2013 WI 34
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1030-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent,
v.
Gerald D. Taylor,
Defendant-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: April 23, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 6, 2012
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Outagamie
JUDGE: Dee R. Dyer
JUSTICES:
CONCURRED: Prosser, J., concurs. (Opinion filed.)
DISSENTED: Abrahamson, C.J., Bradley, J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
and oral argument by Andrew R. Hinkel, assistant state public
defender.
For the plaintiff-respondent, the cause was argued by
Thomas J. Balistreri, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
2013 WI 34
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1030-CR
(L.C. No. 2009CF330)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. APR 23, 2013
Gerald D. Taylor, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
APPEAL from a judgment and an order of the Circuit Court
for Outagamie County, Dee R. Dyer, Judge. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This appeal is before
the court on certification by the court of appeals, pursuant to
Wis. Stat. § 809.61 (2009-10).1 The defendant, Gerald Taylor
(Taylor), pled no contest to charges of uttering a forgery as a
repeater. The penalty Taylor faced for uttering a forgery was
"a fine not to exceed $10,000 or imprisonment not to exceed 6
years, or both."
Wis. Stat. § 939.50(3)(h). Additionally,
because Taylor was a repeat offender, his maximum term of
1
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
No. 2011AP1030-CR
imprisonment could "be increased by not more than 2 years if the
prior convictions were for misdemeanors."2 Wis. Stat.
§ 939.62(1)(b). Therefore, Taylor faced a maximum term of
imprisonment of eight years.
¶2 Specifically, at the plea hearing, the circuit court
informed Taylor that it "could impose the maximum penalty here
of a $10,000 fine or six years in prison or both." Though the
court mentioned the repeater allegation several times, it did
not explicitly inform Taylor during the plea colloquy that he
faced an additional two-year penalty because of the repeater
allegation for a maximum term of imprisonment of eight years.
¶3 Thereafter, the circuit court sentenced Taylor to a
six-year term of imprisonment for uttering a forgery as a
repeater. Subsequently, Taylor filed a motion for
postconviction relief pursuant to Wis. Stat. § 809.30(2)(h).
Taylor moved to withdraw his no contest plea, arguing that it
was not entered knowingly, intelligently, and voluntarily.
¶4 The circuit court denied Taylor's motion without
requiring the State to prove, at a Bangert hearing, that Taylor
entered his plea knowingly, intelligently, and voluntarily.3 The
2
The complaint charges Taylor as a repeater, as he had been
convicted of at least three prior misdemeanors.
3
State v. Bangert, 131 Wis. 2d 246,
389 N.W.2d 12 (1986)
outlines the procedure for withdrawal of a plea based on an
error in the plea colloquy:
Where the defendant has shown a prima facie violation
of sec. 971.08(1)(a) or other mandatory duties, and
alleges that he in fact did not know or understand the
information which should have been provided at the
2
No. 2011AP1030-CR
court stated that since Taylor was informed that he faced a six-
year term of imprisonment and he received a six-year term of
imprisonment, any error was "harmless."
¶5 Taylor appealed the circuit court's denial of his
motion to withdraw his no contest plea. Taylor argued that it
was improper for the circuit court to find that its error was
"harmless," and that a plea that is not entered knowingly,
intelligently, and voluntarily is harmful under State v.
Bangert, 131 Wis. 2d 246,
389 N.W.2d 12 (1986).
¶6 The court of appeals certified Taylor's appeal to this
court. It noted that "it is unclear whether understating the
potential penalty during a plea colloquy can properly be deemed
harmless error, and if so, where in the analytical framework of
Bangert such a determination should be made."
¶7 We granted the court of appeals' certification and now
affirm the judgment of the circuit court.
¶8 We hold that the defendant's plea was entered
knowingly, intelligently, and voluntarily when the record makes
clear that the defendant knew the maximum penalty that could be
imposed and was verbally informed at the plea hearing of the
penalty that he received. Therefore, the circuit court did not
plea hearing, the burden will then shift to the state
to show by clear and convincing evidence that the
defendant's plea was knowingly, voluntarily, and
intelligently entered, despite the inadequacy of the
record at the time of the plea's acceptance.
Id. at 274.
3
No. 2011AP1030-CR
err by denying Taylor's postconviction motion to withdraw his no
contest plea.
¶9 Further, plea withdrawal "remains in the discretion of
the circuit court and will not be disturbed unless the defendant
shows that it is necessary to correct a manifest injustice."
State v. Cross, 2010 WI 70, ¶4,
326 Wis. 2d 492,
786 N.W.2d 64;
State v. Cain,
2012 WI 68, ¶20,
342 Wis. 2d 1,
816 N.W.2d 177.
Taylor has not demonstrated that withdrawal of his plea is
necessary to correct a manifest injustice. Accordingly, the
judgment and order of the circuit court is affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶10 On January 2, 2009, at an M&I Bank in Appleton,
Wisconsin, Taylor attempted to cash check number 4627, which was
drawn on the account of Finished Touch Inc. and was made payable
to Gerald Dwayne Taylor. The teller at the bank had previously
been alerted that someone named Gerald Taylor had passed
counterfeit checks at an M&I Bank in Green Bay, Wisconsin. The
teller delayed Taylor, giving Sgt. Michael Daul of the Appleton
Police Department time to arrive. Taylor acknowledged that he
had been the one attempting to cash the check and claimed that
he had done subcontracting work for Finished Touch Inc. Officer
Daul contacted James Smith of Finished Touch Inc. Smith
indicated that he was the person in charge of writing all the
checks for Finished Touch Inc., that he did not recall writing a
check to Taylor, that he did not have any employees or
subcontractors named Taylor, and that he still had check number
4627 in his book.
4
No. 2011AP1030-CR
¶11 On May 8, 2009, the State filed a criminal complaint
charging Taylor with uttering a forgery as a repeater, in
violation of Wis. Stat. §§ 943.38(2),4 939.50(3)(h),5 and
939.62(1)(b).6 The complaint stated that upon conviction, Taylor
"may be fined not more than Ten Thousand Dollars ($10,000), or
imprisoned not more than six (6) years, or both." The complaint
also alleged that "because the defendant is a repeater, having
been convicted of at least three misdemeanors, which
conviction(s) remain of record and unreversed, the maximum term
of imprisonment . . . may be increased by not more than 2
years." The complaint listed Taylor's prior convictions,
including two disorderly conducts, resisting or obstructing an
officer, and criminal damage to property. At Taylor's bail
hearing on August 20, 2009, the court asked Taylor's attorney,
Michael Dally, if he wanted the complaint read. Attorney Dally
4
Wisconsin Stat. § 943.38(2), "Forgery," provides, in
relevant part:
Whoever utters as genuine or possesses with
intent to utter as false or as genuine any forged
writing or object mentioned in sub. (1), knowing it to
have been thus falsely made or altered, is guilty of a
Class H felony.
5
Wisconsin Stat. § 939.50(3)(h), "Classification of
felonies," provides that the penalty for a Class H felony is "a
fine not to exceed $10,000 or imprisonment not to exceed 6
years, or both."
6
Wisconsin Stat. § 939.62(1)(b), "Increased penalty for
habitual criminality," provides that "[a] maximum term of
imprisonment of more than one year but not more than 10 years
may be increased by not more than 2 years if the prior
convictions were for misdemeanors."
5
No. 2011AP1030-CR
responded that the "Court does not have to read the complaint.
It does charge uttering a forged instrument as a repeat
offender. Priors appear to be for misdemeanors." Taylor
appeared in person at the bail hearing.
¶12 Taylor waived his right to a preliminary hearing on
November 24, 2009. At the waiver hearing, the court asked
Taylor: "Were you able to read over the criminal complaint in
this case to see what they say you did?" Taylor responded
"Yeah." The court confirmed "So you could understand that?"
Taylor responded "Yeah."
¶13 On December 1, 2009, the State filed an information
which stated that upon conviction for uttering a forgery, Taylor
may be "imprisoned not more than six (6) years." Further,
because Taylor is a repeat offender, the term of imprisonment
"may be increased by not more than 2 years if the prior
convictions were for misdemeanors."
¶14 At Taylor's arraignment on January 25, 2010, the court
asked Taylor's attorney, "Mr. Dally, have you received a copy of
the information?" Taylor's attorney responded, "We have Judge.
It's a charge of uttering with the repeater enhanced and alleged
as well."
¶15 Pursuant to plea negotiations, Taylor agreed to plead
no contest to the charge of uttering a forgery as a repeater,
and in return, the State would recommend, inter alia, three
years of probation. On August 23, 2010, Taylor completed a Plea
Questionnaire/Waiver of Rights form. In the "understandings"
section, Taylor acknowledged that he understood the judge was
6
No. 2011AP1030-CR
"not bound by any plea agreement or recommendations and may
impose the maximum penalty." Taylor's maximum penalty was
handwritten on the form: "8 yrs prison/$10,000 fine or both."
Taylor signed the form, acknowledging that he "reviewed and
understand[s] this entire document and any attachments. I have
reviewed it with my attorney (if represented). I have answered
all questions truthfully and either I or my attorney have
checked the boxes. I am asking the court to accept my plea and
find me guilty." Taylor's attorney also signed the form and
acknowledged that he had "discussed this document and any
attachments with the defendant. I believe the defendant
understands it and the plea agreement. The defendant is making
this plea freely, voluntarily, and intelligently."
¶16 At the plea hearing held on August 23, 2010, the same
day Taylor filled out the plea questionnaire form, the court
mentioned the repeater several times and confirmed that Taylor
had read and understood the complaint and plea questionnaire
form:
THE COURT: Then how does your client wish to
plead to this one count of felony
uttering a forgery?
ATTORNEY DALLY: No contest, Judge.
THE COURT: And that is with the repeater still,
is it?
ATTORNEY DALLY: It is. There were several prior
misdemeanor convictions.
. . . .
7
No. 2011AP1030-CR
THE COURT: How do you wish to plead to this
forgery, a felony as a repeater?
THE DEFENDANT: Plead no contest, Your Honor.
THE COURT: You did go over a plea questionnaire
form with Mr. Dally, did you?
THE DEFENDANT: Yes, I did.
THE COURT: When you did that, did you understand
all the information in these
documents?
THE DEFENDANT: Yes.
. . . .
THE COURT: Were you able to read over the
criminal complaint in this case and
understand what it says?
THE DEFENDANT: Yes.
THE COURT: And how about the plea questionnaire,
when you went over that, were you able
to understand all that?
THE DEFENDANT: Yes.
. . . .
THE COURT: And when you went over the plea
questionnaire form with him, did you
believe he understood that
information?
ATTORNEY DALLY: He seemed to. I believe he did.
THE COURT: Therefore, do you believe that he's
freely, voluntarily, and
understandingly entering his plea
today?
ATTORNEY DALLY: Yes.
The court asked Taylor if he understood that it was not bound by
any agreements or recommendations. Taylor acknowledged that he
8
No. 2011AP1030-CR
understood. The court then stated: "I could impose the maximum
penalty here of a $10,000 fine or six years in prison or both if
I thought that's what was necessary. Do you understand that?"
Taylor said "Yes, I do." At the plea hearing, however, the
circuit court did not expressly inform Taylor that because of
the repeater allegation, the potential maximum term of
imprisonment was eight years.
¶17 On October 11, 2010, the circuit court sentenced
Taylor to a term of imprisonment of six years, consisting of
three years of initial confinement and three years of extended
supervision.
¶18 Approximately four months later, on February 8, 2011,
Taylor filed a motion for postconviction relief, seeking to
withdraw his no contest plea. Taylor alleged that the plea
colloquy was deficient because it did not inform him of the
maximum penalty under Wis. Stat. § 971.08 and Bangert. In the
motion, Taylor also affirmatively alleged that he did not know
the correct maximum penalty.
