Aug. 25, 2009 – Currently, a criminal defendant in Wisconsin has a due process right to know the precise amount of punishment faced when entering a guilty plea.

The Wisconsin Attorney General hopes to change that with a case in which the defendant pled guilty after his lawyer and the court mistakenly informed him he faced more time than the law actually allows. A guilty plea is “knowingly, intelligently, and voluntarily” entered when the defendant knows the potential range of penalties, the attorney general argues.

But the State Public Defender, representing the defendant in question, argues that Wis. Stat. § 971.08 (1)(a) plainly directs a court to accept a guilty plea made “with understanding of ... the potential punishment if convicted.” This statutory requirement is not satisfied if the defendant is affirmatively misinformed of the crime’s maximum punishment, the public defender contends.

In briefs filed with the Wisconsin Supreme Court, the attorney general and the public defender debate whether the justices should overturn State v. Harden, 2005 WI App 252, and State v. Bartelt, 112 Wis. 2d 467 (1983), which favor the uninformed defendant.

An offense that predated new penalties

A one-count criminal complaint alleged that Travis Vondell Cross initiated hand-to-genital area sexual contact with his 10-year-old great-granddaughter on two occasions between December 2002 and January 2003.

Facing a charge of first-degree sexual assault of a child punishable by a maximum of 60 years imprisonment, Cross plead guilty to second-degree sexual assault in exchange for the prosecutor’s recommendation that he serve 24 months concurrently with an existing sentence in Minnesota.

During the plea hearing, the prosecutor and defense counsel referred to the reduced charge as a “Class C felony,” carrying a maximum term of 40 years imprisonment, with a maximum initial confinement of 25 years. The court sentenced Cross to 25 years initial confinement and 15 years extended supervision.

The court had to resentence Cross to 20 years initial confinement and 10 years extended supervision after discovery that Cross’ crimes had occurred prior to the Feb. 1, 2003, effective date of the tougher sentencing scheme contained in Truth In Sentencing II.

Cross appealed the court’s refusal to permit withdrawal of his guilty plea even after his lawyer admitted she mistakenly advised him of the 40-year maximum, rather than the applicable 30-year maximum. The appeal advanced to the supreme court, bypassing the Wisconsin Court of Appeals, last month.

New test to withdraw plea?

Under existing case law, Cross and the attorney general agree that a defendant misinformed of the applicable penalties has an automatic right to withdraw a guilty plea on the grounds that it was not entered “knowingly, voluntarily, and intelligently.” The defendant is not required to demonstrate that the erroneous penalty information actually motivated the plea decision.

The attorney general argues the case law – in particular, the holding of Harden – is wrong “because due process does not require that the defendant always know the precise maximum potential punishment to tender a knowing, voluntary, and intelligent guilty plea.”

When a defendant pleads guilty under a mistaken belief of the penalty, the attorney general asks the justices to require that the defendant demonstrate a “manifest injustice” by clear and convincing evidence before permitting withdrawal.

Considerations relevant to determining manifest injustice, the attorney general said, should include the relative strength and weakness of the state’s case and the defendant’s case in the record, up to the point of the plea; the reasons, if any, expressed by the defendant for choosing to enter a plea; and the benefits obtained by the defendant in exchange for the plea.

The degree to which a defendant was misled regarding the potential punishment should be just one factor in this test, the attorney general explained. A defendant who believed the punishment could be greater than the law actually provides will typically have a harder time because the defendant will have known, in fact, that he or she could have been sentenced to at least as much as the correct lesser amount of imprisonment, the attorney general said.

Applying its test to this case, the attorney general concluded that Cross cannot demonstrate a manifest injustice. The attorney general explained that Cross received a “highly favorable” plea deal that reduced his maximum potential imprisonment from 60 years, under first-degree sexual assault, to what was believed to be a maximum of 40 years for second-degree sexual assault. This deal only improved when it was revealed that his maximum exposure to imprisonment was actually 30 years.

Among the other factors, the attorney general suggested Cross knew that the prosecutor could have charged him with more than the single count of sexual assault, and that the prosecutor had a pending motion to admit similar other acts of sexual touching by Cross if the case went to trial.

Test incompatible with statute?

Cross argued that the attorney general’s proposed test conflicts with Wis. Stat. § 971.08 (1)(a) which he said unambiguously requires a defendant’s comprehension of the correct maximum penalty.

Wisconsin already has a test to apply when a court violates a mandatory statutory procedure, Cross said. Specifically, reversible error occurs unless there has been “substantial compliance” with the statute and the legislative goals were not frustrated, he said, citing State v. Lehman, 108 Wis. 2d 291 91982), and State v. Coble, 100 Wis. 2d 179 (1981).

Cross said the supreme court has already found that § 971.08 is a mandatory duty in State v. Douangmala, 2002 WI 62, and it has determined in State v. Bangert, 131 Wis. 2d 246 (1986), that its legislative goal is “to facilitate an accurate, contemporaneous determination that the defendant’s guilty plea was knowing, intelligent and voluntary.”

Asserting stare decisis, Cross dismissed the attorney general’s reliance on decisions from other jurisdictions supporting its due process argument. “It is not sufficient for a court to overrule its precedent merely because courts in other jurisdictions have reached opposite conclusions,” Cross wrote. “Once a statute has been authoritatively interpreted, the chosen construction must ordinarily be maintained unless and until the legislature amends or repeals the statute.”

“[T]he Wisconsin Supreme Court has repeatedly declared that Wis. Stat. § 971.08 (1)(a) means what it says, namely that the defendant must understand the potential punishment that he or she faces before entering a guilty plea,” Cross continued.

But the attorney general responded that the statute does not expressly require a defendant to know the precise maximum potential punishment, or that the trial court must accurately state the precise maximum potential punishment. “In fact, the case law frequently refers to this knowledge requirement as understanding ‘the range’ of potential punishment, even in cases where no presumptive minimum penalty applies,” the attorney general said.

Conflicting precedent?

Cross and the attorney general debated the meaning of State v. Quiroz, 2002 WI App 52, in which the court of appeals remarked that a defendant who pled with the mistaken belief he faced more punishment than he actually did “cannot credibly argue that he would not have so pled had he been informed that the maximum [was less].”

The attorney general contends that Quiroz is in conflict with Harden‘s stipulation that a defendant know the precise maximum potential punishment.   The attorney general argued that this conflict of decisions by the court of appeals remained unresolved even though the supreme court considered the plea of a defendant uninformed of the maximum penalties in State v. Barelt.

In Barelt, the attorney general said, the defendant’s plea “was beset with several additional shortcomings at the plea hearing – including failure to advise the defendant of trial rights waived by the plea and trial court’s failure to tell the defendant it was not bound by the prosecutor’s sentencing recommendations.”

Justices can now resolve the conflict, the attorney general argues.

But Cross denied there was any conflict between Quiroz and Harden. The Quiroz language was mere dicta, he said, because the court of appeals had already decided whether the trial court correctly informed Paul Delao Quiroz of the maximum penalty before it “went on to hypothesize that ‘even if the maximum penalty had been overcalculated’ … Quiroz could not credibly argue that his motive to plead guilty would have changed.”

Cross added that the court of appeals in Harden addressed “the ‘even if’ hypothesis” in Quiroz, determining it was non-controlling dicta.