2014 WI 123
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2044-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Myron C. Dillard,
Defendant-Appellant.
REVIEW OF A COURT OF APPEALS DECISION
Reported at 350 Wis. 2d 331, 838 N.W.2d 112
(Ct. App. 2013 – Published)
PDC No.: 2013 WI 108
OPINION FILED: November 26, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 4, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: Scott C. Woldt
JUSTICES:
CONCURRED:
DISSENTED: ROGGENSACK, PROSSER, ZIEGLER, JJJ., dissent.
(Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Katherine D. Lloyd, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, there was a brief and oral
argument by Donna L. Hintze, assistant state public defender.
2014 WI 123
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2044-CR
(L.C. No. 2011CF157)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v.
NOV 26, 2014
Myron C. Dillard,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, C.J. Myron C. Dillard, the
defendant, was convicted of armed robbery and sentenced to 25
years of confinement and 15 years of extended supervision after
a negotiated plea agreement. The circuit court for Winnebago
County, Scott C. Woldt, Judge, denied the defendant's
postconviction motion to withdraw his no-contest plea. The
court of appeals reversed the judgment of conviction and the
No. 2012AP2044-CR
circuit court's order denying the defendant's postconviction
motion. We now review the decision of the court of appeals.1
¶2 Two issues of law are presented:
¶3 The first issue is whether, under the totality of the
circumstances, the defendant has the right as a matter of law to
withdraw his no-contest plea on the ground that it was not
entered knowingly, intelligently, and voluntarily. The basis
for the defendant's challenge to his plea is that when he was
deciding whether to accept the State's plea offer or go to
trial, the State, the court, and the defendant's trial counsel
mistakenly advised the defendant that he was facing a mandatory
sentence of life in prison without the possibility of extended
supervision.
¶4 The second issue is whether, under the totality of the
circumstances, the defendant has the right as a matter of law to
withdraw his no-contest plea on the ground that he has
demonstrated ineffective assistance of counsel. The alleged
ineffective assistance of counsel is that defendant's trial
counsel mistakenly advised the defendant that he was facing a
mandatory sentence of life in prison without the possibility of
extended supervision if he did not accept the State's plea
offer.
¶5 The error of law in the instant case, which permeated
the entire proceeding and which is the basis of the defendant's
1
State v. Dillard, 2013 WI App 108, 350 Wis. 2d 331, 838
N.W.2d 112.
2
No. 2012AP2044-CR
claims, was the State's erroneous attachment of a persistent
repeater enhancer to the armed robbery charge.
¶6 If the defendant had been convicted of armed robbery
under the persistent repeater statute, he would have faced a
mandatory sentence of life in prison without the possibility of
extended supervision. It is undisputed that the defendant did
not meet the criteria for being a persistent repeater. The
error did not come to light until after sentencing. Thus, the
State, the court, the defendant's trial counsel, and the
defendant proceeded under the mistaken belief that the
persistent repeater enhancer applied to the defendant and that
he therefore could have faced a mandatory life sentence if he
did not accept the State's offer and enter a plea.
¶7 The circuit court denied the defendant's
postconviction motion to withdraw his no-contest plea, holding
that the plea was knowing, intelligent, and voluntary and that
the defendant did not receive ineffective assistance of counsel.
¶8 The court of appeals reversed the judgment of
conviction and the circuit court's order denying the defendant's
postconviction motion to withdraw his no-contest plea. It
remanded the matter to the circuit court to allow the defendant
to withdraw his plea. The court of appeals concluded that the
defendant's plea was not knowing, intelligent, and voluntary and
that the defendant received ineffective assistance of counsel.
¶9 With regard to the first issue, we conclude that the
defendant has proved that the no-contest plea was not knowing,
intelligent, and voluntary and thus that the matter should be
3
No. 2012AP2044-CR
remanded to the circuit court to allow the defendant to withdraw
his no-contest plea.
¶10 Although the matter is resolved on the first issue, we
also address the second issue. We conclude that the defendant
has proved that he received ineffective assistance of trial
counsel and thus that the matter should be remanded to the
circuit court to allow the defendant to withdraw his no-contest
plea.
¶11 Accordingly, the decision of the court of appeals is
affirmed.
I
¶12 For purposes of this review, the following facts and
procedural history are not in dispute.
¶13 This case arises out of an armed robbery that took
place in December 2009 in Menasha, Wisconsin. The victim was
sitting in her car in a shopping center parking lot when a man
opened the passenger-side door and entered her vehicle. He put
a gun up to the victim's arm and told her to begin driving. He
also told the victim to hand over her cash, which she did. The
man directed the victim to pull the car over near some
apartments. He then informed her he would exit the vehicle. He
instructed her to count to 30 after he exited and then to drive
away.
¶14 The victim cooperated with law enforcement to identify
the man who robbed her. First, she helped investigators develop
a composite sketch of the man. The defendant was on probation
at the time of the robbery. His probation agent thought the
4
No. 2012AP2044-CR
composite sketch resembled the defendant. However, when the
victim was provided with a photo array that included a photo of
the defendant, she did not recognize him as the robber.
¶15 Several months later, the victim saw a photograph of
the defendant while looking through an online sex offender
database. This photograph was the same one the victim had
viewed in the photo array. The victim contacted the police and
said she believed the defendant was the man who robbed her.
¶16 The defendant was arrested and charged with two
counts: armed robbery in violation of Wis. Stat. § 943.32(2)
(2011-12),2 with a persistent repeater enhancer pursuant to Wis.
Stat. § 939.62, and false imprisonment in violation of Wis.
Stat. § 940.30, with a repeater enhancer pursuant to Wis. Stat.
§ 939.62.
¶17 Had the defendant been convicted of armed robbery as a
persistent repeater, he would have faced a mandatory sentence of
life in prison without the possibility of extended supervision.
¶18 Had the defendant been convicted of armed robbery and
of false imprisonment as a repeater, without the persistent
repeater enhancer erroneously attached to the armed robbery
charge, he would have faced a maximum sentence of 32 years of
confinement and 18 years of extended supervision.
¶19 The State offered a plea agreement in which the
persistent repeater enhancer was dropped, as was the false
2
All references to the Wisconsin Statutes are to the 2011-
12 version unless otherwise noted.
5
No. 2012AP2044-CR
imprisonment charge. The defendant agreed to plead to the
charge of armed robbery without any penalty enhancer.
¶20 The plea colloquy in the present case correctly
informed the defendant of the penalty for armed robbery without
a penalty enhancer.
¶21 Adhering to the plea agreement, the prosecutor
recommended a sentence of eight years' initial confinement with
an open term of extended supervision. A presentence
investigation report (PSI) recommended a sentence of 10 to 11
years of confinement and five to six years of extended
supervision.
¶22 The plea agreement permitted the defendant to argue
for a more lenient sentence. The defendant's trial counsel
urged the circuit court to impose a sentence of five years'
initial confinement to run consecutive to a sentence the
defendant was then serving. Trial counsel further requested "a
lengthy term of extended supervision."
¶23 The circuit court sentenced the defendant to a
bifurcated sentence of 25 years of initial confinement and 15
years of extended supervision.
¶24 Again, the error of law pervading these proceedings
was the attachment of the persistent repeater enhancer to the
armed robbery charge against the defendant.
¶25 From the defendant's initial appearance through
sentencing, the court, the prosecuting attorney, and the
defendant's trial counsel all advised the defendant that he was
subject to the persistent repeater enhancer.
6
No. 2012AP2044-CR
¶26 At the defendant's initial appearance, prior to the
appointment of defense counsel, the court commissioner twice
informed the defendant that the criminal complaint alleged that
he is a persistent repeater subject to life imprisonment without
the possibility of parole.3 The court commissioner stated and
then restated:
The Court: It is alleged in Count 1 of the criminal
Complaint that you've committed the offense of armed
robbery. It is alleged that you would be a persistent
repeater as that term is defined under the Wisconsin
State Statutes, that would therefore subject you, if
convicted on the persistent repeater, of life
imprisonment without the possibility of parole.
¶27 At the preliminary hearing, the court commissioner
again referenced the persistent repeater enhancer, telling the
defendant that "there is the persistent repeater enhancer on
Count 1 so there is significant incarceration and penalties
involved in regards to this case." Neither the prosecuting
attorney nor the defendant's trial counsel corrected this
mistake of law.
¶28 At sentencing, after the persistent repeater enhancer
had been dismissed by the State and only the armed robbery
charge remained, the circuit court referenced the mandatory life
sentence the defendant would have faced if convicted of armed
robbery as a persistent repeater.
3
See Wis. Stat. § 757.69 (stating the powers of court
commissioners).
7
No. 2012AP2044-CR
¶29 The prosecutor misinformed the court and the defendant
that the defendant was subject to the persistent repeater
enhancer.
¶30 At the initial appearance, in requesting a $100,000
cash bond, the prosecutor noted that the defendant "qualifies as
a persistent repeater. If he gets convicted of Count 1 that's
life without parole."
¶31 On March 21, 2011, after the preliminary examination,
the State filed an information that included the persistent
repeater enhancer.
¶32 As we explain more fully later, the defendant's trial
counsel advised the defendant that he was subject to the
persistent repeater enhancer and therefore faced mandatory life
imprisonment without extended supervision. Trial counsel based
her advice to the defendant about accepting the plea agreement
on this mistaken view of the law.
¶33 That the persistent repeater enhancer was an error of
law, that is, a legal impossibility, did not come to light until
after sentencing.
II
¶34 We first address whether, under the totality of the
circumstances, the defendant has the right as a matter of law to
withdraw his no-contest plea on the ground that it was not
entered knowingly, intelligently, and voluntarily. The basis
for the defendant's challenge to his plea is that when he was
deciding whether to accept the State's plea offer or go to
trial, the State, the court, and the defendant's trial counsel
8
No. 2012AP2044-CR
mistakenly advised the defendant that he was facing a mandatory
sentence of life in prison without the possibility of extended
supervision.
