On Point

State v. Esteban M. Gonzalez, 2010 WI App 104, reversed, 2011 WI 63, see: this post; for Gonzalez: Kristin Anne Hodorowski; BiC; Resp.; Reply

Jury Instructions – Exposing Child to Harmful Materials

The pattern instruction on exposing a child to harmful material, § 948.11(2)(a), accurately recites the elements, including scienter.

¶11 We agree with the trial court’s assessment that the pattern instruction accurately states the law. Before the jury could find Gonzalez guilty, the trial court’s jury instruction required the State to prove, among other things, that Gonzalez “exhibited or played harmful material to A[.]G[.]” and “had face-to-face contact with the child before or during the exhibition or the playing of the material.” (Emphasis added.) Encompassed within this instruction was the requirement that the jury find Gonzalez had the requisite knowledge. See State v. Thiel, 183 Wis. 2d 505, 535, 515 N.W.2d 847 (1994) (“[A]n individual violates [Wis. Stat. § 948.11] if he or she, aware of the nature of the material, knowingly offers or presents for inspection to a specific minor or minors material defined as harmful to children….”). The “exhibited or played harmful material to” language of the instruction required a finding by the jury that Gonzalez acted affirmatively [i.e., knowingly]—as opposed to accidentally. (Emphasis added.) Moreover, as discussed later in this opinion, see infra ¶18, in order to prove the requisite face-to-face contact, the jury would have had to find that Gonzalez was aware of (i.e., had knowledge of) A.G.’s presence in the room.

The court deems Gonzalez’s proposed alternative (¶7), which greatly embellished the scienter requirement, “unnecessary and confusing,” ¶12. But, even if the alternative were appropriate, the trial court nonetheless retained discretion to reject it in favor of the adequate pattern version, ¶15.

Jury Instructions – Theory of Defense – Accident

¶17 A jury instruction on a theory of defense is warranted when four criteria are present: “(1) the defense relates to a legal theory of a defense, as opposed to an interpretation of evidence; (2) the request is timely made; (3) the defense is not adequately covered by other instructions; and (4) the defense is supported by sufficient evidence.” Coleman, 206 Wis. 2d at 212‑13 (citations omitted). Because Gonzalez’s defense was adequately covered by the other instructions given to the jury, he was not entitled to an accident instruction.

Gonzalez’s defense was that he didn’t knowingly expose the child to pornography; because the pattern “instruction required a finding by the jury that Gonzalez acted affirmatively [i.e., knowingly]—as opposed to accidentally,” ¶18, a theory of defense instruction on accident wasn’t necessary.

Jury Instructions – Waiver

Merely because the trial court fails to submit to the jury a proposed instruction is not the equivalent, for purposes of preserving the issue, of objecting to such failure, ¶16 n. 3:

… We conclude, however, that raising the issue, as Gonzalez’s attorney did, is not the same as objecting when the instruction was not given. See Wis. Stat. § 805.13(3) (“Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.”) (emphasis added). As such, the issue was not properly preserved for appeal. See id. Notwithstanding, we explain why an accident instruction was not warranted as if Gonzalez had preserved the issue.

Jury Deliberations

The trial court is not obligated either “to immediately notify counsel regarding jury questions” nor “to respond to those questions withing a certain timeframe,” ¶23.

¶24 Gonzalez’s citation to case law for the proposition that the court’s communications with the jury during deliberations constitutes a critical stage of trial during which defendants have a constitutional right to be represented by counsel likewise misses its mark given that the court never communicated with the jury. See Anderson, 291 Wis. 2d 673, ¶43 (“A substantive step in a trial for which an accused has a right to be present includes the [trial] court’s communications with the jury during deliberations.”). Although Gonzalez argues that the trial court’s silence was a form of communication insofar as it “communicated to the jury that their substantive questions would not be answered,” he has not directed us to any legal authority to support this proposition. Just as the initial jury instructions are within the trial court’s discretion, so also is “‘[t]he necessity for, the extent of, and the form of re-instruction’” given in response to requests or questions from the jury. See State v. Hubbard, 2008 WI 92, ¶29, 313 Wis. 2d 1, 752 N.W.2d 839 (citation omitted); see also Wis. Stat. § 805.13(5).[8] Given that the decision to reinstruct the jury is a discretionary one to be made by the trial court and Gonzalez has not cited any legal authority to support his position that the court’s silence was during a critical stage of trial, his argument based on the court’s delayed response also fails. See Kruczek, 278 Wis. 2d 563, ¶32.

