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What are the implications of Taylor for practitioners?

State v. Taylor continues what the supreme court began in State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64:  Dismantling by implication the well-established Bangert procedures and creating new ways for trial courts to avoid evidentiary hearings on plea withdrawal motions.

Taylor’s motion clearly established enough to get an evidentiary hearing under Bangert. (¶75). So why didn’t he get one? The concurrence, despite being “firmly committed” to Bangert  (¶82), says bluntly that based on the paper record, Taylor’s claim he didn’t know the real maximum was “objectively incredible.” (¶80). The majority starts by referring to Bangert (¶¶31-32) but relies most heavily on Cross, which denied the defendant an evidentiary hearing even though the judge told him that he faced 40 years imprisonment when he actually faced 30. (Cross is discussed here). As in Cross, the majority concludes the defect in the colloquy with Taylor was “insubstantial” because Taylor knew the maximum penalty was really eight years and in any event he was not given more than the erroneous maximum. (¶34).

Cross offered scant guidance on which plea colloquy defects are “substantial” enough to matter. Taylor offers no additional guidance, muddles plea withdrawal standards even more, and raises new questions:

1.  Compared to Cross, the decision here puts less emphasis on the difference between the erroneous and correct penalty and more emphasis on what the court thinks the paper record shows about the defendant’s knowledge and understanding. By doing so the court inverts the Bangert  procedure. Under Bangert, whether the trial judge violated his mandatory duties under § 971.08 violation is determined by what happened during the plea hearing. Once the defendant makes that prima facie showing, and the state can use the rest of the record at an evidentiary hearing to meet its burden of proof. Here, by contrast, the majority uses the entire record to determine whether Taylor made a prima facie showing of a “substantial” defect. (¶¶28, 39, 42, 45, 53, 54, 55). As noted by the dissent (¶¶92-94), this apparently means a trial court reviewing a plea withdrawal motion may also review the entire record, which may effectively relieve the State of its burden of proof in many cases. To avoid having a plea withdrawal motion denied without a hearing, counsel should consider including arguments in the motion about why the rest of the record doesn’t make up for the defect in the plea colloquy.

2.  The decision suggests defendants shouldn’t trust the judge’s statements at the plea hearing. Here, the judge asked Taylor if he understood he faced a maximum of six years in prison, and he answered yes. (¶16). Yet the majority concludes the record shows Taylor knew the real penalty was eight years. (¶¶35-39. But how could Taylor understand that the maximum was both six years and eight years? Wouldn’t he believe the judge—the person with the power to decide the case—knew the real penalty, and that everybody else was wrong? Moreover, Taylor’s acknowledgement of two different maximum penalties undermines the court’s conclusion that he knew the real penalty, though this point doesn’t figure at all into the court’s analysis.

3.  In addition to its analysis of whether there was a defect in the colloquy “substantial” enough to merit an evidentiary hearing, the majority engages in a separate “manifest injustice” analysis. (¶¶43-54). Why it does this is not at all clear, for as the concurrence explains there is no need for that additional analysis. (¶¶68-71). However, it raises the question of whether there is now a need to raise some separate “manifest injustice” argument in addition to a claim about a defect in the colloquy. 

4.  In its manifest injustice analysis, the court says some mighty curious things about the fact the trial judge stated the correct penalty for the crime but failed to add in the repeater time. Whether the remarks mark some sort of change in plea withdrawal standards for cases with enhancers is completely unclear, but if you have such a case you should review the following passages very carefully:

First, with no real analysis of the law on repeater enhancement, the court says Taylor does not—indeed, cannot—argue that he did not enter a knowing plea to the “underlying” felony charge, and that the only remedy for a defect in the colloquy would have been commutation of any repeater time imposed, not plea withdrawal. (¶45 n.15). If that’s the case, why bother to analyze whether Taylor knew the correct penalty of eight years?

Second, and even more perplexing, the majority separately concludes that if Taylor had been given more than six years, he would have been entitled to commutation. And why would that be? Because the judge’s misstatement during the plea colloquy apparently changed the authorized penalty from eight years to six due to an “error in understanding of the possible maximum penalty,…”  (¶45 n.13). But finding that the authorized penalty changes because Taylor didn’t know the real penalty contradicts the court’s earlier conclusion that Taylor did know the real penalty. In other words, the same reasons that entitle Taylor to commutation also entitle him to an evidentiary hearing based on the erroneous statement of the penalty at the plea hearing; in fact, they entitle him to withdraw his plea.

A full dissection of the implications of this decision is far beyond the scope of a single post. The bottom line, though, is that it appears to alter the well established Bangert analysis without clearly saying how the analysis should be conducted. As the dissent says:

¶126   The majority opinion and concurrence have unnecessarily muddied waters often plied, to the detriment of us all. We now have an inconsistent “jurisprudence of flawed plea colloquies” apparently governing an overstatement of a penalty, an understatement of a penalty, a substantial misstatement of a penalty, and an insubstantial misstatement of a penalty. This court is supposed to clarify the law. It has not.

So, read Taylor carefully, and proceed with caution on your next motion for plea withdrawal.

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