¶19 The State moved the court to deny Taylor's motion,
arguing that the "defendant has failed to make a prima facie
showing that anything other than a harmless error occurred."
The State argued that under Brown, even if Taylor did not
understand that the maximum penalty was greater than six years,
it would be "harmless" because Taylor's sentence did not exceed
the maximum discussed during the plea colloquy. State v. Brown,
2006 WI 100, ¶78,
293 Wis. 2d 594,
716 N.W.2d 906.
9
No. 2011AP1030-CR
¶20 The circuit court denied Taylor's motion without
requiring the State to prove that Taylor entered his plea
knowingly, intelligently, and voluntarily. The circuit court
believed that this case was similar to Brown. It noted that in
Brown, the defendant was not informed that his sentences for
separate crimes could be served consecutively, but it was a
harmless error because the sentence he received did not exceed
the sentence he was told he could receive. The circuit court
here believed its error was "harmless," similar to Brown,
because the court informed Taylor he could be sentenced to six
years and Taylor was sentenced to six years.
¶21 Taylor appealed the circuit court's denial of his
motion to withdraw his no contest plea. Taylor argued that it
was improper for the circuit court to find that its error was
"harmless," and argued that a plea that is not entered
knowingly, intelligently, and voluntarily is harmful under
Bangert. Taylor argued that because the circuit court did not
inform him of the correct maximum penalty during the plea
colloquy and because he alleged that he did not know the true
maximum penalty, he should have been entitled to a Bangert
hearing at which the State must prove, by clear and convincing
evidence, that his plea was entered knowingly, intelligently,
and voluntarily.7
¶22 The court of appeals certified Taylor's appeal to this
court. It noted that "it is unclear whether understating the
7
See supra note 3.
10
No. 2011AP1030-CR
potential penalty during a plea colloquy can properly be deemed
harmless error, and if so, where in the analytical framework of
Bangert such a determination should be made." The court of
appeals noted that following either Brown or Cross in the
instant case could arguably lead to different results:
As in Brown, the defendant here was told that he faced
a lesser punishment than the law actually provided,
but the sentence actually imposed did not exceed the
amount of time the court had erroneously informed the
defendant he faced. The court's emphasis in Brown on
the fact that the defendant was not sentenced to more
time than he was told he faced suggests that the
harmless error doctrine might be applicable in these
circumstances——regardless of whether the defendant was
or was not aware of the actual penalty. That would
negate the necessity for a hearing. In contrast, the
court's discussion in Cross seems to suggest that the
due process concerns implicated whenever a defendant
has erroneously been informed that the penalty is less
than the actual maximum might, in fact, require a
hearing to determine whether the defendant was aware
of the actual penalty he faced.
¶23 We granted the court of appeals' certification by an
order dated March 15, 2012.
II. STANDARD OF REVIEW
¶24 "When a defendant seeks to withdraw a guilty plea
after sentencing, he must prove, by clear and convincing
evidence, that a refusal to allow withdrawal of the plea would
result in 'manifest injustice.'" Brown, 293 Wis. 2d 594, ¶18
(citing State v. Thomas,
2000 WI 13, ¶16,
232 Wis. 2d 714,
605
N.W.2d 836). One way the defendant can show manifest injustice
is to prove that his plea was not entered knowingly,
11
No. 2011AP1030-CR
intelligently, and voluntarily. Id. (citing State v.
Trochinski,
2002 WI 56, ¶15,
253 Wis. 2d 38,
644 N.W.2d 891).
¶25 A plea not entered knowingly, intelligently, and
voluntarily violates fundamental due process, and a defendant
therefore may withdraw the plea as a matter of right. Cross,
326 Wis. 2d 492, ¶14 (citing Brown,
293 Wis. 2d 594, ¶19).
Whether a plea was entered knowingly, intelligently, and
voluntarily is a question of constitutional fact that is
reviewed independently.
Id. "In making this determination,
this court accepts the circuit court's findings of historical or
evidentiary facts unless they are clearly erroneous."
Id.
¶26 Whether Taylor has pointed to a plea colloquy
deficiency that establishes a violation of Wis. Stat. § 971.08
or other mandatory duty at a plea hearing is a question of law
we review de novo. Brown,
293 Wis. 2d 594, ¶21.
III. ANALYSIS
¶27 When a defendant moves to withdraw his or her plea
based on an error in the plea colloquy, the proper analysis is
first to determine if the defendant should be allowed to
withdraw the plea because the circuit court violated its duty
under Wis. Stat. § 971.08 or other court-mandated duty, and
second to determine, if necessary, whether the failure to
withdraw the plea would otherwise result in a manifest
injustice.
¶28 In this case, Taylor was told at the plea colloquy
that he faced a maximum term of imprisonment of six years when
in fact he faced a maximum of eight years because of the
12
No. 2011AP1030-CR
repeater allegation. However, the record is replete with
evidence that Taylor was nonetheless aware of the potential
eight-year term of imprisonment. Moreover, at the plea hearing,
the circuit court verbally informed Taylor of the six-year term
of imprisonment to which he was ultimately sentenced. As a
result, Taylor's plea was entered knowingly, intelligently, and
voluntarily, and it was not a violation of Taylor's due process
rights to deny his motion to withdraw his no contest plea.
Further, Taylor has not otherwise established that failure to
withdraw his no contest plea would result in a manifest
injustice.
A. Knowing, Intelligent, and Voluntary
¶29 Recent Wisconsin Supreme Court precedent requires us
to affirm the order of the circuit court that denied Taylor's
motion for plea withdrawal. Under the analysis set forth in
Cross and Brown, we conclude that Taylor's plea was entered
knowingly, intelligently, and voluntarily.
¶30 "The duties established in Wis. Stat. § 971.08, in
Bangert, and in subsequent cases are designed to ensure that a
defendant's plea is knowing, intelligent, and voluntary."
Brown,
293 Wis. 2d 594, ¶23. Due process requires that "a
defendant's guilty plea must be affirmatively shown" to be
knowing, intelligent, and voluntary. Cross,
326 Wis. 2d 492,
¶16; Brown,
293 Wis. 2d 594, ¶25. Before the court accepts a
plea of guilty or no contest, it must "[a]ddress the defendant
personally and determine that the plea is made voluntarily with
13
No. 2011AP1030-CR
understanding of the nature of the charge and the potential
punishment if convicted." Wis. Stat. § 971.08(1)(a).
¶31 In order to ensure that a plea is knowing,
intelligent, and voluntary, the court is required, at the plea
hearing and on the record, to do the following:
(1) Determine the extent of the defendant's
education and general comprehension so as to assess
the defendant's capacity to understand the issues at
the hearing;
(2) Ascertain whether any promises, agreements,
or threats were made in connection with the
defendant's anticipated plea, his appearance at the
hearing, or any decision to forgo an attorney;
(3) Alert the defendant to the possibility that
an attorney may discover defenses or mitigating
circumstances that would not be apparent to a layman
such as the defendant;
(4) Ensure the defendant understands that if he
is indigent and cannot afford an attorney, an attorney
will be provided at no expense to him;
(5) Establish the defendant's understanding of
the nature of the crime with which he is charged and
the range of punishments to which he is subjecting
himself by entering a plea;
(6) Ascertain personally whether a factual basis
exists to support the plea;
(7) Inform the defendant of the constitutional
rights he waives by entering a plea and verify that
the defendant understands he is giving up these
rights;
(8) Establish personally that the defendant
understands that the court is not bound by the terms
of any plea agreement, including recommendations from
the district attorney, in every case where there has
been a plea agreement;
14
No. 2011AP1030-CR
(9) Notify the defendant of the direct
consequences of his plea; and
(10) Advise the defendant that 'If you are not a
citizen of the United States of America, you are
advised that a plea of guilty or no contest for the
offense [or offenses] with which you are charged may
result in deportation, the exclusion from admission to
this country or the denial of naturalization, under
federal law,' as provided in Wis. Stat.
§ 971.08(1)(c).
Brown,
293 Wis. 2d 594, ¶35 (footnotes omitted).
¶32 If the court fails to fulfill one of the duties
mandated in Wis. Stat. § 971.08 or under the Bangert line of
cases (a "Bangert violation"), the defendant may move to
withdraw his plea. Bangert,
131 Wis. 2d at 274. In the motion
("Bangert motion"), the defendant must (1) make a prima facie
showing of a violation of Wis. Stat. § 971.08 or other court-
mandated duty, and (2) allege that the defendant did not, in
fact, know or understand the information that should have been
provided during the plea colloquy.
Id. "A defendant attempting
to make this prima facie showing must point to deficiencies in
the plea hearing transcript; conclusory allegations are not
sufficient." Cross,
326 Wis. 2d 492, ¶19. Assuming the
defendant makes a proper Bangert motion, the defendant is
entitled to an evidentiary hearing ("Bangert hearing"), where
the State has the burden to prove by clear and convincing
evidence that the defendant's plea, despite the inadequacy of
the plea colloquy, was knowing, intelligent, and voluntary.
Bangert, 131 Wis. 2d at 274. One reason to shift the burden of
persuasion to the State is to encourage the State "to assist the
15
No. 2011AP1030-CR
trial court in meeting its sec. 971.08" and other mandated
duties. Id. at 275. The State may use "any evidence" to prove
that the defendant's plea was knowing, intelligent, and
voluntary, including any documents in the record and testimony
of the defendant or defendant's counsel.
Id. at 274-75.
¶33 In this case, we are concerned with the court's duty
to "[e]stablish the defendant's understanding of . . . the range
of punishments to which he is subjecting himself by entering a
plea." Brown, 293 Wis. 2d 594, ¶35 (citing Bangert,
131
Wis. 2d at 262). A recent decision of this court provides
extensive authority on this issue:
[W]here the sentence communicated to the defendant is
higher, but not substantially higher, than that
authorized by law, the incorrectly communicated
sentence does not constitute a Bangert violation and
will not, as a matter of law, be sufficient to show
that the defendant was deprived of his constitutional
right to due process of law.
Cross, 326 Wis. 2d 492, ¶40. In that case, the circuit court
informed Cross that his maximum term of imprisonment was 40
years, when in fact it was only 30 years, and Cross brought a
motion to withdraw his plea, arguing that it was not entered
knowingly, intelligently, and voluntarily. Id., ¶¶1, 11.
Though the circuit court granted his motion for resentencing, it
denied Cross's motion for plea withdrawal. Id., ¶2. This court
concluded that the circuit court was correct to deny Cross's
plea withdrawal motion. Id., ¶4. According to Cross, "a
defendant who has been told a maximum punishment higher, but not
substantially higher, than that authorized by law, has not
16
No. 2011AP1030-CR
necessarily made a prima facie case that the requirements of
§ 971.08 and our case law have been violated." Id., ¶30. Cross
looked to the underlying purpose of the Bangert framework, to
ensure that the defendant's plea is entered knowingly,
intelligently, and voluntarily:
[R]equiring an evidentiary hearing for every small
deviation from the circuit court's duties during a
plea colloquy is simply not necessary for the
protection of a defendant's constitutional rights.
The Bangert requirements exist as a framework to
ensure that a defendant knowingly, voluntarily, and
intelligently enters his plea. We do not embrace a
formalistic application of the Bangert requirements
that would result in the abjuring of a defendant's
representations in open court for insubstantial
defects.
Id., ¶32. Additionally, Cross noted that "the great weight of
authorities from other state and federal courts reject the
notion that the failure to understand the precise maximum
punishment is a per se due process violation."8 Id., ¶33. Thus,
8
See also State v. Cross, 2010 WI 70, ¶33 n.7,
326
Wis. 2d 492,
786 N.W.2d 64; Williams v. Smith,
591 F.2d 169, 172
(2d Cir. 1979)("[T]he test in this circuit for determining the
constitutional validity of a state court guilty plea where the
defendant has been given sentencing misinformation is whether
the defendant was aware of actual sentencing
possibilities . . . ."). Cf. Worthen v. Meachum, 842 F.2d 1179,
1183 (10th Cir. 1988) (overruled on other grounds by Coleman v.
