State v. Richard C. Plank, 2005 WI App 109
For Plank: Jamy Richard Johansen
Issue: Whether a voluntary guilty plea to a TIS offense requires knowledge of ineligibility for parole or good-time credit.
¶15 Plank contends that because Byrge holds that parole eligibility is a direct consequence, the lack of parole eligibility under truth-in-sentencing is also a direct consequence. We disagree. First, the Byrge holding was expressly limited to “the narrow circumstance in which a circuit court has statutory authority under Wis. Stat. § 973.014(2) to fix the parole eligibility date ….” Id. Because Plank did not face life imprisonment, Wis. Stat. § 973.014(2) did not apply.
¶16 Second, in Byrge, the court’s ability to set a parole eligibility date affected the range of punishment. The court informed Byrge he faced life imprisonment. The court did not inform Byrge it had the authority to set a parole eligibility date that exceeded his lifetime. That authority changed the applicable range of Byrge’s punishment from life with parole to life without parole. Therefore, in that “discrete situation” parole eligibility was a direct consequence because it increased the maximum penalty. Id., ¶¶67-68. The lack of parole under truth-in-sentencing does not mean Plank will serve more time than the maximum penalty of which the court informed him. Thus, truth-in-sentencing does not affect his range of punishment.
First, a bit of history. In State v. Jeremy J. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, the supreme court held (as the court of appeals indicates) that under the (old) life-means-life homicide statute, the circuit court’s authority to set a parole-eligibility date was a direct consequence of a guilty plea; the defendant’s knowledge of this authority was therefore required for a valid guilty plea. (Is there really any need to rehearse the ground-rules? A guilty plea defendant is entitled to know anything that has a direct and automatic effect on the range of punishment, but not of those matters that are contingent in nature.) The question is whether Byrge applies to a judge’s TIS authority to determine the amount of confinement.We’re more than 5 years into the TIS regime, and if you thought that ample time to address this problem you’d be right—though you’d never know it from this opinion. In point of fact, the court of appeals initially ruled that TIS authority to set confinement time was a direct consequence, in State v. Douglas K. Uhde, 02-3135-CR, Dist. IV, 1/29/04. That decision is unfortunately not available on the court or State Bar Web sites, having been withdrawn on 2/23/04; but it hasn’t quite disappeared down the memory hole—you can access it commercially via Lexis, cite: 2004Wisc. App. LEXIS 76. The point isn’t that the court was “right” then, and is therefore “wrong” now. Rather, it is that this initial grant of relief, shows, if nothing else, that the issue is just a bit weightier than a dismissive 2-¶ fillip would suggest. In any event, this is what the court said initially, in Uhde:
¶13. We cannot meaningfully distinguish Byrge from the sentencing process provided by Wis. Stat. § 973.01. Truth in Sentencing imposes a maximum or fixed penalty and requires the trial court to exercise discretion in allocating the sentence between the confinement and supervision terms in a bifurcated sentence. This exercise of discretion is indistinguishable from Byrge because in both cases the trial court fixed the defendant’s release from confinement. Thus, Truth in Sentencing, like a parole eligibility determination, has “a definite, immediate, and largely automatic effect on the range” of punishment. Id., ¶60.
“Initial grant of relief,” because as noted the opinion was withdrawn, only to be certified on 3/25/04 to the supreme court, which after granting review and entertaining argument vacated and remanded the grant, in light of a State confession of error on a separate point; and eventually, the court of appeals granted relief to Uhde, albeit not on the samizdat-Uhde issue. That opinion is publicly accessible.The certification (nowhere to be found on any non-commercial electronic site) expressed the issue in the following terms: “In Truth-in-Sentencing cases, must circuit courts, as part of the plea colloquy, personally inform defendants that initial confinement will not be reduced by good time or parole?” The certification went on to allow that “ Byrge seems to require that trial courts inform a defendant of the good time and parole information at issue in this case,” something that discomforted the court—but at least it recognized that the only source of relief was the supreme court. But that was then. Now, with the court’s iron broom having swept its site clean of most of Uhde’s traces, there is no need to take into account his litigation history—for if you did, you’d virtually be compelled to re-certify the issue; or at a minimum to take the argument much more seriously. It would be one thing if the court were writing on a blank slate—but it isn’t, though it might as well have: it’s turned Byrge into a palimpsest.
With that admittedly tedious history in mind, let’s go back to the court of appeals’ analysis. The first of its two points is that Byrge isn’t controlling (¶15), which is both true and irrelevant: that case discusses a different statute; the question is whether the logic extends to TIS. In fairness, the court may simply be dispatching Plank’s argument (the briefs aren’t on-line, so it’s not known just what he argued), but that only means that the court’s entire analysis reduces to a single paragraph (16). And there, the court’s remarks only beg the question. Specifically: the court of appeals has Byrge saying that judicial authority to set PED had the effect of exceeding Byrge’s lifetime; and that such “authority changed the applicable range of Byrge’s punishment from life with parole to life without parole.” ¶16, citing Byrge, ¶¶67-68. The best that can be said is that this is a very sloppy reading of the case. It is true that Byrge mentions, by way of aside, that Byrge’s PED turned out to exceed his anticipated life span—but that fact was not crucial to the holding. (Nor, seemingly, under any fair reading of the passage; read it yourself and draw your own conclusion.) If the court of appeals’ construction were correct, then Byrge would be limited to instances where the judge set the PED beyond the anticipated life span. Instead, that court broadly held (¶68) without qualification that judicial authority “to fix the parole eligibility date … implicates punishment and constitutes a direct consequence of the plea.” Indeed so, which is why the court of appeals in Uhde expressed regret about the reach of the decision and certified it so the supreme court could do something about that reach. Besides, consider the implications, which Plank’s terse decision fails to do: why wouldn’t a TIS defendant facing confinement time exceeding his or her life span come within this rule? How is that situation meaningfully distinguishable? Consider, too, the court of appeals’ blithe assessment that life-without-parole “was a direct consequence because it increased the maximum penalty,” ¶16. But this is clearly not true: Byrge’s maximum penalty was static, fixed at “life,” period. What was potentially dynamic under the statute was the PED – just as confinement time is under TIS.
A defendant is entitled to know the “range of punishment.” Why isn’t, say, a Class E felony defendant entitled to know that the range of his her punishment is up to 10 years in prison with no entitlement to release followed by up to 5 years’ supervision? Indeed, our appellate courts unhesitatingly identify “the goal of TIS legislation” as being “to create certainty of confinement at the time a sentence is imposed,” State v. Dawn M. Champion, 2002 WI App 267, ¶13, cited approvingly in Trujillo, ¶26. And those courts, tellingly, have no problem invoking this goal to reject the claim that subsequent legislative reduction in the maximum penalty is a new factor justifying sentence reduction, id. If the Class E confinement maximum is reduced at some point to, say, five years, no one serving over 5 years’ confinement can invoke that development in support of sentence modification. In short, certainty of confinement is a) the goal of TIS such that b) it trumps the possibility of sentence reduction. And yet, according to Plank, that very same certainty of confinement is merely an incidental consequence of a guilty plea, is not to be mentioned in the same breath as punishment.
We will have to assign, then, some meaning to Plank’s Constant, but in the world of jurisprudential physics unlike the natural world, “constant” has more to do with the desired result and less the matter observed. That is, the value is determined contextually: for, say, sentence-reduction purposes, confinement has a value of 1; for plea purposes, 0. The “constant,” then, is denial of relief.