State’s high court allows robbery defendant to change plea

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A defendant who pleaded no contest to a robbery charge after being given incorrect information should be allowed to withdraw his plea, the Wisconsin Supreme Court ruled 4-3 on Wednesday.

Myron Dillard was arrested and charged in 2011 with a December 2009 robbery in Menasha where a man entered the victim’s car with a gun and told her to start driving. The man then took her money, told her to pull over and he left the car, according to the court’s opinion.

Dillard was identified and charged with armed robbery and false imprisonment, both with persistent repeater enhancers. The armed robbery charge with the enhancement carries a mandatory life sentence, and Dillard’s attorney at the time, Rebecca Castonia of Basiliere, Thompson, Bissett & Castonia LLP, Oshkosh, told him that he faced that sentence if he went to trial.

Dillard’s criminal background, though, did not allow for a penalty enhancement. Nevertheless, Dillard, on the advice of his attorney who maintained that Dillard faced life in prison, took a plea deal. He would plead to the armed robbery charge without the enhancer, which has a 32-year maximum sentence, and the false imprisonment charge would be dropped.

At sentencing, the prosecutor recommended a sentence of eight years in prison followed by an open term of extended supervision. Winnebago County Circuit Judge Scott Woldt gave Dillard 25 years in prison and 15 years of extended supervision.

But Dillard later found out that he was mistakenly charged with the penalty enhancers and sought to withdraw his plea, arguing that he did not knowingly, intelligently and voluntarily agree to take the plea because of the incorrect information provided by prosecutors, the judge and his defense attorney. He also argued that he had received ineffective assistance of counsel from Castonia.

Woldt denied Dillard’s request to withdraw his plea, but the Court of Appeals reversed his conviction and allowed him to withdraw his plea. And on Wednesday, the state Supreme Court upheld the appellate court’s decision and remanded the case back to the circuit court.

The opinion, authored by Chief Justice Shirley Abrahamson and joined by Justices Ann Walsh Bradley, Patrick Crooks and Michael Gableman, states that there are many past cases that allow for a plea withdrawal if the defendant is uninformed.

“In the present case, the plea offer was significantly less valuable than the defendant believed because the persistent repeater enhancer was a legal impossibility,” according to the opinion. “Dropping the enhancer provided an illusory benefit to the defendant. When entering his plea of no contest, the defendant failed to understand ‘the actual value’ of the plea offer he accepted.”

And while Abrahamson’s opinion did not remand the case based on ineffective assistance of counsel, she still found that Castonia’s representation was ineffective.

“Trial counsel in the present case offered no reason — strategic or otherwise — for failing to know or investigate the persistent repeater enhancer statute or for failing to challenge the persistent repeater enhancer attached to the armed robbery charge,” according to the opinion. “The persistent repeater enhancer statute is not obscure or unsettled law as applied to the facts of the present case.”

First Assistant Public Defender Joseph Ehmann, whose office represented Dillard on appeal, said he was surprised that the court’s decision was not unanimous, since the error in this case had big implications for the defendant.

“I guess, by analogy, what in effect happened here was a prosecutor holds a gun to somebody’s head and says, ‘Take a deal,'” Ehmann said. “The court says, ‘Yep, he’s got a gun.’ The defense says, ‘Yep he’s got a gun.’ It turns out it was his finger.”

He added that “any lay person you explain the facts of what happened here, I think in general people say, ‘Yeah that’s not a fair process.'”

The state was represented by the Department of Justice. Spokeswoman Dana Brueck, in an email, declined to comment. Castonia did not immediately return a phone call.

Justices Pat Roggensack, David Prosser and Annette Ziegler dissented. In the dissent, authored by Roggensack, she argues that a plea withdrawal in this case would require an error by the circuit court. Instead, she wrote, Dillard pointed to a charging error, which is not supported by case law as a reason to withdraw a plea after sentencing.

In her dissent, Roggensack also pointed to Dillard’s testimony at his plea withdrawal hearing saying that he would have been satisfied with his sentence if the judge handed down the terms recommended by prosecutors.

“Dillard, who is dissatisfied with the results of his plea bargain, is attempting to make the circuit court somehow responsible for the bargain he made, but now seeks to avoid,” Roggensack’s dissent states. Follow @eheisigWLJ