*1 Plaintiff-Respondent, Wisconsin, State
v. Defendant-Appellant. D. Taylor, Gerald Supreme Court September argument Oral No. 2011AP1030-CR. April Decided 2013 WI 482.) (Also reported in 829 N.W.2d *5 there were defendant-appellant-petitioner, For Hinkel, Andrew R. assis- argument by briefs oral tant state defender. public argued
For the the cause was plaintiff-respondent, Balistreri, Thomas J. attorney general, assistant by Hollen, attorney the brief was J.B. Van with whom on general. ZIEGLER, J. This KINGSLAND
ANNETTE the court of the court on certification appeal before (2009-10).1 to Wis. Stat. 809.61 appeals, pursuant no contest defendant, Taylor (Taylor), pled The Gerald as a uttering forgery repeater. charges are to Statutes subsequent All references to the Wisconsin otherwise indicated. the 2009-10 version unless penalty Taylor uttering forgery faced for was "a fine *6 imprisonment $10,000 not to exceed or not to exceed 6 939.50(3)(h). § years, Additionally, or both." Stat. Wis. Taylor repeat offender, because awas his maximum imprisonment term of could "be increased not more years prior 2 than if the convictions were for misdem 939.62(1)(b). § Taylor eanors."2 Wis. Stat. Therefore, imprisonment eight years. faced a maximum term of of Specifically, plea hearing, ¶ 2. at the the circuit Taylor impose court informed that it "could the maxi penalty years prison $10,000 mum here of a fine or six Though repeater or both." the court mentioned the allegation explicitly times, several it did not inform Taylor during plea colloquy that he faced an addi two-year penalty repeater allega tional because of the imprisonment eight years. tion for a maximum term of of Taylor Thereafter, 3. the circuit court sentenced six-year imprisonment uttering to a forgery term of for a repeater. Subsequently, Taylor
as a filed a postconviction pursuant motion for relief to Wis. Stat. 809.30(2)(h). Taylor moved to withdraw his no contest plea, arguing knowingly, that it was not entеred intel ligently, voluntarily. and Taylor's
¶ 4. The circuit court denied motion requiring prove, without the State to at a hearing, Taylor plea knowingly, entered his intel ligently, voluntarily.3 and The court stated that since
2 complaint charges Taylor repeater, as a as he had prior been convicted at least three misdemeanors. 3 (1986) Bangert, State v. N.W.2d procedure outlines the for withdrawal of a based on an error in plea colloquy: prima
Where the defendant has shown a violation of sec. facie 971.08(l)(a) duties, mandatory alleges or other and that he in fact six-year Taylor term he faced a informed that six-year im imprisonment term of he received any prisonment, "harmless." error was Taylor appealed court's denial the circuit plea. no contest his his motion withdraw improper to find argued circuit court for the that it was plea that is not "harmless," that a that its error was voluntarily intelligently, knowingly, entered Bangert, 246, 389 131 Wis. under State v. harmful (1986). N.W.2d Taylor's appeal appeals certified The court of "it is unclear whether It noted that
to this court. understating during plea potential collo properly so, quy error, and if harmless be deemed can *7 analytical such a in the framework where made." should be determination appeals' granted certification court of 7. We judgment court. of the circuit affirm the and now plea entered was hold that the defendant's 8. We voluntarily intelligently, knowingly, when maxi clear that the defendant knew record makes verbally imposed penalty and was mum that could be hearing plea that he of the at the informed by did not err Therefore, the circuit court received. denying Taylor's postconviction his motion to withdraw plea. no contest plea in the "remains Further, withdrawal disturbed not be the circuit court and will
discretion of necessary it is shows that unless the defendant injustice." Cross, 70, 2010 WI v. a mаnifest State correct should have the information which or understand did not know hearing, will then shift to provided the burden at the been convincing that the defendant's evidence to show clear and state entered, despite intelligently voluntarily, knowingly, plea's acceptance. of the inadequacy record at the time Id. at 274.
¶ 4, 326 492, Cain, Wis. 2d 64; N.W.2d State v. Taylor 68, 20, WI Wis. 2d 816 N.W.2d177. has not demonstrated that withdrawal of his is neces sary injustice. Accordingly, to correct a manifest judgment and order of the circuit court is affirmed.
I. FACTUALBACKGROUND AND PROCEDURAL POSTURE January ¶ 10. On 2, 2009, at an M&I Bank Appleton, Taylor attempted Wisconsin, to cash check number which was drawn on the account of payable Finished Touch Inc. and was made to Gerald Dwayne Taylor. previously The teller at the bank had been alerted that someone named Gerald had passed Bay, counterfeit checks at an M&I Bank in Green delayed Taylor, giving Sgt. Wisconsin. The teller Michael Appleton Department Daul of the Police time to arrive. Taylor acknowledged attempt that he had been the one ing to cash the check and claimed that he had done subcontracting work for Finished Touch Inc. Officer Daul contacted James Smith of Finished Touch Inc. person charge Smith indicated that he was the writing all the checks for Inc., Finished Touch that he writing Taylor, did not recall a check to that he did not any employees Taylor, have or subcontractors named and that he still had check number 4627 in his book. May
¶ 11. 8, 2009, On the State filed a criminal *8 complaint charging Taylor uttering forgery with a aas repeater, 943.38(2),4 §§ in violation of Wis. Stat. 4 943.38(2), § Wisconsin "Forgery," Stat. provides, in rel- part: evant genuine possesses Whoever utters as or intent with to utter genuine any forged writing object as false or as or mentioned (1), knowing falsely altered, sub. it to have been thus made or
guilty felony. of a H Class
38 939.62(l)(b).6 939.50(3)(h),5 complaint The stated Taylor "may upon conviction, fined not more be ($10,000), imprisoned than Ten оr Thousand Dollars (6) years, complaint not more than six or both." The repeater, alleged a also that "because the defendant is having misdemeanors, been of at three convicted least conviction(s) unreversed, which remain of record may imprisonment. term in the maximum .. be by years." complaint creased Taylor's not more than listed including disorderly
prior convictions, two con resisting obstructing ducts, damage officer, or an criminal property. Taylor's hearing August At bail on Taylor's attorney, 20, 2009, the court asked Michael Dally, complaint Attorney Dally if he wanted the read. responded that the "Court does not have to read the complaint. charge uttering forged It does instrument repeat appear as a offender. Priors to be for misdemean Taylor appeared person hearing. ors." at the bail right preliminary ¶ 12. waived his to a hearing hearing, on November 2009. At the waiver Taylor: you the court asked "Were able to read over the complaint they say you criminal in this case to see what Taylor responded did?" "Yeah."The court confirmed "So you Taylor responded could understand that?" "Yeah." 1, 2009, 13. On December the State filed an upon information which stated that conviction for ut tering forgery, Taylor may "imprisoned be not more 939.50(3)(h), felonies," § Wisconsin Stat. "Classification of provides penalty felony that the H for a Class is "a fine not to $10,000 imprisonment years, exceed or not to exceed 6 or both." 939.62(l)(b), Wisconsin Stat. "Increased for ha- criminality," provides impris- bitual "[a] maximum term of year years may onment of more than one not more than 10 but years prior be increased not more than 2 if the convictions were for misdemeanors." *9 (6) years." Taylor repeat Further,
than six because is a imprisonment "may offender, the term of be increased by years prior not more if than convictions were for misdemeanors." Taylor's arraignment January 14. At on Taylor's attorney, Dally,
2010, the court asked "Mr. have you copy Taylor's received a of the information?" attor ney responded, Judge. charge uttering "Wehave It's a of repeater alleged with enhanced and as well." negotiations, Taylor agreed ¶ 15. Pursuant to plead charge uttering forgery no contest to the as repeater, return, and in recommend, the State would years probation. August alia, 23, 2010, inter three On Taylor completed Rights QuestionnaireWaiver a Plea "understandings" In section, form. acknowl edged judge that he understood the was "not bound any plea agreement may im or recommendations and pose Taylor's penalty." the maximum maximum yrs prison/$10,000 was handwritten on the form: "8 fine Taylor signed acknowledging form, or both." that he understand^] "reviewed and this entire document and (if any my attorney I attachments. have reviewed it with represented). questions truthfully I have answered all my attorney either I or have checked the boxes. I am asking accept my plea guilty." the court to and find me Taylor's attorney signed acknowledged also the form and any that he had "discussed this document and attach I ments with the defendant. believe the defendant un plea agreement. it derstands and the defendant is making plea freely, voluntarily, intelligently." this August plea hearing At held on day Taylor plea question 2010, the same filled out the repeater form, naire mentioned the court several *10 had read and under times and confirmed that form: stood the complaint plea questionnaire your to Then how does client wish The Court: felony to one count of plead this uttering forgery?
Attorney Dally: contest, Judge. No still, repeater And that is with the The Court: it?
Attorney Dally: prior It There mis- is. were several
demeanor convictions. you plead How do to wish this The Court: forgery, felony repeater? as a contest, Plead no Your Honor. The Defendant: go plea questionnaire You did over а The Court: Dally, you? form with Mr. did Yes, I did. The Defendant: you that, you When did did under-
The Court: stand all the information in these documents? Yes.
The Defendant: you crimi- Were able to read over the The Court: complaint nal in this case and under- says? stand what it Yes. The Defendant: plea question- And how about
The Court: naire, that, you went over when you all that? were able to understand Yes. The Defendant: you And when went over the Court:
questionnaire him, form with did you believe he that infor- understood mation?
