State v. Nelson, 81-842-CR

• Decision Date: 25 August 1982
• Docket Number: No. 81-842-CR,81-842-CR
• Citation: 108 Wis.2d 698,324 N.W.2d 292
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Mark NELSON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 292

324 N.W.2d 292

108 Wis.2d 698

STATE of Wisconsin, Plaintiff-Respondent, v. Mark NELSON, Defendant-Appellant.

No. 81-842-CR.

Court of Appeals of Wisconsin.

Argued May 3, 1982.

Opinion Released Aug. 25, 1982.

Opinion Filed Aug. 25, 1982.

Martin I. Hanson of Hanson & Gasiorkiewicz, Racine, for defendant-appellant.

Susan Greenberger, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

Before VOSS, P.J., and BROWN and SCOTT, JJ.

VOSS, Presiding Judge.

Mark Nelson appeals from a judgment of conviction on two charges of third-degree sexual assault. The sole issue raised by Nelson is whether evidence proffered by the state of other similar crimes previously committed is admissible under sec. 904.04(2), Stats., at the defendant's trial. We hold, however, that this issue cannot be properly raised before this court since the defendant, by his guilty plea, waived his right to appeal the trial court's ruling on the admissibility of other crimes evidence. In addition, we hold that the circumstances of this case do not permit Nelson to invoke the exception to the rule of waiver set forth in sec. 971.31(10), Stats. Accordingly, we dismiss this appeal.

Nelson was charged in a criminal complaint with second-degree sexual assault alleged to have occurred on December 14, 1980. At the preliminary hearing, testimony established that Nelson and Kay Ratliff met at a party in December 1980. At this party, Nelson asked Ratliff for a ride home. She agreed and drove him to his home. While parked in his driveway, the parties had sexual intercourse in her van. Ratliff claims that her consent was obtained only by the threat of force. Conversely, Nelson contends that Ratliff voluntarily consented to have sexual intercourse with him.

After the preliminary hearing, an information was filed charging Nelson with the original offense of second-degree sexual assault. Nelson entered a plea of not guilty to this charge and appeared in Racine County Circuit Court on February 17, 1981 with his attorney, prepared to commence a jury trial.

Prior to commencing voir dire, the trial court was requested by counsel to rule on the admissibility of other crimes or wrong acts evidence which the state intended to offer during the course of the trial. The state sought to call three witnesses, Mary Lou Wagner, Melody Conrad and Darlene Conrad, to testify as to incidents similar to Ratliff's that they had had with Nelson. Nelson objected to the admissibility of this type of evidence on the grounds that it was irrelevant and prejudicial.

The trial court, after reviewing the law in Wisconsin, ruled that this evidence would be admissible at trial under sec. 904.04(2), Stats., as proof of motive, intent, and general scheme or plan. The court's rationale for this ruling was that the probative value of this evidence outweighed its prejudicial effect. Subsequent to this evidentiary ruling, Nelson entered into a plea agreement. Nelson pled guilty to a charge of third-degree sexual assault in the Ratliff case and also plead guilty in the Mary Lou Wagner matter. At the time these pleas were entered, Nelson attempted to preserve a right to appeal the evidentiary ruling. He was of the belief, as was the assistant district attorney, that his right to appeal would not be foreclosed by the guilty pleas.

On March 26, 1981, the trial court entered judgment of conviction upon the pleas and sentenced Nelson to two consecutive four year terms in prison.

Nelson argues that the trial court erred when it ruled that evidence of other crimes would be admissible under sec. 904.04(2), Stats. This court, however, finds that this issue raised by Nelson is not an appealable issue. Hence, we do not render a decision on the merits of this issue.

Our supreme court in Mack v. State, 93 Wis.2d 287, 293, 286 N.W.2d 563, 566 (1980), stated that as a general rule "a guilty plea, voluntarily and understandingly made constitutes a waiver of nonjurisdictional defects and defenses ...." Furthermore, there is no exception to the general rule of waiver which would permit an appeal of the type of ruling challenged here. Thus, when Nelson pled guilty to the two charges of third-degree sexual assault, he waived any right to appeal the trial court's evidentiary rulings.

At the time the pleas were entered, Nelson's counsel attempted to preserve a right to appeal the challenged rulings. Simultaneously, the assistant district attorney suggested that Nelson's right to appeal would not be foreclosed by the guilty pleas. The perception of the law by both attorneys is inaccurate. Because of Nelson's misunderstanding of the true effect of his guilty pleas on his appeal rights, it could be argued that the pleas were not understandingly made, and, thus, his appeal rights would still be preserved. However, in an analogous...