¶35 We agree with the court of appeals that "the
fundamental error of law [about the applicability of the
persistent repeater enhancer to the defendant] that pervaded the
plea negotiations and sentencing" rendered the defendant's plea
unknowing, unintelligent, and involuntary.4
¶36 The applicable standard of review is as follows: To
withdraw a guilty plea after sentencing, a defendant must show
by clear and convincing evidence that a refusal to allow
withdrawal of the plea would result in manifest injustice, that
is, that there are "serious questions affecting the fundamental
integrity of the plea."5 The defendant has the burden to
establish manifest injustice.6
4
Dillard, 350 Wis. 2d 331, ¶21.
5
State v. Denk, 2008 WI 130, ¶71, 315 Wis. 2d 5, 758
N.W.2d 775.
6
State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50
(1996).
In past cases, the court has recited that the clear and
convincing evidence standard applies to the defendant's burden
of proving manifest injustice, without distinguishing between
the various ways that manifest injustice can be proven. We
apply the clear and convincing evidence standard in the present
case.
9
No. 2012AP2044-CR
¶37 There are several ways a defendant may demonstrate
manifest injustice.7 One way is to show that the defendant did
not enter the plea knowingly, intelligently, and voluntarily.8 A
plea that was "not entered knowingly, voluntarily, and
intelligently violates fundamental due process, and a defendant
therefore may withdraw the plea as a matter of right."9
¶38 Whether a defendant's plea was entered knowingly,
intelligently, and voluntarily is a question of constitutional
fact.10 An appellate court upholds the circuit court's findings
of historical facts unless they are clearly erroneous.11 An
appellate court independently determines whether those facts
demonstrate that the defendant's plea was knowing, intelligent,
and voluntary, benefiting from the analyses of the circuit court
and court of appeals.12
¶39 In numerous cases, the court has held that affirmative
misinformation about the law provided by the prosecutor and
7
State v. Cain, 2012 WI 68, ¶26, 342 Wis. 2d 1, 816
N.W.2d 177.
8
State v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d 594, 716
N.W.2d 906.
9
State v. Cross, 2010 WI 70, ¶14, 326 Wis. 2d 492, 786
N.W.2d 64.
10
Cross, 326 Wis. 2d 492, ¶14; Bentley, 201 Wis. 2d at 311.
11
State v. Dawson, 2004 WI App 173, ¶7, 276 Wis. 2d 418,
688 N.W.2d 12.
12
State v. Hoppe, 2009 WI 14, ¶61, 317 Wis. 2d 161, 765
N.W.2d 794.
10
No. 2012AP2044-CR
defense counsel can support a holding that withdrawal of a plea
of guilty or no contest must be permitted because the plea is
uninformed and its voluntariness is compromised.13 Appellate
13
See, e.g., State v. Riekkoff, 112 Wis. 2d 119, 332
N.W.2d 744 (1983) (holding that when the defendant pled guilty
incorrectly believing he could seek appellate review of an
evidentiary order, he misunderstood the effects of his plea and
the plea was therefore involuntary); State v. Brown, 2004 WI App
179, 276 Wis. 2d 559, 687 N.W.2d 543 (holding that when the
State promised to drop, but did not drop, all charges requiring
the defendant to register as a sex offender or subjecting the
defendant to Chapter 980 civil confinement, the defendant's plea
was involuntary); Dawson, 276 Wis. 2d 418 (holding that the
legally unenforceable reopen-and-amend provision of the
defendant's plea deal rendered the plea involuntary); State v.
Woods, 173 Wis. 2d 129, 496 Wis. 2d 144 (Ct. App. 1992) (holding
that a guilty plea entered at least in part based on inaccurate
legal information about sentencing was neither knowing nor
voluntary).
11
No. 2012AP2044-CR
courts at the state14 and federal15 levels have similarly
concluded that misinformation given to a defendant about the
consequences of conviction may warrant withdrawal of a guilty
plea.
¶40 In determining whether a similar holding is
appropriate here, we review the totality of the circumstances,
14
See, e.g., Reeves v. State, 564 N.E.2d 550, 553 (Ind. Ct.
App. 1991) (trial counsel's recommendation that Reeves "accept
the plea agreement to avoid being charged as an habitual
offender——when Reeves was not habitual eligible" rendered the
plea involuntary); Nash v. State, 429 N.E.2d 666, 672 (Ind. Ct.
App. 1981) ("In the instant case, Nash was a 30 year old man
facing a possibility of a substantial amount of time being
tacked on to his sentence by virtue of the improper habitual
offender counts. Even if we accept the proposition that this
was not the 'main' motivation for his guilty plea, the
uncontradicted testimony leads unerringly to the conclusion that
it played a significant part in the plea negotiations and
therefore rendered the bargain illusory."); People v. Graves,
523 N.W.2d 876, 878 (Mich. Ct. App. 1994) ("Because there is a
legal bar to conviction on the charge that was dismissed
pursuant to the plea bargain, and defendant's plea was induced
by a promise to forgo that charge, defendant was misinformed
concerning the benefit of his plea. Thus, defendant is entitled
to withdraw his guilty plea as not having been understandingly
and voluntarily made."); People v. Lawson, 255 N.W.2d 748, 750
(Mich. Ct. App. 1977) ("Since defendant surrendered his right to
trial in apparent misapprehension of the value of commitments
made to him, he should be allowed to withdraw his plea.").
15
See, e.g., Hammond v. United States, 528 F.2d 15, 19 (4th
Cir. 1975) ("Where, as here, counsel's alleged advice,
corroborated by the information supplied by the court, grossly
exaggerated the benefit to be derived from the pleas of guilty,
it would follow that the pleas were not voluntary.").
12
No. 2012AP2044-CR
including the record of the postconviction hearing at which only
the defendant and his trial counsel testified.16
¶41 The defendant testified at the postconviction hearing
that, early on, he intended to go to trial because he believed
the State's case was weak. The main weakness of the State's
case, in the defendant's opinion, was the victim's failure to
identify him when provided with a photo array that included his
photo. The State acknowledged this weakness of its case.
¶42 The prosecuting attorney explained at the sentencing
hearing that the State had agreed to recommend the sentence it
did in exchange for the defendant's plea "because there were
some underlying factual burdens that were going to be difficult
for the State. . . . [I]dentity may have been a problem . . . ."
¶43 In addition, the State's reply brief in this court
acknowledges that "it can be problematic to show an eye witness
a photo of a suspect during a subsequent photo array when the
witness has previously seen, and failed to identify, that photo
at a previous array."17
16
The hearing on the defendant's postconviction motion was
a Machner hearing. See State v. Machner, 92 Wis. 2d 797, 804,
285 N.W.2d 905 (1979). Several cases discuss the allegations
required in a postconviction motion seeking plea withdrawal to
entitle a defendant to a Machner hearing on the ground that the
plea resulted from ineffective assistance of counsel. See,
e.g., Bentley, 201 Wis. 2d at 316; State v. Saunders, 196
Wis. 2d 45, 48, 538 N.W.2d 546 (Ct. App. 1995). The defendant's
motion in the present case was obviously sufficient under these
cases. A Machner hearing took place.
17
Reply Brief of Plaintiff-Respondent-Petitioner at 11.
13
No. 2012AP2044-CR
¶44 The defendant testified that, in spite of his initial
intention to go to trial, when he considered the possibility of
receiving a sentence of life in prison without extended
supervision he decided he "couldn't take that chance." The
defendant thus entered a no-contest plea because, in his words,
"even though there's not a lot of proof, I can't take the chance
of not coming out . . . . I mean life without parole is life
without parole . . . it's just too much."
¶45 The defendant further testified that the greatest
benefit of the plea deal was "getting rid of the persistent
repeater." He stated that he entered the plea to "make the life
without parole go away so that I could get myself a chance to
get out."
¶46 The defendant acknowledged that he might not have
filed a postconviction motion for plea withdrawal if he had
received the sentence the State recommended. He nonetheless
insisted that the dropped persistent repeater enhancer was his
main reason for accepting the plea offer and that the
inapplicability of that enhancer rendered his plea involuntary.
¶47 The defendant's trial counsel confirmed the
defendant's declarations to a large extent. Trial counsel
testified that the defendant had expressed a strong desire for
the "opportunity for a life on the outside with his wife"; that
prior to receiving the State's plea offer, the defendant never
said he did not want to go to trial; and that trial counsel knew
the defendant was greatly concerned about the persistent
repeater enhancer.
14
No. 2012AP2044-CR
¶48 Trial counsel further testified that the State's offer
to drop the persistent repeater enhancer was the most
significant factor motivating her recommendation that the
defendant accept the plea deal. A letter trial counsel sent the
defendant after the State made its plea offer corroborates this
testimony. The letter was entered into evidence at the
postconviction hearing. It states:
If convicted on count one as alleged, you would face
life in prison with NO POSSIBILITY of parole or
extended supervision. . . . The State is recommending
that you plead to count one, without the persistent
repeater. . . .
In light of the State's willingness to dismiss
the persistent repeater in count one and to dismiss
outright the charge of false imprisonment in count
two, I believe that it is in your best interest to
give serious consideration to the State's offer. You
are still able to argue for a lower sentence through
me, however you would not face life in prison if
convicted.
(Emphasis in original.)
¶49 Trial counsel also testified that she would have
advised the defendant to enter the plea agreement regardless of
the persistent repeater enhancer. Trial counsel considered the
State's offer to recommend just eight years' initial confinement
a good deal for the defendant.
¶50 In the letter quoted above, trial counsel explained
that if the defendant chose to go to trial, the State intended
to introduce other acts evidence of the defendant's past
convictions, which involved multiple counts of armed robbery and
sexual assault. Trial counsel advised the defendant that this
15
No. 2012AP2044-CR
evidence, along with evidence that the victim identified him as
a result of looking at a sex offender database, would be "very
devastating" to his case. Trial counsel informed the defendant
that the victim made a very credible witness.
¶51 Finally, trial counsel testified that, in her view,
the defendant agreed to plead no contest based on the totality
of the circumstances, not just the dropped penalty enhancer.
¶52 The defendant presented a persuasive account
(including his testimony, that of defense counsel, and trial
counsel's letter to the defendant) of why, absent the
misinformation he received about the persistent repeater
enhancer, he would not have entered a no-contest plea, why he
would have gone to trial, and why the no-contest plea was not
knowing, intelligent, and voluntary.
¶53 The State points to several parts of the record to
support its contention that, regardless of the mistake of law
regarding the applicability of the persistent repeater enhancer
to the defendant, he would have accepted the State's plea offer.
