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Plea Withdrawal

By: Derek Hawkins//August 18, 2020//

Plea Withdrawal

By: Derek Hawkins//August 18, 2020//

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Russell L. Wilson

Case No.: 2019AP49-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Plea Withdrawal

Russell Wilson appeals a judgment of conviction for repeated sexual assault of a child and an order denying his postsentencing motion for plea withdrawal. Wilson contends the Information, his attorney, the plea questionnaire, and the circuit court during the plea hearing all incorrectly stated that Wilson’s maximum possible sentence was life in prison without the possibility of extended supervision. Wilson also asserts the State failed to introduce any evidence that, at the time he pled, he knew the correct maximum sentence he faced—which was forty years’ imprisonment, comprised of twenty-five years’ initial confinement and fifteen years’ extended supervision. Accordingly, Wilson asserts his guilty plea was not knowingly, intelligently and voluntarily entered, and he is therefore entitled to withdraw his plea pursuant to State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and its progeny. We agree.

We conclude that, generally, a defendant who is incorrectly told during a plea colloquy, and who otherwise understands, that the maximum sentence for his or her crime is life in prison without the possibility of extended supervision, when in fact the maximum sentence is twenty-five years initial confinement and fifteen years’ extended supervision, has been advised of a maximum penalty that is substantially higher than the actual penalty. This conclusion is compelled by the unique nature of a potential sentence that largely assures the individual will die while incarcerated, as compared to a sentence that provides that individual with a reasonable possibility of release from confinement under the correct maximum. Such a reasonable possibility exists here, given Wilson’s age at the time he was sentenced. We therefore reverse both Wilson’s judgment of conviction and the circuit court’s order denying his motion for postconviction relief. We remand for further proceedings, directing that Wilson be allowed to withdraw his guilty plea.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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