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Defense win! Life sentence is “substantially higher” than 25-year sentence for Bangert purposes

State v. Russell L. Wilson, 2019AP49, 6/23/20, District 3 (not recommended for publication); case activity (including briefs)

Wilson was charged with repeated second-degree sexual assault of a child under Wis. Stats. §§ 948.02(2) and 948.025(1)(e). That’s a Class C felony carrying a max of 25 in and 15 out. But the state alleged that he also qualified for the repeater enhancer in Wis. Stat. § 939.618(2)(b). That would change the max to life without the possibility of parole or ES. Everybody–Wilson, his lawyer, and the judge–apparently believed the repeater applied, but, after Wilson pleaded and was sentenced, DOC informed the court that it did not. So the correct max IC term for the crime Wilson pleaded to was 25 years, not life. He moved to withdraw his plea, alleging the error meant it wasn’t knowing, voluntary and intelligent. The circuit court denied the motion, and the court of appeals now reverses.

This is a Bangert case. So the way it’s supposed to go is the defendant files a motion noting he was not informed (or misinformed) by the court about some important piece of information when he pleaded, and alleging he actually didn’t know that information from some other source. That’s what Wilson did. Then, the court is supposed to hold an evidentiary hearing at which the state can call any witness it likes–usually it’s the trial defense lawyer and maybe the defendant himself–to show that, despite being un- or misinformed by the judge, the defendant actually knew what he needed to know anyway. That’s sort of what the circuit court did. It had a hearing, and there was testimony, but instead of trying to show that Wilson actually knew the right maximum–which would have been a heavy lift, given that every lawyer in the courtroom told him the wrong one–the state endeavored to show that Wilson would have pleaded whether or not he knew the correct maximum. The circuit court agreed that he would have, and denied his motion.

The problem is that’s not the law in Wisconsin (though other jurisdictions differ): the pertinent question is “did you know?” not “what would you have done if you’d known?” The court of appeals cites State v. Cross, 2010 WI 70,  326 Wis. 2d 492, 786 N.W.2d 64, for this proposition, but it’s of pretty long standing. (¶19). And, since the state had its chance, and didn’t (and again, probably couldn’t) prove Wilson knew what he needed to know, the court remands with directions that plea withdrawal be permitted.

That’s the short of it. But there’s a long. It also concerns Cross. In that case, and the subsequent case of State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482, our supreme court held that you actually only kinda have to know the maximum penalty to plead guilty. You gotta be in the ballpark. The difference between what you think the maximum is and what the maximum actually is can’t be “substantial.” What’s substantial? Well, from Cross we know that thinking the max is 40 when it’s really 30 is not substantial. And we know from Taylor that thinking it’s 6 when it’s really 8 is also not substantial. Is it a percentage thing? An absolute number of years? Nobody knows. But the question in this case is whether thinking you’re subject to life (that is, a near-certainty of dying in prison) when you’re actually subject to 25 years–Wilson would be 74 on release, if he served that whole time–matters.

The court of appeals says the difference does matter, both “generally” (though perhaps not inevitably; consider a 95-year-old) and in this particular case. To its credit, the court thinks about the situation from the perspective of the person to whom we’re attributing a “knowing” choice: the defendant.

In reaching our conclusion, we note that both the quantity of incarceration and the quality attendant to a “life without” sentence make it “substantially higher” than the actual maximum sentence Wilson faced here. To elaborate on this point, if Wilson were sentenced to life without the possibility of extended supervision, he would have no expectation of—or reason to anticipate— ever being free again. It would only be a matter of time before he would die in prison. A sentence of twenty-five years of initial confinement, however, would provide him reason to contemplate and prepare for a possible time when he is allowed to live in an unconfined, nonpenal setting, albeit under extended supervision. In other words, a sentence of “life without” would deprive Wilson of all such yearning, and it is this fundamental aspect of a “life without” sentence that makes it “substantially higher” than a possible sentence of twenty-five years’ initial confinement….

We acknowledge there may be situations where the maximum amount of initial confinement for the correct possible sentence is effectively a life sentence for a defendant, such that the above considerations might be of less significance. But that is not the case here. As even the State notes, Wilson’s average life expectancy when he was sentenced at forty-nine years old was about eighty years of age. After twenty-five years of initial confinement, Wilson would thus be seventy-four years old upon release…. [E]ven if he served a full twenty-five years of initial confinement, Wilson could reasonably expect to spend some of his final years in society rather than confined to a prison cell. We refuse to gainsay the import of an individual having a reasonable opportunity to spend some portion of his or her later years of life without being incarcerated, even if while being under extended supervision.

(¶¶22-23) (citations omitted).

Also to its credit, the court notes the unpersuasive nature, here, of Cross‘s concern that a defendant who’s been misled about what he’s pleading to, and later seeks to undo that plea, is “abjuring [his] representations in open court.” (¶24). The court says it “strains credulity to assert that one’s belief that he or she could be sentenced to life without the possibility of extended supervision is not a meaningful inducement to plead guilty in hopes of avoiding that harsh sentence.” Indeed. It’s quite something to have the legal system persuade someone to plead with false information, and then, when that person finds out the truth and wants to undo the deal, have that same legal system say “You LIED to us?!?!”

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