‘Impossible’ plea deal not manifest injustice

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Every criminal plea deal in Wisconsin is supposed to be a knowing, voluntary agreement by the defendant to give up certain rights in order to hopefully obtain more favorable treatment than a trial might produce.

But in the State v. Ronald W. Lichty, 2011 AP 2873, the defendant claimed that his 2011 plea agreement to two counts of residential burglary was illegal and anything but voluntary because the agreement was based on incorrect information which misstated his possible initial sentence of incarceration by a full two years.

The appellate court did not find Lichty’s assertions persuasive, however, finding that there was no “manifest injustice” in part because the final agreement actually benefitted the defendant.

When a good faith legal error is made regarding maximum sentencing, “and when the error was corrected at the sentencing hearing to the defendant’s benefit,” the court explained, “there is no manifest injustice.”

Defendant Ronald Lichty and his wife were identified as suspects in several local burglaries in the Mequon and Grafton areas in 2010. While waiting in an interview room at the Ozaukee County Jail, Lichty was caught using heroin, which added a drug possession count to his two residential burglary charges.

Lichty’s counsel negotiated a no contest plea agreement with the state on the two residential burglary charges. In exchange, the state agreed to drop the drug charge and not charge Lichty for several other related matters.

Under the agreement, the state would agree to recommend that Lichty serve 12 years on each burglary charge, to run concurrently. Each term would be bifurcated to six years of confinement and six years of supervision.

In the signed plea questionnaire, Lichty wrote that he understood the maximum penalty he faced was 12 ½ years and a $25,000 fine on each burglary count, both Class F felonies.

On Jan. 20, 2011, Lichty appeared before Judge Paul Malloy for a final sentencing hearing. The state’s opening remarks indicated there had been a mistake in the plea agreement between the parties. The law only allowed a five-year supervision period after confinement, not six, and the initial confinement period maximum was 7 1/2 years, not 6 1/2 years.

The state offered to keep the recommended initial confinement period at six years and drop the supervision period to five years for each burglary charge. Defense counsel did not object to the change, leading to the court’s final sentencing decision.

The judge did not follow the plea agreement recommendation. Malloy sentenced Lichty to 11 years on each count, six years incarceration and five years supervision, to be served consecutively.

Ten months later, Lichty filed a post-trial motion to withdraw his plea, suggesting that he had ineffective assistance of counsel and that his plea was associated with an “illegal sentencing recommendation” that “was modified without his consent,” based on State v. Woods, 173 Wis.2d 129 (Ct. App. 1992). The trial court denied Lichty’s motion.

On appeal, Lichty reasserted many of the primary arguments made at his post-trial hearing. Referencing the Woods’ decision, Lichty claimed that his plea was “not knowing and voluntary,” and that he should be allowed to withdraw it because the plea provided for an “impossible sentencing recommendation.”

In Woods, a plea agreement had been reached which tacked on a two-year adult confinement period after defendant completed his juvenile sentence. Woods’ attorney later renegotiated the plea agreement term of confinement to “two to three years” without approval from his client.

After pointing out that state law also did not provide for a period of adult confinement to be added after a defendant completed a juvenile sentence, Woods was sentenced to 11 years, to be served consecutive to the juvenile sentence.

As in Woods, Lichty argued that his own plea was based upon a misunderstanding of the law, which prevented him from making an informed and voluntary plea. In Woods, the appellate court concluded that “(a) plea agreement to a legal impossibility necessarily rendered the plea an uninformed one.”

“Common sense dictates that defendants are concerned with the amount of initial confinement they are facing at sentencing,” Lichty said. “In this case, the plea agreement inferentially understated rather than overstated the initial period of confinement.”

Lichty’s appeal also took issue with the trial court’s reliance on State v. Cross, 2010 WI 70, noting that the case was not on point because the proposed sentencing recommendation was not a legal impossibility.

The state disagreed that Lichty had been harmed or prejudiced by the modified plea agreement and said he had in fact had benefitted from the change. Because of this favorable treatment, the state contended that “no manifest injustice occurred.”

The defendant’s reliance on the Woods case was also misplaced, according to the state, because in that case, the illegality of the plea deprived the defendant of a consequence he sought to avoid through the plea process.

Additionally, any effort by the defendant to look to State v. Sprang, 2004 Wis. App. 121, should also be questioned, the state said, in that the defendant there actually “proved that his attorney failed to act and respond to an actionable breach,” whereas there was no actionable breach in this case.

In affirming the lower court decision, the appellate court found parallels between Lichty and State v. Cross, 2010 WI 70. In that case, Cross was told that the maximum penalty for initial confinement was 25 years, when in fact it was 20.

“When a sentence communicated to a defendant is higher, but not substantially higher, than that authorized by law,” said the court, quoting Cross, then incorporating that communication into sentencing is not a Bangert violation of the defendant’s rights (from State v. Bangert, 131 Wis.2d 246, 1986).

The appellate court also felt that it was “abundantly clear” that Lichty was well aware of the parameter of possible sentencing repercussions at his sentencing hearing. “The misstatement of a maximum available period of extended supervision” did not compromise, the court said, “the fundamental integrity of the defendant’s plea.”