The court stresses that the trial judge’s handling of the problem “is not optimal jury management,” ¶20 n. 5; a veiled criticism, in other words, that might discourage repetition.

Evidence – Richard A.P.

The trial court properly excluded evidence of his psychological profile (absence of traits of “known sex offenders or pedophiles”), State v. Richard A.P., 223 Wis. 2d 777, 790-92, 795, 589 N.W.2d 674, because the evidence wouldn’t be relevant given that the charge didn’t involve sexual assault.

¶32 Despite Gonzalez’s efforts to cast the charges against him as charges of sexual abuse of a child because they fall within Wis. Stat. ch. 948 (2005-06) (“Crimes Against Children”) and because convictions require Wisconsin Sex Offender Registration, see Wis. Stat. §§  973.048(2m), 301.45 (2005-06), we are not convinced. Instead, we agree with the State:

It is not a crime’s presence in Chapter 948 of the Criminal Code that is determinative. What is important is the evidentiary connection between the proffered evidence and the elements of the crime charged…. The harmful exposure count did not require proof of the fact that Gonzalez had any sexual interest in children, or that he was likely to assault or molest them for his own pleasure. Therefore Dr. Matthews’ [sic] testimony that he lacked such characteristics was not relevant to the harmful exposure count, because there was no fact at issue that the testimony would have made more or less probable.

(Citations omitted.)

Evidence – Police Misconduct

Evidence of alleged police misconduct (allegedly planting false evidence on Gonzalez’s hard drive) was properly excluded for lack of proof. State v. Missouri, 2006 WI App 74, 291 Wis. 2d 466, 714 N.W.2d 595, distinguished, “given that Gonzalez does not represent that the detectives who allegedly planted the images on Gonzalez’s computer were previously involved in similar incidents.” ¶¶34-40.

Appellate Review – Sufficiency of Evidence – Corroboration Rule

¶42 “The corroboration rule is a common-law standard. Determining if the facts fulfill a common-law standard presents a question of law. We view the facts in evidence in a light most favorable to the jury’s verdict.” State v. Bannister, 2007 WI 86, ¶22, 302 Wis. 2d 158, 734 N.W.2d 892 (citations omitted).

¶43 Pursuant to the corroboration rule, a conviction cannot stand on the defendant’s confession alone.  Id., ¶23. Instead, the State must corroborate “‘any significant fact.’” Id., ¶26. The corroboration rule test has been explained as follows:

All the elements of the crime do not have to be proved independently of an accused’s confession; however, there must be some corroboration of the confession in order to support a conviction. Such corroboration is required in order to produce a confidence in the truth of the confession. The corroboration, however, can be far less than is necessary to establish the crime independently of the confession. If there is corroboration of any significant fact, that is sufficient under the Wisconsin test.

Id. (citation omitted; emphasis added).

…

¶46 The State presented evidence that Gonzalez owned a pornographic video. This fact was significant because it gave confidence that Gonzalez exposed A.G. to harmful material. Accordingly, the State satisfied the corroboration rule.

Character Evidence for Truthfulness

¶52      Truthful character may be supported by evidence in the form of an opinion. See Wis. Stat. § 906.08(1)(b); State v. Cuyler, 110 Wis. 2d 133, 138, 327 N.W.2d 662 (1983). However, even if we were to conclude that the trial court’s decision to prevent Gonzalez’s mother and sister from testifying as to Gonzalez’s truthfulness is problematic in light of § 906.08(1)(b),[14] Gonzalez has not convinced us that the exclusion of testimony from his mother and sister attesting to his truthful character—which jurors easily could have discredited based on the close familial relationship—was pivotal to his case. Because we are persuaded that the real controversy, namely, whether Gonzalez exposed a child to harmful material, was tried despite the exclusion of this character evidence, we decline Gonzalez’s invitation to grant him a new trial on this basis. See State v. Prineas, 2009 WI App 28, ¶11, 316 Wis. 2d 414, 766 N.W.2d 206 (“We exercise our discretionary reversal power only sparingly.”).

Evidence – Polygraph Offer

An offer to take a polygraph is admissible, even if its results aren’t, assuming that the person believed the results accurate and admissible, ¶56, citing State v. Shomberg, 2006 WI 9, ¶39, 288 Wis. 2d 1, 709 N.W.2d 370. However, Gonzalez failed to make an adequate offer of proof on the issue, ¶57.