Attorney Dally: He to. I he did. seemed believe Therefore, you The Court: do believe that he's
freely, voluntarily, and understand- ingly entering today? his Attorney Dally: Yes. *11 Taylor
The court if asked he understood that it not was by any agreements Taylor bound or recommendations. acknowledged that he understood. The court then impose penalty stated: "I could the maximum here of a years prison thought $10,000 fine if I or six or both necessary. you that's what was Do understand that?" Taylor hearing, "Yes, however, I said do."At the expressly Taylor circuit court did not inform that repeater allegation, potential because of the maxi- eight years. imprisonment mum term of was ¶ 11, 2010, 17. On October the circuit court sen Taylor imprisonment years, tenced consisting to a term of of six years
of three of initial confinement and years supervision. three of extended Approximately ¶ later, 18. four months on Febru ary Taylor postconviction 8, 2011, filed a motion for seeking Taylor plea. relief, to withdraw his no contest alleged plea colloquy that the was deficient because it penalty did not inform him of the maximum under Wis. Bangert. Taylor motion, Stat. In the also 971.08 affirmatively alleged he the correct that did not know penalty. maximum deny Taylor's to the court The State moved 19. arguing make has failed to
motion, that the "defendant anything showing prima other than that facie argued under The State harmless error occurred." Taylor understand that Brown, if did not even years, greater it than six would maximum was Taylor's did not exceed sentence because be "harmless" plea colloquy. during the State maximum discussed Brown, 78, 293 Wis. 2006 WI v. 906.
N.W.2d Taylor's motion The circuit court denied Taylor prove requiring en the State to without voluntarily. knowingly, intelligently, tered his to this case was similar court believed that The circuit not Brown, defendant was that in Brown. It noted separate crimes could for informed that his sentences consecutively, error it a harmless served but was be did not exceed the sentence he received because court receive. The circuit he was told he could sentence "harmless," similar here believed its error was Taylor he could be court informed because the years sentenced to six sentenced to six years. Taylor appealed denial of the circuit court's plea. Taylor his no contest to withdraw
his motion *12 improper argued to find the circuit court it for that was argued that a "harmless," and that its error was intelligently, knowingly, and volun that is not entered Taylor argued Bangert. tarily is harmful under him of the not inform circuit court did because the colloquy during penalty correct maximum alleged the true not know that he did because he penalty, entitled to a been he should have maximum by prove, hearing clear must the State at which evidence, convincing that his plea was entered knowingly, intelligently, voluntarily.7 22. The court of appeals certified Taylor's ap peal to this court. It noted that "it is unclear whether understating the potential penalty a during plea collo can quy be properly error, deemed harmless and if so, where in analytical framework of Bangert such a determination should be made." The court of appeals noted that either following Brown or Cross in the instant case could arguably lead to different results:
As in the defendant here was told that he faced punishment a lesser actually than the law provided, but actually sentence imposed did not exceed the amount of time erroneously the court had informed the he emphasis defendant faced. The court's in Brown on the fact that the defendant was not sentenced more time than he was told he suggests faced might harmless error doctrine applicable be in these regardless of whether the defendant circumstances — was or penalty. was not aware of the actual That would negate necessity contrast, for In hearing. court's suggest discussion in Cross seems to that the process due implicated concerns whenever a defendant erroneously has penalty been informed that the is less fact, than the actual might, maximum require a hearing to determine whether the defendant was aware of the actual he faced. 23. We granted the court of appeals' certifica
tion an order dated March 2012.
II. STANDARD OF REVIEW "When defendant seeks to withdraw a guilty after he must sentencing, prove, by clear and supra note See *13 convincing evidence, that a to allow withdrawal refusal injustice.'" Brown, plea would result 'manifest (citing Thomas, ¶ 2000 WI 594, 2d 18 v. 293 Wis. State 836). way ¶ 714, One 13, 16, 232 2d 605 N.W.2d Wis. injustice prove is to can show manifest the defendant knowingly, intelligently, plea that his was not entered voluntarily. (citing Trochinski, v. 2002 WI and Id. State 891). ¶ 38, 644 56, 15, 253 2d N.W.2d Wis. knowingly, intelligently, plea
¶ A25. not entered voluntarily process, a due violates fundamental may plea a matter defendant therefore withdraw as (citing right. Cross, ¶ Brown, 492, of Wis. 2d 19). plea was entered know 2d Whether a Wis. intelligently, voluntarily question ingly, is a independently. Id. that is constitutional fact reviewed accepts making court determination, "In this this findings evidentiary court's or facts circuit historical they clearly Id. unless are erroneous." pointed to collo 26. Whether has deficiency quy Stat. that establishes a violation of Wis. mandatory duty plea hearing § at a is 971.08 or other questiоn de we review novo. 293 Wis. law
III. ANALYSIS or to his 27. When a defendant moves withdraw plea colloquy, error in the her proper based on an analysis if first to the defendant determine be because should allowed withdraw duty 971.08 Wis. Stat. circuit court violated its under duty, determine, court-mandated and second to or other *14 necessary, if plea whether the failure to withdraw the injustice. would otherwise result in a manifest Taylor ¶ plea In case, this was told at the colloquy imprison that he faced a maximum term of years ment of six when in fact he faced a maximum of eight years repeater allegation. because of the However, replete Taylor the record is with evidence that potential eight-year nonetheless aware of the term of imprisonment. plea hearing, Moreover, at the the cir verbally Taylor six-year cuit court informed term imprisonment ultimately of to which he was sentenced. Taylor's plea As a knowingly, result, was entered intel ligently, voluntarily, and and it was not a violation of Taylor's process rights deny due his motion to plea. withdraw his no contest Further, has not otherwise established that failure to withdraw his no plea injustice. contest would result in a manifest Knowing, Intelligent, Voluntary
A. and ¶ Supreme precedent 29. Recent Wisconsin Court requires us to affirm the order of the circuit court that Taylor's plea denied motion for withdrawal. Under the analysis set in Brown, forth Cross and we conclude that Taylor's plea knowingly, intelligently, was entered and voluntarily.
¶ 30. "The duties established in Wis. Stat. § Bangert, subsequent 971.08, and cases are designed plea knowing, to ensure that a defendant's is intelligent, voluntary." Brown, and 594, Wis. 2d process requires guilty 23. Due that "a defendant's plea affirmatively knowing, must be shown" to be intelligent, voluntary. Cross, and 16; accepts Wis. 2d 25. Before the court contest, "[a]ddress or it must no guilty plea is the determine personally defendant the nature understanding with voluntarily mаde if convicted." punishment charge potential 971.08(l)(a). Stat. Wis. knowing, that a is In order to ensure at the court voluntary, required,
intelligent, record, following: to do the and on the hearing (1) educa- Determine of the defendant's the extent general comprehension so as to assess tion and *15 the at the capacity to understand issues defendant's hearing;
(2) any promises, agreements, Ascertain whether in the or threats were made connection with plea, appearance his at anticipated defendant's any forgo attorney; hearing, or to an decision (3) possibility Alert the to the that an defendant attorney may mitigating or circum- discover defenses layman to a as apparent stances that would not be such defendant; (4) if he is Ensure the defendant understands that attorney, attorney will indigent and cannot afford an an him; no provided expense at be (5) understanding of the Establish the defendant's charged which he is and the nature crime with he himself range punishments subjecting of to which is entering plea; a by
(6) basis personally Ascertain whether a factual support plea; exists to
(7) Inform of the constitutional the defendant plea verify that the rights by entering he waives up rights; giving he these defendant understands (8) under- that the defendant personally Establish any the terms of stands that court is not bound agreement, including recommendations from the attorney, every district in case where there has been a agreement; (9) Notify consequences the defendant of direct plea; his (10) you Advise the 'If defendant are not a America, you citizen of the United States of are advised guilty or no for the [or contest offense you charged may offenses] with which are result in deportation, the exclusion from admission to this coun- naturalization, try law,' or the denial of under federal as 971.08(l)(c). provided § in Wis. Stat. (footnotes omitted).
[9-13] If the court fails to fulfill one duties § mandated Wis. Stat. or 971.08 under the (a "Bangert violation"), may line of cases the defendant plea. Bangert, move to withdraw his 2dWis. at 274. ("Bangert motion"), In the motion the defendant must (1) prima showing make a facie of a violation of Wis. duty, Stat. 971.08 or other court-mandated (2) allege not, fact, that the defendant did know or understand the information that have should been *16 provided during plea colloquy. the Id. "A defendant attempting prima showing to make this facie must point plea hearing transcript; to deficiencies the conclusory allegations Cross, are not sufficient." 326 Assuming ¶ Wis. 2d 19. the defendant makes Bangert proper motion, the is entitled defendant to an evidentiary hearing ("Bangert hearing"), the where prove by convincing State has the to clear burden despite plea, evidence that the defendant's inad equacy plea colloquy, knowing, intelligent, of the was voluntary. Bangert, 131 Wis. at 274. One reason
48 persuasion to the State is to the burden to shift meeting encourage the trial court "to assist the State Id. at 275. mandated duties. and other sec. 971.08" its prove may "any to use evidence" The State intelligent, knowing, and volun was defendant's any tary, including testi in the record and documents mony Id. at counsel. defendant or defendant's 274-75. with case, are concerned 33. In this we "[establish duty understand the defendant's to
court's ing range punishments he is to which of. . . plea." by entering subjecting himself 262). (citing Bangert, A at 131 Wis. 2d 594, 35 Wis. 2d provides extensive author this court recent decision of ity this issue: on to the defendant sentence communicated
[W]here the substantially higher, than that autho- higher, not but law, sentence by incorrectly communicated rized not, violation and will as does not constitute a law, to that the defendant a matter of be sufficient show right process to due deprived of his constitutional of law. case, the circuit
Cross, In that impris- maximum term informed Cross that his court only years, years, in fact it wаs when onment was plea, brought his a motion to withdraw and Cross knowingly, intelligently, arguing entered that it was not Though voluntarily. ¶¶ circuit court Id., 1, 11. resentencing, granted Cross's it denied for his motion Id., court con- 2. This motion for withdrawal. deny to Cross's correct the circuit court was cluded that According Cross, "a Id., ¶ motion. withdrawal punishment a maximum has been told defendant who substantially higher, higher, autho- than that but not prima necessarily facie case amade law, has not rized *17 that the requirements §of 971.08 and our case law have Id., been violated." 30. Cross looked to the underlying purpose of the framework, to ensure that defendant's is entered knowingly, intelligently and voluntarily:
[Requiring evidentiary an hearing every for small deviation from the circuit court's during duties colloquy simply necessary not for protection of a rights. defendant's constitutional The Bangert require- ments exist as a framework to ensure that a defendant knowingly, voluntarily, intelligently plea. enters his We do not application embrace a formalistic Bangert requirements that would abjuring result of a representations defendant's in open court for insubstantial defects.
