1State v. Beyer, No. 2019AP1983-CR, certification (Wis. Ct. App. Sep. 24, 2020). 2All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated. No. 2019AP1983-CR
guilty-plea-waiver rule applies when a defendant pleads not guilty
to an offense, but stipulates to the inculpatory facts supporting
each element of the offense, and explicitly agrees to a finding of
guilt at a hearing before the circuit court at which no witness
testifies."
¶2 We conclude that the occurrence in the circuit court,
while not a guilty plea made in the customary mode, also was not
a court trial. We further conclude that, while parties may
stipulate to facts for purposes of a criminal trial, trials based
on stipulated facts and a stipulated finding of guilt are not
permissible in Wisconsin. Finally, we conclude that Beyer cannot
be held to the stipulation he entered in circuit court because he
entered it relying on a procedure that we conclude is invalid.
Therefore, this matter is remanded to the circuit court so that
Beyer can choose whether to enter a plea or proceed to trial.
Accordingly, we reverse and remand to the circuit court for
proceedings consistent with this opinion.
I. BACKGROUND ¶3 The City of Madison Police Department executed a search
warrant on Jacob Beyer's apartment on October 28, 2017. The basis
for the warrant was the result of a Department of Justice (DOJ)
investigation "'on peer to peer file sharing networks' looking for
child pornography." Through its investigation, DOJ "discovered a
file containing [child pornography]," and the suspect IP address
led to an apartment in Madison occupied by Beyer. After Madison
police executed the search warrant, Beyer admitted to possessing
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child pornography, and a search of his computer revealed at least
ten images of child pornography.
¶4 The State charged Beyer with ten counts of possession of
child pornography contrary to Wis. Stat. § 948.12(1m). At Beyer's
initial appearance, he entered a plea of not guilty. Subsequently,
"Beyer hired a forensic computer examiner to confirm that the video
that served as the basis for the search warrant existed on his
computer." Beyer's forensic examiner did not find the video on
Beyer's hard drive. Beyer, challenging the State's basis for
probable cause for the search warrant, filed a "Notice of Motion
and Motion to View the State's Computer and its Undercover
Software." The circuit court3 denied Beyer's discovery motion
concluding that a "suppression motion hearing . . . would be the
proper forum" to address Beyer's evidentiary claims.
¶5 Beyer filed a motion to suppress arguing that the search
warrant was invalid because "(1) the search warrant lacked
probable cause in and of itself; (2) the agents relying on the
search warrant knew that the search warrant lacked probable cause; (3) the agents omitted and provided misleading information
concerning its undercover investigative software." After a
hearing, the circuit court denied Beyer's motion to suppress. The
circuit court found that "[the DOJ agent] truthfully asserted that
he's relied upon this type of evidentiary trail in the past and
found it to be accurate and reliable." Despite the circuit court's
desire for more individually tailored warrants and "a more candid
3 The Honorable William E. Hanrahan presided.
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assessment of the reliability of this method of a search," the
court found no police misconduct.
¶6 After the circuit court denied Beyer's motion to
suppress, Beyer indicated that he did not intend to go to trial.4
Rather, the State and Beyer agreed to a truncated procedure wherein
the parties "stipulate[d] and agree[d] that the [c]ourt may make
a finding of guilt based upon the following set of facts." The
stipulation listed nine facts, which satisfied the elements of
possession of child pornography. Stipulation 10 stated "Jacob
Beyer waives his right to a jury trial and agrees to have the
[c]ourt find him guilty based upon the above stipulated set of
facts."5
¶7 The circuit court, noting the rarity of the procedure at
hand, asked Beyer's defense counsel if there were any "legal or
strategic advantage[s] . . . for proceeding in this fashion as
opposed to appeal." Beyer's defense counsel reasoned that "when
someone pleads guilty to a charge, you preserve the right for your
suppression motion, but if you recall, there was a also a discovery motion in this case, and I'm convinced that if . . . Mr. Beyer
pleads guilty, he waives that right to the discovery issue."
¶8 The circuit court confirmed with Beyer that Beyer
intended to move forward with the proposed procedure. In doing
4 Beyer also filed a motion for reconsideration, which the circuit court denied. 5 As part of the stipulated trial agreement, the prosecutor agreed to move to dismiss nine of the ten charges of possession of child pornography and read them in at sentencing.
