872 N.W.2d 344
Wis. Ct. App.2015Background
- Finley pleaded no contest to first-degree recklessly endangering safety as domestic abuse with habitual criminal and dangerous-weapon enhancers; legal maximum was 23.5 years but both the court and plea form stated 19.5 years.
- The circuit court accepted the plea after reciting the incorrect maximum; at sentencing the court imposed the lawful maximum (23.5 years).
- Finley moved postconviction to withdraw his plea (or alternatively to have his sentence commuted to 19.5 years). The appellate court previously found a Bangert prima facie violation and remanded for an evidentiary hearing in which the State had to prove by clear and convincing evidence Finley understood the correct maximum when pleading.
- At the remand hearing the State called only Finley’s trial counsel, who had no specific recollection of informing Finley of the correct maximum and likely read the incorrect 19.5-year figure from the plea form; the State did not call Finley or present other corroborating evidence.
- The circuit court found the State met its burden but then commuted Finley’s sentence to 19.5 years; on appeal the State abandoned any contention that it proved Finley knew the true maximum and instead argued the commutation foreclosed plea withdrawal.
- The court of appeals reversed: because the State failed to prove by clear and convincing evidence that Finley’s plea was knowing, intelligent, and voluntary, plea withdrawal must be granted; commutation could not cure the Bangert violation.
Issues
| Issue | Plaintiff's Argument (Finley) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Finley’s plea was knowing, intelligent, and voluntary given incorrect maximum penalty advice | Plea was invalid because both court and plea form told him 19.5 years though statutory max was 23.5; Bangert prima facie established | State failed to prove Finley knew the correct maximum at plea, but argues commutation to 19.5 cures any prejudice | Court: State abandoned proving knowledge; plea was not knowing/intelligent/voluntary and withdrawal required |
| Whether the State met its Bangert burden by clear and convincing evidence on remand | N/A (argues State failed) | State contends counsel’s testimony and numbers at colloquy suffice; alternatively commutation eliminates manifest injustice | Court: State did not meet burden; testimony admitted likely reading wrong number; finding of knowledge conceded/abandoned on appeal |
| Whether commutation under Wis. Stat. § 973.13 can cure a Bangert violation where defendant was told a lower maximum at plea | Commutation does not cure a due process/Bangert violation; remedy must be plea withdrawal | State: If the defendant ultimately receives a sentence ≤ the maximum the defendant believed, there is no manifest injustice and withdrawal is improper | Court: § 973.13 inapplicable here; commutation cannot cure a plea that was not knowing/intelligent/voluntary |
| Proper remedy after a Bangert violation when plea was not knowing due to misinformation about maximum penalty | Withdrawal of plea as matter of right because due process violated | State relies on Taylor to argue commutation or harmless outcome when sentence ≤ misrepresented maximum | Court: Follow Bangert/Taylor framework—because State failed to prove knowledge, withdrawal required; Taylor does not support curing such violation by commutation |
Key Cases Cited
- State v. Bangert, 131 Wis. 2d 246 (1986) (establishes prima facie showing and State’s burden to prove plea knowing, intelligent, and voluntary)
- State v. Brown, 293 Wis. 2d 594 (2006) (clarifies manifest injustice standard and plea-validity review)
- State v. Taylor, 347 Wis. 2d 30 (2013) (reaffirms Bangert framework; discusses when commutation may be appropriate for small deviations but does not permit commutation to cure a plea that was not knowing)
- State v. Cross, 326 Wis. 2d 492 (2010) (addresses ‘small deviations’ and when Bangert violation may not be established)
- United States v. Padilla, 23 F.3d 1220 (7th Cir. 1994) (defendant’s understanding of collateral consequences and penalties affects plea voluntariness)
- State v. Reppin, 35 Wis. 2d 377 (1967) (historical discussion of manifest injustice standards referenced in plea-withdrawal analysis)