State v. Cole

¶1¶ 51. (concurring). I join Justice Prosser's concurrence except that part of his concurrence in which he states that he "strongly support[s] much of the majority opinion."1 I have reservations about parts of the majority opinion.

¶2*559¶ 52. For example, it does not make sense to me that the majority opinion gives a statute that predates a constitutional amendment the presumption of constitutionality under the later-enacted constitutional amendment.2 The presumption of constitutionality is based on the reasonable belief that a legislature intends to enact laws that are valid under the Constitution at the time they are enacted, not the unreasonable assumption that a legislature can anticipate all future constitutional amendments and draft constitutionally immortal statutes.

¶3¶ 53. Furthermore, I am not persuaded that there is any difference between rational basis test and the majority opinion's "reasonable exercise of police power" test.3 The exercise of police power must always be reasonable, that is reasonably and rationally related to a legitimate government interest.4 The concealed weapons statute is constitutional if it represents a reasonable exercise of the State's police power and does not eviscerate the constitutional right to keep and bear arms.5

¶4¶ 54. For the reasons set forth, I write separately.

¶9¶ 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, *5602003 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.

¶10¶ 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.

¶11¶ 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.

¶12¶ 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.

¶13¶ 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.