State v. Karon M. Asmus, 2010 WI App 48; for Asmus: Donald C. Dudley
Interstate Detainer Act claim is waived by guilty plea:
¶3 A guilty plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886. This rule applies even though the defendant attempts to preserve an issue by raising it in the circuit court. State v. Skanfer, 176 Wis. 2d 304, 312 n.2, 500 N.W.2d 369 (Ct. App. 1993).
¶4 Failure to bring a prisoner to trial within 120 days under the Intrastate Detainer Act is not a jurisdictional defect. …
¶6 … As in Armstrong, the charges could have been dismissed by the district attorney without prejudice and merely recharged at a later date. See State v. Davis, 2001 WI 106, ¶19, 242 Wis. 2d 344, 626 N.W.2d 5. When a defendant chooses to accept a plea agreement rather than inconveniencing the district attorney by requiring the filing of a new complaint, the protections of § 971.11 are forfeited.
Well, yes and no. Yes, the guilty plea waiver rule would apply (assuming the Detainer Act to be nonjurisdictional). But no, that doesn’t necessarily end the matter. If the defendant clearly thought the issue survived the plea, then plea-withdrawal would be the remedy, State v. Riekkoff, 112 Wis.2d 119, 126, 332 N.W.2d 744 (1983); Foster v. State, 70 Wis.2d 12, 21, 233 N.W.2d 411 (1975). And to the extent that counsel provided such misadvice, then surely ineffective assistance would be a ground for plea-withdrawal. But, so far as the opinion indicates, Asmus hasn’t argued along these lines. For all appearances, the learned trial judge mistakenly denied Asmus’ motion to dismiss, ¶2 n. 2. But the plea bargain also appears to have been favorable, and successful challenge could have seen reissuance of the pre-bargain charges.