Thomson,
501 U.S. 722 (1991); overruling recognized by Mendoza
v. Hatch,
620 F.3d 1261 (2010)). In Worthen, the defendant
argued that his plea was not knowing and voluntary because he
was not advised on the record of acts sufficient to constitute
the offense:
[I]n order for a guilty plea to be 'voluntary in a
constitutional sense,' a defendant must . . . have a
competent understanding of the charge against him.
The Supreme Court has clearly indicated, however, that
17
No. 2011AP1030-CR
"a defendant's due process rights are not necessarily violated
when he is incorrectly informed of the maximum potential
imprisonment," and in some cases, "small deviations" from the
Bangert line of cases do not amount to a Bangert violation.
Id., ¶¶37-38. Further, Cross surmised that when a defendant is
given a sentence in excess of that authorized by law, which
"presumably would also involve an error in the understanding of
the possible maximum penalty," the proper remedy is to commute
the sentence under Wis. Stat. § 973.13,9 not plea withdrawal.
Id., ¶34.
¶34 We recognize that the Cross court noted that "when the
defendant is told the sentence is lower than the amount allowed
by law, a defendant's due process rights are at greater risk and
a Bangert violation may be established." Id., ¶39. Under these
facts, however, we conclude that Taylor's due process rights
a defendant of sufficient 'intelligence and experience
in the criminal justice system' may, in some
circumstances, be presumed to have understood the
nature of the charge even though a specific
explanation is not shown on the plea record.
Id. (citing Marshall v. Lonberger,
459 U.S. 422, 436-37 (1983)).
Thus, in some circumstances, a guilty plea will still be
knowing, intelligent, and voluntary, and the defendant's due
process rights will not be violated, when the defendant is
informed of the incorrect maximum sentence. See Cross,
326
Wis. 2d 492, ¶37.
9
Wisconsin Stat. § 973.13 provides: "In any case where the
court imposes a maximum penalty in excess of that authorized by
law, such excess shall be void and the sentence shall be valid
only to the extent of the maximum term authorized by statute and
shall stand commuted without further proceedings."
18
No. 2011AP1030-CR
were not violated when the circuit court denied his motion to
withdraw his no contest plea. At the plea colloquy, the court
verbally informed Taylor that he faced a potential six-year term
of imprisonment for the underlying offense and that he also was
pleading to being a repeat offender. Ultimately, he was
sentenced to a six-year term of imprisonment. Thus, on this
record, a failure to discuss the additional two-year repeater
penalty enhancer at the plea hearing is an insubstantial defect.
¶35 The record in this case is replete with evidence that
Taylor was aware of the potential eight-year term of
imprisonment, comprised of a six-year term of imprisonment for
the underlying charge and an additional two-year term of
imprisonment from the alleged repeater. For example, the
complaint, filed on May 8, 2009, stated that Taylor faced a term
of imprisonment of "not more than six (6) years," which "may be
increased by not more than 2 years if the prior convictions were
for misdemeanors." The complaint listed Taylor's prior
convictions, including two disorderly conducts, resisting or
obstructing an officer, and criminal damage to property.
¶36 At Taylor's bail hearing on August 20, 2009, the court
asked Taylor's attorney if he wanted the complaint read.
Attorney Dally responded that the "Court does not have to read
the complaint. It does charge uttering a forged instrument as a
repeat offender. Priors appear to be for misdemeanors." Taylor
appeared personally at the bail hearing. At the preliminary
hearing, on November 24, 2009, the court asked Taylor if he had
19
No. 2011AP1030-CR
read the complaint, and Taylor responded that he had read the
complaint.
¶37 Further, the information, filed on December 1, 2009,
stated that upon conviction, Taylor could be sentenced to "not
more than six (6) years" and that the maximum term "may be
increased by not more than 2 years if the prior convictions were
for misdemeanors." At the arraignment on January 25, 2010, the
court asked Taylor's attorney if he had received a copy of the
information. The attorney responded "We have, Judge. It's a
charge of uttering with the repeater enhanced and alleged as
well."
¶38 Additionally, Taylor completed a Plea
Questionnaire/Waiver of Rights form on August 23, 2010.
Handwritten on the form is Taylor's acknowledgement that the
judge is not bound by any agreement or recommendation, and that
the judge may impose the maximum penalty: "8 yrs prison/$10,000
fine or both." Taylor signed the form, acknowledging that he
had read and understood the form. Taylor's attorney also signed
the form, acknowledging that he had discussed the document with
Taylor, and that he believed Taylor understood the form. At the
plea hearing, held on the same day that Taylor completed the
plea questionnaire form, the court asked Taylor if he had read
the complaint and understood it, and Taylor answered "Yes." The
court also asked Taylor if he had gone over the plea
questionnaire form with his attorney and if he understood all of
the information. Taylor answered "Yes" to both questions.
Later in the hearing, the court once again asked Taylor if he
20
No. 2011AP1030-CR
had gone over the plea questionnaire form and if he understood
it. Taylor answered "Yes." The court then asked Taylor's
attorney if he had gone over the plea questionnaire form with
Taylor and if the attorney believed Taylor understood the form.
The attorney answered that he had gone over the form with
Taylor, and he believed that Taylor understood the form. The
attorney acknowledged on the plea questionnaire form that he
believed Taylor was entering his plea "freely, voluntarily, and
intelligently."
¶39 To conclude that Taylor was not aware of the maximum
eight-year term of imprisonment, we would have to assume that
Taylor's trial counsel misrepresented, on the plea questionnaire
form itself and to the court, that he had read the form with
Taylor and that Taylor understood it. We would also have to
assume that Taylor misrepresented to the court that he had
received, read, and understood the complaint and plea
questionnaire form. "[I]f a defendant does understand the
charge and the effects of his plea, he should not be permitted
to game the system by taking advantage of judicial mistakes."
Brown, 293 Wis. 2d 594, ¶37. "We do not embrace a formalistic
application of the Bangert requirements that would result in the
abjuring of a defendant's representations in open court for
insubstantial defects." Cross,
326 Wis. 2d 492, ¶32. The
failure to specifically reference the two-year repeater penalty
enhancer at the plea hearing is, on review of this record, an
"insubstantial defect" such that an evidentiary hearing is not
required to determine if Taylor entered his plea knowingly,
21
No. 2011AP1030-CR
intelligently, and voluntarily. A Bangert violation occurs, and
a hearing is required, when the plea is not entered knowingly,
intelligently, and voluntarily. No such hearing is required
here because this record reflects that Taylor indeed pled
knowingly, intelligently, and voluntarily. He knew of the
eight-year maximum term of imprisonment, and in any event, he
was verbally informed by the court at the plea hearing of the
sentence that he actually received.
¶40 The certification from the court of appeals points out
that it is unclear, after Cross and Brown, whether understanding
the potential penalty during the plea colloquy can properly be
deemed harmless error, and if so, where in the analytical
framework of Bangert such a determination should be made.
Taylor and the State agree, but for different reasons, that the
harmless error doctrine should not apply to this case. We also
agree that here the harmless error does not apply.10 Taylor
argues that this error was not "harmless" because "the unknowing
plea is itself the harm caused by the court's error." The State
argues that no case has ever applied the harmless error doctrine
10
Taylor argues that in addition to Cross, 326 Wis. 2d 492,
another Wisconsin case lends support to the proposition that
erroneous information about the possible sentence is not
"harmless" simply because the defendant received a sentence
within the erroneous range given. See State v. Mohr,
201
Wis. 2d 693,
549 N.W.2d 497 (Ct. App. 1996). We need not
address Taylor's argument, since we determine that neither Cross
nor State v. Brown,
2006 WI 100,
293 Wis. 2d 594,
716
N.W.2d 906, adopted the harmless error analysis when analyzing a
defendant's motion to withdraw a guilty or no contest plea based
on an alleged violation of
Wis. Stat. § 971.08 or other court-mandated duty during the plea colloquy.
22
No. 2011AP1030-CR
to the Bangert framework, and that the proper focus is whether
failure to withdraw Taylor's plea would result in a manifest
injustice. In this case, the circuit court determined that,
under Brown, since Taylor was informed of and actually received
a six-year term of imprisonment, any error was "harmless."
¶41 Brown, however, was not a harmless error case. The
court did not undertake the harmless error analysis. Instead,
in Brown, the court considered whether the defendant entered his
plea knowingly, intelligently, and voluntarily. Brown alleged
that the circuit court failed to enumerate the elements of the
charges to which he pled guilty, failed to inform him of the
constitutional rights he waived by pleading guilty, and failed
to adequately explain the potential punishment he faced. Brown,
293 Wis. 2d 594, ¶3. The court concluded that Brown was
entitled to a Bangert hearing based on the circuit court's
failure to inform him of the elements of the crime and the
circuit court's failure to inform him that when he pled, he was
waiving certain constitutional rights. Id., ¶¶66, 77. While
Brown did make two short references to harmlessness, it clearly
did not engage in a harmless error analysis.11 For example,
11
See State v. Martin, 2012 WI 96, ¶¶45-46,
343
Wis. 2d 278,
816 N.W.2d 270.
Nor did Cross undertake the harmless error analysis. The
only time Cross mentioned harmless error was in the context of
discussing federal rules that support the proposition that not
every plea colloquy error should result in withdrawal: "Rule
11(h) states that any 'variance from the requirements of this
rule is harmless error if it does not affect substantial
rights.'" Cross, 326 Wis. 2d 492, ¶36 (citing Fed. R. Crim. P.
11(h)).
23
No. 2011AP1030-CR
Brown noted that if a defendant's Bangert motion does not
properly allege that the defendant lacked understanding with
regard to the plea, "any shortcoming in the plea colloquy is
harmless." Id., ¶63. Brown instructs that before the defendant
is entitled to a hearing on a motion to withdraw a guilty or no
contest plea, the defendant's Bangert motion must satisfy two
requirements: (1) it must make a prima facie showing of a
violation of Wis. Stat. § 971.08(1) or other court-mandated
duty, and (2) it must allege that the defendant did not know or
understand the information that should have been provided at the
plea hearing.
Id., ¶39. Brown also used the phrase "harmless"
when it concluded that even if the court had erred by not
telling Brown that his sentences could run consecutively, it
would be "harmless" because Brown's total sentence was not
greater than the sentence he was informed he could receive.
Id., ¶78. Much like the case we have before us today, the Brown
In a court of appeals case, State v. Johnson, the court
focused mainly on whether failure to allow the defendant to
withdraw his plea would result in manifest injustice where the
circuit court failed to inform the defendant that it was not
bound by the plea agreement. 2012 WI App 21,
339 Wis. 2d 421,
811 N.W.2d 441. The court also noted that under Cross, this was
a harmless error. Id., ¶¶14-15. We note that the "harmless
error" doctrine is a distinct legal analysis. See Martin,
343
Wis. 2d 278, ¶¶45-46. We repeat, however, that neither Brown
nor Cross undertook the harmless error analysis; nor does this
court today undertake the harmless error analysis to determine
whether the defendant may withdraw his plea after alleging a
violation of the court's
Wis. Stat. § 971.08 or other mandated
duties. Rather, the focus is on whether the defendant's plea
was entered knowingly, intelligently, and voluntarily, and
whether the defendant is otherwise able to prove that failure to
withdraw the plea would result in a manifest injustice.
24
No. 2011AP1030-CR
court determined that this "error" did not prevent Brown's plea
from being knowing, intelligent, and voluntary because it is a
"reasonable conclusion when a defendant is confronted with
multiple charges [] that the defendant could face multiple
punishments." Id.
