State v. Miguel A.F. Navarro

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 25, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP578-CR Cir. Ct. No. 2018CF156

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MIGUEL A.F. NAVARRO,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Pierce County:
JOSEPH D. BOLES, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Miguel Navarro appeals from a judgment
convicting him of first-degree reckless homicide, as charged in an amended
No. 2022AP578-CR

Information pursuant to a negotiated plea agreement. Navarro contends that the
circuit court erroneously exercised its discretion by denying his motion to change
his pleas on two different charges in the original Information from not guilty to not
guilty by reason of mental disease or defect (NGI). We conclude that Navarro
forfeited his right to review of the NGI-plea issue by entering a guilty plea to the
amended charge. We further decline to exercise our discretion to review the
forfeited issue. Accordingly, we affirm.

BACKGROUND

¶2 The State charged Navarro with first-degree intentional homicide
and mayhem based on allegations that Navarro fatally attacked a co-worker with a
circular saw. Two witnesses observed the attack, and Navarro confessed to the
attack during a recorded jail call. The defense arranged for psychologist
Dr. Norman Cohen to conduct a neuropsychological examination of Navarro to
determine “how Mr. Navarro’s intellectual deficits may have affected his
commission of this crime.” Cohen noted that, due to a traumatic brain injury,
Navarro scored below the tenth percentile on almost all cognitive tasks, including
below the first percentile on virtually all memory tasks. Cohen concluded, among
other things, that Navarro’s “ability to understand the procedures in a trial or to
make good decisions in this situation [is] grossly limited.”

¶3 After receiving Cohen’s report, the defense moved for a competency
evaluation. Psychologist Dr. Donna Minter filed a court-ordered report
concluding that Navarro was competent to stand trial, while psychologist
Dr. Michael Moller filed a report concluding that Navarro was not competent. For
a variety of reasons, the competency hearing was not completed until forty-two

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days before the scheduled trial date. The circuit court ruled at the hearing that
Navarro was competent to stand trial.

¶4 Four days later, Navarro moved to change his pleas from not guilty
to NGI and requested a court-ordered NGI evaluation. The State opposed the
motion on the dual grounds that the motion was untimely and that Navarro had
failed to make an offer of proof showing that he met the elements of the defense
under WIS. STAT. § 971.15 (2021-22).1 Navarro replied that Cohen’s report
provided a basis to argue that Navarro suffered from a mental disease or defect,
and that his counsel needed to wait until the competency issue had been resolved
before seeking to change Navarro’s pleas.

¶5 The circuit court denied Navarro’s motion to change his pleas. The
court reasoned that: (1) Navarro could have moved to change his pleas at any time
after receiving Cohen’s report; (2) Cohen’s report did not actually opine that
Navarro was unable to appreciate the wrongfulness of his conduct or to conform
his behavior to the requirements of law; and (3) it was unlikely that an additional
evaluation could be performed while still meeting the State’s speedy trial demand.

¶6 Navarro filed a petition for leave to appeal, seeking interlocutory
review of the denial of his motion to change his pleas. This court denied the
petition, noting that the circuit court’s decision was discretionary and would be
preserved for review after trial.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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¶7 Navarro subsequently entered a guilty plea to a reduced charge of
first-degree reckless homicide. He now appeals, seeking review of the denial of
his motion to change his pleas to the original charges from not guilty to NGI.

DISCUSSION

¶8 By entering a valid plea of guilty or no contest, a defendant forfeits
the right to raise nonjurisdictional defects and defenses—including claimed
violations of most constitutional rights. See State v. Kelty, 2006 WI 101, ¶¶18 &
n.11, 34, 294 Wis. 2d 62, 716 N.W.2d 886 (setting forth the “guilty-plea-waiver
rule”); see also State v. Lasky, 2002 WI App 126, ¶11, 254 Wis. 2d 789, 646
N.W.2d 53 (regarding an exception for double jeopardy claims). Because the
guilty-plea-waiver rule is a rule of administration, this court retains the authority
to review an issue forfeited under the rule. Kelty, 294 Wis. 2d 62, ¶18. We may
choose to exercise our discretion to review a forfeited issue when the issue is of
statewide importance or its resolution will serve the interests of justice and there
are no outstanding factual issues. State v. Grayson, 165 Wis. 2d 557, 561, 478
N.W.2d 390 (Ct. App. 1991). In doing so, we may also take into account such
factors as any administrative costs and time saved by avoiding an unnecessary and
protracted trial; the presentation of the issue raised on appeal before the circuit
court; whether it appears that the defendant appealed because the sentence was
more severe than hoped for; and a lack of published decisions addressing the issue.
County of Ozaukee v. Quelle, 198 Wis. 2d 269, 275-76, 542 N.W.2d 196
(Ct. App. 1995), abrogated on other grounds by Washburn County v. Smith,
2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243.