The State argues there were multiple factors at play, including
the potential admission of other acts evidence and the apparent
credibility of the State's main witness (the victim).
¶54 The State emphasizes trial counsel's statement that
she believed the defendant accepted the plea offer based on "the
totality of the circumstances," which included the potential
admission of other acts evidence and the apparent credibility of
the State's main witness (the victim). But the State
acknowledges that trial counsel also identified the dropped
16
No. 2012AP2044-CR
persistent repeater enhancer as "the most significant factor"
contributing to the defendant's decision to enter a plea of no
contest.
¶55 The State also points to trial counsel's statement
that she would have advised the defendant to enter a plea
regardless of the dropped enhancer. In contrast, the
defendant's testimony supports the conclusion that the defendant
would not have heeded his counsel's advice to accept the plea
agreement if he had known the persistent repeater enhancer was
inapplicable.
¶56 Finally, the State argues the defendant's motivation
for moving to withdraw his plea is evidence the plea was
knowing, intelligent, and voluntary. The defendant conceded at
the postconviction hearing that had he received the sentence the
State recommended, he would not now be challenging his plea.
¶57 The circuit court raised this point at the conclusion
of the postconviction hearing, announcing as follows: "[T]he
only reason we're here on appeal is because I did not go along
with those recommendations and I gave him the maximum
sentence. . . . [N]ow that he's got the sentence he doesn't like
it and now he wants to appeal it and find a way to do so."
¶58 The State asserts that because the defendant admitted
that his dissatisfaction with his sentence drove his decision to
challenge the plea, his challenge must fail.
¶59 The court of appeals was not persuaded by the State's
arguments. Neither are we.
17
No. 2012AP2044-CR
¶60 First, for a defendant to show that a plea was not
knowing, intelligent, and voluntary, the case law does not
require that the decision to plead no contest be based
exclusively on the misinformation the defendant received.18
Rather, a guilty or no-contest plea is not voluntary unless the
defendant is "fully aware of the direct consequences [of his
plea], including the actual value of any commitments made to him
by the court, prosecutor, or his own counsel . . . ."19
¶61 In the instant case, the defendant's no-contest plea
was not made with full knowledge of the factors pertinent to a
decision regarding whether to plead or proceed to trial. The
defendant did not know the actual value of the commitments made
to him by the prosecutor in the plea offer.
18
See, e.g., Woods, 173 Wis. 2d 129 (a guilty plea entered
at least in part based on inaccurate legal information about
sentencing was neither knowing nor voluntary).
19
The United States Supreme Court stated the standard for
voluntariness in Brady v. United States, 397 U.S. 742, 755
(1970), as follows:
The standard as to the voluntariness of guilty pleas
must be essentially that defined by Judge Tuttle of
the Court of Appeals for the Fifth Circuit:
"(A) plea of guilty entered by one fully aware of the
direct consequences, including the actual value of any
commitments made to him by the court, prosecutor, or
his own counsel, must stand unless induced by threats
(or promises to discontinue improper harassment),
misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that
are by their nature improper as having no proper
relationship to the prosecutor's business (e.g.
bribes).' 242 F.2d at page 115."
18
No. 2012AP2044-CR
¶62 Second, the defendant repeatedly asserted that
eliminating the possibility of receiving a mandatory life
sentence was his primary motivation for entering the plea
agreement. Trial counsel's testimony supports the defendant's
testimony.
¶63 Third, the disparity between the sentence the
defendant thought he would face if convicted of armed robbery
with a persistent repeater enhancer and the maximum sentence he
would have faced without the persistent repeater enhancer
attached to the armed robbery charge was significant. According
to the court of appeals, "[t]he hope that one will live long
enough to have a life outside the prison walls is, as the
advertisement goes, priceless." Because the defendant "thought
he had to bargain for that hope," he pled no contest.
¶64 At oral argument, Justice Prosser and the State
posited that the State could have amended its complaint to
attach a repeater enhancer (as opposed to a persistent repeater
enhancer) to the armed robbery charge. Had the State done so,
the defendant would have faced an additional six years of
confinement, for a total of 38 years of confinement.
¶65 The implication of this reasoning is that, for this
51-year-old defendant, there is no significant difference
between a maximum sentence of 32 or 38 years in prison and a
mandatory sentence of life in prison without the possibility of
extended supervision.
¶66 This reasoning overlooks the crucial fact that the
statutory penalty of 32 or 38 years in prison represents the
19
No. 2012AP2044-CR
maximum penalty a circuit court may impose. A circuit court
may, in its discretion, impose a lesser term of confinement. In
contrast, the persistent repeater enhancer imposes life in
prison as a mandatory sentence. The circuit court has no choice
but to impose that sentence. The possibility that a circuit
court may impose a sentence less than the statutory maximum is
important to the defendant in deciding whether to enter a plea.
¶67 Fourth, while the sentence imposed by the circuit
court may be driving the defendant's pursuit of plea withdrawal,
the appropriate inquiry is not into the defendant's motivation
for filing the postconviction motion. Rather, the appropriate
inquiry is into the defendant's motivation for entering the no-
contest plea in the first place. The defendant's subsequent
satisfaction or dissatisfaction with his sentence has no bearing
on whether his initial decision to enter a plea was knowing,
intelligent, and voluntary.
¶68 Fifth, if the defendant's trial counsel were
ineffective (and we conclude in Part III that she was
ineffective), it follows that the defendant's plea was not
knowing, intelligent, and voluntary. "[T]he sine qua non to a
voluntary plea of guilty is the assistance of counsel 'within
the range of competence required of attorneys representing
defendants in criminal cases.'"20
20
Hammond, 528 F.2d at 18 (citing Parker v. North Carolina,
397 U.S. 790, 797-98 (1970)).
20
No. 2012AP2044-CR
¶69 Considering the totality of the circumstances, we
conclude that the defendant entered into the plea agreement
without knowing the actual value of the State's plea offer and
relying on misinformation from the court, the State, and trial
counsel about the applicability of the persistent repeater
enhancer. As a result, the defendant was prevented from making
a reasoned decision whether to proceed to trial or plead. The
misinformation undermined the defendant's capacity to knowingly,
intelligently, and voluntarily choose between accepting the
State's plea offer and proceeding to trial. Thus, we conclude
that the defendant established that he did not knowingly,
intelligently, and voluntarily enter the plea of no contest.
¶70 A plea that was "not entered knowingly, voluntarily,
and intelligently violates fundamental due process, and a
defendant therefore may withdraw the plea as a matter of
right."21 The defendant must be permitted to withdraw his no-
contest plea.
¶71 Before we turn to the second issue regarding
ineffective assistance of counsel, we examine the State's
argument that the instant case is governed by State v. Denk,
2008 WI 130, 315 Wis. 2d 5, 758 N.W.2d 775, and that the court
of appeals incorrectly applied Denk to the instant case.22
21
Cross, 326 Wis. 2d 492, ¶14.
22
The State asserts that the court of appeals incorrectly
applied the Cross case to the instant case. Both the State and
the defendant agree that Cross is inapplicable to the instant
case. We agree.
(continued)
21
No. 2012AP2044-CR
¶72 We briefly state the facts in the Denk case to compare
it to the present case.
¶73 Denk was charged with Class I felony possession of
methamphetamine, Class H felony possession of drug
paraphernalia, misdemeanor possession of marijuana, and
misdemeanor possession of drug paraphernalia. Pursuant to a
plea agreement, Denk pled no contest to felony possession of
methamphetamine. The State dismissed the remaining charges.
¶74 Denk subsequently filed a postconviction motion to
withdraw his plea, arguing that "there was no factual basis for
charging him with one felony count of possession of
methamphetamine paraphernalia [the dismissed charge]. . . and
thus, the district attorney's offer to drop the charge provided
an illusory benefit."23 Denk's appellate counsel argued that the
methamphetamine paraphernalia in Denk's possession "was intended
for personal use," while the statute relating to paraphernalia
The defect alleged in Cross was "insubstantial"
misinformation about the penalty given to the defendant during
the plea colloquy. In contrast, the plea colloquy in the
present case correctly informed the defendant of the penalty for
armed robbery without a penalty enhancer.
In the present case, unlike in Cross, the defendant's
acceptance of the State's proposed plea agreement and the
defendant's entry of the plea of no-contest to armed robbery
were induced by "significant" misinformation the defendant
received prior to the plea colloquy regarding the penalty he
would face if he did not accept the State's proposed plea
agreement and enter a plea of no contest.
23
Denk, 315 Wis. 2d 5, ¶23.
22
No. 2012AP2044-CR
under which he was charged "related to the manufacture of
methamphetamine." Thus, Denk argued that the State's dropping
the charge provided an illusory benefit. This court did not
allow Denk to withdraw his plea.24
¶75 There is a superficial similarity between Denk and the
instant case. The two cases are, however, significantly
different. The instant case is not a Denk case. It is a case
of first impression.
¶76 In short, in Denk the charge that was dismissed
pursuant to Denk's plea agreement did not pose a legal or
factual impossibility. The Denk court did not decide (and the
record did not demonstrate) that there was no factual or legal
basis for that charge.
¶77 In Denk, there was a factual and legal dispute about
what Denk was doing with the methamphetamine paraphernalia,
about whether the State could have proved the dismissed charge
beyond a reasonable doubt, and about the proper scope of the
24
Denk distinguished a line of cases in which (1) "the
dispute involved the charge to which the defendant actually
pled"; (2) "the consequence for which the defendant had
bargained when he entered the plea to the charge was a legal
impossibility"; and (3) "the defendant failed to understand the
inevitable consequences of his plea to that charge, thus
rendering his plea . . . involuntary." Denk, 315 Wis. 2d 5,
¶75. These three factors were not set out as the sole
prerequisites in all cases to proving a plea was entered
unknowingly, unintelligently and involuntarily. Rather, Denk
outlined these factors to summarize our prior plea cases
involving mistakes of law and legally unenforceable promises by
the State.
23
No. 2012AP2044-CR
statute applicable to the dismissed felony. The Denk court
recognized that it was uncertain whether the State would have
prevailed on the dismissed charge. At that stage in the
proceeding, however, Denk had not demonstrated that the
dismissed charge was a factual or legal impossibility. Denk
thus benefitted when the felony drug paraphernalia charge was
dropped pursuant to the plea agreement.
