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  • WisBar News
    October 06, 2015

    Defendant Entitled to Withdraw Plea Despite Commuted Sentence

    Joe Forward

    Oct. 6, 2015 – A state appeals court has ruled that “commuting” a defendant’s sentence to address plea hearing violations does not remove a defendant’s right to withdraw his or her plea, despite the state’s argument in favor of this alternative standard.

    Timothy Finley Jr. thought he faced a maximum sentence of about 20 years in prison when he pled no contest to first-degree recklessly endangering safety during acts of domestic abuse, with penalty enhancers for habitual criminality and use of a dangerous weapon.

    In actuality, Finley faced a sentence of almost 24 years, and that’s the sentence that was imposed even though he was erroneously informed about the maximum sentence.

    The plea questionnaire and waiver of rights Finley signed incorrectly indicated 20 years as the maximum sentence, his attorney did not recall informing Finley of the correct maximum penalty, and the judge indicated the wrong maximum sentence during the plea colloquy.

    Finley appealed, arguing that he did not enter his plea knowingly, intelligently, and voluntarily. Ultimately, a circuit court ruled that Finley knew the consequences of his plea, a burden the state was required to show by clear and convincing evidence.

    But the circuit court “commuted” Finley’s sentence in the interest of justice, reducing the sentence to 20 years imprisonment rather than allowing him to withdraw the plea.

    In State v. Finley, 2014AP2488-CR (Sept. 30, 2015), a three-judge panel for the District III Court of Appeals reversed, rejecting the state’s argument for an alternative standard when defendants enter pleas and sentences are later commuted to address errors.

    That is, the state argued that plea withdrawals should be barred in cases where a defendant does not enter the plea knowingly, intelligently, and voluntarily but the sentence is commuted to an amount equal to or less than the maximum sentence.

    “The State’s proposed standard appears contrary to existing case law, which we are bound to follow,” wrote Thomas Hruz.

    The panel noted that on appeal, the state abandoned its argument that Finley knew the consequences of his crime, despite winning on that issue in the circuit court.

    “We do not reach the merits of the issue of whether the circuit court properly found Finley was aware of the actual maximum penalty for the offense at the time he entered his plea, because the State has conspicuously abandoned any such argument supporting that finding,” Judge Hruz wrote.

    The panel also ruled that a prior Wisconsin Supreme Court decision “did not sanction” a commuted sentence or the court’s decision to refuse a plea withdrawal if the sentence was commuted to a level consistent with what Finley believed he could receive.

    “As we read Taylor and other supreme court precedent … such a violation 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,” Judge Hruz explained.

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