4 No. 2019AP1983-CR
so, the court explained to Beyer that by agreeing to the procedure
he was waiving certain rights including his right to a trial by
jury, his right to be present during witness testimony, and his
right to present a defense. Beyer acknowledged that he understood
his rights and confirmed that he intended to waive them. The
circuit court ensured that Beyer was not threatened or coerced
into making this decision and asked Beyer's counsel if he thought
Beyer's assent was knowing, intelligent and voluntary. Beyer's
counsel confirmed that he believed that it was. Beyer's defense
counsel agreed that the stipulated facts proved, beyond a
reasonable doubt, each element of the charged offense. Therefore,
the circuit court convicted Beyer and sentenced him to three years'
initial confinement and two years' extended supervision. Beyer's
sentence was stayed pending appeal.
¶9 Beyer appealed, and the court of appeals certified the
above issue to us. The issues raised at the court of appeals that
caused it to certify the appeal to us were the
following: "(1) whether the procedure used at what the State refers to as the 'so-called trial' is the functional equivalent of
a guilty plea; (2) whether that procedure triggers application of
the guilty-plea-waiver rule to bar Beyer from raising on appeal a
challenge to the circuit court's denial of his discovery motion;
and (3) whether the procedure is recognized under Wisconsin law."
We accepted the certification, and we accordingly assume
jurisdiction over all issues presented on appeal. See State v.
Denk, 2008 WI 130, ¶29, 315 Wis. 2d 5, 758 N.W.2d 775. II. DISCUSSION 5 No. 2019AP1983-CR
A. Standard of Review
¶10 Whether a proceeding was a trial is a question of law;
we review questions of law independently. See, e.g., City of
Pewaukee v. Carter, 2004 WI 136, ¶¶23, 31-35, 276 Wis. 2d 333, 688
N.W.2d 449 (determining whether a municipal proceeding was a trial
such that a party is entitled to a new trial for purposes of Wis.
Stat. § 800.14(4)). Further, whether an attempted method of
criminal procedure is permitted in Wisconsin is a question of law
that we review independently. See State v. Riekkoff, 112 Wis. 2d
119, 124-25, 332 N.W.2d 744 (1983) (determining whether
conditional guilty pleas are permissible in Wisconsin).
¶11 Finally, "[w]hether a plea is knowing, intelligent, and
voluntary is a question of constitutional fact." State v. Brown,
2006 WI 100, ¶19, 293 Wis. 2d 594, 716 N.W.2d 906. In such cases,
"[w]e accept the circuit court's findings of historical and
evidentiary facts unless they are clearly erroneous but we
determine independently whether those facts demonstrate that the
defendant's plea was knowing, intelligent, and voluntary." Id. B. Pleas Versus Trials
¶12 At the outset, because the parties' main contention is
whether the guilty plea waiver rule should attach to the procedure
that Beyer agreed to, we determine whether the "stipulated trial",
in which Beyer stipulated to his guilt, was actually a trial or
whether it was the functional equivalent of a guilty plea despite
its label. Our discussion informs both whether the procedure here
was permissible and whether Beyer can be held to his stipulation.
6 No. 2019AP1983-CR
We first explain the differences between the two procedures; we
then determine which more closely fits what occurred here.
1. Pleas
¶13 We begin with guilty pleas. A guilty plea "is an
'admission that [the defendant] committed the crime charged
against him.'" United States v. Broce, 488 U.S. 563, 570 (1989)
(quoting North Carolina v. Alford, 400 U.S. 25, 32 (1970)). "By
entering a plea of guilty, the accused is not simply stating that
he did the discrete acts described in the indictment; he is
admitting guilt of a substantive crime." Broce, 488 U.S. at 570.
Importantly, a guilty plea "is an admission that 'all of the
factual and legal elements necessary to sustain a binding, final
judgment of guilt . . . ' are true." State v. Kelty, 2006 WI 101,
¶30, 294 Wis. 2d 62, 716 N.W.2d 886 (quoting Broce, 488 U.S. at
569). Accordingly, "nothing remains [for the circuit court] but
to give judgment and determine punishment." Boykin v. Alabama,
395 U.S. 238, 242 (1969). Although they do not contain the same
express admission of guilt as a guilty plea, we have held that pleas of no contest and Alford pleas6 have the same practical
effect as traditional guilty pleas. See State v. Nash, 2020 WI
85, ¶34, 394 Wis. 2d 238, 951 N.W.2d 404.
