State v. Timothy L. Finley, Jr.

2016 WI 63

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2488-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Timothy L. Finley, Jr.,
Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 365 Wis. 2d 275, 872 N.W.2d 344)
(Ct. App. 2015 – Published)
PDC No: 2015 WI App 79

OPINION FILED: July 12, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 7, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Brown
JUDGE: William M. Atkinson

JUSTICES:
CONCURRED:
DISSENTED: ZIEGLER, J. dissents (Opinion filed).
BRADLEY, R. G., J. dissents (Opinion filed).
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Thomas J. Balistreri, assistant attorney general, with
whom on the briefs was Brad D. Schimel, attorney general.

For the defendant-appellant, there was a brief by Catherine
R. Malchow, assistant state public defender, and oral argument
by Catherine R. Malchow.
 2016 WI 63
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2488-CR
(L.C. No. 2011CF671)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner,
FILED
v.
JUL 12, 2016
Timothy L. Finley, Jr.,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed and

cause remanded.

¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of a

published decision of the court of appeals, State v. Finley,

2015 WI App 79, 365 Wis. 2d 275, 872 N.W.2d 344. The court of

appeals reversed a judgment and order of the Circuit Court for

Brown County, William M. Atkinson, Judge, and remanded the cause

to the circuit court with directions to permit the defendant,

Timothy L. Finley, Jr., to withdraw his plea of no contest to

first-degree recklessly endangering safety as domestic abuse.
 No. 2014AP2488-CR

¶2 The court of appeals ordered the remedy of plea

withdrawal, relying on the remedy set forth in State v. Bangert,

131 Wis. 2d 246, 389 N.W.2d 12 (1986), for cases in which a

circuit court fails to comply with Wis. Stat. § 971.08(1) (2011-

12) or other mandatory duties at a plea colloquy and the

defendant does not knowingly, intelligently, and voluntarily

enter his or her plea.1

¶3 Wisconsin Stat. § 971.08(1)(a) provides that before

the circuit court accepts a plea of guilty or no contest, it

shall, among other things, "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." Wis. Stat. § 971.08(1)(a) (emphasis added).2

1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
Wisconsin Stat. § 971.08(1)(a) provides in relevant part:

(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.

State v. Bangert, 131 Wis. 2d 246, 261-62, 389 N.W.2d 12
(1986), sets forth six mandatory duties of circuit courts in
accepting a plea. State v. Brown, 2006 WI 100, ¶35, 293
Wis. 2d 594, 716 N.W.2d 906, restates and supplements the
mandatory duties set forth in Bangert. Only the circuit court's
duty to advise the defendant of the punishment is at issue in
the instant case.

2
 No. 2014AP2488-CR

¶4 This case involves felonies. Throughout this opinion,

we use the statutory phrase "potential punishment" to describe

the felony sentencing information a circuit court is required to

impart to a defendant under the statute and case law. The

phrase "potential punishment" has not been defined in the

statutes or the case law. In analyzing whether a defendant was

correctly advised of the potential punishment, our cases have

looked to the maximum statutory penalty, that is, the maximum

sentence provided for by statute. Some cases use the phrase

"range of punishments" in addition to or in lieu of the

statutory phrase "potential punishment." "Range of

punishments," "potential punishment," and "maximum statutory

penalty" are used synonymously in the cases.3 The case law also

uses other phrases to mean "potential punishment."4

¶5 Wisconsin Stat. § 939.50(3) sets forth the maximum

statutory penalty for felonies.5 Other statutes add enhancements

3
See, e.g., Brown, 293 Wis. 2d 594, ¶35; Bangert, 131
Wis. 2d at 262; see also State v. Cross, 2010 WI 70, ¶50, 326
Wis. 2d 492, 786 N.W.2d 64 (Abrahamson, C.J., concurring)
("Bangert and Brown interpreted 'potential punishment if
convicted' to mean 'the range of punishments to which he [the
defendant] is subjecting himself by entering a plea.'") (citing
Bangert, 131 Wis. 2d at 261-62; Brown, 293 Wis. 2d 594, ¶35).
4
See Attachment A, Glossary, at item 4 (collecting cases
using the terms "maximum term of imprisonment," "maximum
penalty," "maximum potential sentence," "maximum potential
imprisonment," "maximum initial sentence," "actual allowable
sentence," and "precise maximum sentence" as synonyms of
"potential punishment" and "maximum statutory penalty").
5
Wisconsin Stat. § 939.50(3) provides:

(continued)
3
 No. 2014AP2488-CR

to the penalties specified in Wis. Stat. § 939.50(3). For

example, there are enhancements for repeat offenses, domestic

abuse offenses, and offenses committed with the use of a

dangerous weapon. See, e.g., Wis. Stat. §§ 939.62, 939.621,

939.63.

(3) Penalties for felonies are as follows:

(a) For a Class A felony, life imprisonment.

(b) For a Class B felony, imprisonment not to exceed
60 years.

(c) For a Class C felony, a fine not to exceed
$100,000 or imprisonment not to exceed 40 years,
or both.

(d) For a Class D felony, a fine not to exceed
$100,000 or imprisonment not to exceed 25 years,
or both.

(e) For a Class E felony, a fine not to exceed
$50,000 or imprisonment not to exceed 15 years,
or both.

(f) For a Class F felony, a fine not to exceed
$25,000 or imprisonment not to exceed 12 years
and 6 months, or both.

(g) For a Class G felony, a fine not to exceed
$25,000 or imprisonment not to exceed 10 years,
or both.

(h) For a Class H felony, a fine not to exceed
$10,000 or imprisonment not to exceed 6 years, or
both.

(i) For a Class I felony, a fine not to exceed
$10,000 or imprisonment not to exceed 3 years and
6 months, or both.

4
 No. 2014AP2488-CR

¶6 This opinion uses the phrase "maximum statutory

penalty" interchangeably with the statutory phrase "potential

punishment." We do so because, as already explained, our cases

refer to the "maximum statutory penalty" (or similar phrase) in

describing potential punishment. Furthermore, the issue in the

instant case is the remedy when the circuit court misstates the

potential punishment by telling the defendant an incorrect

maximum statutory penalty for his offense.

¶7 Before we continue, we note that circuit courts, the

court of appeals, and this court have not used consistent

terminology in discussing the duty of circuit courts to advise a

defendant of the potential punishment before accepting a plea.

We have therefore appended a glossary of terms to assist the

reader and the courts in using and understanding the correct

terminology. Throughout our opinion, terms that are included in

the glossary are identified by an asterisk to call attention to

their meaning, a meaning that may not be obvious to the reader.6

The glossary includes references to statutes and case law that
should be consulted for further and more precise information.

¶8 The "potential punishment," that is, the maximum

statutory penalty Finley faced in entering his plea, is 23

years, 6 months' imprisonment.* The circuit court advised Finley

during the plea colloquy accepting Finley's no contest plea that

6
We do not use an asterisk each time we use the statutory
phrase "potential punishment" or "maximum statutory penalty"
because these terms have been defined in the text. See supra
¶4.

5
 No. 2014AP2488-CR

the potential punishment was confinement* in prison for 19 years,

6 months rather than imprisonment* for 23 years, 6 months.

Nowhere in the circuit court record was this misinformation

corrected. Thus, the circuit court misstated the potential

punishment if Finley were convicted.

¶9 The issue presented in the instant case does not focus

on whether the circuit court erred during the plea colloquy by

misstating the potential punishment. The State concedes that

the circuit court erred.7 Instead, the focus in the instant case

is on the remedy for the circuit court's misstatement of the

potential punishment if convicted, when Finley lacked knowledge

of the potential punishment. Thus, we are reviewing the plea

colloquy in the instant case in a unique posture——we are asked

to decide what remedy should be provided in the circumstances of

the instant case.

¶10 The State's petition for review and the parties'

briefs state the issue of the remedy as follows: When a

defendant who pleads guilty or no contest is misinformed that

7
The State acknowledges that the circuit court misinformed
Finley about the potential punishment he faced if convicted.
The State also acknowledges that it was not able to prove (after
being given the opportunity to do so at an evidentiary hearing)
that Finley knew the maximum statutory penalty when he entered
his plea. As the State put it in its opening brief, "The issue
on this appeal is not whether Finley knew the correct maximum
penalty. The state has acknowledged that he did not. The record
shows that Finley was erroneously informed and believed that the
maximum penalty was 19.5 years rather than the actual maximum of
23.5 years." Brief of Plaintiff-Respondent-Petitioner at 7-8
(emphasis added).

6
 No. 2014AP2488-CR

the maximum statutory penalty is lower than the maximum actually

allowed by law, and the sentence imposed is more than the

defendant was told he could get, can the defect be remedied by

reducing the sentence to the maximum the defendant was informed

and believed he could receive instead of letting the defendant

withdraw his plea?8

¶11 This court has advised circuit courts of the

importance of discharging the statutorily and judicially

mandated requisites of the plea colloquy: "The faithful

discharge of these duties is the best way we know for courts to

demonstrate the critical importance of pleas in our system of

justice and to avoid constitutional problems."9

¶12 A violation of Wis. Stat. § 971.08(1)(a) may have

constitutional ramifications.10 A defendant's understanding of
8
The parties view this case as presenting a fact situation
in which the circuit court understated the potential punishment
if convicted. One may, however, view the circuit court as
having overstated the potential punishment if convicted. The
record shows that Finley was erroneously informed that he faced
a potential punishment of 19 years, 6 months of confinement in
prison.* The actual maximum statutory penalty was 23 years, 6
months of imprisonment,* consisting of 18 years, 6 months of
confinement in prison* and 5 years of extended supervision.*

Whether the circuit court's statement of the potential
punishment should be characterized as having over or understated
the potential punishment is not relevant to the disposition of
the instant case. See infra ¶¶88-95.
9
Brown, 293 Wis. 2d 594, ¶23 (citing Boykin v. Alabama, 395
U.S. 238, 242 (1969)).
10
See Bangert, 131 Wis. 2d at 261 n.3 ("A violation of
section 971.08, though itself not constitutionally significant,
may have constitutional ramifications.").

