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April 26, 1983


Review of a decision of the Court of Appeals. Affirming in part and remanding for further proceedings Heffernan, J.

The opinion of the court was delivered by: Heffernan

This is a review of an unpublished opinion of the court of appeals dated July 20, 1982, affirming a judgment of conviction of the circuit court for Milwaukee county, MICHAEL D. GUOLEE, Circuit Judge.

The question on this appeal is whether, following a guilty plea, a defendant has the right to appellate review of an order denying the admission of his proffered evidence, when a condition of the plea bargain was the defendant's reservation of the right to challenge the ruling upon appeal, the prosecutor agreed to the conditional plea and the reservation, and the trial Judge acquiesced in the arrangement.

We conclude that the answer must be "no," and, accordingly, we affirm that determination by the court of appeals, subject to defendant's option to move for a withdrawal of his plea.

The defendant, Ronald Craig Riekkoff, was charged with burglary in the city of Milwaukee under the provisions of sec. 943.10(1) (a), Stats. Because he had been convicted of three felonies within five years of the charged offense, the provisions of sec. 939.62, increased penalty for habitual criminality, were applicable.

Prior to setting the case for trial, the circuit Judge, upon learning of the intention of the defendant to offer evidence that, because of intoxication, he lacked the mental capacity to form the requisite intent to commit the crime, scheduled a hearing on the question of the admissibility of such testimony. At the hearing, defendant made an offer of proof by the testimony of a psychiatrist. The Judge ruled that such testimony was inadmissible under Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1979).

Subsequent to that ruling, the defendant pleaded guilty. The prosecutor stated the terms under which the state accepted the defendant's plea:

"e are agreeing that if the defendant wishes to proceed to the appellate review claiming that the Court denied him a certain witness or privilege to assert the witness, we do not believe that the plea entered in this case will affect that or we state that it's a waiver of that argument."

Defense counsel asked that the trial Judge make it clear that the matter of the admissibility of the expert psychiatric testimony was preserved for appellate review despite the guilty plea. Although the Judge was not explicit in his acquiescence in the defendant's position, nevertheless he did not disagree with it. The parties on this appeal both assert that the Judge concluded that the right of appellate review of the order would be preserved. The defendant was found guilty upon his plea and was sentenced to a term of five years in the state prison.

Appeal was taken, but the court of appeals refused to review the trial court's exclusion of the psychiatric testimony. It rejected "the defendant's contention that the parties and the trial court may stipulate to the right of appellate review." It affirmed the judgment of the trial court.

The court of appeals relied upon Mack v. State, 93 Wis. 2d 287, 293, 286 N.W.2d 563 (1980), for the general proposition that a "voluntary entry of a guilty plea waives the right to raise on appeal non-jurisdictional issues." Because it viewed the question here -- the admissibility of evidence -- as nonjurisdictional, it indulged in no further Discussion of the question. In the instant case, we need not concern ourselves with the exact boundaries of the rule relied upon by the court of appeals, nor need we conclude that a guilty plea waives all defects except those relating to subject-matter jurisdiction, for in the instant case Riekkoff, conceding that the general rule would exclude his appellate review, only asserts that 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.

The general guilty-plea-waiver rule has its modern genesis in Wisconsin in Hawkins v. State, 26 Wis. 2d 443, 132 N.W.2d 545 (1965). Hawkins involved the denial of the defendant's motion to suppress evidence which had been obtained in a search by police officers. Following the trial court's denial of the motion to suppress, Hawkins pleaded guilty. Subsequent to conviction on the plea, Hawkins sought to withdraw his plea, reasserting that his arrest and the subsequent search, which produced incriminating evidence, were unlawful. Upon appeal from the trial court's order denying Hawkins' motion to withdraw his guilty plea, this court refused to address the merits of the order denying the motion to suppress. We said:

"ithout deciding the controversy over the validity of the search, we conclude that Hawkins, by his plea of guilty, waived his right ...

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