Id., 32. Additionally Cross noted that "the great weight of authorities from other state and federal courts reject the notion that the failure to understand the precise maximum punishment is a se due per Id., process violation."8 Thus, "a defendant's due process are not rights necessarily violated when he is 8 Cross, See 70, n.7, also State v. 2010 WI 33 492, 64; (2d Smith, 786 N.W.2d Williams v. 591 F.2d 172 1979)("[T]he Cir. test this for determining circuit the consti validity tutional of a state guilty plea court where the defendant given has been sentencing misinformation is whether the ."). defendant was aware of sentencing actual possibilities ... (10th Meachum, 1988) Worthen v. 842 F.2d Cir. Cf. Thomson, grounds by on other Coleman v. 501 U.S. overruled (1991); Hatch, overruling recognized byMendoza v. 620 F.3d (2010)). Worthen, In argued defendant that his knowing was not voluntary because he was not advised on the record of аcts sufficient to constitute offense: guilty plea 'voluntary [I]n order for a to be in a constitutional sense,' competent understanding a defendant must... have a charge against Supreme indicated, clearly him. The Court has however, 'intelligence experience that a defendant of sufficient *18 potential impris incorrectly the of maximum informed from the onment," cases, deviations" and in some "small Bangert Bangert to a do not amount line of cases ¶¶ that Id.., Further, Cross surmised 37-38. violation. given that a excess of a is sentence when defendant "presumably by in would also law, which authorized understanding possible in the volve an error proper remedy penalty," to the is commute maximum § 973.13,9 not with Wis. Stat. the sentence under Id., ¶ 34. drawal. recognize court 34. that the Cross noted We is than the is told the sentence lower
"when defendant by process law, the amount allowed a defendant's due may rights greater are risk at and a violation facts, Id., however, 39. these be established." Under Taylor's rights process not we conclude that due were his to violated when the circuit court denied motion plea. plea colloquy, contest At the the withdraw his no Taylor verbally potential that he faced a court six-year informed underlying imprisonment of term of for being repeat pleading fense and he was to a also circumstances, justice system1 may, in the criminal in some be presumed charge have understood nature of the even though specific explanation on the not shown record. (1983)). (citing Lonberger, Id. Marshall v. 459 U.S. 436-37 circumstances, Thus, guilty knowing, will still some be intelligent, voluntary, process defendant's due violated, will when defendant is informed rights not be Cross, the incorrect maximum sentence. See Wis. any provides: "In case where Wisconsin Stat. 973.13 of that imposes penalty in excess authorized court a maximum law, valid be void the sentence shall be
by such excess shall maximum only term authorized statute to the extent of the proceedings." commuted without further and shall stand Ultimately, six-year offender. was he sentenced to a imprisonment. Thus, term record, on this a failure to two-year repeater penalty discuss the additional en plea hearing hancer at the is an insubstantial defect. replete record in this case is with evi potential eight-year dence that aware imprisonment, comprised six-year term of of a term of imprisonment underlying charge for the and an addi imprisonment two-year alleged tional term of from the *19 repeater. example, complaint, May For the filed on 8, Taylor imprisonment 2009, that stated faced a term of (6) years," "may of "not than more six which be in by years prior creased not more than 2 if the convictions complaint Taylor's were for misdemeanors." The listed prior including disorderly convictions, conducts, two resisting obstructing damage officer, or an and criminal property. Taylor's August hearing At 20, 2009, 36. bail on Taylor's attorney the court asked if he wanted the complaint Attorney Dally responded read. that the complaint. "Court not does have to read the It does charge uttering forged repeat a a instrument as of appear Taylor fender. Priors for to be misdemeanors." appeared personally hearing. prelimi at bail At the the nary hearing, 24, on 2009, November the court asked Taylor complaint, Taylor if he had read the and re sponded complaint. he that had read the Further, information, the on filed December upon Taylor 1, 2009, conviction, stated that could be (6) years" sentenced to "not more than six and that the "may maximum term be increased more than 2 not years prior if the convictions were for misdemeanors." arraignment January 2010, At the on the court Taylor's attorney copy asked if he had received Judge. attorney responded have, "We information. uttering repeater charge enhanced the with It's a alleged as well." completed Taylor Additionally, Plea
¶ 38. August Rights on form Questionnaire/Waiver Taylor's acknowl on the form Handwritten by any agreement judge edgement is not bound that the impose judge may the that the recommendation, and or yrs prison/$10,000 penalty: fine or both." "8 maximum acknowledging signed he had read Taylor that form, the attorney signed Taylor's also form. the and understood acknowledging he had discussed form, Taylor Taylor, that he believed document with hearing, held on the form. At the understood plea questionnaire Taylor completed day same Taylor com if he had read the asked form, the court Taylor plaint "Yes." it, and answered and understood gone Taylor if he had over also asked The court questionnaire attorney if he under form with his Taylor "Yes"to answered all of the information. stood hearing, questions. court once in the Later both plea ques gone Taylor again over the if he had asked *20 it. answered if he understood tionnaire form and attorney Taylor's if he had then asked "Yes."The court gone Taylor plea questionnaire and form with the over Taylor attorney the form. understood if believed the gone attorney over the form he had that The answered Taylor Taylor, the understood he believed that and with plea question attorney acknowledged the on form. entering Taylor his that he believed naire form voluntarily, intelligently." "freely, and Taylor of aware was not that 39. To conclude imprisonment, eight-year we term of the maximum Taylor's mis trial counsel that to assume would have represented, questionnaire itself and form on the Taylor to the court, that he had read the form with and Taylor that it. to understood We would also have Taylor misrepresented assume that he to the court that cоmplaint received, read, had plea questionnaire and the understood and "[I]f form. a defendant does under plea, charge stand the and the his effects of he should game permitted system by taking not be the advan tage judicial Brown, of mistakes." 2dWis. application ¶ 37. "We do embrace a of not formalistic Bangert requirements the abjuring that would result in the representations open
of a defendant's in court Cross, for insubstantial defects." two-year specifically The failure to the reference re peater plea hearing is, enhancer at the on record, review of this an defect" "insubstantial such that hearing evidentiary required an Taylor if is not to determine plea knowingly, intelligently, his entered and voluntarily. Bangert hearing occurs, A and a is violation required, knowingly, when the entered not intelligently, voluntarily. hearing and No such is re quired Taylor here because this reflects record pled knowingly, intelligently, voluntarily. indeed He eight-year imprison knew of the maximum term of any verbally ment, event, he was informed plea hearing court at the sentence he actually received. appeals
¶ 40. The
court
certification from the
points
unclear,
out that it is
after Cross and
during
understanding
potential penalty
whether
plea colloquy
properly
can
be deemed harmless
analytical
error, and if
so, where
framework
such a determination should be made.
agree,
but
reasons,
State
for different
that the
apply
harmless error doctrine should not
to this case.
agree
We also
that here the harmless error
not
does
*21
apply.10Taylor argues that
error
"harm
this
was not
unknowing plea
less" because "the
the harm
itself
argues
caused
the court's error." The State
that no
applied
case has ever
the harmless error doctrine
the
proper
framework, and
that
focus is
Taylor's plea
whethеr failure to
result
withdraw
would
injustice.
in
case,
a manifest
In this
the circuit court
that,
Brown,
determined
under
since
was in
actually
six-year
formed of and
received a
term of
imprisonment, any error was "harmless."
Brown, however,
was not
harmless error
case. The court did not undertake the harmless error
analysis. Instead,
Brown,
the court considered
plea knowingly,
whether the defendant entered his
intelligently,
voluntarily.
alleged
Brown
that
circuit court failed to enumerate the elements of the
charges
pled guilty,
to which he
failed to inform him of
rights
by pleading guilty,
the constitutional
he waived
adequately explain
potential punish
and failed to
Brown,
ment he faced.
594,
293 Wis. 2d
3. The court
Bangert hearing
concluded that Brown
entitled to a
based on the circuit court's failure to inform him of the
elements of the crime and the circuit court's failure to
pled,
waiving
inform him that when he
he was
certain
Cross,
Taylor argues
492,
that
addition to
326 Wis. 2d
support
another Wisconsin case
proposition
lends
to the
possible
erroneous information about the
sentence is not "harm
simply
less"
because
defendant received a sentence within
Mohr,
range given.
693,
the erroneous
See State v.
(Ct.
1996).
App.