¶42 As in Brown, it is a "reasonable conclusion" that
Taylor understood that he faced an enhanced penalty since he was
charged with a repeater penalty enhancer. The court informed
Taylor of the repeater allegation several times at the plea
colloquy, and the record provides clear evidence that Taylor was
aware of the additional two-year term of imprisonment he faced
because of the repeater allegation. Also, Taylor's actual
sentence, like Brown's, did not exceed the six-year term of
imprisonment that the court, at the plea hearing, specifically
informed him that he could receive. Thus, under the precedent
of Cross and Brown, we conclude that the circuit court's failure
at the plea hearing to inform Taylor of the additional two-year
term of imprisonment does not render Taylor's plea not knowing,
intelligent, and voluntary, and the circuit court did not err by
25
No. 2011AP1030-CR
denying Taylor's plea withdrawal motion without holding a
Bangert hearing.12
B. Manifest Injustice
¶43 Taylor's request for plea withdrawal is properly
analyzed under the manifest injustice framework. Taylor has not
proven that withdrawal is necessary to correct a manifest
injustice.
1. Following the Precedent of Cain, Taylor's Motion is Properly
Analyzed under the Manifest Injustice Framework
12
In this opinion, we afford due respect to longstanding
precedent which requires that before the court accepts a guilty
or no contest plea, it must "determine that the plea is made
voluntarily with understanding of the nature of the charge and
the potential punishment if convicted." Wis. Stat.
§ 971.08(1)(a); Brown,
293 Wis. 2d 594, ¶35 (requiring the court
at the plea colloquy to "[e]stablish the defendant's
understanding of the nature of the crime with which he is
charged and the range of punishments to which he is subjecting
himself by entering a plea."). The dissent incorrectly implies
that the defendant cannot knowingly, intelligently, and
voluntarily enter a plea without being specifically advised of
the potential maximum term of confinement and also the potential
maximum term of extended supervision. Dissent, ¶116. We have
never held, and we do not hold today, that the court must parse
out and specifically advise the defendant of the potential term
of confinement and also the potential term of extended
supervision at the plea colloquy. In fact, to so advise a
defendant could be misleading since a defendant's initial term
of confinement may be increased during the confinement phase or
the extended supervision phase. See
Wis. Stat. § 302.113(3)(a)
("If an inmate subject to this section violates any regulation
of the prison or refuses or neglects to perform required or
assigned duties, the department may extend the term of
confinement in prison portion of the inmate's bifurcated
sentence."); § 302.113(9)(am) (stating that if person violates a
condition of extended supervision, supervision can be revoked
and the person ordered to return to confinement for a time not
exceeding remaining time on the bifurcated sentence).
26
No. 2011AP1030-CR
¶44 Taylor is arguing that because the circuit court did
not verbally inform him at the plea hearing of the potential,
additional two-year term of imprisonment from the repeater
allegation, his entire plea is not knowing, intelligent, and
voluntary. Taylor argues that he is entitled to a Bangert
hearing and that he should be able to withdraw his entire plea
based on his alleged lack of knowledge of the additional two-
year term of imprisonment from the repeater allegation.
However, the fact that the circuit court did not verbally
discuss the additional two-year term of imprisonment at the plea
hearing, while not ideal, does not automatically trigger a
hearing under Bangert and its progeny.
¶45 We reject Taylor's argument——that because he was not
specifically, verbally advised by the circuit court at the plea
hearing of the potential, additional two-year term of
imprisonment from the alleged repeater, his entire plea is not
knowing, intelligent, and voluntary——because he did in fact
plead knowingly, intelligently, and voluntarily to the
underlying crime of uttering a forgery. At the plea hearing,
the court did verbally inform Taylor that he faced a maximum
term of imprisonment of six years for the underlying charge of
27
No. 2011AP1030-CR
uttering a forgery.13 See supra, ¶16. Taylor does not argue
that he did not knowingly, intelligently, and voluntarily plead
to the underlying charge of uttering a forgery, which he knew
carried a six-year term of imprisonment. Moreover, Taylor never
argued that the repeater allegation should be dismissed because
of the plea hearing deficiency.14 Instead, Taylor argues that
the entire plea should be withdrawn because he did not know of
the additional two-year term of imprisonment from the repeater
allegation.15 The record reflects that Taylor in fact received a
13
As we noted in Part III.A. above, if a defendant is given
a sentence greater than that authorized by law, presumably
including "an error in the understanding of the possible maximum
penalty," the proper remedy for that error is to commute the
sentence, not plea withdrawal. Cross, 326 Wis. 2d 492, ¶34.
Thus, had Taylor actually been sentenced to the full eight
years,
Wis. Stat. § 973.13 would have applied to commute his
sentence to six years, which would be the amount authorized by
law.
14
Clearly, the circuit court could consider his prior
criminal convictions at sentencing regardless of whether the
State charged Taylor as a repeater.
15
Unlike in Bangert, where the error was a failure to
advise the defendant of the potential sentence for the
underlying crime, Taylor's argument relates only to the two-year
repeater, not the penalty for the underlying crime.
28
No. 2011AP1030-CR
six-year term of imprisonment. As previously discussed, Taylor
knew that the charges carried a maximum eight-year term of
imprisonment.
¶46 In addition, recent precedent and the record in this
case do not support Taylor's argument. We are bound by the
precedent of Cain, 342 Wis. 2d 1. Taylor's argument for plea
withdrawal is remarkably similar to the unsuccessful argument
presented by Cain. Cain pled no contest to manufacturing
tetrahydrocannabinol (THC) in an amount of more than four but
less than twenty marijuana plants. Id., ¶¶5-6. Cain argued
that he should be allowed to withdraw his plea because he
admitted to manufacturing only four plants, not more than four
plants. Id., ¶27. Like Taylor, Cain faced an enhanced penalty
Further, under State v. Harris, the court can apply a
repeater enhancement only if it seeks to sentence the defendant
to a greater amount than the maximum allowed for the underlying
offense. 119 Wis. 2d 612, 619,
350 N.W.2d 633 (1984). In this
case, since the circuit court sentenced Taylor to only six
years, the sentence enhancement from the repeater allegation
never applied. Therefore, this case is distinguishable from
Bangert; Taylor cannot argue that his plea to the underlying
forgery was not knowing, intelligent, and voluntary because the
court did not violate any mandated duty with regard to that
charge. The proper remedy for failure to inform the defendant
of an additional two-year penalty from the repeater allegation
would be to commute that part of the sentence under
Wis. Stat.
§ 973.13, not withdrawal of the entire plea. That remedy is not
necessary here, since Taylor was given a six-year term of
imprisonment.
29
No. 2011AP1030-CR
if he pled to manufacturing more than four plants.16 The court
analyzed Cain's argument under the manifest injustice framework,
not under the Bangert framework. Id., ¶¶33-37. Looking at the
entire record of the proceedings——including documents and
statements from Cain and his attorney that indicated a number of
plants greater than four——the court determined that Cain had not
met his burden to show that plea withdrawal was necessary to
correct a manifest injustice.
Id., ¶37.
¶47 In this case, the crux of Taylor's argument is that he
did not know or understand the potential, additional two-year
term of imprisonment from the repeater allegation at the time he
entered his plea. Under the logic of Cain, Taylor's claim is
properly analyzed under the manifest injustice framework.
2. Taylor has not Proven that Plea Withdrawal is Necessary to
Correct a Manifest Injustice
¶48 The circuit court has discretion to determine whether
a plea should be withdrawn, and a plea will not be disturbed
unless the defendant establishes by clear and convincing
evidence that failure to withdraw the guilty or no contest plea
will result in a manifest injustice. Cross, 326 Wis. 2d 492,
¶20 (citing Trochinski,
253 Wis. 2d 38, ¶15; Thomas,
232
Wis. 2d 714, ¶16). The clear and convincing standard for plea
16
Under Wis. Stat. § 961.41(1m)(h), manufacturing four or
less marijuana plants is a Class I felony, and manufacturing
more than four but less than twenty plants is a Class H felony.
The maximum term of imprisonment for a Class I felony is three
years and six months, and the maximum term of imprisonment for a
Class H felony is six years.
Wis. Stat. § 939.50(3)(h)——(i).
30
No. 2011AP1030-CR
withdrawal after sentencing, which is higher than the "fair and
just" standard before sentencing, "reflects the State's interest
in the finality of convictions, and reflects the fact that the
presumption of innocence no longer exists." Id., ¶42. The
higher burden "is a deterrent to defendants testing the waters
for possible punishments." State v. Nawrocke,
193 Wis. 2d 373,
379-80,
534 N.W.2d 624 (Ct. App. 1995) (citing State v. Booth,
142 Wis. 2d 232, 237,
418 N.W.2d 20 (Ct. App. 1987)).
¶49 Showing that a plea was not entered knowingly,
intelligently, and voluntarily is one way to prove a manifest
injustice. The defendant can otherwise establish a manifest
injustice by showing that there has been a "serious flaw in the
fundamental integrity of the plea." Id. at 379. Disappointment
in the eventual punishment does not rise to the level of a
manifest injustice.
Id. Prior cases have recognized
nonexhaustive examples of manifest injustice:
(1) ineffective assistance of counsel; (2) the
defendant did not personally enter or ratify the plea;
(3) the plea was involuntary; (4) the prosecutor
failed to fulfill the plea agreement; (5) the
defendant did not receive the concessions tentatively
or fully concurred in by the court, and the defendant
did not reaffirm the plea after being told that the
court no longer concurred in the agreement; and, (6)
the court had agreed that the defendant could withdraw
the plea if the court deviated from the plea
agreement.
State v. Krieger, 163 Wis. 2d 241, 251 n.6,
471 N.W.2d 599 (Ct.
App. 1991) (citing ABA Standards for Criminal Justice sec. 14-
31
No. 2011AP1030-CR
2.1(b)(ii)(A)——(F) (2d ed. 1980 & Supp. 1986)).17 "The reviewing
court looks at the entirety of the record to determine whether,
considered as a whole, the record supports the assertion that
manifest injustice will occur if the plea is not withdrawn."
Cain, 342 Wis. 2d 1, ¶31.
¶50 In this case, the State argues that the manifest
injustice test under Reppin governs whether Taylor should be
allowed to withdraw his plea.18 State v. Reppin, 35 Wis. 2d 377,
381,
151 N.W.2d 9 (1967). The State argues that in Reppin, this
17
See also State v. Cain, 2012 WI 68, ¶26,
342 Wis. 2d 1,
816 N.W.2d 177. In addition to adopting the ABA's examples of
manifest injustice, Wisconsin courts have found that there may
be manifest injustice in other situations.
Id., ¶26 n.6. For
example, defendants have previously attempted to overturn a
conviction or withdraw a guilty or no contest plea where new
evidence was discovered. See State v. Krieger,
163 Wis. 2d 241,
471 N.W.2d 599 (Ct. App. 1991); State v. Nawrocke,
193
Wis. 2d 373,
534 N.W.2d 624 (Ct. App. 1995). Manifest injustice
also occurs if the circuit court fails to establish a factual
basis that, as admitted by the defendant, constitutes the
offense pleaded to. State v. Thomas,
2000 WI 13, ¶17,
232
Wis. 2d 714,
605 N.W.2d 836 (citation omitted). See also 9
Christine M. Wiseman & Michael Tobin, Wisconsin Practice Series:
Criminal Practice & Procedure § 23:32 (2d ed. 2008 & Supp.
2012).
18
The State's argument goes further, arguing that State v.
