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State v. Gerald D. Taylor, 2011AP1030-CR, District 3/4, 2/9/12, review granted

court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; review granted, 3/15/12

Guilty Pleas – Plea Colloquy 

Certified Issue: 

Whether a plea colloquy’s understating the potential penalty is subject to harmless error analysis, such that if the subsequently-imposed sentence doesn’t exceed the misadvised maximum, plea-withdrawal isn’t supported.

The details: Taylor was charged as a repeater with an offense carrying an underlying maximum of 6 years with the enhancer adding a potential 2 years. At the guilty plea colloquy, the court misinformed Taylor that the max was 6 years rather than 8. The sentence ultimately imposed was indeed 6 years – within the misadvised max, in other words – so, then, can Taylor attempt to withdraw the plea on the basis that he didn’t know the correct maximum penalty he faced even though he in fact received a sentence within the length he did think possible? The Certification identifies 2 different, irreconcilable case-lines of thought, State v. Brown, 2006 WI 100, ¶78, 293 Wis. 2d 594, 716 N.W.2d 906 and State v. Cross, 2010 WI 70, ¶5, 326 Wis. 2d 492, 786 N.W.2d 64:

Following either Brown or Cross in the instant case could arguably lead to different results.  As in Brown, the defendant here was told that he faced a lesser punishment than the law actually provided, but the sentence actually imposed did not exceed the amount of time the court had erroneously informed the defendant he faced.  The court’s emphasis in Brown on the fact that the defendant was not sentenced to more time than he was told he faced suggests that the harmless error doctrine might be applicable in these circumstances—regardless of whether the defendant was or was not aware of the actual penalty.  That would negate the necessity for a hearing.   In contrast, the court’s discussion in Cross seems to suggest that the due process concerns implicated whenever a defendant has erroneously been informed that the penalty is less than the actual maximum might, in fact, require a hearing to determine whether the defendant was aware of the actual penalty he faced.

Tangent: When the guilty plea defendant is erroneously informed that the potential penalty is less than the permissible maximum, and receives a sentence exceeding the erroneously advised length, “fundamental fairness requires” that the sentence be reduced, Preston v. State58 Wis.2d 728, 729-30, 206 N.W.2d 619 (1973). In other words, in such an instance, the defendant should be entitled to sentencing relief, should he not want to risk plea-withdrawal.

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