Dec. 1, 2014 – A man who reached a plea agreement in his armed robbery case can now withdraw the plea, a Wisconsin Supreme Court majority (4-3) has ruled, because the man was misinformed about the sentence he faced if convicted.
Myron Dillard thought he could get a mandatory life in prison sentence if he was convicted on armed robbery charges. He pled no contest and received a 40-year sentence, consisting of 25 years in prison with 15 years of extended supervision.
But Dillard later learned that he faced a mandatory sentence of life in prison only if considered a persistent repeat offender. He wasn’t one, but he didn’t learn that information until after his sentencing on the no contest plea. He filed a postconviction motion to withdraw the plea, but it was denied. The appeals court reversed.
In State v. Dillard, 2014 WI 123 (Nov. 26, 2014), a Wisconsin Supreme Court majority affirmed, concluding that Dillard was entitled to withdraw the plea.
The majority ruled that Dillard did not knowingly, intelligently, and voluntarily enter the plea because of the mistaken belief that he was subject to a life prison sentence.
In addition, the court ruled that Dillard’s counsel should have caught the charging error and a failure to do so amounted to ineffective assistance of counsel.
Dillard had been accused of an armed carjacking that occurred in 2009 in Menasha. The female victim helped police develop a composite sketch that resembled Dillard, but did not identify him when reviewing photos of potential suspects. Months later, the victim reviewed the same photo in an online database and said Dillard was the robber.
Dillard was on probation when the crime occurred. The state charged him with armed robbery and false imprisonment. The state also attached persistent repeater enhancers under Wis. Stat. section 939.62, which significantly increase penalties for persons previously convicted of two or more serious felonies committed on separate occasions.
Dillard was subject to a maximum of 32 years in prison and 18 years of extended supervision if convicted on the armed robbery and false imprisonment charges. If convicted as a persistent repeat armed robber, he faced a mandatory life sentence.
Dillard took a deal that dropped the persistent repeat offender charge, stating that he “couldn’t take the chance” of receiving a mandatory life prison sentence.
“[W]e conclude that the defendant entered into the plea agreement without knowing the actual value of the State’s plea offer and relying on misinformation from the court, the State, and trial counsel about the applicability of the persistent repeater enhancer,” wrote Chief Justice Shirley Abrahamson for the majority.
The majority also ruled that Dillard was entitled to withdraw his plea because he was able to establish that if his counsel had correctly advised him, there was a reasonable probably that he would not have entered a plea agreement with the state.
Dissent
Justice Patience Roggensack wrote a dissenting opinion, joined by Justices David Prosser and Annette Ziegler. The dissent said Dillard’s plea should stand because he did not prove a manifest injustice by clear and convincing evidence.
“Dillard failed to shoulder that burden because he submitted insufficient factual-objective information at the plea withdrawal hearing,” wrote Justice Roggensack. “Furthermore, the circuit court found that Dillard’s testimony was not credible.”