Reppin, 35 Wis. 2d 377,
151 N.W.2d 9 (1967) is the only standard
that should govern the withdrawal of Taylor's plea and that the
Reppin standard survives after Bangert, Brown, and Cross. The
State argues that Bangert and its progeny have shifted the
burden, but that in this case, the manifest injustice standard
is the only test necessary to determine if Taylor may withdraw
his plea. However, when a defendant seeks to withdraw his plea
based on an alleged violation of
Wis. Stat. § 971.08 or other
court-mandated duty, the court should analyze the alleged error
under Bangert and, if necessitated by the defendant's motion,
under the manifest injustice standard.
32
No. 2011AP1030-CR
court adopted the ABA's examples of what constitutes manifest
injustice, see id. at 385-86 & n.2, and that the ABA commentary
expressly stated that "[f]or example, if the judge misstates the
maximum penalty as being lower than that provided by law but the
defendant's sentence does not exceed that stated as possible by
the judge, there is no manifest injustice." ABA Standards for
Criminal Justice, Commentary to Standard 14-2.1(b)(ii).
¶51 Taylor argues that the Reppin manifest injustice test
has been supplanted by the Bangert line of cases. Taylor also
argues that even if there were still a Reppin standard, the
Reppin case stated that the four examples of manifest injustice
it adopted were not exhaustive, and that the Reppin case did not
adopt the ABA commentary upon which the State relies.
¶52 In this case, Taylor has not established by clear and
convincing evidence that withdrawal of his plea is necessary to
correct a manifest injustice. Taylor has not demonstrated that
there was a "serious flaw in the fundamental integrity of the
plea." Nawrocke, 193 Wis. 2d at 379. First, the circuit court
informed Taylor that he could receive a maximum term of
imprisonment of six years. Taylor received a six-year term of
imprisonment.19 In other words, Taylor received a sentence that
he was verbally informed he could receive.
19
The sentencing transcript evinces the judge's belief that
Taylor is a habitual criminal who deserves the maximum possible
punishment:
You've been given every opportunity in the
community, Mr. Taylor, and I wish that it was a
situation that I could impose probation, but it's not.
33
No. 2011AP1030-CR
¶53 As previously discussed, this record makes it
abundantly clear that Taylor was informed of the potential
eight-year term of imprisonment. There were several court
hearings that preceded his plea where the charges and penalties
were discussed. To conclude now that he did not know of the
penalty enhancer, we would have to assume that both Taylor and
his attorney repeatedly misrepresented to the court that they
had received, read, and understood the criminal complaint,
information, and plea questionnaire. Based on the record, we
conclude that Taylor was aware of the potential eight-year term
of imprisonment.
¶54 Therefore, it was not manifestly unjust to deny
Taylor's motion to withdraw his no contest plea where (1) the
circuit court informed Taylor at the plea colloquy that he could
receive a six-year term of imprisonment; (2) Taylor actually
received a six-year term of imprisonment; and (3) the record is
The time has come, Mr. Taylor, for you to feel the
significant consequences of a prison term because
you've earned that. You've earned that by just simply
continuing on your own selfish road in life.
You've had your probations revoked five
times. . . .
. . . .
You've lived a criminal lifestyle, Mr. Taylor,
and it's not going to stop until you decide to make it
stop, and I can't let you free in the community to
make more victims. Our community is tired of that.
Everything that could be done for you in this
community and others has been done.
34
No. 2011AP1030-CR
abundantly clear that Taylor was nonetheless aware of the two-
year penalty enhancer from the alleged repeater.
IV. CONCLUSION
¶55 We hold that the defendant's plea was entered
knowingly, intelligently, and voluntarily when the record makes
clear that the defendant knew the maximum penalty that could be
imposed and was verbally informed at the plea hearing of the
penalty that he received. Therefore, the circuit court did not
err by denying Taylor's postconviction motion to withdraw his no
contest plea.
¶56 Further, plea withdrawal "remains in the discretion of
the circuit court and will not be disturbed unless the defendant
shows that it is necessary to correct a manifest injustice."
Cross, 326 Wis. 2d 492, ¶4; Cain,
342 Wis. 2d 1, ¶20. Taylor
has not demonstrated that withdrawal of his plea is necessary to
correct a manifest injustice.
By the Court.—The judgment and order of the circuit court
is affirmed.
35
No. 2011AP1030-CR.dtp
¶57 DAVID T. PROSSER, J. (concurring). This case
requires the court to address an alleged Bangert violation; that
is, an alleged violation of Wis. Stat. § 971.08, or other
mandatory requirements for a plea colloquy, set out in State v.
Bangert,
131 Wis. 2d 246,
389 N.W.2d 12 (1986), and subsequent
cases such as State v. Brown,
2006 WI 100,
293 Wis. 2d 594,
716
N.W.2d 906, and State v. Cross,
2010 WI 70,
326 Wis. 2d 492,
786
N.W.2d 64.
¶58 The defendant entered a plea of no contest to a charge
of uttering a forgery. After he was sentenced, he moved to
withdraw his plea on grounds that the plea was not knowing,
intelligent, and voluntary. His motion relied upon Bangert
principles, alleging, first, that his plea colloquy was
deficient because the court did not inform him of the correct
maximum penalty for a conviction under Wis. Stat.
§ 939.50(3)(h), with a repeater enhancement under
Wis. Stat.
§ 939.62(1)(b) and (2); and, second, that he did not know or
understand the correct maximum penalty when he entered his plea.
¶59 The circuit court denied the defendant's
postconviction motion without conducting an evidentiary hearing.
Had such an evidentiary hearing been held, the State would have
been required to prove that the defendant's plea was knowing,
intelligent, and voluntary, notwithstanding a deficiency in the
plea colloquy.
¶60 Most members of the court are satisfied that the
defendant is not entitled to withdraw his plea because his plea
was knowing, intelligent, and voluntary. Most members of the
1
No. 2011AP1030-CR.dtp
court are willing to reach this conclusion without affording the
defendant a Bangert hearing.
¶61 The real issue in this case is why the defendant does
not get a Bangert hearing. My principal purpose in writing
separately is to address this issue.
I
¶62 This court has set standards that a defendant must
meet if he seeks to withdraw his plea. See State v. Cain, 2012
WI 68, ¶24,
342 Wis. 2d 1,
816 N.W.2d 177. When a defendant
moves to withdraw his plea before sentencing, the circuit court
should freely allow the withdrawal if the defendant supplies any
"fair and just reason" unless withdrawal would substantially
prejudice the prosecution.
Id. (quoting State v. Jenkins,
2007
WI 96 ¶2,
303 Wis. 2d 157,
736 N.W.2d 240). After sentencing,
however, the defendant must show that withdrawal is necessary to
correct a "manifest injustice."
Id. (quoting Jenkins,
303
Wis. 2d 157, ¶2 n.2).
¶63 This court adopted "the manifest injustice test" in
State v. Reppin, 35 Wis. 2d 377, 386,
151 N.W.2d 9 (1967). The
test was based on the tentative draft on Standards Relating to
Pleas of Guilty issued by the American Bar Association Project
on Minimum Standards for Criminal Justice in February 1967.
Id.
at 385.1 The Reppin court said:
1
The ABA House of Delegates subsequently approved the
tentative draft, as amended, in March 1968. Am. Bar Ass'n
Project on Minimum Standards for Criminal Justice, Standards
Relating to Pleas of Guilty (Approved Draft, 1968).
2
No. 2011AP1030-CR.dtp
These standards adopt the "manifest injustice" test of
Rule 32(d) of the Federal Rules of Criminal Procedure
and implement[ ] it with four factual situations which
the advisory committee believes independently
establish manifest injustice when proved by the
defendant. We agree and adopt this standard. We
think too the four fact situations are not exhaustive
of situations which might constitute manifest
injustice. And, a court would abuse its discretion if
it denied a request to withdraw a plea of guilty when
any one of these four grounds was proved.
Id. at 386 (emphasis added) (footnote omitted).
¶64 The four fact situations identified by the advisory
committee were as follows:
2.1 Plea[] withdrawal.
(a) . . . .
(ii) Withdrawal is necessary to correct
a manifest injustice whenever the defendant
proves that:
(1) he was denied the effective
assistance of counsel guaranteed to him by
constitution, statute, or rule;
(2) the plea was not entered or
ratified by the defendant or a person authorized
to so act in his behalf;
(3) the plea was involuntary, or
was entered without knowledge of the charge or
that the sentence actually imposed could be
imposed; or
(4) he did not receive the charge
or sentence concessions contemplated by the plea
agreement and the prosecuting attorney failed to
seek or not to oppose these concessions as
promised in the plea agreement.
Id. at 385 n.2.
3
No. 2011AP1030-CR.dtp
¶65 In the years following the Reppin decision, the court
repeatedly quoted (in whole or in part), or alluded to, the four
fact situations adopted in Reppin.2
¶66 Over time, however, the court began to shift its focus
from the "manifest injustice" test to the development of rules
for particular fact situations. For instance, our rules for
plea withdrawal because of a defective plea colloquy were
established in Bangert and restated in Brown. Our rules for
plea withdrawal on account of ineffective assistance of counsel
are found in State v. Bentley, 201 Wis. 2d 303,
548 N.W.2d 50
(1996), and State v. Allen,
2004 WI 106,
274 Wis. 2d 568,
682
N.W.2d 433. In recent years, our attention has often been
directed more toward the application of these rules than to the
broader mantra of "manifest injustice."
2
See, e.g., State v. Rock, 92 Wis. 2d 554, 558–59,
285
N.W.2d 739 (1979); State v. Lee,
88 Wis. 2d 239, 248–49,
276
N.W.2d 268 (1979); Spinella v. State,
85 Wis. 2d 494, 498,
271
N.W.2d 91 (1978); Hatcher v. State,
83 Wis. 2d 559, 564,
266
N.W.2d 320 (1978); State v. Jackson,
69 Wis. 2d 266, 270–72,
230
N.W.2d 832 (1975); Libke v. State,
60 Wis. 2d 121, 124–25,
208
N.W.2d 331 (1973); Young v. State,
49 Wis. 2d 361, 366,
182
N.W.2d 262 (1971); Kruse v. State,
47 Wis. 2d 460, 464–65,
177
N.W.2d 322 (1970); State v. Weidner,
47 Wis. 2d 321, 328–29,
177
N.W.2d 69 (1970); State v. Wolfe,
46 Wis. 2d 478, 484,
175
N.W.2d 216 (1970); Meunier v. State,
46 Wis. 2d 271, 277,
174
N.W.2d 277 (1970); Brisk v. State,
44 Wis. 2d 584, 587,
172
N.W.2d 199 (1969); Ernst v. State,
43 Wis. 2d 661, 666,
170
N.W.2d 713 (1969); State v. Biastock,
42 Wis. 2d 525, 529,
167
N.W.2d 231 (1969); Reiff v. State,
41 Wis. 2d 369, 372,
164
N.W.2d 249 (1969); Galvin v. State,
40 Wis. 2d 679, 682 n.1,
162
N.W.2d 622 (1968); LeFebre v. State,
40 Wis. 2d 666, 669–70,
162
N.W.2d 544 (1968); State v. Harrell,
40 Wis. 2d 187, 192–93,
161
N.W.2d 223 (1968); Cresci v. State,
36 Wis. 2d 287, 293,
152
N.W.2d 893 (1967). See also Wiseman & Tobin, 9 Wis. Practice:
Criminal Practice and Procedure § 23:32 (2d ed. Supp. 2012).
4
No. 2011AP1030-CR.dtp
¶67 In 1991 the court of appeals rewrote the four fact
situations adopted in Reppin and added two more, without much
notice or explanation of what it was doing. See State v.
Krieger, 163 Wis. 2d 241, 251 n.6,
471 N.W.2d 599 (Ct. App.
1991). The Krieger court's new formulation has been followed
uncritically3 even though the two additional "factual
situations,"
id. at 251 n.6, relate to judicial participation in
plea bargaining, which is not approved under Wisconsin law. See
State v. Hampton,
2004 WI 107, ¶27,
274 Wis. 2d 379,
683
N.W.2d 14.