Taylor's
constitutional 77. While rights. ¶¶ harmlessness, make references to it clearly two short did not in a harmless error For engage analysis.11 Bangert Brown noted that if a defendant's example, motion does not that the defendant properly allege to the understanding regard plea, "any lacked with Id., in the is harmless." shortcoming plea colloquy Brown instructs that before the defendant entitled to is contest guilty оn a motion to withdraw a or no hearing must two satisfy the defendant's motion plea, (1) it showing must make a facie requirements: prima 11 Martin, 96, 45-46, 2d See State v. 2012 WI 343 Wis. ¶¶ 278, 816 N.W.2d270. analysis. did undertake the harmless error
Nor Cross only time Cross mentioned harmless error was the context not discussing support proposition federal rules that every plea colloquy error should result in withdrawal: "Rule 11(h) any requirements from the of this states that 'variance rights.'" rule is harmless error if it does not affect substantial 11(h)). Cross, 492, (citing P 2d 36 Fed. R. Crim. Wis. Johnson, case, the court appeals In a court of State v. mainly the defendant to focused on whether failure to allow injustice where the withdraw his would result manifest not circuit court failed to inform the defendant that it was 421, App 2d by plea agreement. bound 2012 WI 339 Wis. Cross, 441. The court also noted that under this was N.W.2d Id., the "harmless a harmless error. 14-15. We note that ¶¶ Martin, legal analysis. See error" doctrine is a distinct however, neither Brown repeat, 45-46. We Wis. ¶¶ analysis; this nor harmless error nor does Cross undertook the analysis error to determine today court undertake the harmless alleging a may withdraw his after whether the defendant § or other mandated the court's Wis. Stat. 971.08 violation of Rather, plea was focus on whether the defendant's duties. voluntarily, intelligently, and whether knowingly, entered prove that failure to with the defendant is otherwise able injustice. result in a manifest draw the would 971.08(1) a violation of Wis. Stat. or other court- (2) duty, allege mandated it must that the defendant did not know or understand the information that should provided plea hearing. Id., have been at the 39. Brown phrase also used the "harmless" it when concluded that telling even if the court had erred not Brown that his consecutively, sentences could run it would be "harmless" greater because Brown's total sentence was not than the *23 ¶ sentence he Id., was informed he could receive. 78. today, Much like the case we have before us thе Brown prevent court determined that this "error" did not plea being knowing, intelligent, Brown's from and vol untary because it is a "reasonable conclusion a when multiple charges [] defendant is confronted with that the multiple punishments." defendant could face Id. Brown, 42. inAs it is a "reasonable conclusion" Taylor pen understood that he faced an enhanced
alty charged repeater penalty since he was with a en Taylor repeater hancer. The court informed of the alle gation plea colloquy, several times at the and the record provides Taylor clear evidence that was aware of the two-year imprisonment additional term of he faced be repeater allegation. Taylor's cause of the Also, actual six-year sentence, Brown's, like did not exceed the term imprisonment plea hearing, court, that the at the specifically informed him that he Thus, could receive. precedent under Brown, of Cross and we conclude plea hearing that the circuit court's failure at to Taylor two-year impris inform of the additional term of Taylor's plea knowing, onment not does render not intelligent, voluntary, and the circuit court did not by denying Taylor's plea err withdrawal motion without holding Bangert hearing.12 opinion, In this respect we afford due longstanding to
precedent requires which accepts that before the court guilty Injustice
B. Manifest is withdrawal prop for Taylor's request plea 43. manifest framework. injustice under the analyzed erly to necessary that withdrawal is has not Taylor proven injustice. manifest correct a Cain, Precedent of Following Analyzed is Properly Motion
Taylor's Framework Injustice under the Manifest that because the circuit arguing hearing him at the verbally plea not inform court did is made plea, it must "determine that or no contest charge nature of the voluntarily understanding with 971.08(l)(a); if convicted."Wis. Stat. potential punishment (requiring the court at the 293 Wis. understanding of the the defendant's colloquy "[e]stablish range of charged crime and the with which he is nature of the by entering a subjecting himself he is punishments to which plea."). The dissent defendant cannot incorrectly implies that the voluntarily enter a without intelligently, and knowingly, *24 of potential maximum term specifically advised of the being extended term of potential also the maximum confinement and held, and do not Dissent, have never we supervision. 116. We specifically advise parse must out and today, hold that the court and also the term of confinement potential defendant of the the colloquy.In plea at the supervision extended potential term of misleading a be since fact, a defendant could to so advise during may be increased initial term of confinement defendant's phase. See supervision extended phase or the the confinement 302.113(3)(a) ("If subject to this section an inmate § Wis. Stat. neglects to refuses or any prison of the or regulation violates perform required duties, may extend department assigned or the inmate's portion of the prison term of confinement the 302.113(9)(am) person if sentence."); (stating § bifurcated supervision can he supervision, of extended a condition violates confinement for a to return to person ordered revoked and sentence). remaining on the bifurcated exceeding time time not potential, two-year imprison additional term of repeater allegation, plea ment from the his entire is not knowing, intelligent, voluntary. Taylor argues and Bangert hearing he is entitled to a and that he should be alleged able to his withdraw entire based on his knowledge two-year lack of of the additional term of imprisonment repeater allegation. from the However, verbally the fact that the circuit court did not discuss two-year imprisonment the additional plea hearing, term of at the automatically ideal,
while not does not trigger hearing progeny. a under and its reject Taylor's argument ¶ 45. We because —that specifically, verbally by he was not advised the circuit plea hearing potential, court at the additional two-year imprisonment alleged term of from the re peater, knowing, intelligent, his entire is not voluntary plead knowingly, he did in fact —because intelligently, voluntarily underlying to the crime of uttering forgery. plea hearing, a At the the court did verbally Taylor inform that he faced a maximum term imprisonment years underlying charge of of six for the uttering forgery.13 supra, Taylor a See does not argue knowingly, intelligently, that he did not voluntarily plead underlying charge uttering to the forgery, six-year which he knew carried a term of imprisonment. argued Moreover, never that the repeater allegation should be dismissed because of the above, As we noted in given Part III.A. if a defendant is greater law, sentence than presumably that authorized including "an understanding error possible maxi- penalty," mum proper remedy for that error is to commute sentence, Cross, not withdrawal. Thus, Taylor actually eight years, had heen sentenced to the full Wis. Stat. 973.13 would applied have to commute his sentence *25 years, to six by which would be the amount authorized law. Instead, Taylor argues hearing deficiency.14 plea because he did not the entire should be withdrawn the additional term of two-year imprisonment know of The record reflects that allegation.15 the repeater from imprisonment. in a term of six-year fact received Taylor discussed, charges knew that Taylor As previously term of eight-year imprisonment. carried a maximum and the record addition, In recent precedent We are Taylor's argument. do not support this case Cain, 1. Tаylor's by precedent bound to remarkably similar for withdrawal argument Cain. Cain the unsuccessful argument presented tetrahydrocannabinol no contest to manufacturing pled (THC) but less than in an amount of more than four prior consider his criminal Clearly, the circuit court could the State sentencing regardless of whether convictions at Taylor repeater. a charged as error was a failure to advise Bangert, where the Unlike underlying potential sentence for the the defendant of the only two-year repeater, crime, Taylor's argument relates to underlying crime. for the not Harris, Further, apply court can State v. under defendant only if it seeks to sentence the repeater enhancement maximum allowed for the under- greater amount than the to a (1984). 612, 619, In 350 N.W.2d633 lying offense. 119 Wis. Taylor only to six case, the circuit court sentenced this since allegation repeater from the years, the sentence enhancement Therefore, distinguishable from this case is applied. never underlying argue that his to the Bangert; cannot voluntary knowing, intelligent, and because forgery not was duty regard with any not violate mandated court did defendant remedy to inform the charge. proper for failure repeater allegation two-year penalty from the additional of an Stat. part of the sentence under Wis. be to commute that would remedy That is not 973.13, plea. of the entire not withdrawal here, given six-year term Taylor necessary since imprisonment. *26 marijuana
twenty plants. argued ¶¶ Id., 5-6. Cain plea he should be allowed to withdraw his because he manufacturing only plants, admitted to four not more plants. Taylor, Id., ¶ than four 27. Like Cain faced an pled manufacturing enhanced if he more plants.16 analyzed argument than four The court Cain's injustice under the manifest framework, not under the Looking Id., ¶¶ framework. 33-37. at proceedings including entire recоrd of the documents — attorney and statements from Cain and his that indi plants greater cated a number of than four—the court determined that Cain had not met his burden to show plea necessary withdrawal was to correct a mani injustice. ¶ Id., fest 37. Taylor's argument In case, this the crux of is potential,
that he did not know or understand the two-year imprisonment additional term of from the repeater allegation plea. at the time he entered his logic Taylor's properly Cain, Under the claim is analyzed injustice under the manifest framework. has not Proven that Plea Withdrawal is
Necessary Injustice to Correct a Manifest ¶ 48. The circuit court has discretion to deter plea mine whether a should withdrawn, be and a will not be disturbed unless the defendant establishes convincing clear and evidence that failure to with 16Under 961.41(lm)(h), § Wis. Stat. manufacturing four or marijuana less plants is a felony, Class I and manufacturing more than four but less than twenty plants felony. is a H Class The maximum imprisonment term of felony for a Class I is years three months, and six and the impris- maximum term of onment for felony a Class H years. is six Wis. Stat. 939.60(3)(h) (i). — guilty result no contest will
draw the
or
(citing
injustice.
492,
Cross,
2d
326 Wis.
manifest
Thomas,
2d
Trochinski,
15;
232 Wis.
253 Wis.
16).
convincing
for
The clear and
standard
sentencing,
higher
than
after
which
withdrawal
sentencing,
just"
"reflects the
before
"fair and
standard
finality
convictions,
re
interest
State's
*27
presumption
innocence no
that the
flects the fact
higher
longer
Id., ¶
"is a deter
42. The
burden
exists."
testing
possible pun
for
to defendants
the waters
rent
Nawrocke,
373, 379-80,
193 Wis. 2d
State v.
ishments."
(Ct.
1995) (citing
App.
Booth,
v.