¶14 When a defendant enters a guilty, no contest, or Alford
plea, the defendant ordinarily "waives all nonjurisdictional
6 "An Alford plea is a conditional guilty plea, which allows the defendant to maintain his or her innocence outright, but nonetheless accept a conviction and sentence for the crime." State v. Nash, 2020 WI 85, ¶33, 394 Wis. 2d 238, 951 N.W.2d 404 (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970).
7 No. 2019AP1983-CR
defects, including constitutional claims." Kelty, 294 Wis. 2d 62,
¶18. This "guilty-plea-waiver rule" is a practical effect of
entering a guilty plea. "The guilty-plea-waiver rule is a rule of
administration and does not involve the court's power to address
the issues raised." Id. (citing Riekkoff, 112 Wis. 2d at 124).
There are limited exceptions to this general rule. Wisconsin Stat.
§ 971.31(10) codifies two exceptions that relate to evidentiary
issues. Section 971.31(10) provides, "An order denying a motion
to suppress evidence or a motion challenging the admissibility of
a statement of a defendant may be reviewed upon appeal from a final
judgment or order notwithstanding the fact that the judgment or
order was entered upon a plea of guilty or no contest to the
information or criminal complaint." See also Riekkoff, 112 Wis.
2d at 124-25.
2. Trials
¶15 We have defined trials as "fact-finding mission[s] to
determine the truth of allegations in a pleading." City of
Cedarburg v. Hansen, 2020 WI 11, ¶35, 390 Wis. 2d 109, 938 N.W.2d 463. Trials are also understood as "formal judicial examination[s]
of evidence and determination[s] of legal claims in an adversarial
proceeding." Id. (quoting Black's Law Dictionary (11th ed. 2019)).
What we can gather from the above definitions is that a trial's
distinguishing feature is the fact-finding mission, which leads to
an ultimate determination of guilt or innocence. See State v.
Zamzow, 2017 WI 29, ¶25, 374 Wis. 2d 220, 892 N.W.2d 637 (noting
8 No. 2019AP1983-CR
that "the purpose of a trial is to ascertain a defendant's guilt
or innocence").
¶16 Simply calling a proceeding a trial does not necessarily
make it so. To determine whether a proceeding was a trial, we
look to the proceeding's substance, not its form. See Carter, 276
Wis. 2d 333, ¶¶23, 31-35, (citing with approval the indicia of
trials set forth in First Bank of Marietta v. Mascrete, Inc., 684
N.E.2d 38, 41 (Ohio 1997), and applying those factors to the
proceedings before it). Such indicia include "whether arguments
were presented in court by counsel," "whether issues of fact were
decided by the judge or magistrate" and "whether a judgment was
rendered on the evidence."7 Carter, 276 Wis. 2d 333, ¶23 (quoting
First Bank of Marietta, 684 N.E.2d at 41).
3. The "stipulated trial"
¶17 By examining the substance of what occurred here, we
conclude that the "stipulated trial" more closely resembled a
guilty plea than a trial. The record shows that the parties
stipulated to every fact necessary to convict Beyer of possession of child pornography. Furthermore, they stipulated to the circuit
court finding Beyer guilty. In turn, all the circuit court was
7 The remaining indicia are "whether the proceeding was initiated by pleadings," "whether it took place in court," "whether it was held in the presence of a judge or magistrate," "whether the parties or their counsel were present," "whether evidence was introduced" and "whether the issues decided were central or ancillary to the primary dispute between the parties." City of Pewaukee v. Carter, 2004 WI 136, ¶23, 276 Wis. 2d 333, 688 N.W.2d 449 (quoting First Bank of Marietta v. Mascrete, Inc., 684 N.E.2d 38, 41 (Ohio 1997)).
9 No. 2019AP1983-CR
left to do was enter "judgment and determine [the] punishment,"
which is the functional equivalent of a guilty plea. See Boykin,
395 U.S. at 242. What did not occur here is more telling of the
proceeding's substance than what did occur. At the stipulated
trial, there were no witnesses sworn or examined, no additional
evidence introduced and no arguments by the parties regarding the
legal sufficiency of the State's factual foundation. As the record
reflects, Beyer affirmatively waived those ordinary aspects of a
trial. Accordingly, regardless of the proceeding's label, we are
unconvinced that in substance it was a trial; we conclude that it
was more akin to a guilty plea.8
C. Stipulated Trials in Wisconsin
¶18 Having determined that the procedure here was more akin
to a guilty plea than a trial, we next determine whether stipulated
trials that also stipulate to the defendant's guilt are permissible
in Wisconsin. For the reasons set forth below, we conclude that
they are not.
