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Plea withdrawal and ineffective assistance claims based on sentence credit error rejected

State v. Stephen Toliver, 2014AP2939-CR, 12/15/15, District 1 (not recommended for publication);case activity

Here, in Wisconsin’s very own Jarndyce v. Jarndyce, the court of appeals upholds the denial of Toliver’s motion to withdraw his guilty plea, the circuit court’s refusal to vacate his felony murder plea, and the circuit court’s denial of his ineffective assistance of counsel claim.

On Point will not recount the tortured procedural history of this case. Suffice it to say that since 1991 Toliver has filed at least 2 postconviction motions, 2 974.06 motions, 3 state appeals, 3 federal habeas corpus petitions, and a 7th Circuit appeal. And while state courts have steadfastly refused him relief, he has won federal habeas relief twice. Read about those wins here and here where it is also noted that “the odds of obtaining 2254 procedural relief two decades after conviction are probably less than the odds of beating Watson at Jeopardy!”

Here is the latest permutation of this 25-year old case: After Toliver’s last win in federal court, the State began proceedings for a new trial. Toliver entered a plea agreement whereby the “1st-degree intentional homicide, party to a crime” charge would be amended to one count of felony murder and one count of hiding a corpse. Both the State and defense counsel agreed on the sentence credit calculation but the DOC objected to it and pointed out that the “hiding a corpse” offense didn’t exist way, way back when Toliver committed the crime at issue. Oops. So the conviction on that charge was vacated and a new plea deal, which added a claim for 1st-degree reckless endangerment and a new sentence credit calculation, ensued. But guess what? The new calculation was also wrong. The State confessed error and asked the court to release Toliver early, which it did per State v. Armstrong, 2014 WI App 59, 354 Wis. 2d 111, 847 N.W.2d 860 (miscalculation of sentence credit is a new factor warranting sentence modification).

Cutting to the chase. Though Toliver is now out, he appealed and argued that his plea was not knowing intelligent and voluntary because he was misinformed about his mandatory release date. The court of appeals rejected the argument because it was conclusory–“he presents no facts which show that his anticipated release date was the basis of his plea.” Slip op. ¶23.

The court also rejected Toliver’s argument that because the crime of “hiding a corpse” did not exist in 1991, the plea deal involving it was void and the circuit court had no subject matter jurisdiction over it.  The court of appeals disagreed because Toliver had, in that deal, also pled to a felony murder charge, which did exist at the time of the crime, and because Toliver had agreed to substitute a “1st-degree reckless endangerment” charge for the”hiding a corpse charge.” Slip op. ¶28.

Lastly, the court of appeals rejected Toliver’s ineffective assistance of counsel claim based on his lawyer’s sentence credit and mandatory release date miscalculations. Toliver failed to show that he would not have pled guilty, and would have gone to trial, had he known the correct release date. Thus, he failed Strickland‘s prejudice prejudice requirement. Slip op. ¶31.


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