State
¶ not entered know- 49. that was way prove intelligently, voluntarily ingly, is one injustice. estab- can otherwise manifest The defendant injustice by showing that there has been manifest lish a integrity plea." in the fundamental a "serious flaw punishment Disappointment in the eventual Id. at 379. injustice. Id. a manifest to the level of does not rise examples recognized nonexhaustive Prior cases have injustice: manifest (2) (1) counsel; the defendant ineffective assistance (3) plea the ratify plea; or the personally did not enter (4) failed to fulfill the involuntary; prosecutor (5) receive the the defendant did not
plea agreement; tentatively fully or concurred concessions plea after court, defendant did not reaffirm the and the in the longer no concurred being told that the court (6) and, agreed had agreement; the court if the court deviated plea defendant could withdraw agreement. from the Krieger, n.6, 241, 251 471 N.W.2d 163 Wis. 2d
State v. (Ct. 1991) (citing App. for Criminal ABA Standards 599
62 14-2.1(b)(ii)(A) (F) (2d Justice sec. ed. 1980 & Supp. — 1986)).17 "The court at reviewing looks the entirety of the record to determine whether, whole, considered as a the record supports the assertion that manifest injus tice will occur if Cain, not withdrawn." 342 1, Wis. 2d In case, this the State argues the mani injustice
fest
test under Reppin governs whether Taylor
should be allowed to withdraw his plea.18 State v.
(1967).
35
Reppin,
377,
Wis. 2d
381,
see at & and that the id. 385-86 expressly example, judge "[flor if mis- stated that the being maximum as lower than that states the provided by sentence does not law but the defendant's by judge, possible is no exceed that stated as the there injustice." for Criminal Jus- manifest ABA Standards 2.1(b)(ii). Commentary tice, to Standard 14— Taylor argues Reppin that in 51. the manifest justice supplanted by line of test has been Taylor argues also that even if there were still a cases. Reppin Reppin standard, case stated that the four injustice adopted examples of it were not manifest Reppin adopt exhaustive, and did not that case commentary upon ABA relies. which the State Taylor case, In this not has established convincing clear that withdrawal of his evidence necessary injustice. Taylor to a correct manifest there has not demonstrated that was a "serious flaw integrity plea." Nawrocke, fundamental Taylor First, the circuit court informed Wis. 2d at imprisonment could a maximum term of he receive Taylor six-year impriso years. six term of received Taylor words, In other received sentence nment.19 verbally he receive. he was informed could sentencing judge's transcript evinces the belief that habitual criminal who deserves the maximum is a possible punishment: given every opportunity community, been in the Mr. You've impose Taylor, I could I wish that it was a situation that come,
probation, Taylor, you it's hаs Mr. for but not. The time prison you've significant consequences of a term because feel continuing by just simply your on that. You've earned that earned selfish road life. own *29 your probations revoked times.... had five You've previously ¶ 53. As discussed, this record makes it abundantly Taylor clear that informed potential eight-year imprisonment. term of There were hearings preceded plea several court that his where the charges penalties and were discussed. To conclude now penalty that he did not know of the enhancer, we would Taylor attorney to have repeatedly misrepresented assume that both and his they to the court that had complaint, received, read, and understood the criminal plea questionnaire. information, and Based on the Taylor record, we conclude that was aware of the potential eight-year imprisonment. term of manifestly unjust 54. Therefore, it was not to deny Taylor's motion to withdraw his no contest (1) Taylor where the circuit court informed at the colloquy six-year impris that he could receive a term of (2) Taylor actually six-year onment; received a term of (3) imprisonment; abundantly the record is clear two-year was nonetheless aware of the penalty alleged repeater. enhancer from the
IV. CONCLUSION 55. We hold that the defendant's was en knowingly, intelligently, voluntarily tered when the record makes clear that the defendant knew the maxi penalty imposed mum verbally that could be and was plea hearing informed at the that he lifestyle, Taylor, You've going lived criminal Mr. and it's not stop you until stop, you decide to make it and I can't let free in community community to make more victims. Our is tired of Everything you that. community could be done for in this others has been done. *30 err Therefore, the circuit did not received. court Taylor's denying postconviction motion to withdraw his plea. contest no plea
¶ in the Further, 56. withdrawal "remains of the circuit court and not be disturbed discretion will necessary that it unless the defendant shows is to injustice." Cross, 492, a correct manifest ¶ Cain, 1, not demon 4; 342 2d 20. has Wis. plea necessary his that withdrawal of is to strated injustice. a correct manifest judgment
By order of the the Court.—The and circuit court affirmed. {concurring). PROSSER, DAVID T. J. This 57. alleged Bangert requires
case the court to address an alleged violation; that violation of Wis. Stat. is, an requirements mandatory plea § 971.08, or other for a Bangert, colloquy, 246, 2d set out in State v. 131 Wis. (1986), subsequent cases such as 389 N.W.2d 594, State v. 2006 WI 293 Wis. Cross, 70, 326 Wis. 2d and State v. 2010 WI N.W.2d 492, N.W.2d plea no contest defendant entered a to charge uttering forgery. sentenced, After a he was he a grounds plea his on was moved withdraw knowing, voluntary. intelligent, and His not motion upon Bangert principles, alleging, first, that his relied plea colloquy court did was deficient because the not penalty for a him of maximum con inform the correct 939.50(3)(h), repeater § viction under Wis. Stat. with 939.62(1)(b) (2); Stat. enhancement under Wis. second, not understand the and, that he did know or plea. he his maximum when entered correct the defendant's 59. The court denied circuit conducting postconviction an eviden- without motion tiary hearing. evidentiary hearing Had such an been prove required to held, the State would have been knowing, intelligent, the defendant's voluntary, notwithstanding deficiency in the colloquy.
¶ 60. Most members of the court are satisfied that plea the defendant is not entitled to withdraw his intelligent, knowing, because his was and volun tary. willing Most members of the court are to reach affording this conclusion without defendant a Bangert hearing. why
¶ 61. The real issue in this case is the defen get Bangert hearing. My principal dant does not purpose writing separately is to address this issue.
I ¶ 62. This court has set standards that a defen plea. dant must meet if he seeks to withdraw his See Cain, State v. 68, 24, 1, 2012 WI 342 2dWis. 816 N.W.2d 177. When a defendant moves to withdraw his sentencing, freely before the circuit court should any supplies allow the withdrawal if the defendant "fair just substantially reason" unless withdrawal would prejudice prosecution. (quoting Jenkins, Id. State v. 240). ¶96, 157, 2007 WI 303 2dWis. 736 N.W.2d sentencing, however, After the defendant must show necessary that injustice." "manifest withdrawal to correct a (quoting Jenkins, 2d Id. 303 Wis.
n.2). injustice adopted "the manifest 63. This court Reppin, 377, 386, 151 test" in v. N.W.2d State Wis. (1967). on The test was based on the tentative draft by Relating Guilty Standards to Pleas issued American Bar Association on Minimum Stan Project dards for Criminal Justice in Id. at February 385.1 court said: Reppin injustice" adopt
These standards the "manifest test of 32(d) Rule of the Federal Rules of Criminal Procedure implement it with four factual which ] situations advisory independently committee believes estab- injustice proved by lish manifest when the defendant. agree adopt We this standard. Wethink too the four fact situations are not which exhaustive situations might injustice. And, constitute manifest a court would request abuse its discretion if it denied a to withdraw a guilty any grounds when one of these four proved. added) (footnote omitted).
Id. at 386 (emphasis 64. The four fact situations identified committee were as advisory follows: 2.1 withdrawal. Plea[]
(a)----
(ii) necessary to correct a Withdrawal injustice manifest whenever the defendant proves that:
(1) he denied effective was the assis- guaranteed by tance of counsel to him constitution, statute, rule; or
(2) plea the was not entered or rati- by person fied the defendant or a autho- behalf; rized in to so act his (3) involuntary, or was knowledge charge entered without 1 Delegates subsequently approved The ABA House of draft, amended, in Am. tentative as March 1968. Bar Ass'n Justice, Project on Minimum for Criminal Standards Standards 1968). Draft, Relating Guilty (Approved to Pleas of
68 actually imposed the sentence or that imposed; be or could
(4) charge or he did not receive the contemplated sentence concessions prosecuting plea agreement and the oppose or not to attorney failed to seek in the promised concessions as these agreement.
Id. at 385 n.2. decision, In years following Reppin (in inor or quoted part),
the court
whole
repeatedly
to,
adopted
Reppin.2
alluded
the four fact situations
to shift
time, however,
began
66. Over
court
"manifest
test to the devel
injustice"
its focus from the
fact situations. For
of rules
for
opment
particular
of a
instance, our rules for
withdrawal because
defective
were established
plea colloquy
2 See,
Rock,
554, 558-59,
2d
285
e.g., State v.
92 Wis.
N.W.2d
Lee,
239, 248-49,
(1979);
2d
69
restated in Brown. Our rules for
withdrawal on
account of ineffective assistance of counsel are found in
Bentley,
(1996),
State v.
201
303,
Wis. 2d
548 N.W.2d50
Allen,
106,
State v.
2004
568,
WI
274 Wis. 2d
682
years,
N.W.2d 433. In recent
our attention has often
application
been directed more toward the
of these
injustice."
rules than to the broader mantra of "manifest
appeals
¶ 67.
In 1991 the court of
rewrote the
adopted Reppin
four fact situations
and added two
explanation
more, without much notice or
of what it
doing.
Krieger,
was
See
241,
n.6,
State v.
163 Wis. 2d
251
(Ct.
1991).
App.
Krieger
¶ 68. The states that request properly analyzed for withdrawаl is under injustice the manifest framework. has not proven necessary that withdrawal is to correct a mani injustice." Majority op., fest 43. These statements Taylor's follow an extensive discussion of claim of a (because Bangert violation the circuit court did not correctly penalty during state the maximum colloquy) Taylor's plea and this court's conclusion that knowing, intelligent, voluntary nonetheless.