¶78 In contrast, it is undisputed in the present case that
the persistent repeater enhancer attached to the armed robbery
charge could not, as a matter of law, have been applied to the
defendant. The law required the State to drop the persistent
repeater enhancer. The State's offer to drop the persistent
repeater enhancer as part of the plea agreement provided no
benefit to the defendant.
¶79 In the present case, the plea offer was significantly
less valuable than the defendant believed because the persistent
repeater enhancer was a legal impossibility. 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.
¶80 No prior case has addressed the validity of a guilty
or no-contest plea entered to avoid a penalty enhancer attached
to a felony charge when that penalty enhancer was indisputably a
legal impossibility. The instant case presents a question of
first impression. We have addressed that question here.
III
24
No. 2012AP2044-CR
¶81 Although the matter is resolved on the first issue, we
turn now to the second issue: Under the totality of the
circumstances, did the defendant have the right as a matter of
law to withdraw his no-contest plea on the ground that he
demonstrated ineffective assistance of counsel? The basis for
the defendant's ineffective assistance of counsel claim is that
the defendant's trial counsel mistakenly advised the defendant
he would face a mandatory sentence of life in prison without the
possibility of extended supervision if he did not accept the
plea agreement.
¶82 We agree with the court of appeals that the
defendant's trial counsel was constitutionally ineffective.
¶83 The applicable standard of review for this issue is
the same as for the first issue: To withdraw a guilty plea
after sentencing, a defendant must show by clear and convincing
evidence that a refusal to allow withdrawal of the plea would
result in manifest injustice, that is, that there are "serious
questions affecting the fundamental integrity of the
25
No. 2012AP2044-CR
plea . . . ."25 There are several ways the defendant can meet
this burden of proof.26
¶84 One way to demonstrate manifest injustice is to
establish that the defendant received ineffective assistance of
counsel.27 Ineffective assistance of counsel claims are rooted
in the United States and Wisconsin constitutions. Article I,
Section 7 of the Wisconsin Constitution and the Sixth Amendment
to the United States Constitution (applied to the states by the
Fourteenth Amendment) guarantee criminal defendants the right to
effective assistance of counsel.
¶85 To show he has been deprived of that right, the
defendant must prove (1) that trial counsel's performance was
deficient; and (2) that this deficiency prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668 (1984).
¶86 Whether the defendant received ineffective assistance
of counsel is a question of constitutional fact.28 An appellate
25
Denk, 315 Wis. 2d 5, ¶71. See also Brown, 293
Wis. 2d 594, ¶18; Bentley, 201 Wis. 2d at 311.
In past cases, the court has recited that the clear and
convincing evidence standard applies to the defendant's burden
of proving manifest injustice, without distinguishing between
the various ways that manifest injustice can be proven. We
apply the clear and convincing evidence standard in the present
case.
26
Cain, 342 Wis. 2d 1, ¶26.
27
Bentley, 201 Wis. 2d at 311.
28
State v. Jenkins, 2014 WI 59, ¶38, 355 Wis. 2d 180, 848
N.W.2d 786.
26
No. 2012AP2044-CR
court upholds the circuit court's findings of fact unless they
are clearly erroneous. "Findings of fact include 'the
circumstances of the case and the counsel's conduct and
strategy.'"29 An appellate court independently determines
whether those historical facts demonstrate that defense
counsel's performance met the constitutional standard for
ineffective assistance of counsel, benefiting from the analyses
of the circuit court and court of appeals.30
¶87 We first explore whether trial counsel's performance
was deficient.
¶88 The test for deficiency of performance is objective:
Under the totality of the circumstances, did trial counsel's
performance fall "outside the wide range of professionally
competent assistance"?31 "Normally, judicial scrutiny of an
attorney's performance will be highly deferential."32
¶89 The State has not challenged the defendant's
contention that trial counsel's performance fell below an
objective standard of reasonableness.
¶90 A defendant's decision whether to go to trial or plead
no contest (or guilty) is generally the most important decision
29
State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665
N.W.2d 305
30
Jenkins, 355 Wis. 2d 180, ¶38.
31
Strickland v. Washington, 466 U.S. 668, 690 (1984); State
v. Smith, 207 Wis. 2d 258, 274, 558 N.W.2d 379 (1997).
32
Smith, 207 Wis. 2d at 274.
27
No. 2012AP2044-CR
to be made in a criminal case. A defendant should have the
benefit of an attorney's advice on this crucial decision.33
¶91 We agree with the court of appeals that the defendant
has shown that trial counsel performed deficiently when she
failed to ascertain that the persistent repeater enhancer was,
as a matter of law, inapplicable to the defendant and when she
advised the defendant to enter the plea agreement based in large
part on the State's offer to drop that enhancer.
¶92 Our decisions in State v. Carter, 2010 WI 40, 324
Wis. 2d 640, 782 N.W.2d 695, and State v. Domke, 2011 WI 95, 337
Wis. 2d 268, 805 N.W.2d 364, are instructive regarding the
extent to which counsel is required to know or investigate the
relevant law. These cases teach that to meet the constitutional
standard for effective assistance, "[c]ounsel must either
reasonably investigate the law and facts or make a reasonable
33
United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998)
(quoting Boria v. Keane, 99 F.3d 492, 496–97 (2d Cir. 1996)
(quoting Anthony G. Amsterdam, Trial Manual 5 for the Defense of
Criminal Cases § 201, at 339)). See also Patterson v. LeMaster,
21 P.3d 1032, 1036 (N.M. 2001) (citing Gordon).
See also ABA Standards for Criminal Justice § 14-3.2 (3d
ed. 1999)("To aid the defendant in reaching a decision defense
counsel, after appropriate investigation, should advise the
defendant of the alternatives available . . . . Defense counsel
should not recommend acceptance of a plea unless appropriate
investigation and study of the case has been completed.").
28
No. 2012AP2044-CR
strategic decision that makes any further investigation
unnecessary."34
¶93 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. The persistent repeater enhancer statute is not obscure
or unsettled law as applied to the facts of the present case.
Thus, trial counsel performed deficiently because she did not
know or reasonably investigate a clear statute erroneously
applied to the defendant and because she offered no explanation
for her failure to know or investigate the statute.
Furthermore, defense counsel's advice to the defendant about his
plea was based on the erroneously applied statute.
¶94 We turn to the prejudice prong of the Strickland test
for ineffective assistance of counsel.
¶95 To prove prejudice, a defendant "must show that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome."35
34
State v. Domke, 2011 WI 95, ¶41, 337 Wis. 2d 268, 805
N.W.2d 364 (citing Carter, 324 Wis. 2d 640, ¶23 (quoting
Strickland, 466 U.S. at 691: "[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.")).
35
Strickland, 466 U.S. at 694.
29
No. 2012AP2044-CR
¶96 Thus, the defendant in the present case must
demonstrate that there is a reasonable probability he would not
have pled no contest and that he would have gone to trial had he
known the persistent repeater enhancer was a legal
impossibility.36
¶97 The State argues that the defendant did not prove that
trial counsel's deficient performance was prejudicial. The
State characterizes the circuit court's declaration that the
defendant would have pled no contest even absent the error of
including the penalty enhancer as a finding of fact and a
finding about the defendant's credibility.
¶98 The circuit court never explicitly or implicitly made
a finding that the defendant's testimony was incredible.
Rather, the circuit court concluded, as a matter of law, that
under the totality of circumstances the defendant failed to show
that there was a reasonable probability he would have gone to
trial absent counsel's error.
¶99 This court determines independently, as a matter of
law, whether the facts demonstrate prejudice, that is, whether
under the totality of the circumstances there is a reasonable
probability the defendant would not have pled no contest and
would have gone to trial had he known the persistent repeater
36
Hill v. Lockhart, 474 U.S. 52, 59 (1985) ("[I]n order to
satisfy the 'prejudice' requirement, the defendant must show
that there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted
on going to trial."); Bentley, 201 Wis. 2d at 312.
30
No. 2012AP2044-CR
enhancer was a legal impossibility. "[I]t is by no means
obvious how a court is to determine the probability that a
defendant would have gone to trial. It is clear enough that a
defendant must make more than a bare allegation that he 'would
have pleaded differently and gone to trial' . . . ."37 The
defendant in the present case made more than a bare allegation
that he would have pleaded differently and gone to trial.
¶100 The defendant does not rely on a conclusory assertion
of prejudice. Rather, he presented a persuasive factual account
of the special circumstances that support his contention that he
would have gone to trial absent the misinformation he received
about the persistent repeater enhancer.38 The defendant detailed
why his plea of no contest was a direct consequence of the
misinformation he received about the penalty he faced. The
defendant's testimony is supported by trial counsel's testimony
and the record. The record allows the court to meaningfully
address the defendant's claim of prejudice.
¶101 The defendant explained that he perceived the State's
case as having a weak spot (which the State acknowledged at
sentencing and in this court) and that he would have gone to
37
United States v. Horne, 987 F.2d 833, 835-36 (D.C. Cir.
1993), cert. denied, 510 U.S. 852 (1993).
38
Hill, 474 U.S. at 50 (the defendant should allege that
had counsel correctly informed him about the penalty, he would
have insisted on going to trial and should further allege
special circumstances that might support the conclusion that he
placed particular emphasis on the misinformation in deciding
whether to plead no contest).
31
No. 2012AP2044-CR
trial absent his overwhelming desire to avoid a mandatory
sentence of life in prison. The disparity in penalty between
the sentence for armed robbery with the persistent repeater
enhancer (mandatory life in prison) and the sentence for armed
robbery without such an enhancer (a circuit court discretionary
determination of prison for a term of years) was significant to
the defendant. He did not want to forever foreclose the
opportunity to be released from prison. Under these
circumstances the State's dropping the (legally impermissible)
persistent repeater enhancer was a substantial inducement to the
defendant to accept the plea agreement.
¶102 Trial counsel's testimony and written communications
with the defendant were consistent with the defendant's account
of the defendant's state of mind and the events leading up to
the plea agreement.