The court’s discussion is a bit elliptical. Gonzalez apparently argued that he was prevented from making an offer of proof. The court without explicitly rejecting that idea, notes that he had other options, including: “The jury trial was not Gonzalez’s only opportunity to submit an offer of proof; he could have done so via an affidavit when he filed his postconviction motion,” ¶57.

Evidence – Proof of Element

Because a pornographic video proved an element of the offense (harmful material” shown to the child), it was admissible despite the defendant’s offer to stipulate to the element and could be shown to the jury, ¶¶58-61.

Voluntary Statement

¶71      After reviewing the record, we independently conclude that Gonzalez’s statements were voluntary. We defer to the trial court’s assessment that Gonzalez was not credible. See Henderson, 245 Wis. 2d 345, ¶16. Even if his testimony had been believed, we are not convinced that coercive police tactics were employed based on the facts he alleges. See State v. Cydzik, 60 Wis. 2d 683, 692, 211 N.W.2d 421 (1973) (telling defendant “cooperation would be to his benefit” did not render statement involuntary under Miranda); State v. Markwardt, 2007 WI App 242, ¶¶41-42, 306 Wis. 2d 420, 742 N.W.2d 546 (concluding that loud and confrontational tone of interrogation did not amount to coercive police practice); State v. Owen, 202 Wis. 2d 620, 642, 551 N.W.2d 50 (Ct. App. 1996) (reaching same conclusion with respect to accusation that the suspect is lying); Deets, 187 Wis. 2d at 637 (concluding that suggestion that unless defendant cooperated the victims would be forced to testify and would suffer great trauma did not amount to coercive conduct); see also United States v. Mendoza, 85 F.3d 1347, 1351 (8th Cir. 1996) (collecting cases in support of the proposition that statement that defendant would be arrested immediately if she did not cooperate was not so coercive as to render statement involuntary). Accordingly, the trial court properly denied Gonzalez’s motion to suppress and subsequent motion for reconsideration.[20]

Dane Co. DHS v. Brittany W., No. 2009AP2778, District IV, 7/8/10

court of appeals decision (1-judge; not fo publication); for Brittany W.: Lora B. Cerone, SPD, Madison Appellate

The court rejects Brittany’s claim she didn’t understand the consequence of her no-contest plea (that she would be deemed unfit, and that disposition would turn on the child’s best interests), given the trial judge’s finding that the denial of such knowledge wasn’t credible, ¶¶10, 14. And, counsel’s strategic decision, agreed to by Brittany, to focus on disposition was reasonable:

¶12      We reject, moreover, Brittany’s suggestion that the adoption of this strategy under the circumstances reflects her trial attorney’s misunderstanding of the purposes of the two phases of the termination proceeding. While the second phase of the proceeding is concerned with the child’s best interests, many factors may impact a best-interests determination, including circumstances favorable to the parent, “including prognosis for the parent’s markedly changed behavior.” Sheboygan County D.H.H.S. v. Julie A.B., 2002 WI 95, ¶29, 255 Wis. 2d 170, 648 N.W.2d 402. WISCONSIN STAT. § 48.426(3) states that, “[i]n considering the best interests of the child … the court shall consider but not be limited to” six statutory items. (Emphasis added.) Among these factors is “[w]hether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these relationships.” Section 48.426(3)(c). This factor is directly related to one of Brittany’s objectives in focusing on the second phase of the proceeding, strengthening the bond between her and Na’Keyshia in the months prior to disposition. And, while Brittany’s other stated goal of becoming sober from drugs and making other positive lifestyle changes during that time is not a factor listed in § 48.426(3), it is clearly among those non-specified reasons relevant to the issue of whether it would be in the child’s best interest to have his or her relationship with the parent terminated.

State v. Raymond A. Habersat, No. 2009AP976-CR, District I, 7/7/10

court of appeals decision (3-judge; not recommended for publication); for Habersat: Angela Conrad Kachelski; BiC; Resp.; Reply

Evidence – Extraneous Misconduct

On Habersat’s trial for first-degree sexual assault of a child, admission of evidence of his 1991 sexual assault of a child to establish motive and intent was a proper exercise of discretion, ¶¶15-17.

Effective Assistance

Where Habersat failed to turn over to counsel a CD containing photographs until the final day of trial, counsel did not perform deficiently in “declin(ing) to drop everything on the last day of trial to find a computer to view the photographs and work them into the case,” ¶28. (The court rejects other, highly fact-specific ineffective-assistance claims, ¶¶30-41.)