¶68 The majority opinion states that "Taylor's request for
plea withdrawal is properly analyzed under the manifest
injustice framework. Taylor has not proven that withdrawal is
necessary to correct a manifest injustice." Majority op., ¶43.
These statements follow an extensive discussion of Taylor's
claim of a Bangert violation (because the circuit court did not
correctly state the maximum penalty during the plea colloquy)
and this court's conclusion that Taylor's plea was knowing,
intelligent, and voluntary nonetheless.
¶69 "When a defendant seeks to withdraw a guilty plea
after sentencing, he must prove, by clear and convincing
evidence, that a refusal to allow withdrawal of the plea would
result in 'manifest injustice.'" Brown, 293 Wis. 2d 594, ¶18
(citing State v. Thomas,
2000 WI 13, ¶16,
232 Wis. 2d 714, 605
3
State v. Cain, 2012 WI 68, ¶26,
342 Wis. 2d 1,
816
N.W.2d 177; State v. Daley,
2006 WI App 81, ¶20 n.3,
292
Wis. 2d 517,
716 N.W.2d 146; State v. Washington,
176
Wis. 2d 205, 213-14 n.2,
500 N.W.2d 331 (Ct. App. 1993).
5
No. 2011AP1030-CR.dtp
N.W.2d 836). "One way for a defendant to meet this burden is to
show that he did not knowingly, intelligently, and voluntarily
enter" his plea. Brown, 293 Wis. 2d 594, ¶18 (citing State v.
Trochinski,
2002 WI 56, ¶15,
253 Wis. 2d 38,
644 N.W.2d 891).
Here, the court has determined that Taylor knowingly,
intelligently, and voluntarily entered his plea. Majority op.,
¶8. In making this determination, the court has rejected the
defendant's specific complaint about the plea colloquy. Thus, I
do not understand the need for a separate section on manifest
injustice.
¶70 A defendant could expound multiple theories for plea
withdrawal and if he did, the court would have to address each
of the theories. Here, however, Taylor has advanced only one
theory——a Bangert violation leading to a plea that was not
knowing, intelligent, and voluntary. Once that single claim has
been rejected, the case is over.
¶71 The manifest injustice test was adopted more than 40
years ago. Reppin, 35 Wis. 2d at 386. The court should find a
way to carefully update the "manifest injustice" test, with a
comprehensive catalog of fact situations requiring withdrawal,
when a defendant satisfies his burden of proof, along with
citations supporting these situations.
II
¶72 Once again, the real question in this case is why
Taylor did not get a Bangert hearing.
¶73 Taylor filed a postconviction motion stating that he
was "misinformed by the court of the maximum penalty that he
6
No. 2011AP1030-CR.dtp
faced upon conviction, and [he] did not understand the true
maximum." Taylor affirmatively alleged that he did not know the
correct maximum penalty that he faced at the time he entered his
no contest plea and moved the court to withdraw his plea "on the
ground that his plea was not knowingly, voluntarily and
intelligently entered."
¶74 In Brown, the court said:
A circuit court's failure to fulfill a duty at
the plea hearing will necessitate an evidentiary
hearing if a defendant's postconviction motion alleges
he did not understand an aspect of the plea because of
the omission [or misstatement].
. . . .
After sentencing, in cases that involve an
alleged deficiency in the plea colloquy, an attempt to
withdraw a guilty plea proceeds as follows. The
defendant must file a postconviction motion under Wis.
Stat. § 809.30 or other appropriate statute. The
motion must (1) make a prima facie showing of a
violation of Wis. Stat. § 971.08(1) or other court-mandated duties by pointing to passages or gaps in the
plea hearing transcript; and (2) allege that the
defendant did not know or understand the information
that should have been provided at the plea hearing.
When a Bangert motion is filed, it is reviewed by
the court. If the motion establishes a prima facie
violation of Wis. Stat. § 971.08 or other court-mandated duties and makes the requisite allegations,
the court must hold a postconviction evidentiary
hearing at which the state is given an opportunity to
show by clear and convincing evidence that the
defendant's plea was knowing, intelligent, and
voluntary despite the identified inadequacy of the
plea colloquy. When the defendant has met his two
burdens, the burden of producing persuasive evidence
at the evidentiary hearing shifts to the state.
Brown, 293 Wis. 2d 594, ¶¶36, 39-40 (citations and footnotes
omitted).
7
No. 2011AP1030-CR.dtp
¶75 Against this background, I find it difficult to
contend that Taylor's motion does not satisfy the requisite
criteria for a Bangert hearing. Why, then, did he not get an
evidentiary hearing?
¶76 Taylor did get a postconviction hearing. He was
brought to Outagamie County from the Racine Correctional
Institution and appeared in court on April 21, 2011.
¶77 In my view, Taylor did not receive an evidentiary
hearing because there would have been no point in taking
testimonial evidence.
¶78 The court already understood that Taylor had come to
court on August 23, 2010, for the purpose of entering a plea.
There was evidence in the record that the defendant had read the
complaint, which correctly stated the maximum sentence, and had
met with his attorney to discuss a negotiated plea agreement and
go over the plea questionnaire. The plea questionnaire included
information about the maximum penalty. Defense counsel made a
notation: "8 yrs prison/$10,000 fine or both." "Yrs" is
shorthand for "years." "8 yrs prison" is likely shorthand for
"8 years of imprisonment."
¶79 The record also showed that the court had made a
conscientious effort to discharge its duties under Wis. Stat.
§ 971.08, Bangert, and Brown, and had succeeded except for an
inadvertent misstatement of the maximum penalty. The court
knew, in considering the postconviction motion, that it had
informed Taylor of more than the penalty he actually received,
8
No. 2011AP1030-CR.dtp
so that the court's misstatement had no adverse impact on Taylor
under the circumstances.
¶80 Taylor's claim that he lacked understanding of the
maximum sentence was objectively incredible given the ample
evidence in the record of the correct information he had
received. The record also revealed that Taylor had a lengthy
criminal history so that he had familiarity with the courts.
Multiple charges of uttering a forgery were pending in Brown
County on the date of the plea.
¶81 If we look back to the foundational case of Reppin, we
are reminded that the defendant had the burden of proof in all
four fact situations. Reppin, 35 Wis. 2d at 386. This burden
of proof has been relaxed in defective plea colloquy situations
because evidence of a deficient plea colloquy should be obvious
in the plea hearing record, and a defendant's allegation that he
did not understand something because of the deficiency, while
"admittedly, conclusory," would be "difficult to expand on,"
except through sworn testimony. Hampton,
274 Wis. 2d 379, ¶¶57-
59.
¶82 This court is firmly committed to the principle that
when a defendant files a motion showing a prima facie Bangert
violation and the requisite claim that he lacked understanding
because of a deficiency in the plea colloquy, he is entitled to
a burden-shifting Bangert hearing. Adherence to this principle
tends to encourage careful, conscientious plea colloquies.
Nonetheless, there are often limits to even the most salutary
principle. Courts must not be rendered powerless to reject a
9
No. 2011AP1030-CR.dtp
conclusory allegation——"I didn't know"——that is disproven by the
existing record.4
¶83 In Birts v. State, the court said: "We have held that
in determining whether to grant a motion to withdraw a guilty
plea, 'the trial court is not obligated to accept the
defendant's statements as verities.'" Birts, 68 Wis. 2d 389,
394,
228 N.W.2d 351 (1975) (quoting Ernst v. State,
43
Wis. 2d 661, 668,
170 N.W.2d 713 (1969)). A court is not
obligated to accept a defendant's statement if the record
demonstrates that the statement is not credible.5
4
State v. Burns, 226 Wis. 2d 762,
594 N.W.2d 799 (1999), is
a classic example of an appellate court's common sense review of
the record:
We affirm the judgment of conviction . . . even
though the defendant did not expressly and personally
articulate a plea of no contest on the record in open
court, because the only inference possible from the
totality of the facts and circumstances in the record
is that the defendant intended to plead no contest.
Burns, 226 Wis. 2d at 764 (emphasis added).
5
In his postconviction motion, the defendant asserted that
"[d]uring the plea colloquy, the court erroneously informed Mr.
Taylor that the maximum penalty he faced was six years of
imprisonment——that is, the penalty without the enhancer. (Plea
hearing transcript at 7)." At the hearing on the motion, the
defendant's postconviction counsel discussed State v. Cross,
2010 WI 70,
326 Wis. 2d 492,
786 N.W.2d 64, and asserted that
"the court . . . did go on to say that in a case where the
defendant was informed that a penalty was lower than it is[,]
that remains a potential Bangert violation."
10
No. 2011AP1030-CR.dtp
¶84 In this case, requiring the State to establish through
testimonial evidence the notice about the sentence that the
defendant could receive——in light of the lesser sentence the
defendant actually did receive, and in light of the information
in the record——was simply unnecessary.
¶85 Having read this court's decision in Brown, the
circuit court understood that there are times when a defendant
"should not be permitted to game the system by taking advantage
of judicial mistakes." Brown, 293 Wis. 2d 594, ¶37. This was
one of those times.
The dissent has reformulated the defendant's argument.
Instead of arguing that the circuit court understated the
maximum penalty at the plea hearing, the dissent asserts that
the defendant "was not told in straight, simple English that the
punishment for the crime was eight years' imprisonment."
Dissent, ¶91. "The circuit court . . . advised the defendant
(incorrectly) of the term of confinement without advising him
correctly of the term of imprisonment." Id., ¶102 n.19.
The dissent acknowledges that the circuit court will
satisfy Bangert, Brown, and Wis. Stat. § 971.08(1)(a) by stating
the maximum term of imprisonment, "without explicitly stating
the component parts of the bifurcated sentence," i.e.,
confinement and supervision.
Id., ¶101. Yet this concession
undermines Taylor's position because the complaint and
information both correctly stated the maximum term of
imprisonment and Taylor admitted that he had read and understood
the complaint. In fact, the complaint states that Taylor
supplied the information on his prior convictions to Sergeant
Michael Daul of the Appleton Police Department.
There is a very high likelihood that Taylor's attorney,
Michael Dally, explained the meaning of eight years of
imprisonment to Taylor. But if Dally actually spoke of eight
years "in prison," instead of "imprisonment," just as the
circuit court spoke of six years "in prison," then the case is
covered by this court's decision in Cross.
11
No. 2011AP1030-CR.dtp
¶86 Requiring the court to conduct an evidentiary hearing
to receive what was already evident throughout the record would
have served no legitimate purpose in this case.
¶87 For the foregoing reasons, I respectfully concur.
12
No. 2011AP1030-CR.ssa
¶88 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The case
before us presents a clear example of a flawed plea colloquy
under Bangert,1 Brown,2 and Wis. Stat. § 971.08(1)(a).3
According to the case law and the statute, in taking a guilty
plea or no-contest plea the circuit court must establish the
accused's understanding of the range of punishments which the
crime carries.
¶89 The concurrence has it right: The defendant has met
his two burdens under Bangert, which entitles him to an
evidentiary hearing: (1) The defendant has made a prima facie
showing of a violation of Wis. Stat. § 971.08(1)(a); and (2) The
defendant has alleged that he did not know or understand the
information (the range of punishments) that should have been
provided at the plea hearing.4
1
Prior to accepting a guilty plea, it is the circuit
court's duty "[t]o establish the accused's understanding
of . . . the range of punishments which [the crime]
carries . . . ." State v. Bangert, 131 Wis. 2d 246, 262,
389
N.W.2d 12 (1986).
2
"During the course of the plea hearing, the court must
address the defendant personally and . . . establish the
defendant's understanding of the . . . range of punishments to
which he is subjecting himself by entering a plea . . . ."