¶19 We begin by reemphasizing the procedure that occurred here: Beyer stipulated to all of facts necessary for the circuit
8 Our conclusion that this procedure was tantamount to a guilty plea is consistent with decisions of other jurisdictions that have examined this question. See People v. Smith, 319 N.E.2d 760, 764 (Ill. 1974) (noting that the "stipulated bench trial" was "tantamount to a guilty plea" and not condoning the procedure); see also State v. Steelman, 612 P.2d 475, 480 (Ariz. 1980) (differentiating between "submission[s] on transcripts" that are "tantamount to a guilty plea because it is obvious that . . . the defendant has no hope of acquittal" and those where the "court [is] . . . required to review the record offered to see if there is, in fact, sufficient evidence to convict" and noting that "Steelman's submission was not the equivalent of a guilty plea.").
10 No. 2019AP1983-CR
court to find him guilty, and he also stipulated that the court
conclude he was guilty of possession of child pornography. Parties
may continue to stipulate to certain facts, and even to certain
elements of a crime, during a criminal proceeding. Doing so
supports the expeditious resolution of trials and can have the
effect of protecting victims of crimes from having to testify.
See State v. Benoit, 229 Wis. 2d 630, 636-40, 600 N.W.2d 193 (Ct.
App. 1999) (explaining that the defendant still received a full
jury trial on all of the elements of his crime, including the
element that he stipulated to, and that the stipulation was "a
matter of expediency" that relieved the victims of the burglary
from having to testify).9
¶20 However, we will not permit parties to stipulate to every
fact that satisfies a defendant's guilt and the defendant's guilt
as well. This is true whether the proffered procedure is agreed
upon to preserve appellate review of issues that the defendant
would otherwise waive by entering a guilty plea or whether it was
employed due to other factors. ¶21 Our reasoning for disallowing such a procedure is not
complex. Simply put, Wisconsin's rules of criminal procedure do
9 Just as the court of appeals distinguished Benoit from Kemp v. State, 61 Wis. 2d 125, 211 N.W.2d 793 (1973), this case is equally distinguishable. In Kemp, the defendant, his attorney and the prosecutor "stipulated and requested the court to make the determination of guilt or innocence from the record of the preliminary examination." Id. at 130. The parties did stipulate to a court trial; however, the parties did not stipulate to Kemp's guilt. See generally id. The circuit court was required to consider the preliminary examination and the arguments made by counsel to establish whether Kemp was guilty. Id.
11 No. 2019AP1983-CR
not expressly permit conditional guilty pleas as the Federal Rules
of Criminal Procedure do. The conditional guilty plea rule under
the Federal Rules provides as follows:
With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea. Fed. R. Crim. P. 11(a)(2). The procedure that occurred here was, in essence, an attempt at a conditional guilty plea intended to
preserve appellate review of an otherwise waived discovery issue.
¶22 We have expressly disallowed parties from attempting
conditional guilty pleas without a statute so permitting.
Riekkoff, 112 Wis. 2d at 130. In Riekkoff, the circuit court held
a pretrial hearing on Riekkoff's mental capacity but found that
the expert testimony that Riekkoff intended to introduce was
inadmissible. Id. at 121-22. Thereafter, Riekkoff pled guilty
with the prosecutor's agreement that Riekkoff's plea was
conditional upon appellate review of the pretrial evidentiary
matter. Id. The circuit court, although "not explicit in [its]
acquiescence in the defendant's position [to preserve appellate
review], nevertheless . . . did not disagree with it" and accepted
Riekkoff's plea. Id. at 122. We were tasked with deciding whether
"review may be preserved when the plea of guilty is conditioned
upon the right to assert the question on appeal and there is
agreement by the prosecutor and acceptance of the plea by the trial
judge." Id.
12 No. 2019AP1983-CR
¶23 Due to the explicit evidentiary exceptions to the
guilty-plea-waiver rule found in Wis. Stat. § 971.31(10), we
concluded that no other similar exceptions were permitted absent
legislation. Id. at 130. Ultimately, we held "that conditional
guilty pleas are not to be accepted and will not be given effect,
except as provided by statute." Id. Although we noted the
arguments in favor of conditional guilty pleas, we left to the
legislature the decision to include such a plea in Wisconsin's
rules of criminal procedure. Id.