State v. Michael J. Grabowski, No. 2009AP2118-CR, District I, 7/7/10

court of appeals decision (3-judge; not recommended for publication); for Grabowski: Jamie F. Wiemer; BiC; Resp.; Reply

Sentencing – Accurate Information

¶5        Grabowski argues that the circuit court sentenced him based on inaccurate information. A defendant claiming that a sentencing court relied on inaccurate information must show that: (1) the information was inaccurate; and (2) the sentencing court actually relied on the inaccurate information. State v. Tiepelman, 2006 WI 66, ¶26, 291 Wis. 2d 179, 192–193, 717 N.W.2d 1, 7. We review de novo whether a defendant has been denied the right to be sentenced on accurate information. Id., 2006 WI 66, ¶9, 291 Wis. 2d at 185, 717 N.W.2d at 3.

The sentencing court didn’t rely on the information challenged as inaccurate, dooming the argument, ¶¶7-8.

Sentencing – New Factor

Postsentencing determination of restitution is not a new factor under the circumstances, ¶11: “The postsentencing restitution determination is not a new factor because the sentencing court knew the amount of restitution was in dispute … Thus, the circuit court did not rely on the specific amount of the restitution and, therefore, the final restitution determination did not frustrate the purpose of the sentence.”

State v. Olu A. Rhodes, No. 2009AP25, District I, 7/7/10; reversed, 2011 WI 73

court of appeals decision (3-judge; not recommended for publication), reversed, 2011 WI 73; for Rhodes: John J. Grau; BiC; Resp.; Reply

¶10      A defendant’s “right to confront and to cross-examine is not absolute[,]” however, and “‘trial judges retain wide latitude … to impose reasonable limits.’” Id., 2006 WI App 48, ¶10, 290 Wis. 2d at 244–245, 712 N.W.2d at 404–405 (quoted source omitted). Here, although we acknowledge the trial court’s “wide latitude,” Rhodes’s constitutional right to cross-examine was cut off too soon. As we have seen, the State emphasized the defendant’s motive to avenge his sister’s beating in its opening, during the testimony, and in its closing. The argument was that when Rhodes found out Davis had his sister beaten, he “hunted Davis down” and killed him. The trial court truncated Olu A. Rhodes’s lack-of-motive defense when it stopped him from proving he did not react violently when Davis had earlier hurt his sister. Although, as the State argues, the jury could have concluded that the beating that the State contends gave Olu A. Rhodes the motive to kill Davis in this case was the last straw and that the earlier incidents contributed to what the State asserted was Olu A. Rhodes’s and Saleem’s rage, the jury could have also reached the conclusion advanced by Olu A. Rhodes’s lawyer. This was, therefore, a matter that the jury had to resolve, and it needed to have a full picture of the dynamics that roiled the relationships in this case. By cutting off the cross-examination of Nari Rhodes when Olu A. Rhodes’s lawyer was trying to rebut the State’s motive theory, the trial court deprived Olu A. Rhodes of his constitutional right to a fair trial.[1] Accordingly, we reverse.

State v. Jim H. Ringer, 2010 WI 69, reversing unpublished opinion; for Ringer: Thomas O. Mulligan; BiC; Resp.; Reply

¶3   We conclude that the circuit court erroneously exercised its discretion when it granted Ringer’s motion in limine, allowing him to introduce at trial evidence that the child complainant made prior allegedly untruthful allegations of sexual assault against her biological father. Such evidence is admissible only if the following three criteria are satisfied: (1) the proffered evidence fits within Wis. Stat. § 972.11(2)(b)3 (2007-08);[3] (2) the evidence is material to a fact at issue in the case; and (3) the evidence is of sufficient probative value to outweigh its inflammatory and prejudicial nature. State v. DeSantis, 155 Wis. 2d 774, 785, 456 N.W.2d 600 (1990). In this case, the circuit court erroneously exercised its discretion when it determined that the proffered evidence fits within § 972.11(2)(b)3.[4] The circuit court erred by concluding that a jury could reasonably find that the complainant made prior untruthful allegations of sexual assault against her biological father. Because we conclude that evidence of the child complainant’s alleged prior untruthful allegations of sexual assault is not admissible at trial, we need not address what form the evidence may take if admitted.