¶103 The record support a determination of prejudice under
Strickland. Strickland "does not require certainty or even a
preponderance of the evidence that the outcome would have been
different with effective assistance of counsel"; it requires
only "reasonable probability."39
39
Magana v. Hofbauer, 263 F.3d 542, 547 (6th Cir. 2001).
See William v. Taylor, 529 U.S. 362, 405-06 (2000), in
which the Court explained Strickland as follows:
Take, for example, our decision in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L.Ed.2d 674 (1984). If a state court were to reject a
prisoner's claim of ineffective assistance of counsel
on the grounds that the prisoner had not established
(continued)
32
No. 2012AP2044-CR
¶104 Under the totality of the circumstances set forth in
the record (and we have detailed the testimony at ¶¶41-51), we
conclude that the defendant has satisfied the prejudice prong of
the Strickland standard. He has established that there was a
reasonable probability that he would not have pled no-contest
and would instead have gone to trial had he known he did not
face a mandatory sentence of life in prison without the
possibility of extended supervision.
¶105 The recent federal district court decision in Pidgeon
v. Smith, No. 13-cv-57-bbc, 2014 WL 4294965 (W.D. Wis. 2014), is
instructive on the question of prejudice. The issue in Pidgeon,
a federal habeas corpus proceeding, was whether Pidgeon was
denied effective assistance of counsel and was entitled to a
trial.
¶106 In Pidgeon, the prosecutor proposed a plea agreement
promising the defendant that he would not be prosecuted for a
sexual offense in a separate case and that the prosecutor would
recommend a sentence of 10 years in prison followed by 10 years
of supervision. Pidgeon agreed to plead no contest after being
misinformed by his trial counsel of the possibility that, should
by a preponderance of the evidence that the result of
his criminal proceeding would have been different,
that decision would be "diametrically different,"
"opposite in character or nature," and "mutually
opposed" to our clearly established precedent because
we held in Strickland that the prisoner need only
demonstrate a "reasonable probability that . . . the
result of the proceeding would have been different.
33
No. 2012AP2044-CR
he decline the plea offer, he might be subject to Wisconsin's
persistent repeater enhancer statute mandating life in prison
without extended supervision.
¶107 After sentencing, Pidgeon learned (as a result of his
own research) that his prior conviction and the offense in the
separate case did not render him subject to the statutory
persistent repeater enhancer. He sought to withdraw his no-
contest plea. A hearing was held, and Pidgeon and his trial
counsel were the only witnesses. Pidgeon testified that he
entered the plea agreement because he believed he was facing a
mandatory sentence of life in prison.
¶108 The federal district court concluded that Pidgeon's
trial counsel's failure to investigate the prior conviction and
the applicable law was objectively unreasonable: "[A] reasonably
capable lawyer . . . would not tell a client that he faced a
mandatory life sentence without undertaking an investigation to
determine that the advice was accurate."40
¶109 The federal district court further concluded that
Pidgeon's trial counsel's deficient performance was prejudicial,
noting that "[t]he only evidence on point is petitioner's
unrebutted testimony: he would have taken his chances at trial"
had trial counsel not misinformed him that "he ran a strong risk
of getting a life sentence . . . ."41 The federal court stated
40
Pidgeon v. Smith, No. 13-cv-57-bbc, 2014 WL 4294965, at
*5 (W.D. Wis. 2014).
41
Id.
34
No. 2012AP2044-CR
that trial counsel "neither adduced any evidence that would tend
to call petitioner's testimony into question nor suggested that
even if counsel misrepresented the potential sentence petitioner
could receive, it was not significantly different from what he
could actually have received."42 Thus, Pidgeon showed a
reasonable probability that he would not have pled guilty absent
trial counsel's error.
¶110 In sum, with regard to the first issue, we conclude
that the defendant's no-contest plea was not knowing,
intelligent, and voluntary and that the matter should be
remanded to the circuit court to allow the defendant to withdraw
his no-contest plea.
¶111 We also conclude that the defendant received
ineffective assistance of trial counsel and that the matter
should be remanded to the circuit court to allow the defendant
to withdraw his no-contest plea.
¶112 Accordingly, the court of appeals' decision remanding
the matter to the circuit court to allow the defendant to
withdraw his no-contest plea is affirmed.
By the Court.—The decision of the court of appeals is
affirmed.
42
Id.
35
No. 2012AP2044-CR.pdr
¶113 PATIENCE DRAKE ROGGENSACK, J. (dissenting). Myron C.
Dillard was convicted of armed robbery based on his plea of no
contest. He received the maximum permissible sentence for armed
robbery. He moved to withdraw his plea, asserting that manifest
injustice will result if his plea is not vacated. Dillard
asserts his plea was not entered knowingly and intelligently
because his counsel did not tell him that the State could not
prosecute him as a persistent repeater for armed robbery. He
claims ineffective assistance of counsel based on the same
assertion.
¶114 In order to withdraw his plea subsequent to
sentencing, Dillard bears the burden to prove manifest injustice
by clear and convincing evidence. State v. Bentley, 201 Wis. 2d
303, 311, 548 N.W.2d 50 (1996). Dillard failed to shoulder that
burden because he submitted insufficient factual-objective
information at the plea withdrawal hearing. Furthermore, the
circuit court found that Dillard's testimony was not credible.
Accordingly, I would reverse the court of appeals; affirm the
circuit court; and I respectfully dissent from the majority
opinion.
I. BACKGOUND
¶115 The State's charges against Dillard arose from
Dillard's victimization of a young woman, T.L., on December 4,
2009. T.L. was seated in her car in a parking lot when Dillard
opened the front passenger-side door and entered her car. He
forcefully placed a gun against her right shoulder and told her
to drive. T.L. complied, fearing Dillard would shoot her if she
1
No. 2012AP2044-CR.pdr
did not. Dillard asked for money, and T.L. gave him all she
had. He ordered her to drive to various locations, then to
stop, and he exited the car. As he was leaving, he told her not
to call the police or he would come after her and her family and
that he knew where to find her.
¶116 Dillard was convicted of armed robbery, contrary to
Wis. Stat. § 943.32(2) (2011-12).1 His conviction was based on a
plea agreement wherein the State dismissed a count of false
imprisonment, charged as a repeater; dismissed a persistent
repeater charge, in regard to the armed robbery; and the
district attorney recommended eight years of incarceration
consecutive to the time that Dillard was serving. Dillard was
then serving a sentence of four years, seven months and nine
days based on revocation of his parole for two past armed
robberies and two sexual assaults, and revocation of his
extended supervision for convictions of theft and identity
theft.
¶117 At the plea hearing, the court explained to Dillard
that a conviction of armed robbery had a maximum imprisonment of
40 years, with 25 years incarceration and 15 years extended
supervision. The court asked Dillard if he understood that the
court was not bound by any plea agreements and that the court
could sentence him to the maximum for the crime of conviction.
Dillard said that he understood. The court thoroughly reviewed
the constitutional rights that Dillard was giving up through his
1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
No. 2012AP2044-CR.pdr
plea and informed him of the consequences of his plea if he were
not a United States citizen and asked Dillard if he understood.
Dillard said, "Yes, Your Honor." The court asked whether
Dillard was satisfied with the representation that his attorney
had provided to him, and Dillard said that he was. The court
also asked Dillard whether he wanted to ask the court any
questions, and Dillard said, "No, sir, none." The circuit court
then concluded:
The court will find that the defendant understands
these proceedings and is entering his plea to Count 1
without the repeater freely, voluntarily, and
intelligently, and I find that there's a factual basis
for the plea and, therefore, accept the same and will
adjudicate him guilty. Count 2 will be dismissed.
¶118 At the time the plea was accepted, the assistant
district attorney, trial counsel and the judge all mistakenly
believed that the armed robbery charge was subject to a
persistent repeater charge.2 If that belief had been correct,
Dillard would have been subject to a mandatory sentence of life
in prison pursuant to Wis. Stat. § 939.62(2m)(c).
¶119 In addressing the victim, her family and the court at
sentencing, Dillard admitted he committed armed robbery, saying,
"Good morning, everybody. Well, I'm the person who robbed Miss
[T.L.] in December. . . . Not only did I rob Miss [L.] of
money, I frightened her half to death as well. . . . So I'm
2
Dillard was not subject to a persistent repeater charge
because both of his prior armed robbery convictions occurred on
the same day. Wis. Stat. § 939.62(2m)(b)1.; State v. Long, 2009
WI 36, ¶¶35-36, 317 Wis. 2d 92, 765 N.W.2d 557.
3
No. 2012AP2044-CR.pdr
sorry, Miss [L.] for what I've done in harming you." The
defendant was then 50 years of age.
¶120 T.L.'s father spoke at sentencing, and in a prior
letter to the court, T.L.'s father said:
Among other consequences of the assault, [T.] has
been unable to sleep, has had nightmares in which she
relived the assault and has had to relive the
experience over and over each time she has come to
court either testifying or expecting to testify. She
has been unable to concentrate, and has experienced
fear, anxiety, and apprehension. In addition, she has
suffered financially——she is unable to go to work at
times, has been unable to get back into the car in
which the robbery took place, has been in counseling
and has required medication to deal with the
consequences.
¶121 Testimony given at sentencing explained that during
the robbery Dillard had "made threats that he would come back to
her family after this occurred if she told the police and he
knew where to find her."
¶122 In deciding what sentence it would impose, the court
knew of the ongoing problems of the victim who suffered from
post-traumatic stress disorder because of Dillard's crimes and
who had had an acute reaction to the stress of testifying that
required hospitalization after the final hearing.
¶123 The court was very concerned about the repetitive
nature of Dillard's conduct as this was the third robbery of a
young woman under very similar circumstances, the other two
involving sexual assaults as well as robbery. The court said:
What goes towards character is the fact that you
had two other very similar incidents in 1989 with
robberies and sexual assaults. You sat——served a
prison sentence on those, you were paroled and were
revoked. You were on supervision at the time of this
4
No. 2012AP2044-CR.pdr
incident. You had Sexual Offender Treatment, and you
had all of the treatment in the prison system, and you
still got out and you still did this, and you did it
again. That goes towards character. That also goes
towards the need to protect the public.
