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Guilty Pleas – Required Knowledge — Collateral & Direct Consequences — Parole Eligibility, When Set by Court

State v. Jeremy J. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, affirming as modified State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388
For Byrge: Steven P. Weiss, SPD, Madison Appellate

Issue: “(W)hether a circuit court, before accepting a plea of guilty or no contest [to a crime punishable by life imprisonment], must inform a defendant that it possesses the authority to fix the parole eligibility date.”

Holding: § 971.08(1)(a) requires that the trial court inform the defendant of the “potential punishment,” before taking a guilty/no contest plea. ¶58. Moreover, defendants have a due process right to notice of the “direct consequences” of their pleas. ¶60. Where the maximum punishment is life, the trial court has the discretionary authority under § 973.014 to fix the parole eligibility date, beyond the minimum that would otherwise be set by statute. Where a trial court elects to exercise this option, the PED becomes linked to the period of incarceration, and thereby directly impacts the range of punishment. ¶67.

¶68 We therefore hold that in the narrow circumstance in which a circuit court has statutory authority under Wis. Stat. § 973.014(2) to fix the parole eligibility date, the circuit court is obligated to provide the defendant with parole eligibility information before accepting a plea. Parole eligibility in this discrete situation implicates punishment and constitutes a direct consequence of the plea.

The court goes on to hold that, although the trial court failed to provide this information, evidence in the record establishes that Byrge in fact knew about this option and was therefore not entitled to withdraw his plea. A concurrence by Justice Bradley expresses concern about both retroactive impact and implications for Truth in Sentencing procedure. ¶81.

The court of appeals subsequently certified, in State v. Douglas K. Uhde, 02-3135-CR, Dist. II, 3/25/04, the following question: “In Truth-in-Sentencing cases, must circuit courts, as part of the plea colloquy, personally inform defendants that initial confinement will not be reduced by good time or parole?” The supreme court granted review, on April 20, 2004, but subseuqently (9/16/04) dismissed the grant in light of the State’s concession that Uhde was for other reasons entitled to plea-withdrawal. (The court of appeals in an unpublished decision on remand indeed ordered plea-withdrawal, because Uhde didn’t understand all the elements.) Application of Byrge to TIS thus remains very much unresolved.It is worth keeping in mind the settled principle that a defendant’s mere misunderstanding of likelihood of parole doesn’t affect validity of the plea (though wrongful advice with respect to parole may establish ineffective assistance of counsel), McAdoo v. Elo, 365 F.3d 487 (6th Cir. 2004):

After an evidentiary hearing about whether McAdoo’s plea was entered knowingly, the state court found that his alleged misunderstanding did not invalidate the plea. The state court accepted as true McAdoo’s evidence (in the form of Carrico’s testimony) that he believed he would be paroled in seventeen years. This evidence, however, does not show that his plea was unknowingly entered, as the state court correctly found. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (“We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary.”); James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (“The United States Constitution does not require the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary.”).


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