Ringer is charged with repeated-acts sexual assault of a child; he sought admissibility of the alleged victim’s (Amber) allegations that her father (Christopher) sexually assaulted her, allegations that Ringer says were untruthful. The trial court ruled that the evidence fell within the rape-shield exception for prior untruthful accusations, § 972.11(2)(b)3; the court of appeals granted interlocutory review but affirmed; and the supreme court now reverses.

Amber accused Christopher of sexual contact over one weekend when they slept in the same bed. Christopher acknowledged having slept in the same bed, admitted rubbing her stomach over her clothing for up to 15 minutes, but denied intentionally touching any intimate area. Is that enough to establish a “prior untruthful allegation[] of sexual assault”? No, the court now says.

¶32  We arrive at that determination by examining Wis. Stat. § 901.04, which governs preliminary questions concerning the admissibility of evidence and cross-references Wis. Stat. § 972.11(2). Wisconsin Stat. § 901.04(1) provides: “Preliminary questions concerning . . . the admissibility of evidence shall be determined by the judge, subject to sub. (2) and . . . [§] 972.11(2).” Wisconsin Stat. § 901.04(2) recognizes the doctrine of conditional relevancy; that is, “[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” (Emphasis added.) In other words, “[t]he judge decides whether there is (or will be) sufficient evidence of the condition; the jury determines ultimately whether the condition exists.” Blinka, supra § 104.2, at 35. DeSantis applies the conditional relevancy analysis of § 901.04(2).  See 155 Wis. 2d at 786 n.5; Blinka, supra § 104.2, at 35 n.5; § 420.4, at 288. Under the admissibility standard set forth in DeSantis, the issue is not whether the judge is convinced by a preponderance of the evidence that the complainant made prior untruthful allegations of sexual assault.[12] Rather, the judge determines whether a jury, acting reasonably, could find that it is more likely than not that the complainant made prior untruthful allegations of sexual assault. See Blinka, supra § 104.2, at 35.

Ringer’s proffer falls short, because: Amber never recanted, ¶37; Christopher’s statements tend to corroborate rather than discredit her allegations, ¶38; mere denials of guilt (such as Christopher’s) aren’t enough, ¶39. The court strongly suggests that either the victim must recant, or the defendant somehow come up with proof of falsity, id. and n. 13. The evidence of falsity in this case was vanishingly small, too small even to overcome a low, “more likely than not” barrier. If future implementation keeps the facts in mind, the fall-out might not be severe. This is all very interesting, to be sure, but distracting in a fundamental sense, for if you do manage to overcome the hurdle, high or low, of proving a false accusation, then you aren’t really adducing evidence of sexual conduct but its absence. Why are rape-shield strictures even applicable at that point? Jessie L. Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001):

And thus the court’s ruling, though ostensibly based on the rape-shield statute, derives no support from that statute. The statute protects complaining witnesses in rape cases (including statutory-rape cases) from being questioned about their sexual conduct, but a false charge of rape is not sexual conduct. See Wis. Stat. § 972.11(2)(a) (defining such conduct); cf. United States v. Bartlett, 856 F.2d 1071, 1088 (8th Cir.1988); United States v. Stamper, supra, 766 F.Supp. at 1399 and n. 2. The false-charge “exception” to the rape-shield statute is not really an exception, but rather a reminder of the limited meaning of “sexual conduct” as defined in the statute. The only basis for the court’s ruling was the general principle of the law of evidence, which is codified for federal trials in Fed.R.Evid. 403 but is equally a principle of Wisconsin’s law of evidence, see Wis. Stat. § 904.03, that relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial (confusing, or cumulative) effect. When that unexceptionable rule is applied as it was here to exclude highly probative, noncumulative, nonconfusing, nonprejudicial evidence tendered by a criminal defendant that is vital to the central issue in the case (Heather’s credibility), the defendant’s constitutional right of confrontation has been infringed. Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (per curiam); Delaware v. Van Arsdall, supra, 475 U.S. at 679-80, 106 S.Ct. 1431; Davis v. Alaska, supra, 415 U.S. at 316-17, 94 S.Ct. 1105; United States v. Sasson, 62 F.3d 874, 882-83 (7th Cir.1995).

State v. Travis Vondell Cross, 2010 WI 70, on bypass; for Cross: William E. Schmaal, SPD, Madison Appellate; BiC; Resp.; Reply; Cross Supp.; AG Supp.

