In an important decision addressing how to apply State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482, the supreme court’s recent muddling of plea withdrawal standards, the court of appeals holds that when a defendant is mistakenly told the maximum sentence is less than the law allows, the error “is not curable, after the fact, by ‘commutation’ of an otherwise lawful sentence down to the maximum amount of punishment the defendant was incorrectly informed he or she faced at the time of the plea.” (¶37).
Some history will help understand the court of appeals’ decision. When Finley entered his pleas he was informed by the judge (and the plea questionnaire) that he faced a maximum prison sentence of 19½ years; in fact, he faced 23½ years, and that is what the trial court imposed at the subsequent sentencing hearing. (¶¶5-7). Finely moved to withdraw his plea, but the circuit court denied Finley’s plea withdrawal motion on the ground he hadn’t made a prima facie showing under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), that the plea colloquy was defective. (¶¶8-9).
Finley appealed, and the court of appeals reversed, rejecting the State’s arguments that: 1) Finley himself could have computed the correct maximum penalty by adding the numbers for the underlying felony and two penalty enhancers; and 2) the erroneous information about the maximum was, under Taylor, 347 Wis. 2d 30, ¶33, and State v. Cross, 2010 WI 70, ¶32, 326 Wis. 2d 492, 786 N.W.2d 64, a “small deviation” not warranting relief. State v. Finley, No. 2013AP1846-CR, unpublished slip op. ¶¶9-15 (WI App Mar. 18, 2014) (Finley I).
At the Bangert hearing on remand the state called one witness—Finley’s trial counsel. He testified he usually advises clients of the maximum penalties, but had no specific recollection of telling Finley the correct maximum penalties; he admitted he could have advised Finley of the incorrect maximum because he uses the plea questionnaire when advising his clients, and that document also incorrectly listed the maximum as 19½ years. (¶¶10-11). The State claimed trail counsel’s testimony about his usual practice proved Finley knew the correct maximum. It also revived the argument rejected by Finley I, ¶¶11-13, that Finley himself could have computed the correct maximum. The circuit court agreed with the State, and also decided that under § 973.13 and Taylor, it could, “in the interest of justice,” commute the legal maximum sentence (23½ years) to the incorrect maximum Finley was told about (19½ years) as an alternative remedy to plea withdrawal. (¶¶12-15). (Finley had initially asked for commutation as an alternative remedy, but he withdrew that request and argued that only plea withdrawal was appropriate. (¶¶13-14).)
Finley appealed again. On appeal the State “conspicuously abandoned” its claim that Finley knew the correct maximum penalty. (¶23). Instead, it argued it was not required to show Finley knew the correct maximum; rather, the State claimed, since Finley’s sentence was commuted, the question was “whether the defendant knew that the sentence [that] was actually imposed on him, whether the maximum or something less, could have been imposed on him,” because after Taylor, there is no manifest injustice when a defendant eventually receives a sentence equal to or less than the maximum sentence the defendant thought was applicable at the time he or she entered the plea. (¶23).
The court of appeals holds Taylor is distinguishable and thus neither sanctions the circuit court’s decision to commute Finley’s sentence nor supports the State’s argument that Finley is not entitled to plea withdrawal because he (eventually) received a sentence he thought was the maximum sentence that could be imposed. (¶27).
Taylor is distinguishable first because it reaffirmed the plea withdrawal procedure established in Bangert, and in applying that procedure found that the record showed Taylor knew the 8-year maximum penalty. (¶¶27, 28, 29, citing Taylor, 347 Wis. 2d 30, ¶¶15, 28, 35, 38). The record does not establish that Finley knew the correct maximum, and the State has abandoned its attempt to prove he did. (¶31). Taylor is also distinguishable because, while the trial judge mistakenly told Taylor the maximum penalty was 6 years, that was the correct penalty for underlying felony without the 2-year repeater enhancer, and the judge ultimately sentenced Taylor to 6 years, not 8. Thus, Taylor reasoned, the repeater enhancer never applied, and Taylor needed to allege his plea to the underlying crime was not knowing and voluntary, which he could not do. (¶¶25, 30, citing Taylor, 347 Wis. 2d 30, ¶45 n.15). Here the circuit court did initially sentence Finley to the maximum penalty allowed by law for the underlying crime plus the two enhancers, and even after “commuting” the sentence, the circuit court did not sentence Finley only to the maximum for the underlying offense. (¶30).
