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Sentencing Case Analysis

By: dmc-admin//February 4, 2004//

Sentencing Case Analysis

By: dmc-admin//February 4, 2004//

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Inasmuch as the decision threatens to undermine the validity of every conviction entered pursuant to a plea since the inception of Truth in Sentencing, it should be expected that the State will seek review, and that the Supreme Court will accept it.

If it does, the Court may find it difficult to reverse the court of appeals, without also overturning its previous decision in State v. Byrge, 2000 WI 101, 237 Wis.2d 197, 614 N.W.2d 477.

The issue, as framed by the court in Byrge, was, “whether parole eligibility directly reflects a potential punishment under Wis. Stat. sec. 971.08(1)(a).” Byrge, at par. 59. The court held that, in the narrow circumstances of that case, it did.

The logical extension of the holding that parole eligibility can directly reflect a potential punishment, is that parole ineligibility can reflect a potential punishment.

At the time of Byrge’s crime, a court sentencing a defendant to life imprisonment had two options: leave the parole decision to the parole board; or set a date for parole (Sec. 973.014(2) was amended after that to create a third option — no possibility of parole).

Obviously, if a court is required to tell a defendant that the court may set a parole date, as Byrge held, a court would also have to tell the defendant, after the amendment to sec. 973.014, that another possibility is life without parole.

Thus, there is arguably no principled way to distinguish Byrge in the case at bar, as the court of appeals concluded.

One possible way to distinguish Byrge, however, would be to bifurcate defendants’ expectations into those that are objective and subjective.

At the time Byrge entered his pleas, parole was the norm in Wisconsin, and having the court set parole was the exception. Byrge’s expectation of parole was thus both objectively and subjectively reasonable.

In contrast, when Uhde entered his pleas, parole had been abolished. Thus, Uhde’s expectations were not objectively reasonable, but only subjectively reasonable, which the Supreme Court has long held to be insufficient. Birts v. State, 68 Wis.2d 389, 228 N.W.2d (1975).

If the court were to affirm the court of appeals, the question would then arise whether all the previous defendants who pleaded guilty since Truth in Sentencing will be able to take advantage of the decision through collateral attacks on their convictions.

That question may be affected by a Wisconsin Supreme Court decision also released last week, State v. Lagundoye, 2004 WI 4.

Lagundoye concerned sec. 971.08(1)c), which requires a court, before accepting a plea of guilty or no contest, to inform a defendant that if he is not a citizen of the United States, the plea may result in deportation.

In State v. Douangmala, 2002 WI 62, 253 Wis.2d 173, 646 N.W.2d 1, the Wisconsin Supreme Court held that, if a trial court fails to so inform the defendant, and the defendant can demonstrate that deportation is likely, the defendant must be permitted to withdraw the plea.

At issue in Lagundoye was whether that decision was retroactive, such that defendants could make collateral attacks on final convictions. The Supreme Court held that the holding in Douangmala was a new rule of criminal procedure, neither exception to the general rule against retroactivity applied, and thus, Lagundoye could not collaterally challenge his conviction.

Links

Wisconsin Court of Appeals

Related Article

Defendants must be told
about Truth in Sentencing

There is a similarity between Douangmala and the case at bar, in that both involve a failure on the trial court’s part to inform the defendant of the consequences of his plea, but ultimately, the similarity is superficial.

The holding in Douangmala rested on failure to comply with a statutorily mandated procedure, rather than the due process right to be aware of the consequences of a plea. Longstanding precedent held that deportation consequences were collateral, not direct, and thus, failure to inform the defendant of those consequences was not a due process violation.

In the case at bar, by contrast, due process rights are involved, rather than statutory rights. An exception to the rule of nonretroactivity is where the new rule encompasses procedures that “are implicit in the concept of ordered liberty.” Teague v. Lane, 489 U.S. 288, 307 (1989).

The right of a defendant to know the maximum penalty he faces is certainly “implicit in the concept of ordered liberty.” Thus, if affirmed in the Supreme Court, this case has the potential to undermine thousands of convictions since Truth in Sentencing began.

– David Ziemer

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David Ziemer can be reached by email.

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