7
 No. 2014AP2488-CR

the potential punishment if convicted is relevant for

determining whether the plea was knowingly, intentionally, and

voluntarily entered.11 "The United States Constitution sets

forth the standard that a guilty or no contest plea must be

affirmatively shown to be knowing, intelligent, and voluntary."12

¶13 The court has declared that "[w]hen a guilty plea is

not knowing, intelligent, and voluntary, a defendant is entitled

to withdraw the plea as a matter of right because such a plea

'violates fundamental due process.'"13

¶14 The State argues that Finley entered his plea

knowingly, intelligently, and voluntarily in the constitutional

sense because his sentence was ultimately reduced (commuted)14 to

the maximum penalty of which he was advised. The State is

proposing a novel interpretation of the due process requirement

11
In Bangert, the court stated that "[a]lthough section
971.08 is not a constitutional imperative, the procedure of the
statute nevertheless is designed to assist the trial court in
making the constitutionally required determination that a
defendant's plea is voluntary." 131 Wis. 2d at 261 (citing
McCarthy v. United States, 394 U.S. 459, 465 (1969)).
12
Brown, 293 Wis. 2d 594, ¶25 (citing Bangert, 131
Wis. 2d at 260) (emphasis in original).
13
Brown, 293 Wis. 2d 594, ¶19 (quoting State v. Van Camp,
213 Wis. 2d 131, 139, 569 N.W.2d 577 (1997)). See also State v.
Cross, 2010 WI 70, ¶20, 326 Wis. 2d 492, 786 N.W.2d 64.
14
We use the phrase "reduced (commuted)" because the
parties use both "reduced" and "commuted" in discussing the
remedy in the instant case. As we explain further below, the
use of the word "commuted" is apparently derived from Wis. Stat.
§ 973.13, a statute that is not implicated in the instant case.
See infra n.31.

8
 No. 2014AP2488-CR

that a plea be entered knowingly, intelligently, and

voluntarily, without support in the United States Supreme

Court's case law.

¶15 The following exchange at oral argument is instructive

regarding the State's position in the instant case and the focus

of the parties and this court on the remedy for the circuit

court's misstatement to Finley:

State: And I want -- and as long as you're bringing
that up, I made this absolutely clear in my
petition for review, I made this absolutely
clear in my brief, . . . we are not
contesting Finley's assertion that his plea
was not . . . entered with an understanding
of the correct maximum penalty.

Justice Ziegler: That's the question, why are you
conceding that? . . . . Counsel that's
really the question that's behind these
questions, if I'm reading my colleagues
correctly . . . . I'm just asking why
you're conceding that. That's really what's
behind their questions I think. Why are you
making that concession?

State: Because the evidence -- and I want to make
clear what we are conceding, that's my whole
point -- I am not . . . conceding that this
plea was not knowingly entered, I am
absolutely not conceding that. That's my
entire argument, that it was knowingly
entered. What I am conceding is that the
defendant did not know the correct maximum
penalty when he pleaded guilty.

Justice Ziegler: Well, how can you knowingly,
intelligently, and voluntarily plead if you
don't know the penalty to which you plead?

State: You can do it if you know the penalty that
you actually get, and that is the whole
point of my argument. If you are told that

9
 No. 2014AP2488-CR

you can get a certain penalty . . . and
understand that you can get that penalty
when you plead guilty, and you in fact wind
up getting that penalty that you know you
could get when you plead guilty, your plea
is in fact knowing in the constitutional
sense. Now there's an error, no question
about that, and we're conceding this, there
is an error, he was misadvised of the
correct maximum penalty, but that error was
harmless. It was harmless because he did
not get the actual maximum.
¶16 In addressing the remedy for the circuit court's

misstating the potential punishment Finley faced if convicted,

Finley relies on Bangert, "a timeless primer on the foundation

principles of the plea colloquy,"15 and State v. Brown, 2006 WI

100, ¶¶22, 34, 293 Wis. 2d 594, 716 N.W.2d 906, which

"reexamine[d] the legal tenets fundamental to guilty pleas" and

"restate[d] and supplement[ed] the Bangert outline."

¶17 Bangert and Brown are the seminal cases analyzing the

requirements for plea colloquies set forth in Wis. Stat.

§ 971.08(1) and the case law, as well as the remedy when a

defendant entered his plea not knowing the information (here the
potential punishment) that circuit courts are required to impart

to a defendant.

¶18 Finley argues that under Bangert and Brown his failure

to know the potential punishment if convicted (after the State

15
See Brown, 293 Wis. 2d 594, ¶24.

10
 No. 2014AP2488-CR

was given the opportunity to prove at an evidentiary hearing

what he knew) entitles him to withdraw his plea.16

¶19 In contrast, relying on State v. Cross, 2010 WI 70,

326 Wis. 2d 492, 786 N.W.2d 64, and State v. Taylor, 2013 WI 34,

347 Wis. 2d 30, 829 N.W.2d 482, the State contends that plea

withdrawal is not the sole remedy when a defendant is

misinformed about the potential punishment he faces and alleges

that he did not know the potential punishment when he entered

his plea. The State argues that the proper remedy in the

instant case and others like it is reduction (commutation) of

the sentence to the potential punishment the defendant was told

he could receive.17 In the instant case, the State argues the

16
See Brown, 293 Wis. 2d 594, ¶6 ("If the State cannot
prove by clear and convincing evidence that Brown understood the
nature of the charges and the constitutional rights he gave up,
the circuit court shall grant Brown's motion to withdraw his
guilty pleas."); Bangert, 131 Wis. 2d at 274 ("Whenever the
Section 971.08 procedure is not undertaken or whenever the
court-mandated duties are not fulfilled at the plea hearing, the
defendant may move to withdraw his plea.").
17
The State's brief (Brief for Plaintiff-Respondent-
Petitioner) at page 8 asserts: "The single issue presented for
decision is whether the only remedy for this error is plea
withdrawal, or whether the error can be better remedied by
reduction of [the defendant's] sentence to the maximum penalty
he was informed and believed he could receive."

In a very different context than the instant case, this
court concluded that due process required a defendant be
permitted to keep the sentence he was told he could receive (and
did receive). See State v. Chamblis, 2015 WI 53, ¶¶54-55, 362
Wis. 2d 370, 864 N.W.2d 806.

(continued)
11
 No. 2014AP2488-CR

circuit court correctly reduced Finley's sentence from the

maximum statutory penalty, 23 years, 6 months' imprisonment,* to

19 years, 6 months' imprisonment* (even though during the plea

colloquy the circuit court advised Finley that he was subject to

19 years, 6 months' confinement in prison*).

¶20 Upon consideration of Bangert, Brown, Cross, and

Taylor, for the reasons set forth we conclude that under the

In State v. Chamblis, the defendant was advised of the
correct potential punishment for the charged offense prior to
entering a guilty plea. Chamblis, 362 Wis. 2d 370, ¶1. After
his plea was entered and he was sentenced, however, the State
appealed, arguing that the circuit court should have considered
evidence showing the defendant should have faced a more serious
charge with a higher potential punishment. Chamblis, 362
Wis. 2d 370, ¶2.

The State argued that the remedy for the circuit court's
failure to consider the evidence of the more serious charge
should be mandatory plea withdrawal. Chamblis, 362 Wis. 2d 370,
¶53. The defendant argued he should be permitted to keep the
sentence he received and that he did not seek plea withdrawal.
Chamblis, 362 Wis. 2d 370, ¶52.

The court agreed with the defendant, holding that forcing
the defendant to withdraw his plea and face a more serious
charge with a higher potential punishment would violate due
process. Chamblis, 362 Wis. 2d 370, ¶54.

12
 No. 2014AP2488-CR

circumstances of the present case, Bangert and Brown govern.

Finley is entitled to withdraw his plea.18

¶21 Accordingly, we affirm the decision of the court of

appeals and remand the cause to the circuit court, as did the

court of appeals, with instructions to grant Finley's motion to

withdraw his plea.

I

¶22 The facts and lengthy procedural history are not in

dispute for purposes of this review. Since sentencing, the

instant case has been before the circuit court twice and the

court of appeals twice. The circuit court held two

postconviction hearings——one non-evidentiary and the other

evidentiary——and the court of appeals has twice reversed the

circuit court's denials of Finley's motion for withdrawal of his

plea.

¶23 We discuss the proceedings before the circuit court

and the court of appeals because these proceedings are relevant

to our resolution of the instant case.

