Douglas got inaccurate advice about the prison time he faced if he went to trial instead of taking the State’s plea offer. The inaccurate advice makes his plea invalid.
Douglas was charged with two counts of child sexual assault for the same act, one first degree, the other second degree. (¶¶2-3). The State offered him a deal: Plead to the second degree and the first degree would be dismissed. He initially rejected that offer, after which his lawyer wrongly told him that if he went to trial and was convicted of both he could get consecutive sentences totaling 100 years. The lawyer’s erroneous advice was emphatically backed up by the judge at the pretrial hearing where the offer was put on the record. (¶¶4-5). Douglas changed his mind and took the deal. (¶6). The inaccurate advice means his plea wasn’t knowing and voluntary because he wasn’t truly aware of the consequences of his plea.
Less or equally serious child sexual assault offenses are lesser included offenses, § 939.66(2p), and a person can’t be convicted of and sentenced for both a greater and a lesser included offense, see § 939.66 and State v. Reynolds, 206 Wis. 2d 356, 364, 557 N.W.2d 821 (Ct. App. 1996). (¶¶12-13). So the advice that a trial could lead to 100 years in prison sentences was pure bunkum. The inaccurate advice put Douglas in the same position as the defendant in State v. Dillard, 2014 WI 123, 358 Wis. 2d 543, 859 N.W.2d 44, who took a deal under which the State agreed to dismiss a persistent repeater enhancer—and its concomitant life sentence without release—when in fact it was legally impossible to apply the persistent repeater law to him:
¶18 Like Dillard, Douglas accepted the plea offer without knowing the actual value of the offer because he was misinformed by his counsel, the State, and the court that he faced a potential punishment of 100 years if convicted of both offenses. This misinformation constitutes an error of law because Douglas could not have been convicted of both the greater offense and the lesser-included offense. He was unaware of the direct consequences of his plea and could not make a reasoned decision about whether to proceed to trial or to enter a plea. Thus, we conclude that Douglas is entitled to withdraw his plea.³
³ Based on our analysis of State v. Dillard, 2014 WI 123, 358 Wis. 2d 543, 859 N.W.2d 44, we reject the State’s contention that the error was harmless.