¶ 69. "When a defendant seeks to withdraw a guilty plea sentencing, prove, by after he must clear and convincing evidence, that a refusal to allow withdrawal 3 Cain, 68, 26, 1, State v. 2012 WI 816 N.W.2d 177; n.3, 517, Daley, 2d App State v. 2006 WI 292 Wis. 146; Washington, 716 N.W.2d State v. 176 Wis. 213-14 1993). (Ct. n.2, App. N.W.2d *34 plea injustice.'" Brown, result in 'manifest would (citing ¶ Thomas, 594, 293 2d 18 v. Wis. State 2000 WI 836). way ¶13, 16, 714, 232 2d "One Wis. 605 N.W.2d he for a defendant to meet this burden is to show that knowingly, intelligently, voluntarily did not and enter" plea. (citing 594, his 2d v. 293 Wis. State Trochinski, 38, WI 253 Wis. 891). Here, N.W.2d the court has determined that Taylor knowingly, intelligently, voluntarily entered plea. Majority op., making his In8. this determina rejected specific tion, the court has the defendant's complaint plea colloquy. Thus, about I do not separate understand the need for a section on manifest injustice. expound multiple A70. defendant could theo did,
ries for withdrawal and if he the court would Here, have to address each of the however, theories. Taylor only theory has advanced one viola —a leading knowing, intelligent, tion to a that was not voluntary. single rejected, Once that claim has been the case is over. injustice adopted
¶ 71. The manifest test was years ago. Reppin, more than 40 2d at 35 Wis. 386. The way carefully update court should find a the "mani injustice" comprehensive catalog test, fest awith of fact requiring withdrawal, situations when a sat defendant proof, along support his burden with citations isfies ing these situations.
II again, question ¶ 72. Once the real this case why Taylor get Bangert hearing. did not stating postconviction
¶ 73. filed a motion that he was "misinformed the court of the maximum penalty upon [he] conviction, that he faced did not Taylor affirmatively the true maximum."
understand the correct maximum that he did not know alleged he entered his no that he faced at the time the court to his plea contest and moved withdraw *35 volun knowingly, "on the that his was not ground plea and entered." tarily intelligently Brown, In the said: 74. court duty failure fulfill a at the
A circuit court's to evidentiary hearing if a hearing will necessitate an alleges he did not postconviction defendant's motion aspect because of the omis- understand an [or misstatement]. sion sentencing, alleged in that involve an
After cases deficiency plea colloquy, attempt in an to withdraw the guilty plea proceeds as follows. The defendant must a § 809.30 postconviction file a motion under Wis. Stat. appropriate statute. The motion must or other (1) showing of a violation of Wis. prima make a facie 971.08(1) by § or duties Stat. other court-mandated plea hearing in tran- pointing passages gaps to or (2) or script; allege the defendant did not know and the information that should have been understand plea hearing. provided at filed, by motion it is reviewed When a prima a facie violation court. If the motion establishes or court-mandated duties and Wis. Stat. 971.08 other allegations, must hold a requisite makes the the court the state is postconviction evidentiary hearing at which convincing clear given opportunity to show an knowing, was intelli- the defendant's evidence that inadequacy of voluntary despite the identified gent, two defendant has met his plea colloquy. When the burdens, persuasive evidence at producing the burden the state. evidentiary hearing shifts to (citations ¶¶ Wis. 39-40 omitted). footnotes Against background, I find it difficult to this Taylor's req satisfy
contend that motion does not Bangert hearing. Why, then, uisite criteria for a did he get evidentiary hearing? not an Taylor get postconviction hearing.
¶ 76. did He brought Outagamie County from the Racine appeared April Correctional in Institution and court on 21, 2011. my Taylor view, In did not receive an eviden
tiary hearing point because there would have been no taking testimonial evidence. already
¶ 78. The court understood that August purpose had 23, 2010, come to court on for the entering plea. There was evidence the record *36 complaint, the defendant had read the which correctly stated the maximum sentence, and had met attorney negotiated plea agree with his to discuss a go plea questionnaire. ment and over the questionnaire included information about the maxi penalty. yrs mum Defense counsel made a notation: "8 prison/$10,000 fine or both." "Yrs" is shorthand for "years." yrs prison" likely years "8 shorthand for "8 imprisonment."
¶ 79. The record also showed that the court had discharge made a conscientious effort to its duties Bangert, under 971.08, Wis. Stat. and had except succeeded for an inadvertent misstatement of penalty. considering the maximum knew, The court in postconviction Taylor motion, that it had informed actually received, of more than the he so that impact the court's misstatement had no adverse on Taylor under the circumstances. Taylor's understanding
¶ 80. claim that he lacked objectively of the maximum sentence was incredible given ample in the correct evidence the record of The record also revealed information he had received. lengthy history had a criminal so that he Multiple charges familiarity had uttering with the courts. County forgery pending in a were Brown on plea. the date of the If the foundational case of we look back to
Reppin, are reminded that the defendant had the we proof Reppin, in all fact situations. burden of four proof in has been relaxed Wis. 2d at 386. This burden of plea colloquy situations because evidence of a defective plea colloquy should be obvious deficient hearing allegation record, and defendant's that he did a deficiency, something not understand because of the "admittedly, conclusory," would be "difficult to while testimony. Hampton, expand except through on," sworn ¶¶ 274 Wis. 57-59. firmly prin to the 82. This court is committed showing
ciple motion that when a defendant files a requisite prima claim facie violation and the understanding deficiency of a that he lacked because burden-shifting plea colloquy, to a he is entitled principle Bangert hearing. tends to Adherence to this encourage plea colloquies. careful, conscientious None salutary the most theless, there are often limits to even powerless principle. must not be rendered Courts reject conclusory allegation know"—that is didn't —"I disproven by existing record.4
4 Burns, 762, (1999), 799 State v. 226 Wis. 2d 594 N.W.2d of common sense review example appellate a classic of an court's the record: though judgment ... even the We affirm the of conviction personally of expressly articulate a no
defendant did not 74 State, In Birts v. said: "We have the court a motion to to determining grant held that whether obligated is not 'the trial court guilty plea, withdraw a Birts, as verities.'" statements to the defendant's accept (1975) 394, (quoting 228 351 389, N.W.2d State, Ernst v. 661, 668, 170 N.W.2d 43 Wis. (1969)). a defendant's accept A court is not obligated that the state if the record demonstrates statement ment is not credible.5 court, open only contest on the record in because the inference
possible totality in the the and circumstances facts from plead the defendant intended to no contest. record is that added). Burns, (emphasis 2d at 764 Wis. motion, defendant postconviction In his asserted colloquy, erroneously informed Mr. "[d]uring the court penalty years he faced that the maximum was six (Plea imprisonment is, penalty the enhancer. without —that 7)." motion, hearing transcript hearing At on the at Cross, State v. postconviction defendant's counsel discussed 64, and 2010 WI 326 Wis. 2d go 786 N.W.2d asserted say "the court... did on to that in a case where the defendant is[,] penalty was informed that a was lower than it that remains potential Bangert violation." argument. The dissent has reformulated the defendant's the maxi- arguing Instead of that the circuit court understated that the plea hearing, at the the dissent asserts mum straight, simple English that the defendant "was not told years' imprisonment." punishment eight for the crime was Dissent, 91. "The circuit court. .. advised the defendant him advising without (incorrectly) of the term of confinement Id., correctly imprisonment." term of 102 n.19. satisfy acknowledges that the circuit court will dissent 971.08(l)(a) by stating the
Bangert, and Wis. Stat. explicitly stating the imprisonment, "without maximum term sentence," i.e., component parts confinement of the bifurcated Id., supervision. Yet this concession undermines complaint and information both Taylor's position because the *38 requiring case, In this the State to establish through testimonial evidence the notice about the sen light tence that the defendant could receive—in actually lesser sentence the defendant did receive, and light in simply of the information in the record—was unnecessary. Having
¶ 85. Brown, read this court's decision in the circuit court understood that there are times when permitted game a defendant "should not be to system by taking advantage judicial of mistakes." 2dWis. 37. This was one of those times. Requiring
¶ 86. the court to conduct an eviden tiary hearing already to receive what was evident throughout legitimate the record would have served no purpose in this case. foregoing respectfully 87. For the reasons, I
concur. (,dissent
¶ 88. SHIRLEY ABRAHAMSON, S. C.J. ing). presents example The case before us a clear aof plea collоquy Bangert,1 Brown,2 flawed under and Wis. correctly stated imprisonment Tay- the maximum term of lor admitted that he complaint. had read and understood the In fact, complaint supplied states that the information on prior his Sergeant convictions to Michael Daul of the Appleton Department. Police very
There high Taylor's is a likelihood attorney, Dally, explained Michael meaning eight of years impris- Taylor. onment Dally actually spoke eight But if years "in prison," instead of "imprisonment," just as the circuit court spoke years prison," six "in then the case is covered this court's decision Cross. accepting guilty plea, Prior to it is the circuit court's duty "[t]o understanding range establish the accused's of... 971.08(l)(a).3 and the to the case law According Stat. or statute, taking no-contest guilty plea *39 the understand court must establish accused's circuit crime the range the of which punishments of ing carries. it The defen 89. The concurrence has right:
¶ under which Bangert, has met his burdens dant two (1) defen hearing: him to an evidentiary entitles a a of prima showing dant has made facie of violation (2) § has 971.08(l)(a); Wis. Stat. The defendant infor that he did or understand the not know alleged (the have mation that should range punishments) of at hearing.4 the provided plea been Bangert, punishments crime] of which carries ...." State v. [the (1986). 246, 262, 2d 131 Wis. 389 N.W.2d must "During plea hearing, the course of the the court the personally address the and... establish defendant range ... to understanding punishments defendant's subjecting by entering plea...." which he State v. is himself Brown, 100, 35, 2006 WI 906. 716 N.W.2d 971.08(l)(a) provides part Stat. in relevant as or Wisconsin accepts guilty the follows: "Before court [circuit] contest, personally no it shall... the defendant [a]ddress voluntarily understanding the determine that is made with punishment if potential of... the convicted." 4 Concurrence, 73-75. ¶¶ Brown, the In the court concluded that the failure to advise run punishment charge the for each cоuld defendant that evidentiary consecutively did not entitle the defendant to an did allegation defendant hearing any "in the absence of that the multiple charges on his sentence." not understand effect of 293 Wis. 62-71, concurrence, I, agree with I also Part ¶¶ analysis. injustice majority undertaking errs a manifest the facts injustice analysis unnecessary under The manifest suffices, by analysis explained case. The as this majority opin apparent This in the concurrence. conclusion is Thus, the question for posed court, this as the concurrence correctly simply explains, is "[w]hy, then, did he get not an evidentiary hearing?"5 91. This is an case: easy According record of the initial appearance,6 bail hearing,7 the waiver of a preliminary hearing,8 the arraignment,9 the and the hearing,10 sentencing the defen hearing,11 dant either was not told of the or punishment was not told in straight, simple English that the punishment for the crime eight years' imprisonment.12 Because the defendant was never told the correct punishment, no one can reach the conclusion on the basis of the record the defendant knew or understood the I penalty. therefore conclude that the defendant is entitled to an evidentiary hearing. *40 92. The majority and concurring offer opinions
different explanations
for not affording the defendant
ion itself. The majority opinion's
injustice
manifest
analysis
simply repeats
Bangert analysis.
its own
See
Lichty,
also State v.
