Reaffirming the long-standing law governing plea withdrawal that was established in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and limiting the reach of two recent cases that muddied the Bangert procedure, the supreme court holds, 5 to 2, that Finley is entitled to withdraw his plea because the circuit court misadvised Finley of the maximum penalty during the plea colloquy and the state failed to prove Finley knew the actual maximum penalty.
¶95 …. The circuit court misinformed Finley of the potential punishment he faced if convicted, information the circuit court was required to give the defendant [under Wis. Stat. § 971.08(1)(a)]; and the State failed to prove that when Finley entered his plea he knew the potential punishment he faced if convicted. The case law tells us that under these circumstances Finley was entitled to withdraw his plea. Bangert, 131 Wis. 2d at 283 (“When a defendant established a denial of a relevant constitutional right, withdrawal of the plea is a matter of right.”); ….
Though the issue in this case is resolved by reaffirming and then applying Bangert, understanding the significance of that resolution requires a journey through the convoluted history of the case and some description of recent case law that opened the door to the arguments that the state was making to try to avoid the result yielded by a straightforward application of Bangert. Here we go:
Finley pleaded guilty to a crime as a repeater and while using a dangerous weapon. Both the judge and the plea questionnaire told Finley he faced 19½ years in prison. In fact, he faced 23½ years, and the judge sentenced him to 23½ years. Finley moved to withdraw his plea because he didn’t know the real maximum penalty. (¶¶24-34). Under Bangert, as restated and amplified by State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716 N.W.2d 906, when a defendant moves for plea withdrawal by identifying a defect in the plea colloquy regarding information the court was required to give him and then expressly alleging he did not know the information that should have been provided, the circuit court must hold an evidentiary hearing. At that hearing the state has the burden to prove that, despite the defect in the colloquy, the defendant in fact knew the information. If the state doesn’t prove the defendant knew the information, the defendant is entitled to plea withdrawal. Bangert, 131 Wis. 2d at 274; Brown, 293 Wis. 2d 594, ¶¶39-40.
Despite the indisputable defect in Finley’s plea colloquy, the trial court denied Finley’s plea withdrawal motion without a hearing, concluding that Finley himself would have known the correct maximum by adding up the basic penalty for the crime and two enhancers. (¶¶35-37). Finley appealed. The court of appeals rejected the notion that Finley would have concluded he knew better than the judge and his lawyer (who put the wrong maximum on the plea questionnaire) and ordered a hearing. (¶¶38-43). At that hearing Finley’s trial lawyer testified he usually advises clients of the maximum penalties, but he had no specific recollection of telling Finley the correct maximum penalties; indeed, he admitted he could have misinformed Finley because when advising clients he refers to the plea questionnaire, which in this case listed an incorrect maximum penalty. The circuit court nonetheless found trial counsel’s testimony proved Finley knew the correct penalty, but it also decided it would, “in the interest of justice,” commute the sentence to the 19½ years Finley was told (incorrectly) he faced. (¶¶44-50).
When Finley appealed again, the state abandoned its argument that it had proved Finley actually knew the correct maximum. Instead, it argued the commutation remedy was appropriate under State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64, and State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482, both of which muddied the Bangert waters:
- In Cross the judge overstated the penalty during the colloquy (saying it was 40 years, when the statutory maximum was 30) and then imposed 40 years. The court rejected Cross’s request for plea withdrawal, holding the defect in the colloquy didn’t violate the requirement that the judge inform the defendant of the potential penalties because “a defendant can be said to understand the range of punishments as required by § 971.08 and Bangert when the maximum sentence communicated to the defendant is higher, but not substantially higher, than the actual allowable sentence.” 326 Wis. 2d 492, ¶¶38. The court agreed, however, that Cross’s illegal 40 year sentence had to be commuted to 30 years. Id., ¶12.
