On Point: e. Maximum Penalty

State v. Russell L. Wilson, 2019AP49, 6/23/20, District 3 (not recommended for publication); case activity (including briefs)

Wilson was charged with repeated second-degree sexual assault of a child under Wis. Stats. §§ 948.02(2) and 948.025(1)(e). That’s a Class C felony carrying a max of 25 in and 15 out. But the state alleged that he also qualified for the repeater enhancer in Wis. Stat. § 939.618(2)(b). That would change the max to life without the possibility of parole or ES. Everybody–Wilson, his lawyer, and the judge–apparently believed the repeater applied, but, after Wilson pleaded and was sentenced, DOC informed the court that it did not. So the correct max IC term for the crime Wilson pleaded to was 25 years, not life. He moved to withdraw his plea, alleging the error meant it wasn’t knowing, voluntary and intelligent. The circuit court denied the motion, and the court of appeals now reverses.

State v. Corey R. Fugere, 2019 WI 33, 3/28/19, affirming a published court of appeals decision; case activity (including briefs)

Pretend you’re a defendant trying to decide whether to enter a plea. You know that maximum term of imprisonment you face. You also know that pleading NGI is one of your options. However, the circuit court doesn’t tell you (or perhaps misinforms you) about the nature and length of the commitment that will follow from pleading NGI. How can you make a knowing, intelligent, and voluntary NGI plea if you don’t know the consequences of it?

State v. Corey R. Fugere, 2016AP2258-CR, petition for review of a published court of appeals decision granted 9/4/18; case activity (including briefs)

Issue (composed by On Point):

When a person enters a guilty plea to a criminal charge coupled with the defense of not responsible due to mental disease or defect under § 971.15, is a circuit court required to advise the person of the maximum term of commitment under ¶ 971.17 in addition to the maximum penalties provided for the offense?

State v. Arthur Allen Freiboth, 2015AP2535-CR, District IV, 2/26/18; case activity (including briefs)

Issue:

…[W]e certify the present appeal to the Wisconsin Supreme Court to decide whether a defendant who was not advised at the time of the plea that he or she faced multiple mandatory DNA surcharges has grounds for plea withdrawal.

State v. Mario Douglas, 2018 WI App 12; case activity (including briefs)

Douglas got inaccurate advice about the prison time he faced if he went to trial instead of taking the State’s plea offer. The inaccurate advice makes his plea invalid.

State v. DeAnthony K. Muldrow, 2017 WI App 47, petition for review granted 10/17/17; case activity (including briefs)

Issue (composed by On Point)

Does lifetime GPS monitoring mandated under § 301.48 constitute “punishment,” thus requiring a judge to advise a defendant that he or she will be subject to the monitoring as a consequence of a guilty or no contest plea?

State v. Donald L. White, 2017AP188-CR, 8/23/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

White argued that his plea colloquy was defective because the circuit court did not (1) sufficiently describe the nature of the charge against him, (2) ascertain his education or level of comprehension, especially of the constitutional rights that he was waiving, (3) advise him that he was not bound by the plea agreement and could impose the maximum penalty. He relied primarily on State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716 N.W.2d 906. The court of appeals distinguished White from Brown and affirmed the decision to deny the motion for plea withdrawal without a hearing.

State v. Tydis Trinard Odom, 2015AP2525-CR; District 2, 6/28/17, certification granted 9/12/17, appeal voluntarily dismissed 2/22/18; case activity (including briefs)

Issue:

In determining whether the imposition of multiple DNA surcharges constitutes “potential punishment” under WIS. STAT. § 971.08(1)(a) so that a court must advise a defendant about the surcharges before a valid plea may be taken, is the “intent-effects” test, as applied in State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, and State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786, to ex post facto claims, the same analysis that was applied in State v. Bollig, 2000 WI 6, ¶16, 232 Wis. 2d 561, 605 N.W.2d 199, to a plea withdrawal claim?

If the analysis is the same, should Radaj be overruled in light of the supreme court’s recent decision in Scruggs?

We note that we previously certified the issue of whether multiple DNA surcharges constituted “potential punishment” under WIS. STAT. § 971.08(1)(a), such that a court’s failure to advise a defendant about them before taking his or her plea establishes a prima facie showing that the defendant’s plea was unknowing, involuntary, and unintelligent. The supreme court declined to accept certification.

We certify again because, as explained below, the supreme court’s recent decision in Scruggs now suggests that the ex post facto analysis of Radaj, holding that multiple DNR surcharges are “punishment,” was incorrect.

State v. Tydis Trinard Odom, 2015AP2525-CR; District 2, 11/9/16; certification refused 1/9/17; case activity (including briefs)

Issue:

Does the imposition of multiple DNA surcharges constitute “potential punishment” under WIS. STAT. § 971.08(1)(a) such that a court’s failure to advise a defendant about them before taking his or her plea establishes a prima facie showing that the defendant’s plea was unknowing, involuntary, and unintelligent?

State v. Timothy L. Finley, Jr., 2016 WI 63, affirming a published court of appeals decision, 2015 WI App 79, 365 Wis. 2d 275, 872 N.W.2d 344; case activity (including briefs)

Reaffirming the long-standing law governing plea withdrawal that was established in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and limiting the reach of two recent cases that muddied the Bangert procedure, the supreme court holds, 5 to 2, that Finley is entitled to withdraw his plea because the circuit court misadvised Finley of the maximum penalty during the plea colloquy and the state failed to prove Finley knew the actual maximum penalty.