State v. Brown, 2006 WI 100, ¶35,
293 Wis. 2d 594,
716
N.W.2d 906.
3
Wisconsin Stat. § 971.08(1)(a) provides in relevant part
as follows: "Before the [circuit] court accepts a plea of
guilty or no contest, it shall . . . [a]ddress the defendant
personally and determine that the plea is made voluntarily with
understanding of . . . the potential punishment if convicted."
4
Concurrence, ¶¶73-75.
1
No. 2011AP1030-CR.ssa
¶90 Thus, the question posed for this court, as the
concurrence correctly and simply explains, is "[w]hy, then, did
he not get an evidentiary hearing?"5
¶91 This is an easy case: According to the record of the
initial appearance,6 the bail hearing,7 the waiver of a
preliminary hearing,8 the arraignment,9 the plea hearing,10 and
the sentencing hearing,11 the defendant either was not told of
the punishment or was not told in straight, simple English that
In Brown, the court concluded that the failure to advise
the defendant that the punishment for each charge could run
consecutively did not entitle the defendant to an evidentiary
hearing "in the absence of any allegation that the defendant did
not understand the effect of multiple charges on his sentence."
Brown, 293 Wis. 2d 594, ¶78.
I also agree with the concurrence, Part I, ¶¶62-71, that
the majority errs in undertaking a manifest injustice analysis.
The manifest injustice analysis is unnecessary under the facts
of this case. The Bangert analysis suffices, as explained by
the concurrence. This conclusion is apparent in the majority
opinion itself. The majority opinion's manifest injustice
analysis simply repeats its own Bangert analysis. See also
State v. Lichty, 2012 WI App 126, ¶¶8, 9,
344 Wis. 2d 733,
823
N.W.2d 830 (explaining the relationship of a Bangert violation
and the manifest injustice approach).
5
Concurrence, ¶¶61, 72, 75.
6
May 26, 2009 (defendant did not appear).
7
August 20, 2009 (nothing said of the penalty).
8
November 24, 2009 (nothing said of the penalty).
9
January 25, 2010 (Attorney states that he received a copy
of the information. Formal reading of information was waived).
10
August 23, 2010.
11
October 11, 2010.
2
No. 2011AP1030-CR.ssa
the punishment for the crime was eight years' imprisonment.12
Because the defendant was never told the correct punishment, no
one can reach the conclusion on the basis of the record that the
defendant knew or understood the penalty. I therefore conclude
that the defendant is entitled to an evidentiary hearing.
¶92 The majority and concurring opinions offer different
explanations for not affording the defendant an evidentiary
hearing, but both rely on the record to conclude that the
defendant must have known (should have known, would have known,
or is presumed to have known) the penalty for the crime.
¶93 At their core, the majority and concurring opinions
are changing the law. The present law requires that a court
determine whether the individual defendant (to use the Bangert
terminology) "in fact" knows or understands the information that
should have been provided at the plea hearing——a subjective
test.13
¶94 The refusal of the majority and concurring opinions to
afford the defendant an evidentiary hearing can be read as
declaring that a court may determine from the paper record that
a reasonable person must have known (should have known, would
have known, or is presumed to have known) the information the
12
The defendant's brief states the issue before the court
as follows: Is a defendant's no contest plea knowing, voluntary
and intelligent when the defendant is mistakenly informed by the
trial court that the maximum sentence was six years rather than
the correct eight years imprisonment and believes that the
maximum sentence is lower than it actually is?
13
Bangert, 131 Wis. 2d at 257, 274-75 (citing Boykin v.
Alabama,
395 U.S. 238, 242-43 (1969)).
3
No. 2011AP1030-CR.ssa
court was required to provide at the plea hearing——an objective
test. The majority and concurring opinions seem to be
substituting an objective test for the subjective test set forth
in Bangert, Brown, and Wis. Stat. § 971.08(1)(a). Neither the
majority opinion nor the concurring opinion considers the
constitutional implications of their respective approaches.
¶95 Because the majority and concurring opinions
drastically break with precedent, I dissent.
¶96 Although the majority and concurring opinions offer
various and different rationales for their ultimate decision in
the present case,14 they essentially reason that no evidentiary
14
The majority opinion states and restates its rationale
and holding in several different ways so that it is difficult to
determine what test the majority adopts or uses to determine
that the defendant's plea was knowingly, intelligently, and
voluntarily made.
The majority opinion can be read in a number of ways:
The defendant's plea is knowing, intelligent, and voluntary
because the complaint and information stated the correct maximum
penalty. Majority opinion, passim.
The defendant's plea is knowing, intelligent, and voluntary
because the record makes clear that the defendant knew the
maximum penalty that could be imposed and the defendant was
orally informed at the plea hearing of the penalty he received.
Majority op., ¶¶8, 28.
The defendant's plea is knowing, intelligent, and voluntary
because the defendant was orally informed by the circuit court
at the plea hearing of the sentence that he actually received.
Majority op., ¶¶8, 28, 39, 42, 52, 54.
The defendant's plea is knowing, intelligent, and voluntary
because the circuit court's misstatement of the penalty is an
insubstantial defect. Majority op., ¶¶34, 39.
4
No. 2011AP1030-CR.ssa
hearing is needed because "the record makes clear that the
defendant knew the maximum penalty . . . . The record in this
case is replete with evidence that [the defendant] was aware of
the potential eight-year term of imprisonment, comprised of a
six-year term of imprisonment for the underlying charge and an
additional two-year term of imprisonment from the alleged
repeater [charge]." Majority op., ¶¶8, 35 (emphasis added).
¶97 In contrast, I conclude that the record clearly and
unambiguously demonstrates that the defendant was never told
that he was subject to an eight-year term of imprisonment.
Indeed the record is replete with inconsistencies and confusion
by the circuit court and the defense counsel (with the
• The majority opinion does not attempt to define
"insubstantial defect." By applying an insubstantial
defect test, is the majority opinion really applying a
harmless error test by a different name?
• Is the majority opinion abrogating the Cross
decision with regard to the doctrine of insubstantial
error?
The Cross opinion states that when "the sentence
communicated to the defendant is higher, but not substantially
higher, than that authorized by law, the incorrectly
communicated sentence does not constitute a Bangert violation
and will not, as a matter of law, be sufficient to show that the
defendant was deprived of his constitutional right to due
process of law. . . . We conclude that Cross has not made a
prima facie showing that the circuit court failed to comply with
Wis. Stat. § 971.08 or the requirements outlined in Brown and
Bangert . . . ." State v. Cross,
2010 WI 70, ¶¶40-41,
326
Wis. 2d 492,
786 N.W.2d 64. In contrast with Cross, the
majority opinion treats the instant case as one with a flawed
plea colloquy; treats the error in the plea colloquy as an
insubstantial defect; and requires the circuit court to review
the record to determine whether the plea was entered knowingly,
intelligently, and voluntarily.
5
No. 2011AP1030-CR.ssa
prosecuting attorney remaining silent) regarding the maximum
penalty the defendant faced.15
¶98 Because the defendant was never apprised of the
maximum penalty, this court cannot determine that the defendant
knew or understood the maximum penalty——information that should
have been provided at the plea hearing. This court should order
an evidentiary hearing in the present case to determine whether
the defendant did know and understand the maximum penalty he
faced.16
¶99 Before I turn to the record, I must state the actual
maximum penalty. Knowing the actual maximum penalty helps put
in perspective the inaccurate information the defendant
received.
15
Indeed it is often difficult to follow the majority
opinion's discussion of what the defendant knew as the opinion
continually shifts, not always precisely or correctly, between
referring to "imprisonment" (which encompasses confinement and
extended supervision) and "prison" (which encompasses only
confinement).
For a discussion of the statutory use of the term
"imprisonment," see Wis. Stat. § 973.01(1) and State v. Cole,
2003 WI 59, ¶16,
262 Wis. 2d 167,
663 N.W.2d 700 (under
Wis.
Stat. § 973.01, the word "imprisonment" refers to a "bifurcated
sentence" consisting of a "term of confinement in prison
followed by a term of extended supervision."). See also State
v. Jackson,
2004 WI 29, ¶5 n.4,
270 Wis. 2d 113,
676 N.W.2d 872
("Under Truth-in-Sentencing legislation, the term 'imprisonment'
does not mean time in prison. Rather, 'imprisonment' consists
of both the time of confinement (in prison) and the time
following the confinement spent on extended supervision.").
16
"If a defendant does not understand . . . the
implications of the plea, he should not be entering the plea,
and the court should not be accepting the plea." Brown, 293
Wis. 2d 594, ¶37.
6
No. 2011AP1030-CR.ssa
¶100 According to the defendant's brief and my
calculations, the maximum penalty was imprisonment not to exceed
eight years, which could consist of not more than five years of
initial confinement (prison) and not more than three years of
extended supervision.17
¶101 A circuit court's telling the defendant at the plea
hearing the maximum term of imprisonment, without explicitly
17
It takes some time and effort to understand how the
penalty statutes work together in the instant case.
Here is how I calculated the maximum penalty when the
defendant is charged with Uttering a Forgery, Repeater, a Class
H Felony.
The potential penalty for a Class H felony is "a fine not
to exceed $10,000 or imprisonment not to exceed 6 years, or
both." Wis. Stat. § 939.50(3)(h).
"For a Class H felony, the term of confinement in prison
may not exceed 3 years." Wis. Stat. § 973.01(2)(b)8.
"The term of extended supervision may not be less than 25%
of the length of the term of confinement in prison imposed under
par. (b) and, for a classified felony, is subject to whichever
of the following limits is applicable: . . . For a Class H
felony, the term of extended supervision may not exceed 3
years." Wis. Stat. § 973.01(2)(d)5.
Because the defendant was a repeater due to prior
convictions for misdemeanors, "[a] maximum term of imprisonment
of more than one year but not more than 10 years may be
increased by not more than 2 years if the prior convictions were
for misdemeanors . . . ." Wis. Stat. § 939.62(1)(b).
"Subject to the minimum period of extended supervision
required under par. (d), the maximum term of confinement in
prison specified in par. (b) may be increased by any applicable
penalty enhancement statute. If the maximum term of confinement
in prison specified in par. (b) is increased under this
paragraph, the total length of the bifurcated sentence that may
be imposed is increased by the same amount." Wis. Stat.
§ 973.01(2)(c).
7
No. 2011AP1030-CR.ssa
stating the component parts of the bifurcated sentence,
satisfies Bangert, Brown, and Wis. Stat. § 971.08(1)(a).18
¶102 The majority opinion gratuitously and cavalierly warns
that a circuit court's advising a defendant of the possible term
of confinement and extended supervision at the plea hearing
"could be misleading." Majority op., ¶42 n.12.19
¶103 The majority opinion thus opens the door for
additional post-conviction motions. I have read many
transcripts of plea colloquies; circuit courts often state the
component parts of the imprisonment during the plea colloquy,
although they are not required to do so. The majority opinion
should not be read to mean that the circuit court commits a
"Bangert" error if it provides a defendant with information
about the components of the bifurcated sentence, as long as the
circuit court gives the defendant the correct information about
the maximum term of imprisonment.
¶104 And now to the record.
¶105 The complaint and information——documents available to
the circuit court, defense counsel, prosecuting attorney and the
defendant——stated that the defendant could be "imprisoned not
more than six (6) years" with an additional penalty enhancer of
"not more than 2 years."
18
Lichty, 344 Wis. 2d 733, ¶14 (citing State v. Sutton,
2006 WI App 118, ¶15,
294 Wis. 2d 330,
718 N.W.2d 146).
19
The circuit court in the present case advised the
defendant (incorrectly) of the term of confinement without
advising him correctly of the term of imprisonment.