18
Some members of the court have in previous cases
expressed concern that there should be (at least in certain
circumstances) a time limit on motions for plea withdrawal.
See, e.g., State v. Romero-Georgana, 2014 WI 83, ¶67 n.14, 360
Wis. 2d 552, 849 N.W.2d 668 (suggesting that a time limit may be
necessary for motions for plea withdrawal based on Wis. Stat.
§ 971.08(2)). We do not address whether there is such a time
limit for motions for plea withdrawal because Finley's motion
for plea withdrawal is timely. Finley filed his motion for plea
withdrawal less than two months after the circuit court entered
its amended judgment of conviction.

13
 No. 2014AP2488-CR

¶24 We begin with the criminal complaint. Finley was

charged with four counts stemming from an assault of his

girlfriend: (1) first-degree reckless endangerment with use of

a dangerous weapon; (2) substantial battery; (3) strangulation

and suffocation; and (4) false imprisonment.19 The four counts

were charged as acts of domestic abuse.

¶25 Pursuant to a plea agreement, Finley agreed to plead

no contest to the first count, first-degree reckless

endangerment as domestic abuse with enhancers for habitual

criminality and use of a dangerous weapon. In exchange, the

State agreed that the remaining charges would be dismissed and

read in, and that the State would cap its sentencing

recommendation at ten years' initial confinement.*

¶26 The maximum statutory penalty of imprisonment* (with

applicable enhancers) Finley faced if convicted was 23 years, 6

months.

19
The criminal complaint stated the potential punishment
for the first count, first-degree reckless endangerment with use
of a dangerous weapon, was a fine of not more than $25,000,
"imprison[ment of] not more than twelve (12) years and six (6)
months, or both." The criminal complaint also noted that "the
maximum term of imprisonment for the felony may be increased by
not more than 5 years" for the use of a dangerous weapon.

In the information, the State listed the potential
punishments identified in the criminal complaint and added a
habitual criminality enhancer under Wis. Stat. § 939.62(1)(c).
Based on Finley's prior convictions, this enhancement could
increase "the maximum term of imprisonment for the underlying
crime . . . by not more than 6 years."

14
 No. 2014AP2488-CR

¶27 On at least two occasions in the circuit court

proceedings, however, Finley was misinformed that he faced

potential punishment of 19 years, 6 months' confinement.* The

plea questionnaire/waiver of rights form stated (with emphasis

added) that Finley faced "19 years, 6 months

confinement . . . ."* The circuit court's misstatement of the

potential punishment referred to both "confinement"* and

"imprisonment,"* which have different meanings.

¶28 First, the plea questionnaire/waiver of rights form

completed by the Finley's attorney and signed by Finley

incorrectly stated the potential punishment was "19 years, 6

months confinement."*

¶29 Second, before accepting Finley's no contest plea, the

circuit court engaged in a colloquy with Finley regarding the

potential punishment he faced if convicted. The colloquy

(repeated here with emphasis added) advised Finley of each of

the component parts of the potential punishment Finley faced if

convicted and referred (without explaining the use of the terms)
to two different concepts——imprisonment* and confinement*——as

follows:20

Court: The maximum penalty for the offense would be
a fine of not more than $25,000 or
*
imprisonment not more than twelve years and
six months or both.

20
The pre-sentencing investigation report, completed after
the circuit court had already accepted Finley's plea, similarly
stated the potential punishment broken down into its component
parts.

15
 No. 2014AP2488-CR

Finley: Yes, sir.

Court: Okay. I take it -- are we pleading as a
repeater?

State: Yes, Your Honor.

Court: Okay. That will be the base penalty. Then
because you are a repeater, then they could
increase the incarceration period21 by not
more than an additional six years. And they
are basing the repeater enhancement
provision on the fact that you were
convicted of possession of cocaine as a
subsequent offender, and possession of THC
as a subsequent offender on September 12th,
2008, in Brown County. Do you remember
those felonies?

Finley: Yes, sir.

Court: Okay. And they are also charging that you
used a dangerous weapon. And for the
enhancement provision of using a dangerous
weapon then the term of imprisonment* can be
increased by not more than five years for
that. Do you understand that then?

Finley: Yeah.
¶30 Immediately following this piecemeal recitation of the

component parts of the potential punishment, the circuit court

incorrectly totaled the component parts of the potential

punishment (with emphasis added) informing the defendant of only

the term of confinement:*

Court: All right. So, the maximum you would look
at then [is] nineteen years six months

21
"Incarceration period" is not a defined term in the
statutes. It might be interpreted to mean the statutory words
"imprisonment"* or "confinement in prison."*

16
 No. 2014AP2488-CR

confinement.* Do you understand the maximum
penalties?

Finley: Yes, sir.
¶31 Adding these penalties and enhancements together——the

12 year, 6 month base penalty, the 6 year repeater enhancement,

and the 5 year dangerous weapon enhancement——yields the maximum

statutory penalty if convicted of 23 years, 6 months'

imprisonment.*

¶32 Neither the circuit court, the prosecuting attorney,
defense counsel, nor Finley corrected the circuit court's

misstatement of Finley's potential punishment if convicted.

¶33 Subsequently, at the sentencing hearing, the circuit

court imposed the maximum statutory penalty of 23 years, 6

months' imprisonment* (divided between 18 years, 6 months'

initial confinement* and five years' extended supervision*).

¶34 After sentencing, Finley moved to withdraw his plea,

arguing that he was misinformed, when he entered his plea, of

the potential punishment he faced if convicted and that he did

not know the potential punishment.22 As a result, Finley sought
22
Bangert and Brown set forth the procedures applicable
when a defendant seeks plea withdrawal based on an alleged
violation of a circuit court's statutory or other mandatory
duties pertaining to the taking of a defendant's plea.

First, the defendant must make a prima facie case showing
that his or her plea was accepted without the circuit court's
compliance with Wis. Stat. § 971.08 or other mandatory
procedures. Bangert, 131 Wis. 2d at 274.

Second, the defendant must allege that he or she did not
"know or understand the information that should have been
provided at the plea hearing." Brown, 293 Wis. 2d 594, ¶39.
(continued)
17
 No. 2014AP2488-CR

plea withdrawal on the grounds that his plea was not entered

knowingly, intelligently, and voluntarily. In the alternative,

Finley requested reduction (commutation) of his sentence to the

maximum sentence he was told he could receive, 19 years and 6

months.

¶35 The circuit court held a non-evidentiary hearing on

Finley's motion. The State argued that Finley had not stated a

prima facie violation of the statutory or judicially mandated

plea hearing procedure, that is, the State argued that no

Bangert violation occurred.

¶36 Finley argued that he had stated a prima facie Bangert

violation: The transcript of the plea colloquy demonstrated

that the circuit court misinformed him of the maximum statutory

penalty and that defense counsel misinformed him of the maximum

statutory penalty in the plea questionnaire/waiver of rights

form. Finley alleged that he was unaware of the potential

punishment he faced if convicted.

¶37 The circuit court denied Finley's motion to withdraw
his plea, holding that he failed to state a prima facie Bangert

violation because he was correctly advised of each of the

When the defendant has made a prima facie showing and
adequately alleged that he or she did not know or understand the
information that should have been provided at the plea hearing,
the burden shifts to the State to show by clear and convincing
evidence that the defendant's plea was knowingly, intelligently,
and voluntarily entered despite the inadequacy of the record
when the plea was entered. See Brown, 293 Wis. 2d 594, ¶40
(citing Bangert, 131 Wis. 2d at 274).

18
 No. 2014AP2488-CR

component parts of the 23 year 6 month maximum potential

punishment of imprisonment.* As the circuit court put it:

I'm satisfied the defendant has not made a prima facie
case that the plea was made anything but knowingly and
voluntarily. I think he knew fully well. I think if
you look at that transcript, I went piecemeal by
piecemeal, twelve point five, five, six, I went
through exactly why it was being added on. He knew
his base and he knew exactly each reason why the
numbers would be added on. They are consistent with
the information placed in the information.

Now, in essence what he wants to claim is, oh, in that
case it should get me out of this plea. I think where
the information is provided clearly orally, and I
think I'm required to provide the length of the
sentence orally . . . I think I'm required actually to
tell him what his maximum penalty is orally on the
offense.

So, I orally have him sitting in that chair exactly
right there. We are this distance apart, and I went
over the base penalty and the reason why he was
receiving each of the enhancements and what the
enhancement was. Now, clearly he hasn't made a prima
facie case to this Court that he didn't make that plea
knowingly and voluntarily.
¶38 Finley appealed the circuit court's denial of his

motion. The court of appeals reversed and remanded the matter

to the circuit court in an unpublished per curiam decision.23

¶39 In this first appeal to the court of appeals, the

court of appeals held that Finley had established a Bangert

violation as a matter of law: (1) Finley made a prima facie

showing that both the circuit court and defense counsel

23
See State v. Finley, No. 2013AP1846-CR, unpublished slip
op., ¶16 (Wis. Ct. App. Mar. 18, 2014).

19
 No. 2014AP2488-CR

misinformed him of the potential punishment he faced if

convicted; and (2) Finley alleged that he did not know or

understand the information regarding the potential punishment——

information that should have been provided to him at the plea

hearing.24

¶40 The court of appeals also rejected as undeveloped the

State's arguments that "'[t]he present case involves small

deviations [from the correct maximum potential punishment] that

are insufficient to establish a prima facie Bangert violation,'"

and that Finley should be presumed to have understood the

potential punishment, based on the circuit court's recitation of

the component parts of the maximum statutory penalty.25

¶41 As the court of appeals explained, the State's

argument that Finley was correctly advised of the potential

punishment he faced by pleading no contest would require Finley

to do more than simply add up the parts of the sentence listed

24
See Finley, No. 2013AP1846-CR, unpublished slip op., ¶16
(citing Brown, 293 Wis. 2d 594, ¶21).

A defendant is entitled to an evidentiary hearing on a
motion to withdraw a guilty plea when (1) the
defendant makes a prima facie showing that the circuit
court's plea colloquy did not conform with § 971.08 or
other procedures mandated at a plea hearing; and (2)
the defendant alleges he did not know or understand
the information that should have been provided at the
plea hearing.