In this case, when you have treatment, you go through
everything, your rehabilitative needs are addressed in
prison, and you get out and you still do the same
thing. . . . What I'm going to do on this case is a
40-year prison sentence, 25 years[] initial
confinement, 15 years[] extended supervision. I just
think he needs a long supervision if he gets out. I
figure if he's 75, at least maybe he's not going to be
doing this anymore when he gets out. I'm going to run
it concurrent to his other sentences, so I don't know
where——where he's at with credit. The reason I'm
doing it concurrent is because the reason he's sitting
now is because of these facts. That's the reason he
got revoked.
¶124 Dillard, by counsel, moved to withdraw his plea. He
contended that the benefit of dismissing the persistent repeater
charge was "illusory," and caused his plea to be unknowing and
unintelligent. He also claimed his trial counsel was
ineffective in failing to alert him to the legal conclusion that
he was not subject to a persistent repeater charge. He
contended that refusing to permit him to withdraw his plea to
armed robbery would result in manifest injustice.
¶125 The circuit court held a Machner3 hearing, wherein it
considered the testimony of Dillard and of trial counsel, as
well as the submissions of Dillard and the State. Dillard
testified that he was concerned about the potential for life in
prison without the possibility of parole or extended
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
5
No. 2012AP2044-CR.pdr
supervision. He said that he discussed this with his attorney,
as well as the district attorney's offer to recommend eight
years confinement and his attorney's recommending five years
confinement and 15 years extended supervision. He said that
they also discussed the district attorney's agreement to dismiss
the charge of false imprisonment and its repeater charge.
Dillard asserted that he would not have pled, but would have
gone to trial, if he had known that the State could not
prosecute him on the persistent repeater charge.
¶126 The court questioned Dillard further to assess his
credibility regarding his assertion that he would not have pled,
but would have gone to trial if he had known that he could not
be prosecuted on the persistent repeater charge. The court did
so by asking whether his motion to withdraw his plea was
grounded in the sentence imposed. Dillard was asked:
Q. If I would have gave you the five years' initial
confinement, would you have been satisfied with
that sentence?
A. Of course.
Q. If I would have went along with what the State
said, the eight years' initial confinement, would
you have been satisfied with that?
A. Of course. That's better than a life without
parole.
Q. Your dissatisfaction with my sentence was the
fact that I gave you the——the maximum, correct?
A. Um——I guess. Yes, I guess so.
¶127 Subsequent to the above colloquy with the court, in
response to questions from postconviction counsel, Dillard said
6
No. 2012AP2044-CR.pdr
that he understood that the judge could sentence him to 40 years
imprisonment for the armed robbery charge when he made his plea.
¶128 Trial counsel was next to testify. She explained the
preparation for trial and her representation of Dillard in the
revocation proceeding where she had seen [T.L] testify as a very
credible witness. She spoke of the State's offer and said:
I also advised him that, even if he felt there were
some problems with the State's case——and he and I had
acknowledged there may be——that he had to take into
consideration that if he went to trial the jury would
likely hear things that would be very devastating
towards his case, like the fact that the victim had
identified him on a sex offender database. I also
reminded him that the victim had testified at a
revocation hearing and that she testified in the
proceedings rather credibly and that an administrative
law judge had made a similar comment, and in light of
all those circumstances, as well as his ability to
argue for a lesser sentence, I thought he should give
serious consideration to accepting the State's offer.
Testimony at the plea withdrawal hearing showed that before
Dillard pled, his trial attorney explained weaknesses in his
case to him. Trial counsel said that T.L. identified Dillard as
the perpetrator of the armed robbery at the revocation hearing
and that she had testified very credibly. Therefore, earlier
concerns about the strength of her identification were not
significant. Dillard's attorney also told him that at trial the
jury would hear that T.L. had identified him from his picture on
the sex offender registry, and that would be "devastating" to
his case.
¶129 When trial counsel was asked whether Dillard ever
indicated to her why he agreed to the State's offer, she said:
7
No. 2012AP2044-CR.pdr
I believe it was the totality of the
circumstances, the dismissal of Count 2, the dismissal
of any repeater enhancer at all on Count 1, even just
a simple repeater for having been convicted of prior
felonies, the fact that the State had a motion filed
that would introduce to the jury other acts that had
very similar type of conduct that I believe would come
in, which I told Mr. Dillard about, the fact again
that we had seen the victim testify at a prelim[inary]
and at a revocation hearing and she did not waiver in
her identification of the defendant in the testimony.
All of those things[.]
Counsel explained that she told Dillard that other acts evidence
would be admitted at trial because of the similar types of
victimization that led to his two prior armed robbery
convictions. She again explained that they had seen T.L.
testify at two prior hearings and that T.L. was firm and
convincing in her identification of Dillard as the perpetrator
of the armed robbery.
¶130 When trial counsel was asked if she had known before
his plea that Dillard was not subject to a persistent repeater
charge in regard to armed robbery would she nevertheless have
recommended that he accept the plea bargain, she said that she
would have. She explained that he was facing 40 years on Count
1 and ten years on Count 2 and there were "overwhelming negative
facts" that she believed would come in at the trial. When the
court asked, "Did Mr. Dillard ever say to you, 'I will take any
deal whatsoever if you can get the persistent repeater
dismissed?'" Trial counsel said, "No."
¶131 Based on the information provided, including Dillard's
testimony, the circuit court denied Dillard's motion, finding
that he got the benefit of his plea bargain and concluding that
Dillard suffered no prejudice. The court of appeals reversed.
8
No. 2012AP2044-CR.pdr
Relying on cases where a circuit court had erred4 in regard to
the charge to which the defendant pled, the court of appeals
extended the holdings of those cases to a charge that was
dismissed. The court of appeals concluded that State v. Cross,
2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64, controlled because
the charging error "marred the plea negotiations" and was more
substantial than the mistake in Cross. State v. Dillard, 2013
WI App 108, ¶¶18-19, 350 Wis. 2d 331, 838 N.W.2d 112. The court
of appeals also concluded that Dillard was provided ineffective
assistance of counsel based on the same charging error. Id.,
¶20.
II. DISCUSSION
A. Standard of Review
¶132 Dillard claims that manifest injustice will result if
his plea is not vacated because it was not entered knowingly and
intelligently and because trial counsel was ineffective in not
telling him that the State erroneously charged him as a
persistent repeater with regard to armed robbery. Whether a
plea has been entered knowingly and intelligently presents a
question of constitutional fact that we review independently.
4
The court of appeals relied on State v. Cross, 2010 WI 70,
326 Wis. 2d 492, 786 N.W.2d 64 (wherein the circuit court gave
Cross mistaken information about the crime to which he pled);
State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992)
(wherein the court erred by imposing a sentence to run
consecutive to a juvenile disposition that Woods was then
serving); State v. Brown, 2004 WI App 179, 276 Wis. 2d 559, 687
N.W.2d 543 (wherein the court erred by stating that Brown's plea
did not trigger sex offender registration or Wis. Stat. ch. 980
commitment potential).
9
No. 2012AP2044-CR.pdr
Cross, 326 Wis. 2d 492, ¶14. Whether counsel was ineffective
presents a mixed question of fact and law. State v. Johnson,
153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). We will not
reverse a circuit court's factual findings unless they are
clearly erroneous. Id. However, we independently review
whether counsel's performance was deficient and prejudicial.
Id. at 128.
B. Plea Withdrawal
¶133 Dillard claims that if he had known that the State
could not prosecute him as a persistent repeater in regard to
the armed robbery, he would not have pled, but would have gone
to trial on the charges of armed robbery and false imprisonment
as a repeater.5
1. General principles
¶134 There is the potential that a plea may not have been
entered knowingly, intelligently and voluntarily if the colloquy
conducted by the circuit court was constitutionally
insufficient. State v. Bangert, 131 Wis. 2d 246, 255, 389
N.W.2d 12 (1986). A plea may be involuntary either because the
defendant does not understand the charge to which he pleads or
because he does not understand the constitutional rights
accorded to him that he is waiving by pleading. Id. at 265-66.
¶135 Furthermore, a plea may be withdrawn if the circuit
court does not comply with Wis. Stat. § 971.08. Id. at 274.
5
Dillard argues for plea withdrawal because resentencing
would have put him in the same position he was with his plea,
facing a 40-year maximum imprisonment for armed robbery.
10
No. 2012AP2044-CR.pdr
"The initial burden rests with the defendant to make a prima
facie showing that his plea was accepted without the trial
court's conformance with sec. 971.08." Id. If the defendant
makes such a showing and alleges that he did not know or
understand the information that § 971.08 requires be provided to
him at the plea hearing, "the burden will then shift to the
state to show by clear and convincing evidence that the
defendant's plea was knowingly, voluntarily, and intelligently
entered, despite the inadequacy of the record at the time of the
plea's acceptance." Id.
¶136 The specific obligations that Wis. Stat. § 971.08
places on the circuit court when a plea is forthcoming relevant
to our inquiry herein are as follows:
(1) Before the court accepts a plea of guilty or
no contest, it shall do all of the following:
(a) Address the defendant personally and
determine that the plea is made voluntarily with
understanding of the nature of the charge and the
potential punishment if convicted.
(b) Make such inquiry as satisfies it that the
defendant in fact committed the crime charged.
¶137 Plea withdrawal based on a constitutionally inadequate
colloquy or based on a statutorily insufficient colloquy
requires error by the circuit court. Id. at 274-76. Circuit
court error in informing the defendant is required in order for
the burden to shift to the State once the defendant makes a
prima facie showing of error and alleges that he did not know or
understand the information the circuit court was required to
provide.
11
No. 2012AP2044-CR.pdr
¶138 However, there are times when plea withdrawal after
sentencing is permitted and the error does not lie with the
circuit court, but rather is found elsewhere. In such cases, a
defendant is entitled to withdraw a guilty or no contest plea
upon his proving by clear and convincing evidence that a
manifest injustice will result unless the plea is vacated.
Bentley, 201 Wis. 2d at 311. Ineffective assistance of counsel
is such an error. Id.
¶139 In order to be entitled to withdraw a plea after
sentencing based on ineffective assistance of counsel, the
defendant bears the burden to prove by clear and convincing
evidence "that counsel's performance was both deficient and
prejudicial." Id. at 312 (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). In order to satisfy the prejudice prong
of the Strickland test, a defendant seeking to withdraw his or
her plea must prove that but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to trial.
