Issues (composed by On Point)
Whether Dillard is entitled to withdraw his plea because the primary feature of the plea bargain he accepted was the state’s dismissal of a persistent repeater enhancement, which would have mandated a sentence of life imprisonment without release, when in fact the persistent repeater enhancement never applied to him.
Whether Dillard is entitled to withdraw his plea on the alternative ground that his trial lawyer was deficient in failing to discern that Dillard was not subject to the persistent repeater enhancement.
As detailed in our post on the court of appeals decision, 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 in fact 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 concluded Dillard’s plea was not knowing and voluntary because he struck a plea deal in the face of the significant–but illusory–threat of life behind bars.
A very common sense conclusion, but the state’s petition for review complains that the court of appeals allowed Dillard to withdraw his plea even though he did not allege that anything about the plea he actually entered was unknowing or involuntary, identified no defect in the plea colloquy, and misunderstood only a penalty enhancer that was not part of his plea because it was dismissed. To the state that means the court of appeals erred in relying on the reasoning in State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64 (erroneously advising a defendant during the plea colloquy that he faced a maximum sentence that is higher than what is actually authorized by law isn’t grounds for plea withdrawal unless the misstated maximum was “substantially” higher), and misapplied State v. Denk, 2008 WI 130, 315 Wis. 2d 5, 758 N.W.2d 775 (misinformation about the maximum penalty of a dismissed charge didn’t make the plea agreement illusory).
The court of appeals, however, dealt very logically and effectively with the difference between Denk and Dillard’s situation, in particular noting the fact that in Denk the charge about which the defendant was informed was dismissed entirely, while here Dillard pled to the charge to which the enhancer was originally attached, 350 Wis. 2d 331, ¶¶17-19. Moreover, the state’s narrow focus on what happened during the plea colloquy ignores the fact that a defendant’s decision to plead is determined not just by the colloquy, but also–if not more so–by his understanding of his legal situation without a plea bargain and how the bargain improves his situation. Thus, manifest injustice entitling a defendant to plea withdrawal may be based on mistakes outside the plea colloquy, e.g., State v. Dawson, 2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12 (plea was not knowing and voluntary where defendant entered plea that called for legally unenforceable reopen-and-amend disposition); State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992) (finding manifest injustice when the plea was entered under the mistaken belief that the sentence for the charge being pled to could run concurrently with juvenile sentence); State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983) (permitting withdrawal where bargained-for benefit, preserving the right to appeal a particular issue, was legally unenforceable). The court of appeals recognized this, and now we will see whether the supreme court does.
As to the second issue, the state complains the court of appeals failed to apply the standard from State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996). Because the state effectively conceded that trial counsel was deficient, the remaining issue was whether it is reasonably probable that, but for the deficiency, Dillard wouldn’t have entered his plea, id. at 312. This is a question of law, and beyond the state’s disagreement with the court of appeals’ conclusion it’s hard to see why this issue meets the criteria for review. Be that as it may, the supreme court will have to say something about it if they conclude Dillard is not entitled to plea withdrawal on grounds of manifest injustice.