Brown, 293 Wis. 2d 594, ¶2 (citations omitted).
25
See Finley, No. 2013AP1846-CR, unpublished slip op., ¶¶8-
13.

20
 No. 2014AP2488-CR

by the circuit court. Instead, Finley would have to first

recognize and differentiate between numerous undefined terms

used by the circuit court (i.e., "maximum penalty,"

"imprisonment,"* "base penalty," "incarceration period,"

"enhancement," "term of imprisonment," and "confinement"*), then

add up the component parts listed by the circuit court, finally

disregarding the circuit court's statement that he faced

"nineteen years six months confinement."26

¶42 The court of appeals concluded: "Thus, even if the

GED-holding Finley was sophisticated enough to do the math

himself, he, and we, would have to conclude that he knew better

than both his attorney and the court."27

¶43 As a result, the court of appeals "remand[ed] [the

matter to the circuit court] to allow the State the opportunity

to prove that Finley nonetheless knew the maximum [statutory]

penalty he faced at the time he entered his plea."28

¶44 On remand, the circuit court held an evidentiary

hearing on Finley's motion to withdraw his plea. At the
hearing, as Bangert directs, the State bore the burden of

proving, by clear and convincing evidence, that Finley knew the

26
Finley, No. 2013AP1846-CR, unpublished slip op., ¶12.
27
Finley, No. 2013AP1846-CR, unpublished slip op., ¶12.
28
Finley, No. 2013AP1846-CR, unpublished slip op., ¶16.

21
 No. 2014AP2488-CR

potential punishment he faced despite the inadequacy of the

record at the time of the plea acceptance.29

¶45 As the court of appeals put it, "[T]he State's efforts

with regard to this directive were minimal; so much so that, on

appeal, the State has now abandoned any argument that it met its

burden, at least with respect to Finley's knowledge, at the time

he pled, of the correct maximum penalty he faced."30

¶46 At the evidentiary hearing, the State called just one

witness, Finley's defense counsel. Finley did not testify.

Defense counsel testified that his usual practice was to cover

the maximum statutory penalty with a defendant when discussing a

plea offer and that he believed Finley was aware of the

potential punishment he faced if convicted. On cross-

examination, however, defense counsel stated as follows:

Q: Would it be your practice when meeting with your
client to go through the plea questionnaire line
by line?

A: Yes.

Q: And when you got to the understandings, would it
be your practice to read off for him the
"nineteen years six months confinement?"

A: Yes.

29
"In essence, the state will be required to show that the
defendant in fact possessed the constitutionally required
understanding and knowledge which the defendant alleges the
inadequate plea colloquy failed to afford him." Bangert, 131
Wis. 2d at 275 (citation omitted).
30
Finley, 365 Wis. 2d 275, ¶21.

22
 No. 2014AP2488-CR

¶47 Moreover, trial counsel stated that he had no specific

recollection of advising Finley of the maximum statutory

penalty.

¶48 Although Finley's postconviction motion argued

primarily for plea withdrawal, Finley included an alternative

argument that his sentence should be reduced (commuted) to the

maximum he thought he could receive, 19 years 6 months, based on

Taylor. Finley withdrew this alternative argument at the

hearing, stating that plea withdrawal "is the only claim that we

are making."

¶49 Despite Finley's withdrawal of the reduction

(commutation) request, the circuit court concluded that Finley

"is entitled to have his sentence modified to no more than the

amount that was represented to him by the Court and stated on

his Plea Questionnaire and Waiver of Rights Form and that was

nineteen years and six months." After reducing Finley's

sentence from the maximum statutory penalty of 23 years, 6

months' imprisonment to 19 years, 6 months' imprisonment, the
circuit court denied Finley's motion for plea withdrawal.

¶50 Although the circuit court made minimal findings at

the evidentiary hearing, the circuit court subsequently issued a

more fully developed written decision/order reducing Finley's

sentence and denying Finley's motion for plea withdrawal. In

the circuit court's written decision/order, the circuit court

found "that the State met its burden of establishing that Finley

knew the maximum penalty he faced at the time he entered his
plea. However, the Court also believes that it is in the
23
 No. 2014AP2488-CR

interest of justice to commute Finley's sentence to the maximum

represented to him by the Court at the time of sentencing."

¶51 In reducing (commuting) Finley's sentence and denying

Finley's motion to withdraw his plea, the circuit court relied

on this court's decisions in Bangert, Cross, and Taylor as well

as Wis. Stat. § 973.13.31

¶52 Again, Finley appealed the circuit court's denial of

his motion for plea withdrawal. In this second appeal, Finley

asserted that the circuit court erred in finding that the State

had met its burden of proving, by clear and convincing evidence,

that Finley knew the potential punishment he faced when he

entered his plea.

¶53 In the second appeal in the court of appeals, the

court of appeals viewed the State as having abandoned the

argument that it satisfied its burden of establishing that

31
Finley appears to fall outside the plain text of Wis.
Stat. § 973.13. The provision states:

In any case where the court imposes a maximum penalty
in excess of that authorized by law, such excess shall
be void and the sentence shall be valid only to the
extent of the maximum term authorized by statute and
shall stand commuted without further proceedings.

In the instant case, the circuit court imposed the maximum
statutory penalty, 23 years, 6 months' imprisonment. The
circuit court did not impose a maximum penalty in excess of that
authorized by law, despite what the circuit court stated at the
plea colloquy.

24
 No. 2014AP2488-CR

Finley knew, when he entered his plea, the potential punishment

he faced if convicted.32

¶54 The court of appeals reversed the circuit court's

decision/order denying Finley's motion for plea withdrawal; this

is the published decision that we are now reviewing.33 The court

of appeals relied on its previous conclusion that Finley had

established a Bangert violation as a matter of law as well as

the State's concession that it failed, at the evidentiary

hearing, to show that despite the Bangert violation Finley knew,

when he entered his plea, the potential punishment he faced if

convicted.

¶55 The court of appeals discussed the State's reliance on

Cross and Taylor at length and distinguished these cases from

the instant case. According to the court of appeals, because

Finley's plea was not entered knowingly, intentionally, and

voluntarily, the Bangert violation was not curable after the

fact by reducing (commuting) the sentence to the maximum amount

Finley was told that he faced if convicted. The court of
appeals remanded the matter to the circuit court with

instructions to grant Finley's motion for plea withdrawal.

¶56 This court granted the State's petition for review.

32
Finley, 365 Wis. 2d 275, ¶3. The court of appeals also
concluded that the State had conceded that it did not satisfy
its burden at the evidentiary hearing in the circuit court.
Finley, 365 Wis. 2d 275, ¶9.
33
See State v. Finley, 2015 WI App 79, ¶37, 365
Wis. 2d 275, 872 N.W.2d 344.

25
 No. 2014AP2488-CR

II

¶57 Whether a plea colloquy violates Wis. Stat. § 971.08

or other mandatory duty is a question of law that this court

determines independently of the circuit court or court of

appeals but benefiting from their analyses.34

¶58 When a defendant seeks to withdraw a guilty or no

contest plea after sentencing, he or she must prove by clear and

convincing evidence that refusing to allow plea withdrawal would

result in a "manifest injustice."35 One way to show manifest

injustice is to show that the plea was not entered knowingly,

intelligently, and voluntarily.36

¶59 Whether a defendant's plea was entered knowingly,

intelligently, and voluntarily is a question of constitutional

fact.37 An appellate court upholds the circuit court's findings

of historical fact unless they are clearly erroneous.38 This

court independently determines as a matter of law whether the

circuit court's findings of historical fact demonstrate that the

34
Brown, 293 Wis. 2d 594, ¶21; see also Taylor, 347
Wis. 2d 30, ¶26.
35
Brown, 293 Wis. 2d 594, ¶18; see also Taylor, 347
Wis. 2d 30, ¶24.
36
Brown, 293 Wis. 2d 594, ¶18; see also Taylor, 347
Wis. 2d 30, ¶24.
37
State v. Dillard, 2014 WI 123, ¶38, 358 Wis. 2d 543, 859
N.W.2d 44 (citing Cross, 326 Wis. 2d 492, ¶14).
38
Dillard, 358 Wis. 2d 543, ¶38 (citing State v. Dawson,
2004 WI App 173, ¶7, 276 Wis. 2d 418, 688 N.W.2d 12).

