Monday, December 6, 2010

The Case for Freedom

Below is photo of plea agreement followed by transcription. Click picture to view larger size

Plea Questionnaire/ Waiver of Rights.(transcription of above document)
Case number 2006 CF 381
Filed Feb 2 2007
State of Wisconsin, Plaintiff, -vs-
Brandon Daniels, defendant case number 2006 CF 381

I am the defendant and intend to plea as follows:
Charge: armed Burglary PTAC-plea guilty
Armed robbery PTAC-guilty
I am 22 years old-. I have completed 12 years of schooling
I do have a high school diploma, GED, or HSED.
I understand the English language,
I understand the charge(s) to which I am pleading,
I am not currently receiving treatment for a mental illness or disorder, had any alcohol, medications, or drugs within the last 24 hours.

Constitutional Right
I understand that by entering this plea, I give up the following constitutional rights:
I give up my right to a trial.
I give up my right to remain silent and I understand that my silence could not be used against me.
I give up my right to testify and present evidence at trial..
I give up my right to use subpoenas to require witnesses to come to court and testify for me at trial.
I give up my right to a jury trial, where all 12 jurors would have to agree that I am either guilty or not
I give up my right to confront in court the people who testify against me and cross examine them.
I give up the right to make the state prove me guilty beyond a reasonable doubt.
I understand the rights that have been checked and give them up of my own free will.

I understand that the crime to which I am pleading has elements that the state would have to prove beyond a reasonable doubt if I had a trial. These elements have been explained to me by my attorney.
I understand that the judge is not bound by any plea agreement or recommendations and may impose the maximum penalty. The maximum penalty I face upon conviction is: 1) 15 years 50,000 2) 40 years,$100,000
I understand the judge must impose the mandatory minimum penalty if any. The mandatory minimum penalty I face upon conviction is: none
The judge can impose a lesser sentence if the judge states appropriate reasons.
Rebecca Matoska - ]
_CLERK OF Circuit Court
D Guilty O No Contest
D Guilty D No Contest

The Heart of the matter
GOVERNMENT OFFICIALS' MISCONDUCT WARRANTS Withdrawal of pleas, which are obtained by grossly extreme bias, prejudice, misleading, confusion, breach of agreement, manifest injustices, no probable cause, denied criminal process of law, all charges must be threw out based on grounds stated.
All attorney's appointed to case 06-CF-381 made no good efforts bring these unconstitutional flaws to light. Fareeta V. California, 422 U.S. 806, 834(1975) to force a lawyer on a defendant can only lead him to believe that lawyer contrives against him.
ISSUE (1). No criminal process exist for arrest under (ss 968.07) 968.073 Custodial Interrogation no interview informing defendant of criminal charges and arrest to appear in court 4-11-2006.
ISSUE (2) On 4-11-2006 Initial appearance record,(Exhibit 1) Court commissioner James Fitzgerald denied criminal process under 970.02,1.(A.)(B.) (C.)(6). Failed to officially inform Mr. Daniels of "criminal charges" "criminal statue sections," "maximum penalties if convicted" "entitled preliminary examination within ten days" "entitled to state appointed." This constitution equal protection of information is not recited in record Exhibit 1).. Thereby probable cause doesn't exist, 4-11-2006 court commissioner Fitzgerald willingly, knowingly, intentionally failed to inform defendant his constitutional rights protections under 970.02 (1 .)(A. )(B.) (C. )(6) State lacked competency to exercise its subject matter jurisdiction as states failure to comply with statutory methodology prescribed by legislature.

ISSUE (3). On 4-17-2006 Adjourned Initial appearance (Exhibit,2). Commissioner Fitzgerald again failed to inform Mr.Daniels of "charges", "criminal statue sections""maximum penalties if convicted". Record doesn't recite constitutional right protections under 970.02,1.(A.)(B.)(C.). During this unlawful proceedings Attorney Eileen Huie is not appointed to case and requested preliminary hearing be set beyond ten day time limit. Note, 4-11-2006 record show Mr.Daniels didn't waive ten day time limits to have probable cause examination, nor did he waive time limits 4-17-2006.

ISSUE (4). On 4-20-2006 commissioner Fitzgerald, prosecutor Graveley, and Kenosha's state public defenders office supervisor Diane Zitzner agreed obstructing justice, denied preliminary hearing probable cause process under S.S. 970.03 (l.)(2.)(3.)(4.X5.)(6.)(7.)(8.)(9.)(10.). See exhibit (3). Preliminary record 4-20-2006 commissioner Fitzgerald again failed to inform Mr.Daniels of his "charges""criminal section" "maximum penalties if convicted", again Mr. Daniels didn't waive time limits.
Quote record 4-20-2006 page 5: Mr.Daniels time limits have been tolled for cause he has no . attorney, and I cannot proceed with this proceedings without an attorney. And the delay is caused by defense and more so by public defenders office. I understand they're under alot of pressure to find enough people to represent all of these defendants. It's my understanding they have been using "diligent efforts". As I recall when Mr.Daniels was in here sometime this week, I think it was Monday, I indicated the public defender should use all diligent effort to locate an attorney so this matter could proceed. But apparently they were unsuccessful in that endeavor. Unquote.

