2009AP3-CR State v. Cross

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Criminal Procedure
Plea withdrawal
Where a defendant is told that he faces a maximum possible sentence that is higher, but not substantially higher, than that authorized by law, the circuit court has not violated the plea colloquy requirements, and the defendant is not entitled to an evidentiary hearing on whether his plea was knowingly entered.
"First, a defendant who believes he is subject to a greater punishment is obviously aware that he may receive the lesser punishment. Thus, the defendant in Harden, who was told he faced 19 years, six months maximum exposure, was certainly aware that he faced 16 years imprisonment. Moreover, we do not believe a defendant's decision to represent in open court that he committed the crimes he is charged with is likely to be affected by insubstantial differences in possible punishments."
"Second, requiring an evidentiary hearing for every small deviation from the circuit court's duties during a plea colloquy is simply not necessary for the protection of a defendant's constitutional rights. The Bangert requirements exist as a framework to ensure that a defendant knowingly, voluntarily, and intelligently enters his plea. We do not embrace a formalistic application of the Bangert requirements that would result in the abjuring of a defendant's representations in open court for insubstantial defects."
"[W]e find further support for this position in Wis. Stat. § 973.13. That statute provides: 'In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings.' Section 973.13 applies when defendants are found guilty, either by plea or by trial. When given a sentence greater than that authorized by law, which presumably would also involve an error in the understanding of the possible maximum penalty, the remedy here is a commuted sentence, not plea withdrawal."
Affirmed.

2009AP3-CR State v. Cross

Gableman, J.

Attorneys: For Appellant: Schmaal, William E., Madison; For Respondent: Johnson, Eric G., Hudson; Freimuth, James M., Madison; Weber, Gregory M., Madison

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