On Point: e. Maximum Penalty

State v. Jason D. Henderson, 2015AP1740-CR, District I, 3/1/16 (1-judge decision; ineligible for publication); case activity (including briefs)

Henderson pled to two misdemeanor repeaters. He now seeks to withdraw his plea on the ground that counsel was ineffective for misinforming him that the two-year maximum sentence on each count was divided into one year of initial confinement and one year of extended supervision, rather than the correct 18 month/6 month split. 

Review of a published court of appeals decision; case activity (including briefs)

Issue (from the State’s petition for review)

When a defendant who pleads guilty or no contest is misinformed that the maximum penalty that could be imposed is lower than the maximum actually allowed by law, and the sentence imposed is more than the defendant was told he could get, is the defendant entitled to withdraw his plea, or may the defect be remedied instead by reducing the sentence to the maximum the defendant was informed he could receive?

State v. Timothy L. Finley, Jr., 2015 WI App 79, petition for review granted, 1/11/16, affirmed, 2016 WI 63; case activity (including briefs)

In an important decision addressing how to apply State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482, the supreme court’s recent muddling of plea withdrawal standards, the court of appeals holds that when a defendant is mistakenly told the maximum sentence is less than the law allows, the error “is not curable, after the fact, by ‘commutation’ of an otherwise lawful sentence down to the maximum amount of punishment the defendant was incorrectly informed he or she faced at the time of the plea.” (¶37). 

State v. Andre M. Chamblis, 2015 WI 53, 6/12/15, reversing an unpublished per curiam decision of the court of appeals; opinion by Justice Crooks; case activity (including briefs)

The supreme court unanimously holds that when the parties in an OWI prosecution are disputing the number of prior offenses, the circuit court can require the dispute to be resolved before it accepts the defendant’s plea; it doesn’t have to wait till sentencing to determine the number of prior offenses. And even if the court errs in denying the state the chance to prove an additional prior OWI conviction at sentencing, it violates due process to allow the circuit court to resentence the defendant on the basis of the additional conviction if the additional conviction would increase the penalty that could be imposed.

Review of a per curiam court of appeals decision; case activity

Issues (composed by SCOW). See order granting review.

1.  Where a defendant seeks to plead guilty or no contest to a charge of operating a motor vehicle while under the influence of an intoxicant (OWI), or with a prohibited alcohol concentration (PAC), do State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986) and due process principles require that the number of prior offenses that count for sentence enhancement be determined prior to entry of the defendant’s plea?

2.  Is a court of appeals’ decision ordering remand to the circuit court with instructions to: (1) issue an amended judgment of conviction reflecting a conviction for operating with a PAC, as a seventh offense, and (2) hold a resentencing hearing, and impose a sentence consistent with the penalty ranges for a seventh offense, constitutionally impermissible under Bangert and due process principles where the defendant specifically entered a plea of guilty to PAC as a sixth offense, where the circuit court sentenced the defendant in accordance to proper penalties for PAC as a sixth offense, and where the defendant has already served the confinement portion of such sentence?

State v. Stephen Robert Felix Schurk, 2012AP1501-CR, District 1, 3/5/13; court of appeals decision (1 judge; ineligible for publication); case activity

Schurk was not entitled to plea withdrawal even though the judge did not specifically inform Schurk that he was not bound by the parties’ plea agreement because the information was conveyed to Schurk in other ways:

¶11      …. [The court’s] colloquy advised Schurk that with regard to certain aspects of the sentencing,

court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; review granted, 3/15/12

Guilty Pleas – Plea Colloquy 

Certified Issue: 

Whether a plea colloquy’s understating the potential penalty is subject to harmless error analysis, such that if the subsequently-imposed sentence doesn’t exceed the misadvised maximum, plea-withdrawal isn’t supported.

The details: Taylor was charged as a repeater with an offense carrying an underlying maximum of 6 years with the enhancer adding a potential 2 years.

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

¶4 We hold that where a defendant is told that he faces a maximum possible sentence that is higher, but not substantially higher, than that authorized by law,

court of appeals decision (3-judge; not recommended for publication)

Guilty Plea – Hearing on Motion to Withdraw
Ruby satisfied burden of production, therefore was entitled to postconviction hearing, on plea-withdrawal due to ignorance of elements and/or maximum penalty.

State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: A plea colloquy is not required to caution the defendant that punishment for each of multiple charges could be imposed consecutively, ¶78.