State v. Jacob Richard Beyer ( 2021 )


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    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
    2
    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.
    3
    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.
    4
    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
    5
    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.
    11
    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.
    12
    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.").
    13
    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
    14
    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.
    15
    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.
    16
    No.   2019AP1983-CR
    1