26
 No. 2014AP2488-CR

defendant's plea was knowing, intelligent, and voluntary, while

benefiting from the analyses of the circuit court and the court

of appeals.39

¶60 Determining the remedy when the State fails to

demonstrate that it met the constitutional requirement that the

defendant knowingly, intelligently, and voluntarily entered his

plea presents a question of law. Withdrawal of the plea is a

matter of right under these circumstances.40

III

¶61 We begin by examining the remedies the State and

Finley propose in the instant case. As we explained previously,

in the State's view, a plea is knowing, intelligent, and

voluntary in the constitutional sense (as the State views this

phrase) even if the defendant is misinformed about the potential

punishment if convicted, so long as the sentence the defendant

39
Dillard, 358 Wis. 2d 543, ¶38 (citing State v. Hoppe,
2009 WI 41, ¶61, 317 Wis. 2d 161, 765 N.W.2d 794).
40
See Bangert, 131 Wis. 2d at 283 ("When a defendant
established a denial of a relevant constitutional right,
withdrawal of the plea is a matter of right."); Brown, 293
Wis. 2d 594, ¶19 ("When a guilty plea is not knowing,
intelligent, and voluntary, a defendant is entitled to withdraw
the plea as a matter of right because such a plea 'violates
fundamental due process.'") (quoting Van Camp, 213 Wis. 2d at
139); see also Cross, 326 Wis. 2d 492, ¶20 ("If the State cannot
meet its burden [of proving by clear and convincing evidence
that the plea was knowing, voluntary, and intelligent despite
the deficiencies of the plea hearing,] the defendant is entitled
to withdraw his plea as a matter of right.") (citing Van Camp,
213 Wis. 2d at 139).

27
 No. 2014AP2488-CR

ultimately receives does not exceed the maximum sentence the

circuit court told the defendant he could receive.

¶62 The State urges that this remedy of reducing

(commuting) the sentence to fit what the defendant was told he

faced is appropriate in the instant case.

¶63 According to the State, Finley knew, based on the

circuit court's colloquy, that he faced a sentence of 19 years,

6 months' confinement in prison.* The circuit court ultimately

imposed a sentence of 19 years, 6 months' imprisonment* (after

his Bangert motion and a successful appeal). The State

concludes that this reduction (commutation) remedy is

appropriate: Finley knowingly, intelligently, and voluntarily

entered a plea that he knew exposed him to a potential

punishment of 19 years, 6 months' confinement in prison,* and he

ultimately received a sentence of 19 years, 6 months'

imprisonment,* which is less than 19 years, 6 months' confinement

in prison.*

¶64 The State asserts that State v. Cross, 2010 WI 70, 326
Wis. 2d 492, 786 N.W.2d 64, and State v. Taylor, 2013 WI 34, 347

Wis. 2d 30, 829 N.W.2d 482, suggest that when a defendant is

misinformed about the potential punishment, sentence reduction

(commutation) is an appropriate remedy.

¶65 Thus, we examine Cross and Taylor to determine whether

they govern the instant case.

¶66 We begin with Cross. Prior to entering a guilty plea,

the defendant was misinformed by the State, the circuit court,
and Cross's attorney that he faced a higher potential punishment
28
 No. 2014AP2488-CR

than the law actually authorized——40 years' imprisonment* with a

maximum initial confinement* of 25 years, rather than the 30

years' imprisonment* with 20 years' maximum initial confinement*

set forth in the statute.41

¶67 After the circuit court imposed a sentence of 40 years

imprisonment,* Cross discovered that his offense should have

carried a maximum penalty of 30 years' imprisonment* with 20

years' maximum initial confinement.*42

¶68 Cross moved to withdraw his plea, arguing that it was

not knowingly, intelligently, and voluntarily entered because he

was misinformed of a higher potential punishment than was

allowable by statute and was unaware of the potential

punishment.43 Cross sought an evidentiary hearing under Bangert.

The circuit court denied an evidentiary hearing and Cross's

motion to withdraw his plea.44 The circuit court resentenced

Cross to the correct maximum statutory penalty.45

¶69 On appeal to this court, Cross argued that he had made

a prima facie showing of a Bangert violation because the
potential punishment was incorrectly communicated and he was

unaware of the potential punishment if convicted. Cross argued

41
Cross, 326 Wis. 2d 492, ¶1.
42
Cross, 326 Wis. 2d 492, ¶¶10-11.
43
Cross, 326 Wis. 2d 492, ¶11.
44
Cross, 326 Wis. 2d 492, ¶12.
45
Cross, 326 Wis. 2d 492, ¶12.

29
 No. 2014AP2488-CR

that under these circumstances his plea was not knowingly,

intelligently, and voluntarily entered and that he was entitled

to withdraw his plea as a matter of right.

¶70 This court disagreed with Cross. The court concluded

that it is not necessarily a Bangert violation when a defendant

is told that he faces a higher "but not substantially higher"

potential punishment than is, in fact, available.46 The Cross

court stated that although the circuit court misinformed Cross

about the maximum statutory penalty, the circuit court had

"fulfilled its duty to inform the defendant of the range of

punishments;"47 that Cross understood the potential punishment;48

and that the plea was knowingly, intelligently, and voluntarily

entered.49 The Cross court also concluded that "a defendant's

due process rights are not necessarily violated when he is

incorrectly informed of the maximum potential imprisonment."50

As the Cross court noted, "[w]hen given a greater sentence than

that authorized by law, which presumably would also involve an

error in the understanding of the possible maximum penalty, the

46
Cross, 326 Wis. 2d 492, ¶30.
47
Cross, 326 Wis. 2d 492, ¶4.
48
Cross, 326 Wis. 2d 492, ¶41.
49
Cross, 326 Wis. 2d 492, ¶41.
50
Cross, 326 Wis. 2d 492, ¶37.

30
 No. 2014AP2488-CR

remedy here is a commuted sentence, not plea withdrawal," under

Wis. Stat. § 973.13.51

¶71 To quote Cross,

[A] defendant can be said to understand the range of
punishments as required by § 971.08 and Bangert when
the maximum sentence communicated to the defendant is
higher, but not substantially higher, than the actual
allowable sentence. This accords with common sense;
not all small deviations from the requirements in our
Bangert line of cases equate to a Bangert violation
and require a formal evidentiary hearing.52
As a result, the court in Cross did not allow the defendant to

withdraw his plea.

¶72 The Cross court did, however, qualify its conclusion,

noting that "when the defendant is told the sentence is lower

than the amount allowed by law, a defendant's due process rights

are at greater risk and a Bangert violation may be

established."53

¶73 In sum, the key facts in Cross leading to denial of

plea withdrawal were that the penalty communicated to the

defendant was not substantially higher than the potential

punishment and the court viewed the defendant as having

understood the potential punishment as required by Wis. Stat.

§ 971.08 and Bangert.

51
Cross, 326 Wis. 2d 492, ¶34.
52
Cross, 326 Wis. 2d 492, ¶38.
53
Cross, 326 Wis. 2d 492, ¶39 (emphasis added).

31
 No. 2014AP2488-CR

¶74 In the instant case, the facts are substantially

different from those in Cross. Finley was mistakenly informed

by the circuit court that he faced a different potential

punishment than the maximum statutory penalty, and Finley did

not know the maximum statutory penalty. Moreover, unlike in

Cross, Wis. Stat. § 973.13, which commutes a sentence imposed

that exceeds the maximum statutory penalty, does not provide a

remedy in the instant case, in which the sentence initially

imposed (although at the plea colloquy the circuit court advised

otherwise) did not exceed the maximum statutory penalty.54

¶75 We turn now to the Taylor case. The facts in Taylor

appear (at first blush) to be an example of what the Cross court

foresaw as a "greater risk" to due process rights, that is,

telling a defendant the maximum potential punishment is lower

than it actually is.55

¶76 In Taylor, the defendant was a repeat offender facing

an eight-year sentence——six years' imprisonment* for uttering a

forgery plus a two-year enhancement for prior offenses.56 Taylor
pleaded no contest to the offense at a plea hearing at which the

circuit court stated that it "could impose the maximum penalty

here of a $10,000 fine or six years in prison or both."57

54
See supra ¶¶9, 12 n.11, 33.
55
Cross, 326 Wis. 2d 492, ¶39 (emphasis added).
56
Taylor, 347 Wis. 2d 30, ¶1.
57
Taylor, 347 Wis. 2d 30, ¶16.

32
 No. 2014AP2488-CR

Although the circuit court's colloquy mentioned the repeater

allegation several times, the circuit court did not explicitly

inform Taylor that he faced an additional two-year enhancement

as a repeater.58

¶77 After the circuit court sentenced Taylor to six years'

imprisonment,* Taylor moved to withdraw his no contest plea,

arguing, among other things, that his plea was not entered

knowingly, intelligently, and voluntarily.59 The circuit court

denied Taylor's motion, and this court affirmed the circuit

court.

¶78 The Taylor court concluded that the circuit court

record was "replete with evidence" that Taylor was informed and

aware of the potential punishment of 8 years' imprisonment* he

faced if convicted.60 Among other things, the plea

questionnaire/waiver of rights form, information, and criminal

complaint all informed Taylor of the maximum potential

punishment of 8 years' imprisonment.*61

¶79 We held that Taylor's "plea was entered knowingly,
intelligently, and voluntarily [because] the record makes clear

that the defendant knew the maximum penalty that could be

58
Taylor, 347 Wis. 2d 30, ¶2.
59
Taylor, 347 Wis. 2d 30, ¶3.
60
Taylor, 347 Wis. 2d 30, ¶35. The State may use any
evidence in the record to prove a defendant's understanding at
the time of entry of the plea. Taylor, 347 Wis. 2d 30, ¶32.
61
Taylor, 347 Wis. 2d 30, ¶¶35-38.