126,
App
8, 9,
2012 WI
733,
¶¶
an both (should must have known conclude the defendant presumed to have known, known, or is would have have known) the crime. the for concurring majority and core, At the their present requires changing opinions law are the law. defen the individual that a court determine whether (to Bangert terminology) "in or fact" knows dant use the that should have been understands the information hearing subjective provided at test.13 —a majority concurring refusal of the and 94. The hearing evidentiary opinions to afford the defendant an may declaring from read as that a court determine can be person paper that a must have record reasonable (should known, known, have or is have would known known) presumed to the information the court was have plea hearing objective required provide at the —an majority concurring opinions be seem to test. The substituting subjective objective test test set an for the 971.08(l)(a). Bangert, Brown, Stat. forth and Wis. opinion majority opinion concurring nor the Neither respec implications of their considers constitutional approaches. tive majority concurring opin 95. Because precedent, drastically I
ions break with dissent. concurring opin Although majority ¶ their rationales for ions offer various and different they essentially present case,14 ultimate decision in the *41 13 257, (citing Boykin v. Bangert, Wis. 2d at 274-75 131 (1969)). Alabama, 238, 242-43 395 U.S. its and majority opinion The and restates rationale states to it difficult holding ways in several different so is adopts or uses to determine majority determine what test the knowingly, intelligently, and plea was the defendant's voluntarily made. ways: majority opinion can be read а number
The reason that no evidentiary hearing is needed because "the record makes clear that the defendant knew the plea
The knowing, defendant's is intelligent, and voluntary complaint because the and information stated the correct maximum penalty. Majority opinion, passim.
The plea defendant's knowing, intelligent, is voluntary because the record makes clear that the defendant knew the penalty maximum that could imposed be and the defendant was orally plea informed at the hearing penalty he received. Majority op., 8, 28. ¶¶ plea
The knowing, defendant's is intelligent, and voluntary because the orally defendant was by informed the circuit court at the hearing of the sentence actually that he received. 28, Majority op., 8, 39, 42, 52, ¶¶ The plea knowing, intelligent, defendant's is and voluntary because the circuit court's misstatement of the is an Majority 34, insubstantial defect. op., ¶¶ (cid:127) majority opinion attempt does not to define "insubstantial By applying test, defect." an majority insubstantial defect is the opinion really applying by a harmless error test a different name? (cid:127) majority opinion abrogating Is the the Cross decision with regard to the doctrine of insubstantial error? opinion The Cross states that when "the sentence communi cated to higher, the defendant substantially but not higher, law, than that authorized incorrectly communicated sentence does not constitute Bangert not, violation and will as law, a matter of be sufficient to show that the defendant was deprived of his right constitutional process due of law.... We conclude that Cross has prima not made a showing facie that the circuit court comply failed to with Wis. Stat. 971.08 or the requirements outlined in Cross, Brown and Bangert...." State v. 40-41, 2010 WI ¶¶ In N.W.2d 64. Cross, contrast with majority opinion treats instant case as one with plea colloquy; a flawed treats the error in colloquy defect; as an insubstantial requires the circuit court to review the record to determine whether the was entered knowingly, intelligently, voluntarily. *42 case is replete The record this penalty
maximum .... defendant] that was aware of with evidence [the imprisonment, comprised term of potential eight-year underlying term for the of a of six-year imprisonment of two-year imprison and an additional term charge alleged Majority op., ment from the repeater [charge]." added). 8, (emphasis 35 ¶¶ record contrast, In I conclude that the de demonstrates
clearly unambiguously he to an subject fendant was never told that the record is term Indeed eight-year imprisonment. the cir by with inconsistencies and confusion replete (with and the the prosecut cuit court defense counsel silent) maximum ing attorney remaining regarding faced.15 penalty the defendant Because was never apprised the defendant maximum this court cannot determine penalty, the defendant or understood the maximum knew that should been provided have —information
15 majority opinion's follow Indeed it is often difficult to continu- opinion discussion of what the defendant knew as the referring ally shifts, always correctly, precisely not or between (which ex- "imprisonment" encompasses confinement and (which only encompasses supervision) "prison" tended confinement). statutory "imprison- For a discussion of the use the term 973.01(1) Cole, 59, ment," § 2003 WI see Wis. Stat. and State v. (under 16, 167, 2d 700 Wis. Stat. 262 Wis. 663 N.W.2d 973.01, sen- "imprisonment" the word refers to a "bifurcated consisting prison of a followed tence" "term of confinement Jackson, v. supervision."). term of extended See also State ("Under n.4, 676 872 Wis. N.W.2d ¶WI does Truth-in-Sentencing 'imprisonment' term legislation, the Rather, 'imprisonment' of both prison. time in consists not mean (in following and the time prison) the time of confinement supervision."). on spent extended confinement at the plea hearing. This court should order an eviden *43 tiary in the heаring present case to determine whether the defendant did know and understand the maximum penalty he faced.16 99. Before I turn record, to the I
¶ must state the actual maximum penalty. the Knowing actual maxi- mum penalty helps put perspective the inaccurate information the defendant received. to the According defendant's brief and my
calculations, maximum the penalty imprisonment not to exceed eight which years, could consist of not more than years of initial (prison) five confinement not more than three of years extended supervision.17 16"If a defendant does not understand ... implications the plea, of the should entering he should not be plea, and the court accepting plea." not be 17It takes some time and effort to understand how the penalty together statutes work in the instant case.
Here is how I calculated the maximum when the charged defendant is Uttering Forgery, with Repeater, a HClass Felony. potential penalty for H felony a Class is fine "a not to $10,000 imprisonment exceed or years, not to exceed 6 or both." 939.50(3)(h). §
Wis. Stat. "For felony, a Class H prison the term of confinement 973.01(2)(b)8. may years." not exceed 3 § Wis. Stat.
"The supervision may term of extended not be less than 25% length of the of the term of prison imposed confinement in under (b) par. and, for a felony, subject classified to whichever of the following applicable:... limits is For felony, a Class H the term of extended supervision may years." not exceed 3 Wis. Stat. 973.01(2)(d)5. §
Because repeater the defendant prior was a due to convic- misdemeanors, for tions imprisonment "[a] maximum term of of more year than one years may but not more than be years increased not more prior than if the convictions were 939.62(l)(b). for misdemeanors ...." § Wis. Stat. telling the at court's defendant 101. A circuit imprisonment, plea hearing maximum term parts stating component explicitly without Bangert, Brown, and Wis. sentence, satisfies bifurcated 97l.08(l)(a).18 Stat. majority gratuitously opinion
¶ 102. The advising cavalierly a defen warns that a circuit court's possible extended dant of the term confinement and misleading." plea hearing supervision "could be at the Majority op., ¶ 42 n.12.19 opens majority opinion door 103. The thus post-conviction I read additional motions. have
for many transcripts colloquies; circuit often courts *44 imprisonment during component parts the state although plea colloquy, they required not to do the are majority opinion The not be to mean so. should read "Bangert" if it that the circuit court commits a provides error com- a defendant with information about the ponents long sentence, as the of the bifurcated as gives circuit court the defendant the correct informa- imprisonment. about maximum term tion the of ¶ 104. And to the now record.
"Subject period supervision to minimum of extended the (d), in required term of confinement par. under the maximum (b) may by any applicable prison specified par. in increased be If term of confine- penalty enhancement statute. the maximum (b) this prison specified par. ment in in is increased under may paragraph, length the total of the bifurcated sentence that Stat. imposed is increased the amount." Wis. be same 973.01(2)(c). 18 Sutton, Lichty, State v. 733, (citing 2d 344 Wis. 14¶ 146). 330, App N.W.2d WI 294 Wis. defen- present in the case advised the circuit court advising (incorrectly) the term of confinement without dant of correctly imprisonment. him of term of complaint
¶ 105. The and information— documents court, counsel, available to the circuit defense prosecuting attorney and the defendant —stated that the "imprisoned defendant could be not more than six (6) years" penalty an with additional enhancer of "not years." more than 2 These are correct statements of the statu-
tory language, although it takes some calculation and legal knowledge legalese to translate found in the complaint knowing and into information and under- standing penalty "imprisoned maximum not (8) eight years." more than Thus it is not clear from the complaint and information that the defendant was apprised penalty eight years maximum imprisonment, majority repeatedly as the and inaccu- rately states. proverbial Moreover, it would take a Phila-
delphia lawyer figure "imprisoned" out what means complaint present in the information case. "imprisoned" significance special The word on takes present penalty, case because of the enhanced the record shows that the defendant was told about "prison," being "imprisoned." not about Although
¶ 108. the defendant he stated was fa- complaint miliar information, with the neither eight years' document stated the maximum as *45 imprisonment. majority opinion Nevertheless, the can complaint be read to state that the when and informa- penalty tion in the record state in exact the the terms of they present statute, the as in the do case—a circum- likely frequently stance that will occur defendant —the adequately penalty has been told of the maximum penalty. is held know and to understand the maximum holding completely Bangert. Such a undercuts I examine the rest of the record 109. therefore apprised of defendant the determine whether the was pen- penalty maximum maximum and understood the plea years' alty eight imprisonment. I the look at of plea questionnaire. colloquy I look at the and the Then hearing. sentencing Neither the circuit court nor the defense pro- correctly statutory penalty
attorney the translated plain complaint into in the and information visions English of maxi- to advise the defendant the correct plea colloquy questionnaire, penalty mum in the or eight imprisonment years. for maximum of During colloquy, ¶ 111. the circuit court penalty, telling changed description possibility years he defendant that faced the of "six in prison." Majority op., ¶ 2.20The circuit court erred. The (Re years subject prison. defendant was not to six in years penalty prison member, six in is not the same as (con years imprisonment; prison six his maximum finement) previously time, as I and which have stated correctly years). appears record, in the never is five (obviously questionnaire The com- pleted by signed by the defen- defense counsel dant) telling in maximum also errs the defendant of the penalty. plea questionnaire defen- The states that the yrs prison." penalty dant could face a maximum of "8 prison subject eight-year to an The defendant was not (confinement) (Remember, prison eight years in term. years eight imprisonment; penalty is not the same as prison, never which defendant's maximum time impose the transcript "The Court: I could reads: prison $10,000 years fine or six maximum here of a necessary. you Do under- thought or if I that's what both stand that?"
