Even if the court of appeals had not recommended this decision for publication, Gomolla’s case seems destined for further review. While the facts here are somewhat distinguishable from State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64, Cross’ counter-intuitive holding, even with arguably “better” facts, seems to have hamstringed the court of appeals from acknowledging that a plea cannot be said to be “knowing, intelligent, and voluntary” if the defendant does not know the correct maximum penalty. If we had to guess, SCOW will soon be considering whether to reconsider, limit, or overrule Cross.
We’ll start with Cross. There, the court, the state, and defense counsel misinformed Cross that he faced 40 years imprisonment instead of the correct statutory maximum of 30 years. After the court sentenced Cross to 40 years, and then sua sponte resentenced him to 30 years, the supreme court affirmed the denial of his Bangert claim: “[W]here 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.” See Op., ¶29 (emphasis added).
Here, Gomolla was told by her trial counsel that she faced 46 years instead of the correct 40 years. At the plea hearing, unlike in Cross, the court failed to inform Gomolla of the any applicable maximum penalty and the plea questionnaire filed with the court included the incorrect 46 year maximum. So, while everyone agrees the court failed to comply with Bangert and § 971.08 by failing to even “mention” the correct maximum penalty, the court of appeals agrees with the state that Gomolla’s claim is ultimately controlled by Cross. It’s worth flagging an important caveat to this case: on appeal Gomolla abandoned her ineffective assistance of counsel based plea withdrawal claim. Op., ¶19, n.6. To successfully withdraw her plea based on IAC, Gomolla would have had to prove that she was prejudiced by her attorney’s deficient performance and that she would not have entered her plea had she been properly informed that she faced 40 years and not 46 years.