State v. Jacob Richard Beyer

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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 No. 2019AP1983-CR

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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 No. 2019AP1983-CR

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.

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 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
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 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.

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 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.

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 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.").

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 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

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 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

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

12 Because we remand the case to the circuit court on
procedural grounds, we do not reach the merits of Beyer's discovery
claims.

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 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.

Accordingly, we reverse and remand to the circuit court for

proceedings consistent with this opinion.

By the Court.—The judgment and order of the circuit court is

reversed and cause remanded.

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1