State v. Myron C. Dillard

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.

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