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Plea Bargains: Validity, Good-Faith Error in Maximum Penalty

State v. Ronald W. Lichty, 2012 WI App 129(recommended for publication); case activity

Lichty pleaded no contest pursuant to plea bargain which allowed, due to a good-faith mistake, the State to recommend a period of extended supervision that exceeded the permissible maximum by one year. The error was discerned prior to sentencing, where the State reduced its extended supervision recommendation by one year. (His plea was to two counts of the same offense, with the State agreeing to recommend concurrent time, so the number of counts is a mere detail.) Lichty argues that he is entitled to withdraw his pleas because he bargained for an “illegal sentence recommendation” subsequently modified without consent, State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992). He further argues that trial counsel’s failure to object to this “unilateral renegotiation” amounted to ineffective assistance, State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522. The court rejects the arguments, “hold(ing) that when a good-faith legal error is made at the plea hearing regarding the maximum periods of initial confinement and extended supervision permitted by Wisconsin law, and when that error was corrected at the sentencing hearing, to the defendant’s benefit, there is no manifest injustice,” ¶1.

¶12      The only mistake in the proceedings was not a flaw or omission in the plea-taking procedures, but rather a good-faith legal error regarding the maximum amounts of confinement and extended supervision permitted by the statute governing bifurcated sentences for Class F felonies, Wis. Stat. § 973.01.  That mistake was relatively minor.  At the hearing where the defendant’s plea was taken, the defense, the State, and the circuit court mistakenly believed that the State could recommend a sentence of six years’ confinement followed by six years’ extended supervision.  In fact, Wisconsin law expressly states that the maximum term of initial confinement for a Class F felony is seven and one-half years, § 973.01(2)(b)6m., and the maximum term of extended supervision is five years, § 973.01(d)4.

¶13      By the time of the sentencing hearing in January, the mistake had been discovered, and the State therefore adjusted its recommendation to comply with the law by reducing the recommended extended supervision period to the statutory maximum of five years.  Notably, the State left the confinement portion of the recommended sentence at the agreed-upon six years, so that the total recommended sentence was reduced from the twelve-year sentence Lichty had bargained for to an eleven-year sentence.

The mistake did not, the court stresses, establish Bangert-type error, given that Lichty understood the total maximum punishment, confinement plus supervision, he faced, ¶14, citing State v. Sutton, 2006 WI App 118, ¶¶13-15, 294 Wis. 2d 330, 718 N.W.2d 146. Further, the mistake was favorable to Lichty, in that the sentencing recommendation turned out to be for a lesser sentence than he bargained for, ¶¶15-17, citing State v. Cross, 2010 WI 70, ¶40, 326 Wis. 2d 492, 786 N.W.2d 64. The court also contrasts Woods and State v. Riekkoff, 112 Wis. 2d 119, 129, 332 N.W.2d 744 (1983), on the idea that a crucial component of the bargain not only induced the plea but simply couldn’t be enforced, to the defendant’s detriment, whereas Lichty’s position improved, ¶¶18-22. Finally, the court concludes that the error can’t support an ineffective assistance claim, because there was no “substantial and material” breach of the plea bargain, ¶¶23-25 (“Lichty cannot and does not point to any specific facts to show why it would have made any difference to him at the time of his plea agreement if he had known that the twelve and one-half year sentence he faced might be bifurcated into seven and one-half years of confinement and five years of extended supervision, rather than six years of each, much less can he show that the error and its correction prejudiced him or deprived him of the benefit he bargained for.”).

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