See id. at 312. In order to meet his proof obligation, "[a]
defendant must do more than merely allege that he would have
pled differently; such an allegation must be supported by
objective factual assertions." See id. at 313 (citing State v.
Saunders, 196 Wis. 2d 45, 51, 538 N.W.2d 546 (Ct. App. 1995)
(explaining that a defendant must provide evidence that is
"factual-objective" rather than information that is "opinion-
subjective," and a defendant's saying that he would have gone to
trial if counsel had properly advised him is an opinion, not a
fact)).
12
No. 2012AP2044-CR.pdr
¶140 Bentley contended that he would not have pled if
"counsel correctly informed him about his minimum parole
eligibility date." Id. at 316. In evaluating Bentley's
assertion, we explained that Bentley's allegation, without more,
was not sufficient to grant his motion to withdraw his plea.
Id.
¶141 We cited Santos v. Kolb, 880 F.2d 941 (7th Cir. 1989),
abrogated on other grounds by Padilla v. Kentucky, 599 U.S. 356
(2010), with approval. Bentley, 201 Wis. 2d at 314. Santos
held that a "specific explanation of why the defendant alleges
he would have gone to trial is required." Id. (quoting Santos,
493 U.S. at 943). The First Circuit, the Tenth Circuit and the
D.C. Circuit are in accord with the Seventh Circuit in this
regard. United States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir.
1995), rev'd on other grounds, 520 U.S. 751 (1997) (concluding
that a defendant's self-serving statement that if his counsel
had given him complete advice, he would not have pled guilty is
not sufficient to prove prejudice); United States v. Gordon, 4
F.3d 1567, 1571 (10th Cir. 1993) (mere allegation that but for
counsel's inaccurate information regarding sentencing, he would
have gone to trial held to be insufficient to establish
prejudice); United States v. Horne, 987 F.2d 833, 836 (D.C. Cir.
1993), cert. denied, 510 U.S. 852 (1993) (explaining that a bare
allegation that he would have gone to trial is insufficient to
withdraw plea).
¶142 In addition, federal courts look to whether a
defendant has made a viable claim of innocence of the crime of
13
No. 2012AP2044-CR.pdr
conviction. United States v. West, 392 F.3d 450, 456 (D.C. Cir.
2004). This amounts to affirmatively advancing an objectively
reasonable argument that the defendant is innocent of the crime
to which he pled. United States v. Cray, 47 F.3d 1203, 1209
(D.C. Cir. 1995).6
2. Dillard's plea withdrawal motion
¶143 Dillard does not identify a circuit court error that
would result in a Bangert-type analysis. That is, he does not
contend that the circuit court's colloquy was either
constitutionally insufficient or failed to satisfy the
requirements established in Wis. Stat. § 971.08.7 Rather, he
objects to a charging error that the district attorney made and
that his attorney did not recognize and explain to him before he
pled no contest. Accordingly, Bentley, not Bangert, provides
the analytic framework by which we evaluate Dillard's motion for
plea withdrawal. In a Bentley proceeding, the defendant has the
burden of proof throughout the proceedings; it never shifts to
the State, as it may in a Bangert proceeding. State v. Burton,
2013 WI 61, ¶7, 349 Wis. 2d 1, 832 N.W.2d 611.
¶144 State v. Denk, 2008 WI 130, 315 Wis. 2d 5, 758 N.W.2d
775, is important when analyzing a claim that a defendant's plea
6
Dillard could not meet this federal requirement because he
admitted he committed the armed robbery of which he was
convicted.
7
The majority opinion erroneously states, "the [circuit]
court . . . advised the defendant that he was facing a mandatory
sentence of life in prison without the possibility of extended
supervision." Majority op., ¶34. The circuit court never
advised the defendant what would occur if he did not plead.
14
No. 2012AP2044-CR.pdr
was not knowing, intelligent and voluntary because there was a
charging error of which defendant was unaware. Denk was charged
with felony possession of methamphetamine; felony possession of
THC with intent to deliver; misdemeanor possession of marijuana;
misdemeanor possession of drug paraphernalia; and felony intent
to convert methamphetamine, contrary to Wis. Stat. § 961.575(3).
Id., ¶¶17, 19. Denk focuses on the last felony charge.
¶145 In that case, the district attorney and Denk entered
into a plea agreement wherein Denk agreed to plead to felony
possession of methamphetamine. In exchange, the district
attorney agreed to dismiss all other charges, including felony
intent to convert methamphetamine, and to recommend that Denk
serve six months in the county jail as a condition of probation.
Id., ¶21. The district attorney and Denk did as they agreed.
After determining that Denk was satisfied with his attorney's
services and that Denk's plea was knowing and voluntary, the
court accepted Denk's no contest plea and placed Denk on
probation, with five months in the county jail as a condition of
probation. Id., ¶22.
¶146 Several months later, Denk moved to withdraw his plea,
asserting that there was no factual basis for charging him with
felony possession of methamphetamine paraphernalia under Wis.
Stat. § 961.573(3). Id., ¶23. He contended that because he
could not have been convicted of the charge, the district
attorney's offer to drop the charge was "an illusory benefit"
that rendered his plea unknowing and involuntary. Id.
15
No. 2012AP2044-CR.pdr
¶147 We affirmed the denial of Denk's motion to withdraw
his plea. Id., ¶78. We explained that State v. Brown, 2004 WI
App 179, 276 Wis. 2d 559, 687 N.W.2d 543 and State v. Riekkoff,
112 Wis. 2d 119, 332 N.W.2d 744 (1983), the cases on which Denk
relied, involved problems with the charge to which the defendant
actually pled, while Denk's allegations involved a charge to
which he did not plead. Denk, 315 Wis. 2d 5, ¶75. We also
explained that "[u]nlike the cases upon which Denk relies, this
was not a plea based on an illusory promise, but rather it was a
plea where the promise was realized." Id., ¶78. Stated
otherwise, Denk received the benefits of his bargain with the
district attorney because the district attorney honored the plea
bargain. Id.
¶148 Mistakes in charging may be caused by insufficient
facts known at the time the complaint or information is filed or
the need to do further legal research. They probably occur with
some frequency, as the records presented to us often show
charges that have been dismissed on cases that have gone to
trial. Denk establishes that a mistakenly charged crime that is
dismissed does not form part of the conviction and is not
subject to the same scrutiny as the crime of conviction. For
example, although the circuit court must establish the factual
basis for the crimes to which a defendant pleads, the court has
no such obligation in regard to crimes charged but later
dismissed.
¶149 Surely the majority opinion can't be suggesting that
the circuit court is obligated to inform a defendant about facts
16
No. 2012AP2044-CR.pdr
that the State would have had to prove for dismissed charges, as
well as facts the State would be required to prove for charges
to which a defendant pleads. This would be an extraordinary
burden to place on circuit courts. However, 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.
¶150 Cross also is helpful when considering mistaken
information, although it is not as "on point" as is Denk because
Cross involved a claimed circuit court error in giving Cross
mistaken information about the crime to which he pled.
Therefore, Cross applied a Bangert analysis, not the Bentley
analysis that is applicable here. Cross, 326 Wis. 2d 492, ¶4.
¶151 Subject to a plea bargain, Cross pled guilty to
second-degree sexual assault, which has a maximum imprisonment
of 30 years, with 20 years incarceration and 10 years extended
supervision. However, at the plea hearing, "counsel for Cross
informed the circuit court that second degree sexual assault was
a Class C felony and that the maximum total sentence was 40
years," with the potential of 25 years incarceration and 15
years extended supervision. Id., ¶8. The district attorney
recommended only 24 months of initial confinement. Id., ¶7. At
the plea hearing, the circuit court repeated the potential for
the same maximum punishments defense counsel had incorrectly set
out. Id., ¶8.
¶152 At sentencing, the court reviewed numerous victim
impact statements that explained that Cross had molested or
17
No. 2012AP2044-CR.pdr
sexually assaulted many family members. Id., ¶9. The victim in
the case then before the court was Cross' ten-year-old great-
granddaughter. Id., ¶6. After explaining that the court did
not want to give Cross another opportunity to molest other
family members, the court sentenced Cross to the maximum that it
believed was available, i.e., 25 years incarceration and 15
years of extended supervision. Id., ¶10.
¶153 Cross moved for postconviction relief, requesting plea
withdrawal and resentencing. Id., ¶11. Cross argued that
because he was incorrectly advised of the penalties prior to his
plea, his plea was not knowing and intelligent. Id. The
circuit court denied Cross' motion to withdraw his plea, but did
vacate the sentence and ordered resentencing. Id., ¶12. Cross
was again sentenced to the maximum for the crime of conviction,
20 years confinement and ten years extended supervision. Id.
¶154 We affirmed the denial of Cross' motion to withdraw
his plea after concluding that the circuit court's statements on
the range of punishments to which Cross was subjected by
pleading was not "substantially higher[] than that authorized by
law." Id., ¶30. We concluded that Cross had not made a prima
facie case entitling him to shift the burden to the State to
prove that his plea was knowing and intelligent. Id.
¶155 Dillard artfully attempts to place the burden on the
State to show that his plea was knowing and intelligent.
However, under a Bentley analysis, which is the analysis that is
applicable here, the burden of proof never shifts to the State.
Burton, 349 Wis. 2d 1, ¶7. Therefore, it is Dillard who must
18
No. 2012AP2044-CR.pdr
prove by clear and convincing evidence that manifest injustice
will result unless his plea is vacated because he did not plead
knowingly and intelligently. Bentley, 201 Wis. 2d at 311.
Requiring the defendant to shoulder the burden of proof on
whether his plea was knowing and intelligent is consistent with
Bentley's and Strickland's directive that with regard to an
ineffective assistance of counsel claim, the defendant bears the
burden to prove both deficient performance and prejudice. Id.
at 312; Strickland, 466 U.S. at 687.
¶156 I conclude that our opinion in Denk controls Dillard's
plea withdrawal motion because Denk is grounded in a charging
error where there is no subsequent circuit court error. As in
Denk, the circuit court here fully complied with its
constitutional and statutory obligations during its plea
colloquy with Dillard. That conclusion is affirmed by Dillard,
who before us has never contended that the circuit court did not
fully inform him of the potential punishments for armed robbery,
the crime to which he pled; the constitutional rights he was
relinquishing by his plea; or pointed to any error of any type
in the plea colloquy.