Because this case is different from Taylor, the State’s argument on appeal reduces to the claim that “‘commutation’ [under § 973.13] of a sentence that was lawful (insomuch as it imposed the maximum punishment actually permitted by statute) overcomes, as a constitutional matter of due process, the fact a defendant’s plea was not entered knowingly, intelligently, and voluntarily on the basis that he or she misunderstood the potential maximum punishment faced upon conviction to be less than it actually was.” (¶32). There are two problems with this argument.
First, commutation under § 973.13 is inapplicable because the statute speaks to courts imposing “a maximum penalty in excess of that authorized by law,” and validating the length of a sentence by commuting it “only to the extent of the maximum term authorized by statute.” Finley’s initial sentence wasn’t “in excess” of the maximum penalty allowed by law, so his sentence wasn’t commuted to “the amount authorized by law” or “the maximum term authorized by statute,” but instead to the amount Finley misunderstood to be his maximum exposure based on errors surrounding his plea. Because § 973.13 is inapplicable to this case, “the circuit court erred as a matter of law in applying it.” (¶33).
¶34 The second, and more significant problem is that the State’s proposed standard relying on the defendant’s knowledge of the maximum sentence actually imposed (at least eventually) conflates Taylor’s analysis of whether the defendant’s plea was entered knowingly, intelligently, and voluntarily, and Taylor’s analysis of whether the defendant was entitled to plea withdrawal on some other basis of manifest injustice. As Taylor observed, showing that a plea was not entered knowingly, intelligently, and voluntarily is but one way to prove a manifest injustice. Taylor, 347 Wis. 2d 30, ¶49. “A defendant can otherwise establish a manifest injustice by showing that there has been a ‘serious flaw in the fundamental integrity of the plea.’” Id. [quoted source omitted]. ….
¶36 In this case, there is no need to consider whether Finley has “otherwise established” manifest injustice as a result of a serious flaw in the fundamental integrity of the plea. As we explained in Finley I, he has established a Bangert violation as a matter of law. On remand, the State was given the opportunity to show that despite the Bangert violation, Finley knowingly, intelligently, and voluntarily entered his plea. The State, by its abandonment of that issue on appeal, and its concession of that issue by failing to respond to Finley’s appellate argument, did not satisfy its burden.
Accordingly, the case is remanded to the circuit court with instructions that it grant Finley’s motion for plea withdrawal.
A careful treatment of the confusing mess left by Taylor (described more fully here) and therefore a necessary decision to read if you are litigating a plea withdrawal case based on a claim the defendant was told the maximum was less than it really was. That the maximum penalty here (and, allegedly, in Taylor) was understated is important, at least as the cases stand now. Understating the penalty is “[o]f greater concern, from a constitutional standpoint,” than the overstatement of the maximum penalty at issue in Cross, because “a defendant’s due process rights are at greater risk” when the penalty is understated. (¶29, citing Taylor, 347 Wis. 2d 30, ¶34).
Note, however, that in Finley I, the State made an undeveloped argument that, under Cross‘s putative “substantial” deviation test, the misstatement of the penalty here wasn’t even a Bangert violation. In this appeal the State made no Cross argument at all. (¶28 n.9). It may well develop such a claim in the next case. (For more on Cross, see here). In any event, this decision won’t be the last word on the matter, as the supreme court will ultimately have to sort out the meaning of Cross and Taylor, which, in the apt description of the Taylor dissenters, 347 Wis. 2d 30, ¶126, left us with “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.”