8
No. 2011AP1030-CR.ssa
¶106 These are correct statements of the statutory
language, although it takes some calculation and legal knowledge
to translate the legalese found in the complaint and information
into knowing and understanding that the maximum penalty is
"imprisoned not more than eight (8) years." Thus it is not
clear from the complaint and information that the defendant was
apprised of the maximum penalty of eight years of imprisonment,
as the majority repeatedly and inaccurately states.
¶107 Moreover, it would take a proverbial Philadelphia
lawyer to figure out what "imprisoned" means in the complaint
and information in the present case. The word "imprisoned"
takes on special significance in the present case because of the
enhanced penalty, and the record shows that the defendant was
told about "prison," not about being "imprisoned."
¶108 Although the defendant stated he was familiar with the
complaint and information, neither document stated the maximum
penalty as eight years' imprisonment. Nevertheless, the
majority opinion can be read to state that when the complaint
and information in the record state the penalty in the exact
terms of the statute, as they do in the present case——a
circumstance that will likely occur frequently——the defendant
has been adequately told of the maximum penalty and is held to
know and understand the maximum penalty. Such a holding
completely undercuts Bangert.
¶109 I therefore examine the rest of the record to
determine whether the defendant was apprised of the maximum
penalty and understood the maximum penalty of eight years'
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No. 2011AP1030-CR.ssa
imprisonment. I look at the plea colloquy and the plea
questionnaire. Then I look at the sentencing hearing.
¶110 Neither the circuit court nor the defense attorney
correctly translated the statutory penalty provisions in the
complaint and information into plain English to advise the
defendant of the correct maximum penalty in the plea colloquy or
plea questionnaire, imprisonment for a maximum of eight years.
¶111 During the plea colloquy, the circuit court changed
the description of the penalty, telling the defendant that he
faced the possibility of "six years in prison." Majority op.,
¶2.20 The circuit court erred. The defendant was not subject to
six years in prison. (Remember, six years in prison is not the
same penalty as six years of imprisonment; his maximum prison
(confinement) time, as I have stated previously and which never
appears correctly in the record, is five years).
¶112 The plea questionnaire (obviously completed by the
defense counsel and signed by the defendant) also errs in
telling the defendant of the maximum penalty. The plea
questionnaire states that the defendant could face a maximum
penalty of "8 yrs prison." The defendant was not subject to an
eight-year prison term. (Remember, eight years in prison
(confinement) is not the same penalty as eight years of
imprisonment; the defendant's maximum time in prison, which
never appears correctly in the record, is five years). Once
20
The transcript reads: "The Court: I could impose the
maximum penalty here of a $10,000 fine or six years in prison or
both if I thought that's what was necessary. Do you understand
that?"
10
No. 2011AP1030-CR.ssa
again, the defendant was told of a different and incorrect
penalty.
¶113 Nevertheless, the concurrence inexplicably,
inaccurately, and incorrectly states that the complaint,
information, and plea questionnaire correctly stated the
defendant's maximum penalty and that the defendant's knowledge
was "already evident throughout the record." Concurrence, ¶¶78,
86.
¶114 Neither the defense counsel nor the prosecuting
attorney offered assistance to the circuit court during the plea
colloquy to state the maximum penalty correctly. Our prior
cases impose a burden on the prosecutor to ensure that the plea
colloquy is sufficient. "As we explained in Bangert, part of
the reason the burden shifts from the defendant to the state is
that this burden-shifting 'will encourage the prosecution to
assist the trial court in meeting its § 971.08 and other
expressed obligations.'"21
¶115 At the sentencing hearing, the circuit court again
incorrectly stated the maximum punishment under the statute.
The circuit court advised the defendant that the felony (with
the penalty enhancer) was "punishable by a $10,000 fine or six
years in prison or both, but then there is the two additional
years of possible prison because of the repeater." So once
again the defendant was advised he faced eight years in prison
(confinement), not eight years' imprisonment.
21
Brown, 293 Wis. 2d 594, ¶40 n.24 (citation omitted)
(quoting Bangert,
131 Wis. 2d at 275).
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No. 2011AP1030-CR.ssa
¶116 To summarize the record: The defendant was never
explicitly told in plain English that the maximum penalty was
eight years' imprisonment. The complaint and information were
worded in terms of imprisonment——not more than six years for the
offense, which may be increased by not more than two years for
the repeater charge. But these documents did not translate the
legalese into plain English or calculate the effect of the
penalty enhancer on the potential term of imprisonment. The
plea colloquy set forth the maximum penalty in terms of prison——
six years. The plea questionnaire set forth the maximum penalty
in terms of prison——eight years. The defect in the plea hearing
was not remedied at sentencing. Even at sentencing, the
defendant was told incorrectly of a maximum prison term but was
never told that the maximum penalty was eight years'
imprisonment.
¶117 According to the record, the defendant was repeatedly
given inconsistent and conflicting information about the maximum
punishment he faced. When he was not told the maximum
punishment, how can anyone conclude that the defendant knew and
understood the maximum punishment? Nevertheless, the majority
opinion concludes that on the basis of the complaint and
information, the plea colloquy, and the plea questionnaire that
the defendant was nonetheless aware of the "maximum eight-year
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No. 2011AP1030-CR.ssa
term of imprisonment."22 Majority op., ¶¶8, 35, 39. The
majority seems to reach its conclusion by substituting the word
"imprisonment" for the word "prison" in the plea questionnaire.23
The only point in the record that the number eight appears is in
the plea questionnaire, which incorrectly refers to eight years
in prison. The number five, the correct prison term, never
appears in the record.
22
The majority asserts: "To conclude that Taylor was not
aware of the maximum eight-year term of imprisonment, we would
have to assume that Taylor's trial counsel misrepresented, on
the plea questionnaire form itself and to the court, that he had
read the form with Taylor and that Taylor understood it. We
would also have to assume that Taylor misrepresented to the
court that he had received, read, and understood the complaint
and plea questionnaire form." Majority op., ¶39 (emphasis
added).
The irony, of course, is that defense counsel and the
majority opinion confuse prison and imprisonment. The
concurrence rewrites defense counsel's notation of "8
yrs/prison" on the plea questionnaire, interpreting it as
"likely shorthand for '8 years of imprisonment.'" Concurrence,
¶22. The concurrence also assumes that "[t]here is a very high
likelihood that Taylor's attorney, Michael Dally, explained the
meaning of eight years of imprisonment to Taylor." Concurrence,
¶27 n.5.
Were we to grant the evidentiary hearing required by
Bangert, we would not have to make any assumptions about the
defendant's understanding and defense counsel's advice. Whether
a defendant is entitled to a Bangert hearing does not turn on
this court's retrospective speculation of what defense counsel
likely meant on the plea questionnaire or whether "there is a
very high likelihood" that defense counsel properly explained
the meaning of "eight years of imprisonment."
23
Majority op., ¶39 (quoted at note 22, supra). In Brown,
293 Wis. 2d 594, ¶12-13, 52-53, the plea colloquy was flawed but
the defendant had stated on the record during the plea colloquy
that he understood the charges, that he had had the complaint
read to him, and that he had gone over the elements of the
charges with his attorney. This record was still not sufficient
to refuse the defendant an evidentiary hearing.
13
No. 2011AP1030-CR.ssa
¶118 As I explained previously, according to the
defendant's brief and my calculations, the defendant was subject
to a maximum penalty of imprisonment not to exceed eight years,
which could consist of not more than five years of initial
confinement (prison) and not more than three years of extended
supervision. As I have shown, the defendant was never so
advised, and nothing in the record demonstrates that the circuit
court, prosecuting attorney, defense counsel, or the defendant
knew the correct maximum penalty. The record is anything but
clear and consistent in establishing that the defendant "in
fact" knew the true and correct maximum penalty he faced. From
this record the majority concludes not only that the defendant
was told of the maximum penalty but that he knew and understood
it.
¶119 I have, until now, focused on the majority opinion.
The concurring opinion strikes out in a somewhat different
direction, focusing more on the defendant's understanding of the
maximum penalty. The concurring opinion concludes that the
defendant does not "receive an evidentiary hearing because there
would have been no point in taking testimonial
evidence. . . . [The defendant's] claim that he lacked
understanding of the maximum sentence was objectively incredible
given the ample evidence in the record of the correct
information he had received. . . . [A] defendant 'should not be
permitted to game the system by taking advantage of judicial
mistakes. . . .'" "Requiring the court to conduct an
evidentiary hearing to receive what was already evident
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No. 2011AP1030-CR.ssa
throughout the record would have served no legitimate purpose in
this case." Concurrence, ¶¶21, 24, 29, 30.
¶120 The concurrence worries about the defendant gaming the
system. Concurrence, ¶29; see also majority op., ¶39. I do not
favor allowing the defendant (or anyone else) to game the
system. Here the defendant satisfied the Bangert requirements,
requirements established by this court that entitle him to an
evidentiary hearing. How is the defendant gaming the system?24
¶121 According to the concurring opinion, a circuit court
should decide whether to hold a Bangert evidentiary hearing
based on what it surmises the evidence will be at the
evidentiary hearing and what it predicts the outcome of the
evidentiary hearing will be about the defendant's knowledge and
understanding. What legal principle or theory allows courts to
decide whether to hold an evidentiary hearing based on court
conjecture?
¶122 When the circuit court, prosecuting attorney, and
defense counsel all failed to recognize that the defendant was
being told different and inconsistent maximum penalties and
failed to explain the correct maximum punishment, how can the
majority and concurring opinions indifferently conclude that the
defendant knew and understood that his charges carried a maximum
sentence of eight years of imprisonment and not six or eight
24
Justice Prosser, writing for the court in Brown,
explained how to prevent a defendant from gaming the system:
"Thus, only the [circuit] court, with the assistance of the
district attorney, can prevent potential sandbagging by a
defendant by engaging the defendant at the plea colloquy and
making a complete record." Brown, 293 Wis. 2d 594, ¶38.
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No. 2011AP1030-CR.ssa
years in prison, numbers the defendant was given by the court
and defense counsel? The majority and concurring opinions are
telling us (with straight faces) that although all the legally
trained, courtroom-experienced participants in the plea colloquy
and sentencing (namely the judge, the defense counsel, and the
prosecuting attorney) displayed their ignorance of the correct
maximum penalty, the defendant, the only participant in the plea
hearing who did not have the benefit of a legal education, is
the only participant who actually knew and understood the
correct maximum penalty. This cannot be right.
…
¶123 Plea colloquies, indeed many, many plea colloquies,
are being conducted every day in courtrooms across this state.
Plea colloquies upon a plea of guilty or no contest are the
"bread and butter" of criminal practice. Plea colloquies are
frequent and recurrent court events with constitutional
overtones and ramifications.
¶124 More than 25 years ago, the court decided the Bangert
case. The court has clearly and decisively adhered to Bangert
declaring that "[c]omplying with the requisite standards [of
Bangert] is not optional."25
¶125 The Bangert line of cases sets down relatively simple,
relatively "bright-line" rules instructing the circuit courts,
the court of appeals, this court, defendants, and counsel about
the goals of a plea colloquy, how a plea colloquy should be
conducted, and the route to be taken when the plea colloquy is
25
Brown, 293 Wis. 2d 594, ¶52.
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No. 2011AP1030-CR.ssa
defective. There is no indication the framework is not working.
Once again, I ask, "Why disturb it now?"26
¶126 The majority opinion and concurrence have
unnecessarily muddied waters often plied, to the detriment of us
all. We now have an inconsistent "jurisprudence of flawed plea
colloquies" apparently governing an overstatement of a penalty,
an understatement of a penalty, a substantial misstatement of a
penalty, and an insubstantial misstatement of a penalty. This
court is supposed to clarify the law. It has not.
¶127 For the reasons set forth, I dissent.
¶128 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
26
Cross, 326 Wis. 2d 492, ¶47 (Abrahamson, C.J.,
concurring).
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No. 2011AP1030-CR.ssa
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