¶24 In the 38 years since Riekkoff, the legislature has not
amended the rules of criminal procedure to include a conditional
guilty plea option such as Fed. R. Crim. P. 11(a)(2). Wisconsin
law currently permits criminal defendants to enter four types of
pleas: (1) guilty;10 (2) not guilty; (3) no contest with
permission from the circuit court; and (4) not guilty due to mental
disease or defect. Wis. Stat. § 971.06(1)(a)-(d). Because
Wisconsin does not permit conditional guilty pleas in the federal
form, we conclude that "stipulated trials," which ultimately have the same effect, also are not permissible.11 We continue to defer
to the legislature to determine whether it should legislate
Again, an Alford plea is a type of guilty plea. 10 Nash, 394 Wis. 2d 238, ¶33.
Because we conclude that this procedure is impermissible, 11
we do not address whether the guilty-plea-waiver rule attached to the procedure at hand. See Maryland Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 ("Issues that are not dispositive need not be addressed.").
13 No. 2019AP1983-CR
conditional guilty plea rules as part of Wisconsin's criminal
procedure.
D. Beyer's "Stipulated Trial"
¶25 Because we conclude that Beyer's "stipulated trial" was
an attempt at a prohibited conditional guilty plea, we next
consider whether the circuit court may hold Beyer to the parties'
stipulation. In light of our conclusion that the procedure that
occurred here is invalid, we conclude that the circuit court could
not validly accept the stipulation and Beyer cannot be held to its
terms. Therefore, on remand Beyer is to choose whether to plead
or go to trial.
¶26 This conclusion is supported by our reasoning in
Riekkoff. There, after we rejected the procedure that the parties
employed, and we described the effect of utilizing such a faulty
procedure on Riekkoff. Riekkoff, 112 Wis. 2d at 128. We reasoned:
One thing . . . clearly stands out from the record, and that is that Riekkoff pleaded guilty believing that he was entitled to an appellate review of the reserved issue. Both the prosecutor and the trial judge acquiesced in this view and permitted Riekkoff to believe that, despite his plea, appellate review could be had of the evidentiary order. Because Riekkoff thought he could, with the acquiescence of the trial court and the prosecutor, stipulate to the right of appellate review, it is clear that Riekkoff was under a misapprehension with respect to the effect of his plea. He thought he had preserved his right of review, when as a matter of law he could not. Under these circumstances, as a matter of law his plea was neither knowing nor voluntary. Id.
¶27 Riekkoff teaches that when a defendant, his counsel, the prosecutor and the court misapprehend the legal effect of a
14 No. 2019AP1983-CR
procedure they employ, generally, the defendant will not be
entering a plea that is knowing, intelligent and voluntary. See
also State v. Woods, 173 Wis. 2d 129, 140, 496 N.W.2d 144 (Ct.
App. 1992) (citing Riekkoff, 112 Wis. 2d at 128) ("The record is
clear that Woods, at least in part, made the decision to plead
guilty based on inaccurate information provided to him by the
lawyers and judge. The plea agreement to a legal impossibility
necessarily rendered the plea an uninformed one.").
¶28 Here, and similar to the misapprehension in Riekkoff,
Beyer agreed to the "stipulated trial" and ultimately stipulated
to his guilt based upon the advice of his defense attorney, the
prosecutor's agreement and the circuit court's acquiescence.
Because we conclude that such a procedure is invalid, as a matter
of law, it necessarily follows that Beyer cannot be held to the
stipulation. On remand, Beyer is entitled to choose whether to
enter a plea or proceed to trial.12
III. CONCLUSION
¶29 We conclude that the occurrence in the circuit court, while not a guilty plea made in the customary mode, also was not
stipulate to facts for purposes of a criminal trial, trials based
on stipulated facts and a stipulated finding of guilt are not
permissible in Wisconsin. Finally, we conclude that Beyer cannot
be held to the stipulation he entered in circuit court because he
12 Because we remand the case to the circuit court on procedural grounds, we do not reach the merits of Beyer's discovery claims.
15 No. 2019AP1983-CR
entered it relying on a procedure that we conclude is invalid.
Therefore, this matter is remanded to the circuit court so that
Beyer can choose whether to enter a plea or proceed to trial.
By the Court.—The judgment and order of the circuit court is
reversed and cause remanded.
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