Kevin Murphy, Leader Correspondent
A state appeals court Thursday reversed a Shawano man’s bank robbery conviction because the judge did not ask at the plea hearing if he knew he was entitled to a unanimous jury verdict.
Darrin H. Church, 52, was sentenced in July 2014 to five years in prison and another 10 years extended supervision.
Church had pleaded no contest to charges of using the threat of force to rob the CoVantage Credit Union at 911 E. Green Bay St. and attempting to rob Cash Tyme at 705 E. Green Bay St., in April 2013.
The District IV Court of Appeals reversed Church’s convictions on those charges, as well as bail jumping and other misdemeanors.
Circuit Judge William Kussel Jr. conducted an otherwise exemplary plea colloquy, or dialogue, according to the District IV Court of Appeals, but not asking Church about his right to unanimous verdict constitutes a defect, the court ruled.
The court returned the case to Kussel with instructions that the district attorney has to prove Church understood all the rights he was giving up prior to pleading no contest to the charges.
During a December 2015 appeals hearing in Shawano County Circuit Court, Church’s defense counsel argued that the court did not conduct a proper question-and-answer with the defendant with respect to his rights and the possible outcome for a jury trial, and that the sentence for time in prison was not calculated correctly.
Kussel denied the motion for post-conviction relief, finding that the plea discussion with Church was not in error, that the prison time had been previously re-calculated and the judgment of conviction was properly amended, according to court records.
According to the appeals opinion:
During the plea hearing, Kussel noted that the defendant had checked the boxes on the plea questionnaire, including his right to a unanimous verdict. Kussel learned from Church’s attorney, Steven Weerts, that on or near the day of the hearing, he had discussed with Church the constitutional rights he was giving up by entering a plea.
Kussel then addressed Church that he was giving up his right to remain silent, right to proof beyond reasonable doubt and other rights a defendant has at trial.
Church said he understood what he was giving up. However, Kussel didn’t ask Church about the right to a unanimous verdict, and one omission was enough to invalidate the plea.
“(W)e conclude that the circuit court’s failure to engage in a personal colloquy with Church regarding jury unanimity was a plea colloquy defect,” the court said in its 10-page unsigned opinion.
The criminal complaint alleged that Church entered CoVantage Credit Union on April 8, 2013, and gave a teller a note demanding money. He left with more than $6,000 but was arrested a short time later and the money was recovered.
Just before the CoVantage robbery, Church had entered the nearby Cash Tyme Store, gave the teller a note and then told her it was a joke. He left with no funds.
Church had entered another bank earlier the same day but didn’t use the note he had written.
Church was initially found incompetent to stand trial, but that was reversed after a doctor concluded Church had been faking his incompetency.
Church is incarcerated at Oakhill Correctional Institution near Madison, according to online records.
Attempts to contact Church’s appeals attorney, Eric Bauer, and Weerts were unsuccessful. A call to District Attorney Gregory Parker for comment was not returned by deadline.