¶157 After its thorough colloquy, the circuit court
concluded that Dillard pled to armed robbery "freely,
voluntarily, and intelligently." In order to overturn this
conclusion, Dillard must prove by clear and convincing evidence
that he did not "freely, voluntarily, and intelligently" plead.
To do so he must provide factual-objective, not opinion-
subjective, information that will prove by clear and convincing
19
No. 2012AP2044-CR.pdr
evidence that he did not knowingly and intelligently plead to
armed robbery. Saunders, 196 Wis. 2d at 51.
¶158 At the hearing on Dillard's motion to withdraw his
plea, Dillard said that he would have gone to trial on the
charges of armed robbery and false imprisonment as a repeater if
he had known that the State could not prosecute him as a
persistent repeater on the armed robbery charge.8 That is an
"opinion-subjective" statement, not a "factual-objective"
statement.9 Bentley, 201 Wis. 2d at 313 (concluding that a
"defendant must do more than merely allege that he would have
pled differently; such an allegation must be supported by
objective factual assertions."); accord Sanders, 196 Wis. 2d at
51.
¶159 Dillard also said that he believed that the State had
some problems with his identification and that bore on why he
would have gone to trial. This is factual-objective
information. However, his trial attorney testified that she
advised him that their earlier concerns about the victim's
identification of him were no longer strong after seeing the
victim testify at two hearings. She said:
8
Dillard said this same thing in a number of different
ways, but each amounts to the same opinion-subjective narration
about what he would have done if he had known the State could
not prosecute him as a persistent repeater.
9
The majority opinion repeatedly uses Dillard's assertion
as though repeating it will change it from an insufficient
opinion-subjective statement into requisite factual-objective
proof, e.g., majority op., ¶¶44-47.
20
No. 2012AP2044-CR.pdr
[H]e had to take into consideration that if he went to
trial the jury would likely hear things that would be
very devastating towards his case, like the fact that
the victim had identified him on a sex offender
database. I also reminded him that the victim had
testified at a revocation hearing and that she
testified in the proceedings rather credibly and that
an administrative law judge had made a similar
comment.
¶160 Therefore, before he pled, counsel explained to
Dillard that T.L. had testified very credibly when she
identified him as the perpetrator of the armed robbery at the
revocation hearing. Accordingly, earlier concerns about the
strength of her identification of him were not significant.
Counsel also told Dillard that at trial the jury would hear that
T.L. had identified him from his picture on the sex offender
registry, a "devastating" fact to place before the jury.
¶161 Trial counsel was asked whether Dillard indicated to
her why he agreed to the district attorney's offer, she said:
I believe it was the totality of the circumstances,
the dismissal of Count 2, the dismissal of any
repeater enhancer at all on Count 1, even just a
simple repeater for having been convicted of prior
felonies, the fact that the State had a motion filed
that would introduce to the jury other acts that had
very similar type of conduct that I believe would come
in, which I told Mr. Dillard about, the fact again
that we had seen the victim testify at a prelim[inary]
and at a revocation hearing and she did not waiver in
her identification of the defendant in the testimony.
All of those things[.]
Before he pled, Dillard knew that other acts evidence would be
admitted at trial because of the similar types of victimization
that led to his two prior armed robbery convictions. Dillard's
trial attorney again explained that they had seen T.L. testify
at two prior hearings and that T.L. was firm and convincing in
21
No. 2012AP2044-CR.pdr
her identification of Dillard as the perpetrator of the armed
robbery.
¶162 The only factual-objective information Dillard
provided in support of his motion to withdraw his plea was a
concern about the strength of the victim's identification. At
the hearing on Dillard's motion to withdraw his plea, trial
counsel said that prior to his plea, she told Dillard that
earlier concerns about the victim's identification of him were
not significant after seeing T.L. testify at the preliminary
hearing and the revocation hearing. There, T.L. was a credible
witness who "did not waiver in her identification of [him]."
¶163 Trial counsel's testimony was sufficient to offset any
benefit Dillard could receive from his sole, factual-objective
statement that focused on the strength of T.L.'s identification
of him as the perpetrator. The circuit court concluded that he
did not meet his burden of proof by clear and convincing
evidence. I agree with the circuit court and conclude that
Dillard did not provide sufficient factual-objective information
to meet his burden to prove by clear and convincing evidence
that his plea to armed robbery was not knowing, intelligent and
voluntary.
¶164 In addition, at the hearing on plea withdrawal, the
circuit court assessed the credibility of Dillard's statement
that if he had known that the State could not prosecute him as a
persistent repeater, he would have gone to trial on the charges
22
No. 2012AP2044-CR.pdr
of armed robbery and false imprisonment as a repeater.10 In
making its assessment, the court asked:
Q. If I would have gave you the five years' initial
confinement, would you have been satisfied with
that sentence?
A. Of course.
Q. If I would have went along with what the State
said, the eight years' initial confinement, would
you have been satisfied with that?
A. Of course. That's better than a life without
parole.
Q. Your dissatisfaction with my sentence was the
fact that I gave you the——the maximum, correct?
A. Um——I guess. Yes, I guess so.
¶165 Although not explicitly stated, the circuit court
found that Dillard's assertion that he would have gone to trial
but for the charging error was not credible. As the court
explained:
[T]he only reason we're here on appeal is because I
did not go along with [counsel or the district
attorney's] recommendations and I gave him the maximum
sentence which he knew he could have received from me.
This is all a matter, in my opinion, from listening to
him, now that he's got the sentence he doesn't like it
and now he wants to appeal it and find a way to do so.
10
The majority opinion attempts to characterize the circuit
court's questioning of Dillard as irrelevant to the validity of
Dillard's plea. "The defendant's subsequent satisfaction or
dissatisfaction with his sentence has no bearing on whether his
initial decision to enter a plea was knowing, intelligent, and
voluntary." Majority op., ¶67. The majority opinion should
consider why the circuit court would have asked such questions.
Clearly, the circuit court was trying to assess the credibility
of Dillard's representations to the court.
23
No. 2012AP2044-CR.pdr
Credibility determinations are for the circuit court. We will
not set them aside unless they are clearly erroneous. See State
v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695.
The circuit court described why it did not believe Dillard; its
credibility determination is not clearly erroneous.
¶166 The circuit court also concluded that Dillard did not
prove that he was denied effective assistance of counsel because
the mistaken belief of counsel was not prejudicial to Dillard.
The court explained:
I believe that the other acts' evidence of the almost
identical type crime taking place with a sexual
assault and that evidence coming in on this case would
have been devastating to any type of defense in this
case, and that's, in my opinion, the reason why he
reached this agreement because, as counsel indicates
in her letter and here in testimony, there are a lot
of negatives and she still would have recommended,
even if the persistent repeater would automatically be
dismissed, that she would have recommended [the plea
that was offered] to him.
¶167 A defendant is prejudiced by ineffective assistance of
counsel when factual-objective information submitted to the
circuit court proves that "there is a reasonable probability
that, but for the counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial." Bentley, 201
Wis. 2d at 312-13 (citation omitted).
¶168 I agree with the circuit court: Dillard received the
benefit of his bargain and suffered no prejudice.11 Dillard's
11
The State conceded that trial counsel's performance was
deficient, so I do not address whether Dillard met his burden of
proof on that component of his ineffective assistance claim.
24
No. 2012AP2044-CR.pdr
plea bargain was with the district attorney, not with the
circuit court, who told Dillard that the court was not bound by
any plea agreement. The district attorney fully performed,
giving Dillard the benefit of his plea bargain. Furthermore,
Dillard failed to prove that his plea was not knowing and
intelligent because he did not provide sufficient factual-
objective evidence to overcome other evidence presented at the
plea withdrawal hearing. Stated otherwise, he did not prove by
clear and convincing evidence that but for trial counsel's
error, he would not have pled to armed robbery.
¶169 The prejudice analysis for Dillard's ineffective
assistance claim is based on the same contention, i.e., that his
plea was not knowing and intelligent. Therefore, the same
analysis as I applied above, in which I concluded that Dillard
failed to prove by clear and convincing evidence that his plea
was not knowing and intelligent, controls the prejudice prong of
his ineffective assistance claim. This is so because Dillard's
ineffective assistance claim and his claim that his plea was not
knowing and intelligent are based on the same lack of knowledge
that the State could not prosecute him as a persistent repeater.
¶170 Therefore, Dillard failed to prove manifest injustice
by clear and convincing evidence based on prejudice that arises
from deficient performance, just as he failed to prove that his
plea was not knowing and intelligent. The arguments are, in
this case, two sides of the same coin. Accordingly, I would
reverse the court of appeals and affirm the decision of the
circuit court.
25
No. 2012AP2044-CR.pdr
III. CONCLUSION
¶171 Dillard was convicted of armed robbery based on his
plea of no contest. He received the maximum permissible
sentence for armed robbery. He moved to withdraw his plea,
asserting that manifest injustice will result if his plea is not
vacated. Dillard asserts his plea was not entered knowingly and
intelligently because his counsel did not tell him that the
State could not prosecute him as a persistent repeater for armed
robbery. He claims ineffective assistance of counsel based on
the same assertion.
¶172 In order to withdraw his plea subsequent to
sentencing, Dillard bears the burden to prove manifest injustice
by clear and convincing evidence. Bentley, 201 Wis. 2d at 311.
Dillard failed to shoulder that burden because he submitted
insufficient factual-objective information at the plea
withdrawal hearing. Furthermore, the circuit court found that
Dillard's testimony was not credible. Accordingly, I would
reverse the court of appeals; affirm the circuit court; and I
respectfully dissent from the majority opinion.
¶173 I am authorized to state that Justices DAVID T.
PROSSER and ANNETTE KINGSLAND ZIEGLER join in this dissent.
26
No. 2012AP2044-CR.pdr
1
State v. Myron C. Dillard
Court: Wisconsin Supreme Court
Date filed: 2014-11-26
Citations: 358 Wis. 2d 543, 2014 WI 123, 859 N.W.2d 44, 2014 Wisc. LEXIS 929
Copy CitationsCombined Opinion