On 4-21-2006 S.P.D. supervisor Diane Zitzner agreed with newly assigned attorney Geneva Brown to continue with sabotage upcoming preliminary hearing 4-26-2006 to cover up prior violations (4-11 -2006 No probable cause)(4-17-2006 No probable cause)(4-20-2006 No probable cause). (Exhibit,4). Preliminary Record 4-26-2006, Attorney Brown follow through with sabotage, told Mr.Daniels to waive preliminary hearing and charges 3 through 9 would be completely threw out and not used in court against him. Deceit was used to get Mr.Daniels to waive this preliminary which was already in violation of his constitutional rights prior to him waiving probable cause hearing under S.S.970.03
This motion was not filed by attorney Brown; Quote: The defendant, appearing specially by his attorney and reserving his right to challenge the courts jurisdiction, moves the court for an order dismissing thisaction. This motion is brought pursuant to SEC.971.31(2)(5 ), stats, on the grounds that defendant has not been provided with a preliminary examination in this case within statutorily prescribed time limits, in violation of the rights guaranteed by the 5th and 14th amendments to the United States Constitution; Article 1, section 8 of Wisconsin Constitution; SEC.970.03(2),STATS; and Armstrong V. State,55 WIS. 2d 282, 198 N.W.2d 357(1972), Logan V. State,43 WIS.2d 128, 168 N.W.2d 171(1969), and State EX rel. Kilnkiewicz V. Duffy, 35 WIS. 2d 369, 151 N.W. 2d 63(1967). These delays prejudiced defendants rights to present a defense, State V. Golden, 185 WIS. 2d 763, 519 N.W. 2d 659 (ct. app.1994).
ISSUE (5). (Exhibit 5). Arraignment Record 5-23-2006 Judge Anthony Milisauskas, Prosecuter Graveley, and Attorney Brown didn't inform Mr.Daniels of "charges""criminal statue sections""maximum penalties if convicted". This arraignment in violation of Mr.Daniels constitutional rights 4th, 5th, 6th, 8th, 13th, 14th, amendments, $500,000 cash bond not informed of charges.

Issue (6). Both attorneys Brown, and Flanagan failed to file 971.23 Motion Discovery & Inspection to review all evidence prior having Mr.Daniels accepting pleas 2-2-2007.The presumption of prejudice has -. sometime been applied in a plea of guilty context. See Stano V. Dugger, 889 F. 2d 962 (llth cir. 1989) presumption of prejudice where during guilty plea proceedings attorney said he had not received full discovery from state and thus could not advise his client as to propriety of guilty plea. Pressing defendant to accept plea agreement and enter guilty plea, State V. Rock, 92 WIS 2d 554, 285 N.W. 2d 739 (1979). Coercion on part of trial counsel, confusion, inaccurate legal advise renders a plea uninformed one and can compromise the voluntariness of the plea, State V. Woods, 173 WIS 129, 496 N.W. 2d 144(
Mr.Brandon Daniels guilty pleas accepted without trial court conformance with WIS. State Statue 971.08; Fed. Crim. P. Rule 11. Mandatory duties imposed by Supreme Court. (Exhibit 6.) Plea hearing record 2-2-2007, plea Judge Wilbur Warren
ISSUE (7). Court failed to inform defendant of criminal statue sections violated, he plead to;
ISSUE (8). Court failed to inform defendant maximum penalties and fines if convicted on all counts 1 through 9
ISSUE (9). Court failed to inform defendant of potential possibility receiving consecutive sentence; ISSUE (10). Court failed to inform defendant that court is not bound by plea agreement terms;
ISSUE (11). Court failed to ask defendant was force, threats or promises or coercion used causing to plead guilty;
ISSUE (12). Court filed to personally address defendant is his pleas made intelligently;
ISSUE (13). Detective plea colloquy defendant unable to understand information much confusion, and other information wasn't provided;
ISSUE (14)."Plea waiver of rights questionnaire form if defective" couldn't understand "charges" or elements, or rights waiving, or maximum penalties, much confusion went on signing plea waiver rights form 2-2-2007.
ISSUE (15). Breach of plea agreement. Court used dismiss read-in Armed Robbery for count 1. during plea accepting 2-2-2007. Thereby forced defendant to plea on two counts of conspiracy to commit Armed Robbery, See Plea Record page 3. Exhibit (7). Plea Questionnaire Waiver Of Rights document recite count 1. Conspiracy To Commit Armed Burglary enter plea of guilty; Count 2. Conspiracy To Commit Armed Robbery No other crime listed. See Exhibit (8). Criminal Information 06-CF-0381 Count 1: Conspiracy To Commit Armed Burglary; Count 2: Conspiracy To Commit Armed Robbery; All other counts 3 through 9 dismiss. Therefore at plea hearing 2-2-2007 Mr.Daniels never pleaded guilty to count 1: Conspiracy To Commit Armed Burglar. Signed plea questionnaire was not conclusive evidence that defendant understood elements of crimes listed in questionnaire State V. Boiling, 2000 W1S 6, 4-5, 52-55, 232 W1S 2d 561. 605 N.W. 2d 199. Pleas was involuntary and unknowing and in violation of defendants rights To Due Process, State V. Cecchini, 124 WIS. 2d 2000, 368 N.W. 2d 830 (1985).Supreme Court has stated that guilty plea cannot Be considered voluntary unless accused has real notice of true nature of charges against him, Marshall V. Lonberger, 459 U.S. 422 436, 103 S.ct. 843,851,74 L. ed 2d 646 (1983).
A guilty plea can be withdrawn as a matter of right if it is established that: 1) There was a violation of a relevant constitutional right: 2) The violation caused defendant to plead guilty: 3) At the time of guilty plea defendant was unaware of potential constitutional challenges to prosecution case, State V. Carslson, 48 WIS. 2d 222. 179 N.W. 2d 851 (1970). A plea will not be voluntary unless defendant has a full understanding of charges against him, Brady V. United States, 397 U;S. 742, 748, N.6. 90 S. ct. 1463, 1469, N.6. 25 L. ed. 2d 747 (1970). US V. Berrios-Centeno, 250 F 3d 294 (5th cir. 2001) 1.) To be sufficient an indictment must allege material element of offense; 2.) Because an indictment is jurisdictional, a defect in an indictment is not waived by a guilty plea. '