33
 No. 2014AP2488-CR

imposed and was verbally informed at the plea hearing of the

penalty that he received. Therefore, the circuit court did not

err by denying Taylor's postconviction motion to withdraw his no

contest plea."62

¶80 In sum, in Taylor, the potential punishment

communicated to the defendant was lower than the maximum

statutory penalty. The record demonstrated, however, that

Taylor knew the potential punishment when he entered his plea,

even though the circuit court's plea colloquy did not correctly

advise him of the potential punishment. Under these facts, the

Taylor court agreed with the circuit court's decision that the

plea was knowingly, intelligently, and voluntarily entered: The

defendant knew the potential punishment and was given the

sentence the circuit court advised. Taylor was not entitled to

withdraw his plea.63

¶81 Cross and Taylor demonstrate that a circuit court's

failure to correctly advise a defendant in the plea colloquy of

the potential punishment he faces does not automatically permit
a defendant to withdraw his or her plea. In these cases, the

defendants knew the potential punishment and were given the

sentence the circuit court described.

¶82 Although Cross and Taylor have some similarities to

the instant case, the facts in Cross and Taylor are

62
Taylor, 347 Wis. 2d 30, ¶8.
63
Taylor, 347 Wis. 2d 30, ¶42.

34
 No. 2014AP2488-CR

significantly different from the facts in the instant case and

therefore do not govern our decision.

¶83 In Cross, this court held that the insubstantial

misstatement of the potential punishment did not constitute a

Bangert violation.64 In Taylor, the court held that the circuit

court record made clear that the defendant knew the potential

punishment.65

¶84 As a result, in both Cross and Taylor, no evidentiary

hearing was needed.66

¶85 In the instant case, there was a Bangert violation and

an evidentiary hearing was held.67 The record in the instant

case does not establish that Finley knew the information about

potential punishment about which he was misinformed during the

plea colloquy. On the contrary, after the evidentiary hearing,

the State "abandoned any argument that it met its burden, at

least with respect to Finley's knowledge, at the time he pled,

of the correct maximum penalty he faced."68 In this court, the
64
Cross, 326 Wis. 2d 492, ¶4.
65
Taylor, 347 Wis. 2d 30, ¶34.
66
See Cross, 326 Wis. 2d 492, ¶¶4, 38, 41; Taylor, 347
Wis. 2d 30, ¶¶4, 8, 18.
67
The State did not seek review of the court of appeals'
decision that there was a Bangert violation in Finley's case.
The State further acknowledges that the plea colloquy
misinformed Finley of the potential punishment he faced if
convicted, and the State acknowledges that Finley did not
otherwise know, when he entered his plea, of the potential
punishment he faced if convicted.
68
Finley, 365 Wis. 2d 275, ¶21.

35
 No. 2014AP2488-CR

State acknowledges that Finley did not know the potential

punishment he faced when he entered his plea.

¶86 The State argues that the remedy in Finley's case is

sentence reduction (commutation). The State asserts that as

long as Finley ultimately receives a sentence that he was

informed he could get and that sentence is less than or equal to

the maximum statutory penalty, Finley's plea was knowing,

intelligent, and voluntary for constitutional purposes. No

Wisconsin or United States Supreme Court case supports the

State's proposition.69

¶87 The State relies on Taylor in proposing its resolution

of the instant case despite the differences between the instant

case and Taylor that we outlined above. In Taylor, unlike in

the instant case, the circuit court record revealed that the

defendant knew the potential punishment he faced if convicted.

¶88 We conclude that the facts and circumstances of

Finley's case are more like those in Bangert and Brown than

those in Cross or Taylor.
¶89 As in Bangert and Brown, Finley's plea colloquy was

deficient and his postconviction motion demonstrated a prima

facie Bangert violation.

69
In a per curiam opinion predating Bangert and Brown, this
court did allow reduction (commutation) of a sentence to the
sentence a defendant was told he could receive. The court also
noted, however, that the defendant's plea was entered knowingly
and voluntarily. See Preston v. State, 58 Wis. 2d 728, 729, 206
N.W.2d 619 (1973) (per curiam).

36
 No. 2014AP2488-CR

¶90 In Bangert, the circuit court's plea colloquy failed

to adequately establish that the defendant understood the nature

of the charges to which he pleaded.70 An evidentiary hearing was

held at which the State met its burden of proving that the

defendant knowingly, intelligently, and voluntarily entered his

plea.71 Thus, the defendant in Bangert was not entitled to

withdraw his plea.72 Had the State not met its burden, however,

it appears that the defendant would have been entitled to

withdraw his plea.73

¶91 In Brown, the circuit court's plea colloquy failed to

adequately establish that the defendant understood the nature of

the charges to which he pleaded as well as the constitutional

rights he waived.74 The Brown court concluded that Brown

adequately alleged that he did not understand the nature of the

charges to which he pleaded or the constitutional rights he

waived.75 As a result, the Brown court remanded the cause for an

evidentiary hearing, at which the State had the burden of

proving that Brown understood the charges to which he pleaded
and the constitutional rights he waived despite the deficiencies

70
Bangert, 131 Wis. 2d at 251.
71
Bangert, 131 Wis. 2d at 284-86.
72
See Bangert, 131 Wis. 2d at 285-86.
73
See Bangert, 131 Wis. 2d at 283.
74
Brown, 293 Wis. 2d 594, ¶5.
75
Brown, 293 Wis. 2d 594, ¶79.

37
 No. 2014AP2488-CR

at the plea hearing.76 If the State did not meet its burden at

the evidentiary hearing, it appears the defendant would have

been entitled to withdraw the plea.77

¶92 Bangert and Brown stand for the proposition that when

a plea colloquy is deficient and the defendant alleges that he

did not know or understand the information that should have been

provided in the plea colloquy, the defendant is entitled to an

evidentiary hearing at which the State has an opportunity to

prove by clear and convincing evidence that the defendant

knowingly, intelligently, and voluntarily entered his plea.78 If

76
Brown, 293 Wis. 2d 594, ¶79. The Brown court rejected,
however, the defendant's argument that the circuit court
violated Wis. Stat. § 971.08 and Bangert by failing to state in
the plea colloquy that the punishment for each charge could run
consecutively, stating:

Although the better practice is to advise the
defendant of the cumulative maximum sentence he could
receive from consecutive sentences, we do not believe
the omission of such information should allow a
defendant to withdraw a guilty plea in the absence of
any allegation that the defendant did not understand
the effect of multiple charges on his sentence.

Brown, 293 Wis. 2d 594, ¶78.
77
Brown, 293 Wis. 2d 594, ¶36 ("Assuming the defendant's
postconviction motion is adequate to require a hearing, he may
withdraw his plea after sentencing as a matter of right unless
the state can show the plea was entered knowingly,
intelligently, and voluntarily, despite the deficiencies in the
plea hearing.") (citing State v. Trochinski, 2002 WI 56, ¶17,
253 Wis. 2d 38, 644 N.W.2d 891; Van Camp, 213 Wis. 2d at 139).
78
See Brown, 293 Wis. 2d 594, ¶¶58-59; Bangert, 131
Wis. 2d at 274.

38
 No. 2014AP2488-CR

the State fails to meet its burden at the evidentiary hearing,

the defendant is entitled to withdraw his plea.79

¶93 In the instant case, Finley had an evidentiary

hearing. The State does not contest that Finley did not know,

when he entered his plea, of the potential punishment if

convicted.

¶94 In sum, in the posture of the instant case, Finley did

not know when he entered his plea of the potential punishment he

faced if convicted. As in Bangert and Brown, the State had the

opportunity in the instant case to prove the defendant's

knowledge of the information set forth in Wis. Stat.

§ 971.08(1)(a) and the case law. A defendant's lack of

understanding of the potential punishment when he or she enters

a guilty or no contest plea is relevant for determining whether

the plea was entered knowingly, intelligently, and voluntarily.

The rule in Bangert and Brown is that if the State cannot meet

its burden of proof, the defendant is entitled to withdraw his

plea.
¶95 Under the circumstances of the instant case, Bangert,

Brown, Cross, and Taylor lead us to conclude that Finley is

entitled to withdraw his plea: The circuit court misinformed

Finley of the potential punishment he faced if convicted,

information the circuit court was required to give the

defendant; and the State failed to prove that when Finley

79
See Brown, 293 Wis. 2d 594, ¶36; Bangert, 131 Wis. 2d at
283; Cross, 326 Wis. 2d 492, ¶20.

39
 No. 2014AP2488-CR

entered his plea he knew the potential punishment he faced if

convicted. The case law tells us that under these circumstances

Finley was entitled to withdraw his plea. Bangert, 131

Wis. 2d at 283 ("When a defendant established a denial of a

relevant constitutional right, withdrawal of the plea is a

matter of right."); Brown, 293 Wis. 2d 594, ¶19 ("When a guilty

plea is not knowing, intelligent, and voluntary, a defendant is

entitled to withdraw the plea as a matter of right because such

a plea 'violates fundamental due process.'") (quoting Van Camp,

213 Wis. 2d at 139); see also Cross, 326 Wis. 2d 492, ¶20 ("If

the State cannot meet its burden [of proving by clear and

convincing evidence that the plea was knowing, voluntary, and

intelligent despite the deficiencies of the plea hearing,] the

defendant is entitled to withdraw his plea as a matter of

right.") (citing Van Camp, 213 Wis. 2d at 139).