appears correctly years). in record, is five Once again, the defendant was told of a different and incor- penalty. rect inexplica- 113. Nevertheless, the concurrence
bly, inaccurately, incorrectly states that the com- plaint, plea questionnaire correctly information, and penalty stated the maximum defendant's and that the knowledge "already throughout defendant's was evident ¶¶ the record." Concurrence, 78, 86. pros 114. Neither the defense counsel nor the
ecuting attorney offered assistance to the circuit court during plea colloquy penalty to state the maximum correctly. prior impose Our cases a burden on the prosecutor plea colloquy to ensure that the is sufficient. explained Bangert, part "As we in of the reason the burden shifts from the defendant to the statе is that burden-shifting encourage prosecution this 'will meeting assist the trial court in expressed obligations.' its 971.08 and other "21 sentencing hearing, 115. At the the circuit court again incorrectly punishment stated the maximum un- der the statute. The circuit court advised the defendant (with enhancer) felony penalty "pun- that the was years prison ishable $10,000 fine or six both, or years but possible then there is the two additional prison repeater." again because of the So once eight years prison defendant was advised he faced (confinement), eight years' imprisonment. not
¶ 116. To summarize the record: The defendant explicitly plain English was never told in eight years' imprisonment. maximum complaint were worded in terms of information 21 (citation omitted) 40 n.24 ¶ 275). (quoting Bangert, 131 Wis. 2d at *47 imprisonment years offense, more than six for the —not may years which be increased not more than two for repeater charge. the But these documents did not legalese plain English translate the into or calculate the penalty potential effect of the imprisonment. enhancer on the term of plea colloquy
The set forth the maxi- penalty years. prison mum in terms of The —six questionnaire penalty set forth in the maximum terms prison eight years. plea hearing of defect in The the — sentencing. sentencing, was not remedied at Even at incorrectly prison the defendant was told of a maximum penalty term but was never told that the maximum was eight years' imprisonment. According
¶ 117. record, to the the defendant was repeatedly given conflicting inconsistent and informa punishment tion about the maximum he faced. When punishment, he was not told the maximum how can anyone conclude that the defendant and under knew punishment? stood the maximum Nevertheless, majority opinion concludes that on the basis of the complaint plea colloquy, information, and and the plea questionnaire that thе defendant was nonetheless eight-year imprisonm aware of the "maximum term of Majority op., majority ¶¶ ent."22 8, 35, 39. The seems Taylor "To conclude that was not majority The asserts: aware eight-year imprisonment, maximum term we of of would Taylor's have to assume misrepre- trial counsel sented, on plea questionnaire court, form itself and to the that he Taylor had read the form with and that under- stood it. Taylor misrepre- We would also have to assume that received, read, sented to the court that he had and understood the complaint plea questionnaire Majority op., form." 39¶ added). (emphasis irony, course,
The is that defense and the counsel majority opinion prison confuse imprisonment. concur- rence yrs/prison" rewrites defense counsel's notation of "8 on the "im the word by substituting
to reach its conclusion in the plea questionn for the word prisonment" "prison" in the record that the number only point aire.23 The which incor plea questionnaire, eight appears five, The number rectly eight years prison. refers to term, in the record. appears the correct never prison I to explained previously, according 118. As calculations, the defendant my defendant's brief a maximum not subject imprisonment could consist of not more to exceed which eight years, and not initial years (prison) than five confinement As I have more than three of extended years supervision. *48 shown, advised, the was never so noth- defendant court, the circuit in the record demonstrates that ing counsel, defense or the defendant attorney, prosecuting record is maximum The penalty. knew the correct that establishing but clear and consistent anything for '8 interpreting "likely it as shorthand plea questionnaire, Concurrence, 22. The concurrence years imprisonment.'" of ¶ very Taylor's high "[t]here is a likelihood also assumes meaning eight years of of attorney, Dally,explained Michael the Concurrence, Taylor." 27 n.5. imprisonment to evidentiary hearing required by grant the Were we to any assumptions the not have to make about Bangert, we would understanding defense counsel's advice. defendant's hearing does not is entitled to a Whether a defendant speculation of what defense retrospective turn on this court's or whether plea questionnaire on the likely counsel meant properly that defense counsel very high "there is a likelihood" "eight years imprisonment." of explained meaning the of In (quoted supra). at note Majority op., 39¶ 12-13, 52-53, flawed plea colloquy the 293 Wis. during the record defendant had stated on but the charges, that he had had the colloquy that he understood complaint read to him, gone he over the elements and that had not attorney. record was still charges with his This hearing. evidentiary the defendant an sufficient to refuse the defendant "in fact" the trae knew and correct maxi- penalty majority mum he faced. From this record the only concludes not that the defendant was told of the maximum but that he knew and understood it. majority have, I until now, focused on the opinion. concurring opinion The strikes out in a some- focusing what different direction, more on the understanding penalty. defendant's of the maximum concurring opinion concludes that the defendant does evidentiary hearing not an "receive because there would point taking have been no testimonial evidence. .. . [The defendant's] understanding claim that he lacked objectively given the maximum sentence was incredible ample evidence in the record correct informa- [A] tion he had received.... defendant 'should not be permitted game system by taking advantage judicial "Requiring mistakes....'" the court to conduct evidentiary hearing already an to receive what was throughout evident the record would have served no legitimate purpose ¶¶ in this Concurrence, case." 21, 24, 29, 30.
¶ 120. The concurrence worries about the defen gaming system. dant Concurrence, 29; see also majority op., allowing ¶ 39.1 do not favor the defendant *49 (or else) anyone game system. the Here the defendant Bangert requirements, requirements satisfied the estab by evidentiary lished this court that entitle him to an hearing. gaming system?24 is the How defendant the Prosser, Brown, writing Justice for explained the court prevent "Thus, how to a gaming system: defendant from the only court, the [circuit] with the of assistance the district attorney, prevent potential sandbagging by can by a defendant engaging the plea colloquy making defendant at the and complete record." 2dWis. concurring According opinion, a cir- to the to hold a decide whether cuit court should evidentiary hearing it surmises based on what evidentiary hearing it and what be at the evidence will hearing evidentiary predicts bewill the outcome of the understanding. knowledge and the defendant's about theory legal principle decide allows courts to or What hearing evidentiary on court based to hold an whether conjecture? prosecuting court, attor- the circuit 122. When recognize
ney, that the all failed to and defense counsel being inconsistent different and told defendant was explain penalties the correct and failed to maximum majority punishment, and con- can the maximum how indifferently curring opinions the defen- conclude that charges carried a that his dant knew and understood imprisonment eight years of maximum sentence prison, eight years defendant numbers the not six or given counsel? the court and defense was majority (with telling concurring opinions us are faces) legally although straight trained, all plea colloquy participants courtroom-experienced in the (namely judge, sentencing counsel, the defense displayed ignorance attorney) prosecuting their and the penalty, defendant, correct maximum of the only hearing participant not have who did in the only participant legal education, the benefit of actually the correct maxi- and understood knew who right. penalty. cannot be mum This ‡ ‡ H* ‡ many plea many, colloquies, indeed 123. Plea day every being colloquies, in courtrooms conducted are guilty colloquies upon a or Plea across this state. criminal and butter" are the "bread no contest *50 Plea practice. colloquies are and recurrent frequent court events with constitutional overtones and ramifi- cations. 124. More than 25 years ago, court decided
¶ Bangert case. The court has clearly decisively adhered to Bangert declaring with the "[complying requisite [of standards is not Bangert] optional."25 125. The line of
¶ cases sets down rela tively simple, relatively rules "bright-line" instructing courts, circuit the court of this appeals, court, defendants, and counsel about goals a plea colloquy, how a plea should be colloquy conducted, and the route to be taken when the is defec plea colloquy tive. There is no indication the framework is not Once working. again, ask, I "Why disturb it now?"26 126. The majority opinion and concurrence have unnecessarily muddied waters often plied, to the detriment of us all. We now an have inconsistent "jurisprudence of flawed plea colloquies" apparently an governing overstatement of a an penalty, understate- ment of a penalty, substantial misstatement of a and an penalty, insubstantial misstatement of a penalty. This court is supposed to clarify the law. It has not. 127. For forth, the reasons set I dissent. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
25 26 Cross, 293 Wis. 2d (Abrahamson, C.J., 47¶ concur- ring).