Criminal Procedure — mistake

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance — plea withdrawal — mistake

At the time of Myron C. Dillard’s plea in this case, all parties mistakenly believed that due to a “persistent repeater” penalty enhancer, he was facing mandatory life imprisonment at trial. With that understanding, Dillard accepted the State’s offer to drop the penalty enhancer as well as a false imprisonment charge (on which the defendant faced a maximum ten-year bifurcated sentence), in exchange for the defendant’s “no contest” plea. Dillard accepted this offer, on the advice of his attorney, believing that he was reducing his maximum exposure from mandatory imprisonment for the remainder of his life to a bifurcated 40-year imprisonment sentence, i.e., a maximum initial confinement of 25 years plus another possible seven years on the false imprisonment. Dillard was convicted per his plea and sentenced to the maximum, forty years’ imprisonment with twenty-five years of initial confinement.

Subsequently, Dillard discovered that the mandatory life imprisonment sentence never applied to him. In reality, at the time of the plea bargain, the maximum penalty he faced on the charge to which he pled was the same forty-year sentence that he “bargained for” in his plea. He now seeks to withdraw his plea on grounds of manifest injustice and ineffective assistance of counsel.

The fact that a defendant was misinformed about the maximum penalty applicable to his crime does not necessarily demonstrate manifest injustice, “when the maximum sentence communicated to the defendant is higher, but not substantially higher, than the actual allowable sentence.” State v. Cross, 2010 WI 70, ¶38, 326 Wis. 2d 492, 786 N.W.2d 64. In the circumstances at hand, however, we can only conclude that the maximum penalty Dillard believed he was facing—the harshest criminal sentence available in our state, mandatory life imprisonment with no possibility of release—was “substantially higher” than the actual allowable sentence. See id., ¶39. In view of this error, the burden was on the State to demonstrate that the defendant’s plea was nonetheless knowing, voluntary, and intelligent. See id. The circuit court thought the showing had been made. We do not. The unassailable fact is that Dillard did not receive the benefit he bargained for because the so-called benefit never existed. It was an illusory benefit. We reverse. Not recommended for publication in the official reports.

2012AP2044-CR State v. Dillard

Dist II, Winnebago County, Woldt, J., Brown, C.J.

Attorneys: For Appellant: Hintze, Donna L., Madison; For Respondent: Gossett, Christian A., Oshkosh; Burgundy, Sarah, Madison