Henderson pled to two misdemeanor repeaters. He now seeks to withdraw his plea on the ground that counsel was ineffective for misinforming him that the two-year maximum sentence on each count was divided into one year of initial confinement and one year of extended supervision, rather than the correct 18 month/6 month split.
The court rejects Henderson’s claim for three reasons: first, State v. Sutton, 2006 WI App 118, ¶15, 294 Wis. 2d 330, 718 N.W.2d 146, held that knowledge of the total maximum imprisonment (that is, IC + ES) is all that’s required for a knowing, voluntary and intelligent guilty plea, and it’s undisputed that Henderson was correctly told of the two-year max imprisonment. (¶¶24-28).
Second, implicitly relying on the statement from State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (1994), that counsel is not ineffective for not arguing “a point of law that is unsettled,” the court notes that there was considerable confusion around the time of Henderson’s plea on the proper bifurcation of a misdemeanor repeater, with several unpublished court of appeals opinions giving different answers. (¶29).
Well, yes, around that time. However, State v. Lasanske, 2014 WI App 26, 353 Wis. 2d 280, 844 N.W.2d 417, the case that established the binding rule that the proper bifurcation is 18 months and 6 months, was released (and recommended for publication) five days before Henderson entered his ill-informed plea. (¶29). The court’s answer is that Lasanske didn’t become “settled” until the losing party’s petition for supreme court review was denied, some months after Henderson’s plea. (¶31). As to Henderson’s second trial lawyer–who moved to withdraw his plea pre-sentencing but did not raise the bifurcation issue as a ground–the court gives him a pass even though he argued the withdrawal motion the day after the denial of the Lasanske petition for review. (¶32).
Finally, the court of appeals upholds the trial court’s credibility-based determination that Henderson did not show “a reasonable probability he would not have pled” absent the misinformation. See State v. Dillard, 2014 WI 123, ¶99, 358 Wis. 2d 543, 859 N.W.2d 44.