Citation Of Authority: To withdraw a plea after sentencing, a defendant must satisfy two threshold requirements. First, he must make a prima facie showing that his plea was accepted without trial courts conformance with 971.08 and other court imposed mandatory duties; and, second, that he or she did not know or understand the information that should have been provided at plea hearing. State V. Vancamp, 213 WIS. 2d 131, 140-41, 569 N.W. 2d 577 (1997) Citing State V. Bangert, 131 WIS. 2d 246, 274, 389 N.W. 2d 12, 26 (1986) . Upon that showing, the state bears the burden of showing by clear and convincing evidence that plea was knowingly and voluntarily nade. Mr. Daniels moves the court pursuant to § 971.08 § 809.30 State V. Kampton, 274 WIS. 2d 379, 683 N.W. 2d 14, 2004 WI 107. (2004) and State V. Bangert, 131 WIS. 2d 246, 389 N.W. 2d 12, (1986) for the entry of an order permitting him to withdraw his previously entered guilty pleas on ground that pleas were not voluntarily knowingly and intelligently entered and that the court failed to advise him at the time of accepting his pleas that court was not bound to follow any plea agreement or recommendation by the parties. State V. Brown, NO. 200 3ap2662-cr order (WIS ct. app Feb.21 2005). Seiller V. United States, 544 F.2d 544 (2d cir.1975); State V. Fortier, 2006 WI app 11, p28 N. 5, 289 WIS. 2d 179, 709 N.W. 2d 893. State V. Knight, 168 WIS. 2d 509, 520, 484 N.W. 2d 540 (1992). State V. Rangert, 131 WIS. 2d 246, 389 N.W. 2d 12 (1985).
Osborn V. Shillinger, 861 F.2d 748 (10th cir 1998) Holding counsel performance was not only ineffective, but counsel abandoned the required duty of loyalty to his client. Trial counsel simply did not make poor strategic or tactical choices, he acted reckless disregard for his clients best interest and apparently with intentions to weaken his client case. Lockhart V. Terhune, 250 F 3d 1223 (9th cir. 2001) Denied 6th amendment right to counsel includes the tight to be represented by an attorney with undivided loyalty. US V. White, 222 F 3d 363 (7th cir 2000) Government has a special responsibility to ensure the integrity of criminal judicial process by living up to code of professional ethics and fair play at all time. Specific intent to deprive defendant of constitutional rights. Unjustifiable deprivation of libery accomplished without probable cause under fourth amendment, denied meaningful procedural due process. Attorney Johnnie L. Cochran Jr. Quoted: Throughout our history, where ever moral and legal lawlessness held sway, black people suffered, our struggle had never been with America's constitution and it's laws; rather, ours was a struggle to convince white American's that we, too, were entitled to the constitutions protections and they, too, were subject to it's restraints, Unquote.

U.S. V. Warwick, 167 F3d 965 (6th cir.1999) Under outrageous government conduct defense, a conviction may be improper, even if the evidence establishes a defendant predisposition to commit the crime.END.

photo of "elements of common criminal offenses "

Factors checked:
1)Burglary while armed; Class E felony:
I intentionally entered the building of another
I did not have the consent of the owner or person in lawful possession to enter
I knew I did not have consent to enter
At the time I entered, I intended to steal or commit a felony.
2) Armed robbery ; class C felony
I took property from the person or the presence of the owner
I used force or threat of force against the person of the owner.
I intended the force or threat of force to overcome the physical resistance or physical power of resistance to the taking and carrying away of property

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