¶96 Accordingly, we affirm the decision of the court of

appeals and remand the cause to the circuit court with

instructions to grant Finley's motion to withdraw his plea.
By the Court.—The decision of the court of appeals is

affirmed and the cause is remanded to the circuit court.

40
 No. 2014AP2488-CR

ATTACHMENT A: GLOSSARY

1. Indeterminate sentencing and Truth in Sentencing:
Although Wisconsin's sentencing system shifted from
indeterminate sentencing to truth in sentencing in
1998, see 1997 Wis. Act 283, the requirements of
Wis. Stat. § 971.08(1)(a) and the case law regarding
the circuit court's duties in a plea colloquy have
remained substantially the same over the years.
Compare, e.g., Bangert, 131 Wis. 2d at 260-62
(discussing the requirements of Wis. Stat. § 971.08
and the general duties of the trial court prior to
accepting a guilty or no contest plea under
Wisconsin's indeterminate sentencing system), with
Brown, 293 Wis. 2d 594, ¶¶22-35 ("[R]estat[ing] and
supplement[ing] the Bangert outline" under the truth
in sentencing system).

2. Truth in Sentencing Terminology:

A. Bifurcated Sentence. A bifurcated sentence is a
sentence that consists of a term of confinement
in prison followed by a term of extended
supervision. The total length of a bifurcated
sentence may not exceed the maximum period of
imprisonment set forth in § 939.50(3) (and other
statutes). See Wis. Stat. § 973.01(1), (2).

"Imprisonment;" "Confinement in Prison;"
"Extended Supervision." "Imprisonment" refers to
both parts of a bifurcated sentence: the period
of initial confinement in prison plus the period
of extended supervision. "Imprisonment" and
"confinement in prison" are thus not synonymous.
See Wis. Stat. § 973.01(1); State v. Jackson,
2004 WI 29, ¶5 n.4, 270 Wis. 2d 113, 676
N.W.2d 872 ("Under Truth-in-Sentencing
legislation, the term 'imprisonment' does not
mean time in prison. Rather, 'imprisonment'
consists of both the time of confinement (in
prison) and the time following the confinement
spent on extended supervision."); State v. Cole,
2003 WI 59, ¶16, 262 Wis. 2d 167, 663 N.W.2d 700
("Section 973.01 used the word 'imprisonment' to
refer to a 'bifurcated sentence' consisting of 'a

41
 No. 2014AP2488-CR

term of confinement in prison followed by a term
of extended supervision . . . .'") (quoting Wis.
Stat. § 973.01(1)).

Extended supervision may be imposed in addition
to confinement in prison and is part of the total
period of imprisonment. Wisconsin Stat.
§ 973.01(2)(d) sets the minimum and maximum term
of extended supervision as follows:

The term of extended supervision may not be less
than 25% of the length of the term of
confinement in prison imposed under par. (b)
and, for a classified felony, is subject to
whichever of the following limits is applicable:

1. For a Class B felony, the term of extended
supervision may not exceed 20 years.

2. For a Class C felony, the term of extended
supervision may not exceed 15 years.

3. For a Class D felony, the term of extended
supervision may not exceed 10 years.

4. For a Class E, F, or G felony, the term of
extended supervision may not exceed 5 years.

5. For a Class H felony, the term of extended
supervision may not exceed 3 years.

6. For a Class I felony, the term of extended
supervision may not exceed 2 years.

3. Potential Punishment: The statutory phrase
"potential punishment" has not been defined in the
statutes or the case law. In analyzing whether a
defendant was correctly advised of the potential
punishment, our cases have looked to the maximum
statutory penalty, that is, the maximum sentence
provided for by statute.

Wisconsin Stat. § 939.50(3) sets forth the maximum
statutory penalty for felonies. Other statutes add
enhancements to the penalties specified in Wis.
Stat. § 939.50(3). For example, there are
enhancements for repeater offenses, domestic abuse
offenses, or for offenses committed with the use of

42
 No. 2014AP2488-CR

a dangerous weapon. See, e.g., Wis. Stat.
§§ 939.62, 939.621, 939.63.

4. Range of Punishments: Some cases use the phrase
"range of punishments" in addition to or in place of
"potential punishment." "Range of punishments,"
"potential punishment," "maximum statutory penalty,"
and various other phrases are used synonymously in
the cases to mean "potential punishment."

See, e.g., State v. Bangert, 131 Wis. 2d at 260-61
(quoting Wis. Stat. § 971.08(1)(a)'s reference to
"potential punishment," and referring to the "range
of punishments"); State v. Brown, 293 Wis. 2d 594,
¶¶3, 35, 44 (quoting Wis. Stat. § 971.08(1)(a)'s
reference to "potential punishment" and referring
to the "range of punishments"); State v. Taylor,
2013 WI 34, ¶¶31, 33, 37, 41, 42 n.12, 347
Wis. 2d 30, 829 N.W.2d 482 (referring
interchangeably to the "potential punishment,"
"maximum term of imprisonment," "maximum penalty,"
"range of punishments," and "sentence"); State v.
Cross, 2010 WI 70, ¶¶3, 11, 28, 35, 37-38, 326
Wis. 2d 492, 786 N.W.2d 64 (referring
interchangeably to "range of punishments," "maximum
potential sentence," "maximum potential
imprisonment," "maximum initial sentence," "actual
allowable sentence," and "precise maximum
sentence").

Circuit courts do not usually advise a defendant of
the minimum statutory penalty, for example,
probation if applicable, through the various
possible sentences up to the maximum statutory
penalty (including any enhancements) set forth in
the felony statutes. Circuit courts do, however,
generally advise a defendant of a presumptive or
mandatory minimum sentence. See State v. Chamblis,
2015 WI 53, ¶24, 362 Wis. 2d 270, 864 N.W.2d 806
(citing State v. Mohr, 201 Wis. 2d 693, 700, 549
N.W.2d 497 (Ct. App. 1996)); see also State v.
Thompson, 2012 WI 90, ¶51, 342 Wis. 2d 674, 818
N.W.2d 904. A circuit court need not advise a
defendant of the division between confinement in
prison and extended supervision. See Taylor, 347
Wis. 2d 30, ¶42 n.12 ("We have never held, and we do
not hold today, that the court must parse out and
specifically advise the defendant of the potential
43
 No. 2014AP2488-CR

term of confinement and also the potential term of
extended supervision at the plea colloquy.").

44
 No. 2014AP2488-CR.akz

¶97 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I do

not join the majority opinion because I would not allow

defendant Timothy Finley ("Finley") to withdraw his plea of no

contest, for three reasons. First, the two misstatements in

this case as to the maximum penalty applicable to Finley's plea,

taken together, do not constitute a Bangert violation. Second,

even if a Bangert violation could be said to have occurred in

this case, the circuit court's finding subsequent to the Bangert

hearing that Finley knew the maximum applicable penalty is not

clearly erroneous. Third, even if a Bangert violation could be

said to have occurred in this case, and even if the circuit

court's finding subsequent to the Bangert hearing that Finley

knew the maximum applicable penalty is clearly erroneous, plea

withdrawal should not be the only available remedy; Finley's

sentence can be reduced to a 19.5-year term of imprisonment. As

will be shown, the entirety of the record in this case

demonstrates that Finley's motion is really based upon the fact

that he did not receive the sentence he hoped he would receive
pursuant to his plea negotiations.1

I

¶98 Although the majority focuses on the two errors that

occurred during the proceedings below, an understanding of the

1
Additionally, the court's opinion should not be read as
deciding any more than is necessary to resolve this case
properly, and its purported need to define numerous terms raises
unnecessary questions.

1
 No. 2014AP2488-CR.akz

entire record is crucial to the correct disposition of this

case. Thus, I provide certain additional facts.

¶99 On June 5, 2011, and according to the criminal

complaint filed against him, Finley brutally beat K.A.G., an

adult female with whom he lived, for a period of about five

hours. The complaint alleges that Finley held a 10- to 12-inch

butcher knife to K.A.G.'s throat, continuously struck her with a

closed fist, and choked her until she lost consciousness.

K.A.G. alleges that she sustained bruises, a broken nose, cuts

to her hands from when she tried to pull the butcher knife away

from her throat, cuts "all over [her] entire neck" and on her

stomach, and a "deep" cut on her wrist that "was bleeding pretty

bad" and that allowed her to "see some of the tendons in [her]

arm." According to K.A.G., her medical treatment required,

among other things, staples to her head.

¶100 On June 7, 2011, a criminal complaint was filed

against Finley charging him with four offenses: (1) first-degree

reckless endangerment, domestic abuse, use of a dangerous
weapon, contrary to Wis. Stat. §§ 941.30(1), 968.075(1)(a), and

939.63(1)(b); (2) substantial battery, domestic abuse, contrary

to Wis. Stat. §§ 940.19(2) and 968.075(1)(a); (3) strangulation

and suffocation, domestic abuse, contrary to Wis. Stat.

