Dillard accepted a plea bargain under which the state dropped a persistent repeater allegation, which carried a mandatory sentence of life without the possibility of release. But Dillard was never really subject to the persistent repeater law. When he discovered this fact after he was sentenced, he moved to withdraw his plea on the ground his decision to accept the plea bargain was based on his mistaken belief—one shared by the prosecutor, his lawyer, and the court—that he was facing a mandatory life sentence if he was convicted after a trial. The supreme court holds he is entitled to plea withdrawal because his plea was not knowing and voluntary and because his trial lawyer was ineffective for failing to discover the persistent repeater law never applied to Dillard.
To withdraw a plea after sentencing, a defendant must show by clear and convincing evidence that a refusal to allow withdrawal of the plea would result in manifest injustice—that is, that there are “serious questions affecting the fundamental integrity of the plea.” State v. Denk, 2008 WI 130, ¶71, 315 Wis. 2d 5, 758 N.W.2d 775. There are several ways a defendant may demonstrate manifest injustice. One way is to show that the defendant did not enter the plea knowingly, intelligently, and voluntarily. (¶37). Another way is to show the defendant received ineffective assistance of counsel. (¶84). Dillard relies on both of these avenues.
As to the first, there are “numerous cases” holding that affirmative misinformation about the law provided by the prosecutor and defense counsel can make a plea “uninformed” or compromise its voluntariness. (¶39 & n.13). The effect of misinformation is determined in light of the totality of circumstances. The state argues Dillard’s decision to plead was based on multiple factors, not just the persistent repeater enhancer, seizing in particular on Dillard’s acknowledgment that he might not have sought plea withdrawal had he received the 8 years of confinement the State recommended rather than the 25 years the circuit court imposed. (¶¶53-58). The court finds Dillard’s account of his decision to plead more persuasive:
¶60 First, for a defendant to show that a plea was not knowing, intelligent, and voluntary, the case law does not require that the decision to plead no contest be based exclusively on the misinformation the defendant received. Rather, a guilty or no-contest plea is not voluntary unless the defendant is “fully aware of the direct consequences [of his plea], including the actual value of any commitments made to him by the court, prosecutor, or his own counsel . . . .”
¶61 In the instant case, the defendant’s no-contest plea was not made with full knowledge of the factors pertinent to a decision regarding whether to plead or proceed to trial. The defendant did not know the actual value of the commitments made to him by the prosecutor in the plea offer.
¶62 Second, the defendant repeatedly asserted that eliminating the possibility of receiving a mandatory life sentence was his primary motivation for entering the plea agreement. Trial counsel’s testimony supports the defendant’s testimony.
¶63 Third, the disparity between the sentence the defendant thought he would face if convicted of armed robbery with a persistent repeater enhancer and the maximum sentence he would have faced without the persistent repeater enhancer attached to the armed robbery charge was significant. According to the court of appeals, “[t]he hope that one will live long enough to have a life outside the prison walls is, as the advertisement goes, priceless.” Because the defendant “thought he had to bargain for that hope,” he pled no contest.
¶67 Fourth, while the sentence imposed by the circuit court may be driving the defendant’s pursuit of plea withdrawal, the appropriate inquiry is not into the defendant’s motivation for filing the postconviction motion. Rather, the appropriate inquiry is into the defendant’s motivation for entering the no-contest plea in the first place. The defendant’s subsequent satisfaction or dissatisfaction with his sentence has no bearing on whether his initial decision to enter a plea was knowing, intelligent, and voluntary.
¶68 Fifth, if the defendant’s trial counsel were ineffective (and we conclude in Part III that she was ineffective), it follows that the defendant’s plea was not knowing, intelligent, and voluntary. “[T]he sine qua non to a voluntary plea of guilty is the assistance of counsel ‘within the range of competence required of attorneys representing defendants in criminal cases.'”
¶69 Considering the totality of the circumstances, we conclude that the defendant entered into the plea agreement without knowing the actual value of the State’s plea offer and relying on misinformation from the court, the State, and trial counsel about the applicability of the persistent repeater enhancer. As a result, the defendant was prevented from making a reasoned decision whether to proceed to trial or plead. The misinformation undermined the defendant’s capacity to knowingly, intelligently, and voluntarily choose between accepting the State’s plea offer and proceeding to trial. Thus, we conclude that the defendant established that he did not knowingly, intelligently, and voluntarily enter the plea of no contest.
