concluding that when there is an application or interpretation of the statute that is constitutional, the statute is not unconstitutional on its face
How later courts described this case
- concluding that when there is an application or interpretation of the statute that is constitutional, the statute is not unconstitutional on its face
- stating that an as-applied constitutional challenge may be waived or forfeited
- presuming that a concealed weapons law implicating the fundamental right to bear arms was constitutional
- ascertaining the constitutionality of statutes presents a question of law
Written by the judges who cited it.
The opinion
N. PATRICK CROOKS, J.
¶ 55. (concurring). While I strongly disagree with the majority's conclusion that Wis. Stat. § 941.23 is constitutional, for the reasons set forth in my dissent in State v. Hamdan, *560 2003 WI 113 , 264 Wis. 2d 433 , 665 N.W.2d 785 , I agree that Phillip Cole's conviction should be upheld. Because of Cole's waiver of the constitutional claim he now makes, I agree with the majority's mandate affirming Cole's conviction.
¶ 56. On May 12, 2000, Cole entered a plea of guilty to charges of carrying a concealed weapon (CCW) in violation of Wis. Stat. § 941.23 and to possession of THC (marijuana) in violation of Wis. Stat. § 961.41 (3g)(e). Judge Maxine A. White sentenced Cole to 60 days on the CCW charge and 15 days (concurrent) on the possession charge.
¶ 57. Four and one-half months later, on September 29, 2000, Cole filed a motion to vacate his conviction on the CCW charge. For the first time he raised the issue of the constitutionality of the CCW statute, claiming that his right to bear arms, found in Article I, Section 25 of the Wisconsin Constitution, was violated by that statute.
¶ 58. He was too late! His objection was not made prior to his guilty plea, and therefore was not in any way preserved for subsequent review. Wisconsin law has long been clear that a guilty plea, which is knowingly and voluntarily made, waives all non-jurisdictional defects and defenses, including alleged violations of constitutional rights. See State v. Bangert, 131 Wis. 2d 246 , 389 N.W.2d 12 (1986); State v. Minniecheske, 127 Wis. 2d 234 , 378 N.W.2d 283 (1985); State v. Damaske, 212 Wis. 2d 169 , 567 N.W.2d 905 (Ct. App. 1997), review denied 212 Wis. 2d 689 , 569 N.W.2d 590 .
¶ 59. Since Cole, by his guilty plea, waived his right to claim that Wis. Stat. § 941.23 (CCW statute) is unconstitutional, his conviction must be affirmed. Because of his waiver, I respectfully concur in the mandate.