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Plea withdrawal granted because bargain was “illusory”

State v. Myron C. Dillard, 2013 WI App 108, petition for review granted, 2/19/14, affirmed, 2014 WI 123; case activity

Dillard accepted a plea bargain under which a persistent repeater allegation was dismissed, thus apparently reducing his maximum penalty exposure by avoiding a mandatory life sentence without prospect of release. But Dillard was not really subject to the persistent repeater law, so the mandatory life sentence never applied to him. When he discovered that, he moved to withdraw his plea. The court of appeals holds he is entitled to plea withdrawal, both because his plea was not knowing and voluntary and because his trial lawyer was ineffective for not understanding the applicable law.

First, Dillard’s plea was not knowing and voluntary because the maximum penalty Dillard believed he was facing—the harshest criminal sentence in Wisconsin, mandatory life imprisonment with no possibility of release—was “substantially higher” than the actual allowable sentence, making Dillard’s case distinguishable from State v. Cross, 2010 WI 70, ¶¶38, 46, 326 Wis. 2d 492, 786 N.W.2d 64, where the fact that the actually-applicable penalty for the crime was lower, but not “substantially” lower, than the penalty the defendant thought he was facing at the time of the plea, does not undermine the plea:

¶19     …[T]he mistake at issue in Cross was much less substantial than the mistake in Dillard’s case, amounting to a five-year difference in the total maximum applicable penalty. Cross, 326 Wis. 2d 492, ¶46. Here, in contrast, the situation Dillard believed existed at the time he made the plea bargain—that he was facing life without the possibility of ever being paroled or on extended supervision—amounted to an indefinitely longer period of imprisonment. Perhaps most importantly, at the time of his plea, Dillard thought that a conviction at trial would absolutely foreclose the possibility that he would ever live in freedom again. Finally, while it is true that Dillard also obtained dismissal of the false imprisonment charge, which posed the risk of an additional seven years’ imprisonment, we do not think that sentence was large enough to be much of a factor in his consideration of the plea offer, because of the overwhelming importance of getting rid of the threat of life imprisonment.

The court also distinguishes State v. Denk, 2008 WI 130, ¶¶23-24, 66, 76, 315 Wis. 2d 5, 758 N.W. 2d 775, which denied plea withdrawal based on the defendant’s claim that he was misinformed of the maximum penalty for a charge dismissed under the plea agreement, making the agreement illusory because it didn’t reduce his penalty exposure as much as he believed it had:

¶17      While Dillard’s case bears superficial similarity to Denk, the reasoning in Denk does not extend to excuse the mistaken understanding about the legally applicable penalty for the armed robbery charge during Dillard’s plea negotiations. As Denk pointed out, the cases in which a mistake of law has allowed a defendant to withdraw a guilty plea bear three similarities: (1) the mistake of law “involved the charge to which the defendant actually pled,” (2) “the consequence for which the defendant had bargained when he entered the plea to the charge was a legal impossibility,” and (3) “the defendant failed to understand the inevitable consequences of his plea to that charge.” Id., ¶75; ...

¶18      The same factors are present here. First, the legal mistake that marred the plea negotiations relates to the charge to which Dillard eventually pled, the armed robbery charge. The persistent repeater enhancer is not a separate charge and had no viability except as an allegedly applicable penalty enhancement on the armed robbery charge. Second, the consequence that Dillard bargained for in the plea—eliminating the persistent repeater enhancer (as well as the false imprisonment charge) and thereby eliminating the risk that he would be sentenced to spend the remainder of his life in prison—was actually a legal impossibility. And, third, Dillard failed to understand the inevitable consequence of the charge, as did Dillard’s own attorney, the State, and the court itself, in that the specter of a life sentence was illusory all along.

Alternatively, trial counsel was deficient for failing to discern that the persistent repeater law did not apply to Dillard and the deficiency prejudiced Dillard. There is a reasonable probability that, but for the deficiency, Dillard would not have pleaded guilty because the penalty of mandatory life incarceration with no possibility of parole is substantially higher than a maximum sentence of twenty-five years and a state recommendation of eight years, as called for by the plea agreement. (¶20). Prejudice is shown by the fact the mistaken belief that the penalty enhancer applied was carried into the sentencing itself, when the court remarked “three strikes you’re out,” and that if it were not for the plea bargain, “you’d be sitting the rest of your life in prison as well as you should be.” (¶20).

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