¶9 Here, Navarro does not assert that his guilty plea was invalid or that
the NGI-plea issue he wishes to raise on appeal is jurisdictional in nature or

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otherwise exempt from the guilty-plea-waiver rule. He instead asks this court to
exercise our discretion to address his forfeited issue, asserting: (1) the issue was
litigated in the circuit court prior to the entry of Navarro’s plea; (2) proceeding to
trial would have been an unnecessary waste of time and money merely to preserve
the issue when there was otherwise overwhelming evidence of Navarro’s guilt;
(3) Navarro would be risking a greater sentence by reinstating the original
first-degree intentional homicide charge, showing that he is not seeking to
withdraw his plea merely due to disappointment in his sentence; (4) the issue is of
statewide importance because there are no published cases dealing with an NGI
request made more than four days before trial; and (5) the resolution of the issue
would serve the interests of justice.

¶10 First, we agree that Navarro’s litigation of the NGI issue weighs
somewhat in favor of reviewing the issue. That said, if this court were to exempt
all issues that have been litigated prior to entry of a plea from the
guilty-plea-waiver rule, the exception would swallow the rule. WISCONSIN
STAT. § 971.31(10) already permits appellate review of a suppression ruling
following a guilty plea. The litigation of other issues therefore carries little weight
in this court’s decision whether to exercise our discretion to review an issue
notwithstanding its forfeiture.

¶11 Second, we also agree that the overwhelming evidence of Navarro’s
guilt weighs somewhat in favor of an exception on the grounds of judicial
economy. Again, however, we give this factor little weight because it threatens to
swallow the rule. It is frequently the case that a defendant who decides to enter a
plea is facing a strong case by the State.

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¶12 Third, Navarro asked the circuit court for a sentence with only ten
years of initial confinement. The court ultimately imposed thirty years of initial
confinement, which was three times the amount requested by the defense, and
approximately double the eighteen to twenty-two years of initial confinement
recommended by the PSI. We therefore cannot discount the possibility that
disappointment with his sentence played a role in Navarro’s request to withdraw
his plea, even if he is now willing to risk a greater sentence for the possibility of
avoiding criminal responsibility altogether. On the other hand, Navarro’s attempt
to seek interlocutory review before entering a plea indicates that he was genuinely
concerned about the issue. Taking all of these points into account, this factor does
not weigh either way in our decision.

¶13 Fourth, we do not agree that the NGI-plea issue Navarro presents is
one of statewide importance. As Navarro himself acknowledges, a circuit court’s
decision whether to allow a defendant to change his or her plea to NGI is
discretionary. See State v. Oswald, 232 Wis. 2d 103, ¶49, 606 N.W.2d 238
(1999). Such decisions are inherently fact-based and focused on the circumstances
in the case, which limits their general applicability. In line with this point,
Navarro does not allege that the circuit court based its decision in this case on the
wrong legal standard. Rather, he challenges the court’s application of the legal
standard to the specific facts of this case. Contrary to Navarro’s assertion, we do
not view the length of time between the filing of his NGI motion and the trial in
this case to be a significantly different circumstance than other published cases
already addressing this issue.

¶14 Fifth, after making a bald assertion that review of his NGI-plea issue
would serve the interests of justice, Navarro offers no argument as to why that fact
would be so. It may be fairly inferred from Navarro’s petition for leave to appeal

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that he was aware that he would forfeit the issue by entering a guilty plea to the
amended charge. We see nothing in the record that suggests it would be
inherently unfair to hold him to that forfeiture.

¶15 On balance, we are not persuaded that the circumstances here
warrant review of Navarro’s forfeited claim that he should have been allowed to
change his not guilty pleas to the original charges to NGI pleas. The factor of
primary relevance to this court is that the circuit court’s decision was a
discretionary one that does not present an issue of statewide concern.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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