¶4 We hold that where 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. In other words, where a defendant pleads guilty with the understanding that he faces a higher, but not substantially higher, sentence than the law allows, the circuit court has still fulfilled its duty to inform the defendant of the range of punishments. Therefore, the defendant is not entitled to an evidentiary hearing, and plea withdrawal remains in the discretion of the circuit court and will not be disturbed unless the defendant shows that it is necessary to correct a manifest injustice.

¶5 In this case, Cross was told he faced a maximum exposure of 25 years initial confinement with 15 years extended supervision, when the actual maximum was 20 years initial confinement with 10 years extended supervision. We conclude that Cross pled guilty under the belief that he faced a higher, but not substantially higher, maximum penalty. We hold that as a matter of law, Cross’s plea was therefore made knowingly, voluntarily, and intelligently. Moreover, Cross has not demonstrated that withdrawal of his plea is necessary to correct a manifest injustice. Accordingly, the judgment and order of the circuit court is affirmed.

The remedy for a sentence in excess of the permissible maximum is, the court says, “a commuted sentence, not plea withdrawal,” by operation of § 973.13, ¶34. It might seem to follow that therefore, you simply can’t obtain plea withdrawal on this basis, but the court refuses to go that far. Instead, as indicated above, plea withdrawal is indeed available where the actual penalty is “substantially” lower than believed. Thus, any possible embellishment in the holding of cases such as State v. Thomas A. Mikulance, 2006 WI App 69, ¶¶18-19 (challenge to sentence in excess of maximum doesn’t invoke serial litigation bar but challenge to plea on basis of same defect does; possible implication: relief on § 973.13-type error limited to sentence) is now thwarted. Tangent: nor is automatic commutation of the “excess” an exclusive sentencing remedy when the permissible maximum is exceeded; court has discretion to resentence  defendant, State v. Holloway, 202 Wis. 2d 694, 700, 551 N.W.2d 841(Ct. App. 1996), something that indeed occurred in this very case, ¶12.

But this does raise a question about how you measure “substantially,” an amorphous standard that troubled the concurrence, ¶54. The majority doesn’t quite get around to saying why the misperceived maximum wasn’t “substantially higher” than its actual counterpart. The majority’s analysis is literally, because we say so (“the difference in this case is, in our view, not substantial,” ¶41). One imagines that their view was premised in large part on the fact that the initial charge carried a maximum of 60 years, and Cross was clearly willing to cut a much more favorable deal, ¶43. In any event, the analysis is necessarily case-by-case, so the factually controlling value of this one is necessarily limited. When the difference is great or the maximum wrongly thought lower, then plea-withdrawal remains possible:

¶39 However, when the difference is significant, or when the defendant is told the sentence is lower than the amount allowed by law, a defendant’s due process rights are at greater risk and a BangertBangert violation may be established. If a violation is established, the burden falls on the State to prove at an evidentiary hearing that the plea was knowing, voluntary, and intelligent.

Finally, note that the holding does alter a line of cases:

¶40 Consequently, we overrule State v. Harden, 2005 WI App 252, 287 Wis. 2d 871, 707 N.W.2d 173.  We also withdraw the language in State v. Quiroz, 2002 WI App 52, ¶16, 251 Wis. 2d 245, 641 N.W.2d 715, which requires the defendant to show he would have pled differently had he known the correct maximum sentence.  Our holding is more straightforward: where the sentence communicated to the defendant is higher, but not substantially higher, than that authorized by law, the incorrectly communicated sentence does not constitute a Bangert violation and will not, as a matter of law, be sufficient to show that the defendant was deprived of his constitutional right to due process of law.

UPDATE. Compare, Johnson v. Uribe, 682 F.3d 1238 (9th Cir. 2012), an IAC case following Lafler v. Cooper and Missouri v. Frye: relatively slight misperception of maximum Johnson was actually exposed to (about 14 years, vs. accurate max of about 11) entitled him to plea-withdrawal, not merely sentence reduction to correct maximum:

Durdines’s failure to identify and correct the First Amended Information’s erroneous addition of three of Johnson’s prior prison terms for enhancement under Cal.Penal Code § 667.5(b) affected more than just the sentence imposed pursuant to the final plea agreement. The inaccurate enhancements fundamentally altered the bargaining position of the two parties for the entire plea negotiation period, which began as soon as the First Amended Information was filed against Johnson on May 26, 2006. Consequently, in the period leading up to the September 8, 2006 pretrial hearing, the government extended plea offers to Johnson which were most likely less desirable than they would have been had the erroneous enhancements been removed.