On Point

COA, in published decision, further clarifies that not every plea colloquy defect merits a Bangert hearing

State v. Terral Dontae Wallace , 2024AP2150-CR, 6/23/26, District III (recommended for publication); case activity

Although there is no dispute that the circuit court failed to advise Wallace of a presumptive minimum sentence during the plea colloquy, the court of appeals determines that no evidentiary hearing is required and affirms.

Wallace pleaded to three charges, including homicide by intoxicated use of a vehicle. (¶1). “The parties agree that the circuit court correctly determined that Wallace made a prima facie showing that the court’s plea colloquy with Wallace was defective because the court failed to inform him that he faced a five-year presumptive minimum term of initial confinement on the homicide by intoxicated use of a motor vehicle count.” (Id.). That result is unsurprising, as State v. Mohr establishes that failure to communicate a presumptive minimum is a plea colloquy defect for the purposes of Bangert. (Id.).

However, COA determines that Wallace is not entitled to a hearing on his motion to withdraw the plea for two reasons: (1) the record demonstrates he was otherwise aware of the presumptive minimum and (2) any failure to communicate this presumptive minimum, under these facts, is an “insubstantial defect.” (¶2). COA therefore cites the Wisconsin Supreme Court’s holding in State v. Taylor for the proposition that “in some cases, small deviations from the Bangert line of cases do not amount to a Bangert violation.” (internal quotations omitted). (¶18). Citing State v. Cross, COA further holds that the our supreme court has “refused to ’embrace a formalistic application of the Bangert requirements that would result in the abjuring of a defendant’s representations in open court for insubstantial defects.‘” (Id.). COA therefore takes a brief journey through recent developments in this area of law:

• In Cross, the defendant’s actual exposure was 20 years of initial confinement and 10 years of extended supervision. He was told that he faced 40 years total, including 25 years of initial confinement. He was then sentenced, illegally, to 25 years of initial confinement. Although the circuit court vacated that sentence and ordered resentencing, the court did not allow plea withdrawal. SCOW ultimately affirmed, holding that “a defendant who has been told a maximum punishment higher, but not substantially higher, than that authorized by law, has not necessarily made a prima facie case” for plea withdrawal.  (¶¶22-24).
• In Taylor, the defendant’s actual exposure was eight years of imprisonment. The circuit court told him it was six and sentenced him to six. On appeal, SCOW explicitly used the phrase “insubstantial defect” to describe this incorrect explanation of the maximum penalty. Taylor also partially rests, in COA’s telling, on a finding that Taylor knew the correct maximum penalty based on transcripts from other hearings and other documents in the record. (¶¶25-26).
• In Finley, however, SCOW appeared to back down slightly, and explicitly reminded courts notwithstanding these previously discussed cases “that when a plea colloquy is deficient and the defendant alleges that he did not know or understand the information that should have been provided in the plea colloquy, the defendant is entitled to an evidentiary hearing at which the State has an opportunity to prove by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily entered his plea.” Finley reads Cross and Taylor for the proposition that, in those cases, “the defendants knew the potential punishment and were given the sentence the circuit court described.” (¶27).
• Finally, in Johnson, COA held that a failure to tell the defendant that the circuit court was not bound by a plea agreement was harmless because the court adopted the parties’ recommendation. (¶28).

COA derives three general rules from these cases. First, “no evidentiary hearing is required where the defendant knew the ‘potential punishment’ and was given the sentence the circuit court described.” (¶32). Second, no hearing is required when a defendant ‘was not affected by’ an ‘insubstantial defect’ in the plea colloquy.” (Id.). Finally, an appellate court “can look to the record outside of the plea hearing to determine whether a defect was insubstantial or not.” (¶33).

COA therefore holds that the failure to communicate the presumptive minimum was an insubstantial defect, as “the record overwhelmingly demonstrates that the defense did not believe there was a realistic possibility that Wallace could receive less than five years of initial confinement on Count 1.” (¶34). Although there was no joint rec at the time of the plea, when Wallace appeared for sentencing the parties had worked out a deal to jointly recommend ten years of initial confinement on that count, or double the presumptive minimum. (Id.). Wallace, meanwhile, told the PSI writer he was hoping for 8 years of initial confinement. (Id.). The presumptive minimum went undiscussed at the sentencing hearing and appears to have played no role in the court’s sentencing decision. (Id.). Wallace’s case is distinguishable from Mohr, the case on which he most strongly relies, because there the defendant was hoping to receive probation, when in fact, she faced a presumptive minimum. (¶35).

Finally, the record also shows that Wallace knew about the presumptive minimum because it was listed in the criminal complaint, information and amended information. (¶36). Wallace’s attorney told the court at the initial appearance that Wallace had reviewed and understood the complaint and to find that he was entitled to a hearing would require an assumption that Wallace lied to the court when he (via, apparently, his attorney’s representation) said he had reviewed the complaint. (¶37).

Accordingly, COA finds the plea knowing, intelligent and voluntary and affirms.