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  • WisBar News
    April
    29
    2013

    Supreme Court Alters Analysis of Bangert Plea Withdrawal Cases

    Brian Kinstler

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    A defendant sought to withdraw his plea after sentencing because the circuit court understated the maximum sentence. The Outagamie County Circuit Court found harmless error and denied relief. On certification by the District IV Court of Appeals, the Wisconsin Supreme Court affirmed the circuit court, finding that the defendant knew the correct maximum sentence, and that the circuit court’s error was “an insubstantial defect” in the plea colloquy.

    April 29, 2013 – In State v. Taylor, 2013 WI 34 (April 23, 2013), the Wisconsin Supreme Court ruled that a defendant is not entitled to withdraw his plea after sentencing – even if the circuit court understated the maximum sentence at the time of the plea – so long as the record indicated that the defendant was aware of the maximum sentence, and that the actual sentence imposed was within the limits stated by the circuit court. A sharply critical dissent by Chief Justice Abrahamson (joined by Justice Bradley) called the majority opinion a “drastic break with precedent” in the area of plea withdrawal. The dissent also took the majority to task for mischaracterizing the record, and for failing to consider the constitutional implications of its analysis.

    Lower Court Proceedings 

    Gerald C. Taylor pleaded no contest to forgery as a repeater. The forgery conviction carried a maximum of three years of initial confinement and three years of extended supervision; the repeater enhancement allowed for an additional two years to be added to any portion of the total sentence.” The Outagamie County Circuit Court, however, told Taylor that he faced a maximum sentence of “six years in prison.” At sentencing, the prosecutor recommended three years of probation, but the circuit court sentenced Taylor to a total of six years of imprisonment, consisting of three years of initial confinement followed by three years of extended supervision.

    Attorney com bkinstler kinstlerlaw Brian Kinstler is filling in for Legal Writer Joe Forward during his leave. Brian practices state and federal criminal defense in Milwaukee, and blogs on criminal law issues at www.kinstlerlaw.com/blog.

    Taylor filed a postconviction motion in the circuit court, moving to withdraw his guilty plea pursuant to State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). Under Bangert, a defendant is entitled to a hearing on the validity of his plea if he can 1) make a prima facie showing of an error during the plea colloquy, and 2) allege that as a result of the error, he did not know or understand all the direct consequences of his plea. See Bangert, 131 Wis.2d at 274. Taylor alleged that the circuit court misinformed him that he faced a maximum “six years in prison,” and that the error led him to misunderstand the maximum sentence he faced.

    The circuit court denied Taylor’s motion without an evidentiary hearing. The circuit court reasoned that the error was harmless, because Taylor was told he faced a six-year term of imprisonment and, in fact, he received a six-year term of imprisonment. Taylor appealed, arguing that he was entitled to a hearing under Bangert’s two-prong test and that the court applied the wrong grounds in denying a hearing because a “Bangert” violation was not subject to a harmless-error analysis.

    Supreme Court Grants Review on Certified Question 

    The District IV Court of Appeals certified the appeal, stating that “it is unclear whether understating the potential penalty during a plea colloquy can properly be deemed harmless error, and if so, where in the analytical framework of Bangert such a determination should be made.” On review, however, the majority, concurrence, and dissent all agreed with the defendant and the state that the harmless error doctrine did not apply to the case.

    Justice Ziegler wrote for the majority, affirming the circuit court’s denial of relief. The majority’s reasoning rested on three basic premises. First, the court discounted the harm caused by the circuit court’s error:

    “At the plea colloquy, the court verbally informed Taylor that he faced a potential six-year term of imprisonment for the underlying offense and that he also was pleading to being a repeat offender. Ultimately, he was sentenced to a six-year term of imprisonment. Thus, on this record, a failure to discuss the additional two-year repeater penalty enhancer at the plea hearing is an insubstantial defect.”

    courtThe majority also discounted Taylor’s claim that the circuit court’s error caused him to misunderstand the maximum penalty, stating that “[t]he record in this case is replete with evidence that [the defendant] was aware of the potential eight-year term of imprisonment, comprised of a six-year term of imprisonment for the underlying charge and an additional two-year term of imprisonment from the alleged repeater [charge].” The court noted that Taylor was aware of the criminal complaint and information, which contained the correct penalties, and that Taylor said that he had read and understood the plea questionnaire, which stated the maximum penalty of “8 years prison/$10,000 fine or both.”

    Finally, the majority held that because 1) Taylor must have understood the correct penalties, and 2) he received a sentence no greater than the six-year maximum erroneously stated by the circuit court, plea withdrawal was not required under the “manifest injustice” standard described in State v. Reppin, 35 Wis. 2d 377, 151 N.W.2d 9 (1967). Taylor had argued that Reppin was supplanted by Bangert and its progeny; however, the majority sided with the state, finding that Reppin adopted ABA standards which specified there was no manifest injustice when a defendant is sentenced within an understated maximum penalty.

    In a concurring opinion, Justice Prosser wrote separately to address why the circuit court was justified in denying Taylor an evidentiary hearing. While Justice Prosser found it “difficult to contend that Taylor’s motion does not satisfy the requisite criteria for a Bangert hearing,” he still believed that the record conclusively proved that Taylor understood the correct maximum sentence. “In my view, Taylor did not receive an evidentiary hearing because there would have been no point in taking testimonial evidence. … Taylor's claim that he lacked understanding of the maximum sentence was objectively incredible given the ample evidence in the record of the correct information he had received.” Justice Prosser, quoting from another recent plea withdrawal case, State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716 N.W.2d 906, described Taylor’s postconviction efforts as an attempt to “game the system by taking advantage of judicial mistakes.”

    “An Easy Case” for the Dissent 

    In her dissent, Chief Justice Abrahamson, joined by Justice Bradley, described this as “an easy case” in which the defendant was plainly entitled to a Bangert hearing.

    The dissent focused on two primary criticisms. First, Chief Justice Abrahamson strenuously disagreed with the majority’s finding that the defendant clearly understood the penalties. “Neither the circuit court nor the defense attorney correctly translated the statutory penalty provisions in the complaint and information into plain English to advise the defendant of the correct maximum penalty in the plea colloquy or plea questionnaire, imprisonment for a maximum of eight years.” The dissent continued:

    “The defendant was not subject to six years in prison. (Remember, six years in prison is not the same penalty as six years of imprisonment; his maximum prison [confinement] time, as I have stated previously and which never appears correctly in the record, is five years.

    “The plea questionnaire [obviously completed by the defense counsel and signed by the defendant] also errs in telling the defendant of the maximum penalty. The plea questionnaire states that the defendant could face a maximum penalty of “8 yrs prison.” The defendant was not subject to an eight-year prison term. (Remember, eight years in prison [confinement] is not the same penalty as eight years of imprisonment; the defendant's maximum time in prison, which never appears correctly in the record, is five years).”

    The dissent also contended that the majority and concurring opinions had substantially altered the analysis of plea withdrawal cases – “‘the bread and butter’ of criminal practice” – from the subjective standard of the Bangert line of cases to a new, objective test because the majority considered their own independent view of the record, rather than that of the defendant, to be conclusive.” To the dissent, this represented an abandonment of settled case law in favor of an unclear standard, and absent any consideration of the constitutional consequences. “The majority opinion and concurrence have unnecessarily muddied waters often plied, to the detriment of us all.”