Feb. 21, 2024 – Wisconsin law did not allow a defendant to withdraw a plea when the difference between the actual maximum penalty and the maximum penalty that was miscommunicated to her was only six years, the Wisconsin Court of Appeals has held.

In State v. Gomolla, 2022AP 199 (Feb. 6, 2024), the Court of Appeals District III held that, “despite the defective plea colloquy, the State presented clear and convincing evidence that Gomolla nevertheless understood the potential punishment she faced if convicted.”

Big Drug Bust

In April 2019, the Brown County District Attorney charged Kasey Gomolla with conspiracy to deliver methamphetamine (more than 50 grams), a Class C felony, and soliciting the delivery of THC (1,000-2,500 grams). The state alleged that Gomolla was part of a vast narcotics operation.

Gomolla agreed to plead guilty or no contest to the conspiracy-to-deliver charge, with the soliciting delivery charge to be dismissed and read in. In addition, the state agreed to dismiss the enhancers for second and subsequent offenses.

Dropping the enhancers exposed Gomolla to a 40-year maximum statutory penalty. With the enhancer, Gomolla would have faced a 46-year maximum penalty.

Gomolla completed a plea questionnaire/waiver form. The form mistakenly included both: 1) the second and subsequent offense enhancers; and 2) the 46-year maximum penalty.

Gomolla initialed each section of the plea questionnaire and signed the waiver form.

Plea Hearing

At Gomolla’s plea hearing, the Brown County Circuit Court confirmed that Gomolla had gone over the plea questionnaire with her attorney and that Gomolla understood the form.

After the plea colloquy, the circuit court dismissed the enhancer after the prosecutor pointed out that it had been dropped as part of the plea deal.

The circuit court did not correct the 46-year maximum penalty listed in the plea questionnaire and waiver form.

The circuit court later sentenced Gomolla to twelve years imprisonment and fifteen years extended supervision.

Post-conviction Motion

Gomolla filed a motion for post-conviction relief. She sought to withdraw her plea and be resentenced, based on either: 1) ineffective assistance of counsel; or 2) the circuit’s courts’ failure to advise her of the correct statutory maximum penalty before she accepted the plea.

The circuit court held a Machner hearing. Both Gomolla and her attorney testified.

The circuit denied Gomolla’s motion. Gomolla appealed.

Standard for Withdrawing Pleas

Presiding Judge Lisa Stark began her opinion for a three-judge panel by pointing out that Wis. Stat. section 971.08 requires a circuit court to ensure that a defendant’s plea has been “made voluntarily, with understanding of the nature of the charge and the potential punishment if convicted” – a requirement buttressed by Wisconsin Supreme Court caselaw.

Stark explained that if a circuit court fails to comply with section 971.08 or the relevant caselaw, the defendant may move to withdraw his or her plea.

If the defendant: 1) makes a prima facie showing that the circuit violated section 971.08 or duties related to the requirements of that section; and 2) alleges that he or she didn’t know or comprehend information that should have been provided in the plea colloquy, the burden shifts to the state to prove by clear and convincing evidence that the defendant’s plea was nonetheless knowing, intelligent, and voluntary.

Colloquy Was Defective

Judge Stark concluded from the fact that the circuit court held an evidentiary hearing on Gomolla’s motion to withdraw her plea that the plea colloquy was defective.

At the evidentiary hearing, Gomolla’s attorney admitted that she’d erred by not deleting the penalty enhancer from the plea questionnaire.

But the attorney also testified that:

• she’d had more than 25 meetings with Gomolla about the plea deal;

• she’d explained – and even diagrammed – the nature of a bifurcated prison sentence; and

• she believed that Gomolla understood the plea offer.

Gomolla testified at the hearing that her attorney had rushed through the plea questionnaire. Gomolla also testified that she didn’t remember her attorney discussing the maximum penalty with her.

The circuit court found that Gomolla was not credible and ruled that her plea was made knowingly, intelligently, and voluntarily.

Court’s Role in Mis-informing Defendant

Before the Court of Appeals, Gomolla argued that the state couldn’t meet its burden and show that she understood the maximum penalty she faced because: 1) her lawyer failed to correct the maximum penalty listed in the plea questionnaire; and 2) the circuit court failed to mention the maximum penalty.

The State argued that the Wisconsin Supreme Court held that in State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W. 2d 64, a defendant understands the range of punishment required as long as the maximum sentence that’s communicated to the defendant, if incorrect, is not substantially higher than the legally allowable sentence.

Judge Stark noted that in Cross, however, the circuit court wasn’t involved in the erroneous communication to the defendant regarding the length of the maximum allowable sentence.

But that was a distinction without a difference, Stark wrote, because in both Cross and State v. Bangert,131 Wis. 2d 246, 262, 389 N.W. 2d (1986) – the source of the caselaw requirements that buttress the requirements in section 971.08 – “the defendant was misinformed regarding the maximum statutory penalty and did not know that actual maximum statutory penalty; thus, the result in each case should be same whether the mis-information … was provided by the defendant’s counsel or by counsel and the court.”

Stark concluded that Gomolla’s plea was made knowingly, intelligently, and voluntarily, because the 46-year penalty was not substantially more than the maximum allowable penalty of 40 years.

“If Gomolla understood she was subject to a potential punishment of forty-six years, then she ‘[was] obviously aware that’ she could receive a forty-year sentence,” Stark wrote.

“The only flaw in Gomolla’s plea is that it was made with a misunderstanding of the precise maximum statutory penalty,” Judge Stark wrote.

“Gomolla, nevertheless, understood the potential punishment, and plea withdrawal is not required to correct a manifest injustice.”