As to Dillard’s IAC claim, the first prong, deficient performance, is obvious: “Trial counsel … offered no reason—strategic or otherwise—for failing to know or investigate the persistent repeater enhancer statute or for failing to challenge the persistent repeater enhancer attached to the armed robbery charge,” and “[t]he persistent repeater enhancer statute is not obscure or unsettled law as applied to the facts of the present case.” (¶93). The second prong, prejudice, requires Dillard to show a reasonable probability he would have gone to trial had he known the persistent repeater enhancer was a legal impossibility. (¶96). Based on the same circumstances that showed his plea was not knowing and voluntary, Dillard has established prejudice. (¶¶100-04).
No earth-shaking law development here, but the majority’s re-articulation of plea withdrawal standards will be useful in litigating post-sentencing plea withdrawal motions based on the defendant being given incorrect legal information (especially when, as in Dillard’s case, there is no dispute that the information was wrong). In particular, it clarifies that the decision to plead doesn’t have to be based exclusively on the misinformation the defendant received and that the defendant’s motivation for seeking plea withdrawal doesn’t bear on the decision to enter the plea in the first place. (¶¶60-62, 67).
As to IAC claims, the majority rejects the notion that the trial court’s denial of Dillard’s motion amounted to a “finding” about Dillard’s credibility and, by implication, that such a finding would control the question of prejudice; instead, the reviewing court “determines independently, as a matter of law, whether the facts demonstrate prejudice, that is, whether under the totality of the circumstances there is a reasonable probability the defendant would not have pled no contest and would have gone to trial had he known the persistent repeater enhancer was a legal impossibility.” (¶99). Showing prejudice “does not require certainty or even a preponderance of the evidence that the outcome would have been different with effective assistance of counsel”; it requires only “reasonable probability.”(¶103, quoting Magana v. Hofbauer, 263 F.3d 542, 547 (6th Cir. 2001)).
Perhaps the only surprising aspect of the case is that the decision isn’t unanimous. A dissent by Justice Roggensack (joined by Justices Prosser and Ziegler) thinks this case is governed by Denk, where the court rejected a plea withdrawal claim based on misinformation about the maximum penalty of a dismissed charge. (¶¶144-48, 156). But the majority deftly explains why Denk is different, despite its superficial similarity. Denk involved an unresolved dispute as to whether the dismissed charge was factually or legally impossible under the circumstances of the case. Given that Denk hadn’t demonstrated that the dismissed charge was a factual or legal impossibility, he benefitted from its dismissal; here, by contrast, there can be no dispute that the persistent repeater enhancer did not apply to Dillard. The law required the State to drop the persistent repeater enhancer, so dropping it as part of the plea agreement provided no benefit to Dillard. (¶¶75-78). As the majority says:
¶79 In the present case, the plea offer was significantly less valuable than the defendant believed because the persistent repeater enhancer was a legal impossibility. Dropping the enhancer provided an illusory benefit to the defendant. When entering his plea of no contest, the defendant failed to understand “the actual value” of the plea offer he accepted.
The dissent has nothing to say on this point. It focuses instead on the error-free plea colloquy with Dillard, at the end of which the circuit court made the usual rote pronouncement that the plea was knowing and voluntary, and then complains that, beyond a potential weakness in the victim’s identification, Dillard hasn’t provide sufficient “factual-objective” (as opposed to “opinion-subjective”) information to support his claim he would have gone to trial. (¶¶156-63). But the decision to plead is structured first, if not always foremost, by an understanding of the potential consequences without a plea bargain and how the bargain improves the situation. In this case, the potential consequences were doubtless also foremost to Dillard, given the extremity of the penalty he was told would apply if he spurned the plea bargain and went to trail. Thus, the dissent can insist that Dillard “received the benefit of the bargain and suffered no prejudice” (¶168) only by ignoring the elephant in the living room.