- In Taylor the court denied plea withdrawal where the trial judge recited the correct maximum penalty for the underlying crime, neglected to advise the defendant about the additional repeater time, but ended up sentencing the defendant only to the maximum for the crime, with the result that the defendant couldn’t allege his plea to the underlying crime was not knowing and voluntary. 347 Wis. 2d 30, ¶¶34-38, 42.
As detailed in our post on the decision, the court of appeals rejected the state’s reliance on Taylor and Cross and applied Bangert. A majority of the supreme court agrees with the court of appeals.
The majority reads Cross and Taylor as demonstrating that a circuit court’s failure to correctly advise a defendant during the plea colloquy of the potential punishment he faces doesn’t require plea withdrawal where “the defendant knew the potential punishment and w[as] given the sentence the circuit court described.” (¶81). In Cross there was an overstatement of the penalty during the colloquy, which meant he was informed of a range of punishment including the correct, lower maximum sentence, and his illegal 40-year sentence was subject to § 973.13, which commutes illegal sentences. (¶¶66-73). In Taylor, the circuit court record was “replete with evidence,” including the plea questionnaire, showing Taylor was informed and aware of the potential punishment and was verbally informed at the plea hearing of the penalty that he actually received. (¶¶75-80). Finley’s case is very different. First:
¶85 In the instant case, there was a Bangert violation and an evidentiary hearing was held. The record in the instant case does not establish that Finley knew the information about potential punishment about which he was misinformed during the plea colloquy. On the contrary, after the evidentiary hearing, the State “abandoned any argument that it met its burden, at least with respect to Finley’s knowledge, at the time he pled, of the correct maximum penalty he faced.” In this court, the State acknowledges that Finley did not know the potential punishment he faced when he entered his plea.
Further, Finley wasn’t given the sentence the circuit court described during the plea colloquy; he was given a longer, though still legal, sentence, making commutation under § 973.13 unavailable because that applies only to illegal sentences. (¶74). Nor is there any other basis for the state’s remedy of commuting an otherwise legal sentence:
¶86 …. The State asserts that as long as Finley ultimately receives a sentence that he was informed he could get and that sentence is less than or equal to the maximum statutory penalty, Finley’s plea was knowing, intelligent, and voluntary for constitutional purposes. No Wisconsin or United States Supreme Court case supports the State’s proposition.
Because there was a defect in the plea colloquy and the state hasn’t proven Finley knew the required information despite the defect, Finley is entitled to plea withdrawal.
The upshot, then, is that Bangert and Brown remain intact, even reinvigorated, and the uncertainties of Cross and messiness of Taylor are confined for now to cases involving overstatement of penalties and cases where the underlying crime’s penalty is covered, but enhancers aren’t, and the court doesn’t use any enhancer time at sentencing. Further, the decision reaffirms (by demonstration certainly, if not quite express declaration) the rule that whether the defendant has made a prima facie showing he didn’t know some item of required information is determined based on the plea colloquy (¶92), not a canvassing of the entire record leading up to and including the plea. Among other confusions and incoherencies, the Taylor majority looked at the record leading up to the plea, and by speculating about what the defendant knew over the course of the case, could conclude any defects in the plea colloquy were too “insubstantial” to merit an evidentiary hearing about what the defendant knew at the time of the plea—which is, of course, the moment that matters. State v. Van Camp, 213 Wis. 2d 131, 149, 569 N.W.2d 577 (1997). The majority opinion focuses on the errors at the plea hearing, while only one dissenting justice (Ziegler, who wrote Taylor) uses the record leading up to the plea to assess Finley’s knowledge. (¶¶98-141).
In addition to canvassing the record looking for reasons to think Finley really knew he faced 23½ years and that his claim to the contrary is not “believable” (¶140), Ziegler also concludes the circuit court’s finding that Finley knew the real maximum penalty should be accepted despite the state’s express refusal to defend that finding. (¶¶142-49). (In a separate dissent, R.G. Bradley also says the circuit court’s finding should be accepted. (¶¶192-94).) Finally, Ziegler alone thinks that plea withdrawal isn’t the only appropriate remedy, and that commutation is appropriate. (¶¶150-63).