¶4 We hold that where a defendant is told that he faces a maximum possible sentence that is higher, but not substantially higher, than that authorized by law, the circuit court has not violated the plea colloquy requirements outlined in Wis. Stat. § 971.08 and our Bangert line of cases. In other words, where a defendant pleads guilty with the understanding that he faces a higher, but not substantially higher, sentence than the law allows, the circuit court has still fulfilled its duty to inform the defendant of the range of punishments. Therefore, the defendant is not entitled to an evidentiary hearing, and plea withdrawal remains in the discretion of the circuit court and will not be disturbed unless the defendant shows that it is necessary to correct a manifest injustice.
¶5 In this case, Cross was told he faced a maximum exposure of 25 years initial confinement with 15 years extended supervision, when the actual maximum was 20 years initial confinement with 10 years extended supervision. We conclude that Cross pled guilty under the belief that he faced a higher, but not substantially higher, maximum penalty. We hold that as a matter of law, Cross’s plea was therefore made knowingly, voluntarily, and intelligently. Moreover, Cross has not demonstrated that withdrawal of his plea is necessary to correct a manifest injustice. Accordingly, the judgment and order of the circuit court is affirmed.
The remedy for a sentence in excess of the permissible maximum is, the court says, “a commuted sentence, not plea withdrawal,” by operation of § 973.13, ¶34. It might seem to follow that therefore, you simply can’t obtain plea withdrawal on this basis, but the court refuses to go that far. Instead, as indicated above, plea withdrawal is indeed available where the actual penalty is “substantially” lower than believed. Thus, any possible embellishment in the holding of cases such as State v. Thomas A. Mikulance, 2006 WI App 69, ¶¶18-19 (challenge to sentence in excess of maximum doesn’t invoke serial litigation bar but challenge to plea on basis of same defect does; possible implication: relief on § 973.13-type error limited to sentence) is now thwarted. Tangent: nor is automatic commutation of the “excess” an exclusive sentencing remedy when the permissible maximum is exceeded; court has discretion to resentence defendant, State v. Holloway, 202 Wis. 2d 694, 700, 551 N.W.2d 841(Ct. App. 1996), something that indeed occurred in this very case, ¶12.
But this does raise a question about how you measure “substantially,” an amorphous standard that troubled the concurrence, ¶54. The majority doesn’t quite get around to saying why the misperceived maximum wasn’t “substantially higher” than its actual counterpart. The majority’s analysis is literally, because we say so (“the difference in this case is, in our view, not substantial,” ¶41). One imagines that their view was premised in large part on the fact that the initial charge carried a maximum of 60 years, and Cross was clearly willing to cut a much more favorable deal, ¶43. In any event, the analysis is necessarily case-by-case, so the factually controlling value of this one is necessarily limited. When the difference is great or the maximum wrongly thought lower, then plea-withdrawal remains possible:
¶39 However, when the difference is significant, or when the defendant is told the sentence is lower than the amount allowed by law, a defendant’s due process rights are at greater risk and a BangertBangert violation may be established. If a violation is established, the burden falls on the State to prove at an evidentiary hearing that the plea was knowing, voluntary, and intelligent.
Finally, note that the holding does alter a line of cases:
¶40 Consequently, we overrule State v. Harden, 2005 WI App 252, 287 Wis. 2d 871, 707 N.W.2d 173. We also withdraw the language in State v. Quiroz, 2002 WI App 52, ¶16, 251 Wis. 2d 245, 641 N.W.2d 715, which requires the defendant to show he would have pled differently had he known the correct maximum sentence. Our holding is more straightforward: where the sentence communicated to the defendant is higher, but not substantially higher, than that authorized by law, the incorrectly communicated sentence does not constitute a Bangert violation and will not, as a matter of law, be sufficient to show that the defendant was deprived of his constitutional right to due process of law.
UPDATE. Compare, Johnson v. Uribe, 682 F.3d 1238 (9th Cir. 2012), an IAC case following Lafler v. Cooper and Missouri v. Frye: relatively slight misperception of maximum Johnson was actually exposed to (about 14 years, vs. accurate max of about 11) entitled him to plea-withdrawal, not merely sentence reduction to correct maximum:
Durdines’s failure to identify and correct the First Amended Information’s erroneous addition of three of Johnson’s prior prison terms for enhancement under Cal.Penal Code § 667.5(b) affected more than just the sentence imposed pursuant to the final plea agreement. The inaccurate enhancements fundamentally altered the bargaining position of the two parties for the entire plea negotiation period, which began as soon as the First Amended Information was filed against Johnson on May 26, 2006. Consequently, in the period leading up to the September 8, 2006 pretrial hearing, the government extended plea offers to Johnson which were most likely less desirable than they would have been had the erroneous enhancements been removed.