§§ 940.235(1) and 968.075(1)(a); and (4) false imprisonment,

domestic abuse, contrary to Wis. Stat. §§ 940.30 and

968.075(1)(a). The complaint stated in part that, upon

conviction, Finley could be imprisoned: (1) up to 12.5 years for
the reckless endangerment charge, which could be increased by up

2
 No. 2014AP2488-CR.akz

to 5 years because Finley committed the offense while using a

dangerous weapon; (2) up to 3.5 years for the substantial

battery charge; (3) up to 6 years for the strangulation and

suffocation charge; and (4) up to 6 years for the false

imprisonment charge.2

¶101 On June 27, 2011, an information was filed at the

close of Finley's preliminary hearing. The State provided

Finley's first attorney3 with two copies. The attorney orally

acknowledged receipt of the information.

¶102 The information repeated the charges listed in the

complaint against Finley, but additionally charged Finley as a

repeater under Wis. Stat. § 939.62(1)(c) as to the first-degree

reckless endangerment count and under § 939.62(1)(b) as to the

other three counts. The information stated in part that, upon

conviction, Finley could be imprisoned: (1) up to 12.5 years for

the reckless endangerment charge, which could be increased by up

to 5 years because Finley committed the offense while using a

dangerous weapon, and up to an additional 6 years because Finley
was a repeater; (2) up to 3.5 years for the substantial battery

2
I do not mention any applicable fines in this separate
writing.
3
In order to differentiate this attorney from the attorney
who represented Finley during plea negotiations, the plea
hearing, and the sentencing hearing, this attorney will be
referred to as Finley's "first attorney." The attorney who
represented Finley during plea negotiations, the plea hearing,
and the sentencing hearing will be referred to simply as
Finley's attorney. The record suggests that Finley was briefly
represented by a third attorney during the earliest of the
proceedings below, but that attorney will not be referenced.

3
 No. 2014AP2488-CR.akz

charge, which could be increased by up to 4 years because Finley

was a repeater; (3) up to 6 years for the strangulation and

suffocation charge, which could be increased by up to 4 years

because Finley was a repeater; and (4) up to 6 years for the

false imprisonment charge, which could be increased by up to 4

years because Finley was a repeater.

¶103 On August 1, 2011, Finley's arraignment was held. The

following conversation took place:

THE COURT: Defendant appears in person with [his
attorney]. So, we are here for arraignment on the
felony?

[FINLEY'S FIRST ATTORNEY]: Yes, Your Honor.

THE COURT: Has your client received a copy of the
information?

[FINLEY'S FIRST ATTORNEY]: We have received a
copy of the information, four-count information. I
have provided a copy to Mr. Finley. We discussed the
nature of the charges and the maximum penalties. We
waive a formal reading of the information . . . .

(Emphasis added.)
¶104 Plea negotiations ensued. On June 24, 2012, the day
before Finley's plea hearing, and according to postconviction

testimony from Finley's attorney,4 Finley's attorney met with

Finley for one to two hours and discussed a plea offer made by

the State. Finley chose not to accept the offer. He had been

hoping to be found eligible by the court for the Earned Release

and Challenge Incarceration programs, and accepting the State's

offer would have made him ineligible for those programs. See

4
See supra, n.3.

4
 No. 2014AP2488-CR.akz

generally Wis. Stat. §§ 973.01(3g)-(3m), 302.05(3), 302.045.

Specifically, three out of the four crimes with which Finley was

charged——substantial battery, strangulation and suffocation, and

false imprisonment——are all crimes under chapter 940 of the

Wisconsin Statutes, "Crimes Against Life and Bodily Security."

See Wis. Stat. §§ 940.19(2), 940.235(1), 940.30. Those

convicted of chapter 940 crimes are statutorily ineligible for

the Earned Release and Challenge Incarceration programs. See

§ 973.01(3g)-(3m). Although the specifics of the State's offer

are not in the record, Finley's attorney testified that the

State asked for Finley to plead to charges that would have

rendered him statutorily ineligible for these programs.

¶105 Finley and his attorney thus discussed a counter-

offer, according to which Finley would plead to first-degree

reckless endangerment. First-degree reckless endangerment is a

crime under chapter 941 of the Wisconsin Statutes, "Crimes

Against Public Health and Safety." See Wis. Stat. § 941.30(1).

Although first-degree reckless endangerment is classified as a
more serious crime than the other crimes with which Finley was

charged, see Wis. Stat. §§ 940.19(2), 940.235(1), 940.30,

941.30(1), Finley and his attorney believed that pleading to a

chapter 941 crime in exchange for dismissal of the other crimes

left Finley statutorily eligible for the Earned Release and

Challenge Incarceration programs. Finley's attorney testified

as follows:

Q: So, on that date, which was the eve before
the plea hearing?

A: That is my recollection, yes.
5
 No. 2014AP2488-CR.akz

Q: [Finley] indicated that he would be willing
to plead to that first-degree recklessly endangering
safety charge?

A: Yes.

Q: And that had enhancers, did it not?

A: Yes, it did.

Q: And was it also the proposal it would include
the repeater and the dangerous weapon enhancers?

A: That was based on what [the State] was asking
for, and I don't remember the specifics of that most
recent offer. But I do remember that what he would
have been pleading to, what I was going to take to
[the State], had higher penalties than what [the
State] was asking for, but it was only the one charge
and it had the eligibility determination.

Q: . . . Ultimately [the State] accepted your
proposal; is that correct?

A: Yes.

Q: And it, in fact, was to that one charge with
both those enhancers, correct?

A: Yes.

Q: So, with your usual practice would you then
explain the pitfalls of going back and specifically
detail what the maximum exposure would have been?

A: Yes.

Q: Did you -- would you have done that then
prior, the day before prior to the plea hearing?

A: We did. I remember we did discuss the fact
that it would have been a higher penalty. So, I
expect we did discuss that. Because I remember that
was one of the specifics, that is what we were
proposing had a higher maximum penalty.

Q: And in your usual practice would you ever
have someone agree to plead to something where they
were not aware of what the maximum exposure was?

6
 No. 2014AP2488-CR.akz

A: No.

Q: So, that would have been something you would
have covered with [Finley] so he knew, okay, you may
become eligible, but now you are looking at this
specific exposure; is that correct?

A: Yes.

Q: And on that date is there any reason to
believe that you didn't give him the correct maximum
exposure?

A: No.

Q: You did not do the plea form on that date; is
that correct?

A: No. . . .

Q: So, to the best of your knowledge, the day
before [the plea hearing] when [Finley] was willing to
plead to this charge with these enhancers, he was
fully aware of the maximum potential penalties?

A: Yes.

. . .

Q: . . . [T]he evening before [the plea hearing]
[Finley] had already been told the correct amount,
that would have been your practice?

A: That would have been my practice.

(Emphases added.)
¶106 Consequently, as of June 24, 2012——the day before

Finley's plea hearing——there is no evidence in the record to

suggest that Finley had been misinformed or was otherwise

unaware of the maximum applicable penalty for first-degree

reckless endangerment, domestic abuse, use of a dangerous

weapon, as a repeater. To the contrary: (1) Finley had received
a copy of the information, which correctly stated the maximum

applicable penalties; (2) Finley had reviewed the nature of the
7
 No. 2014AP2488-CR.akz

charges against him and maximum applicable penalties with his

first attorney; (3) Finley had waived a formal reading of the

information at his arraignment; and (4) Finley's attorney

testified that, to the best of his knowledge, Finley was aware

of the maximum applicable penalty relevant to his plea the day

before his plea hearing.

¶107 On June 25, 2012, Finley's plea hearing was held. Two

actions relevant to this case occurred prior to the hearing.

First, Finley's attorney presented the State with Finley's

counter-offer. Second, Finley's attorney and Finley filled out

and reviewed Finley's Plea Questionnaire and Waiver of Rights

form.

¶108 For the first time, and at most hours before his plea

hearing, Finley was presented with an erroneous statement of the

maximum applicable penalty. The plea form stated in part, "The

plea agreement . . . is as follows: Plea to count one as

charged. State will dismiss and read in the remaining charges

in 2011-CF-671 as well as the charges in 2011-CM-953. The State
will cap its recommendation at 10 years initial confinement. We

are free to argue." Unfortunately, the form also stated: "The

maximum penalty I face upon conviction is 19 years, 6 months

confinement . . . ." (Emphasis added.) This is incorrect. Upon

conviction, Finley faced a total bifurcated sentence of

imprisonment of 23.5 years: 18.5 years of initial confinement

and 5 years of extended supervision (12.5 years for the first-

degree reckless endangerment charge, 5 years for the dangerous
weapon enhancer, and 6 years for the repeater enhancer). See

8
 No. 2014AP2488-CR.akz

Wis. Stat. §§ 941.30(1) ("Recklessly endangering safety"),

939.50(3) ("Classification of felonies"), 939.63(1)(b)

("Penalties; use of a dangerous weapon"), 939.62(1)(c)

("Increased penalty for habitual criminality"), 973.01

("Bifurcated sentence of imprisonment and extended

supervision").5 Finley's attorney testified that it would have

been his practice to have proceeded line by line through the

plea questionnaire with Finley and to have read the 19.5-year

figure to him.

¶109 Importantly, however, Finley's attorney also testified

as follows:

Q: So, the erroneous amount of nineteen and a
half, that was first introduced after the defendant
had already proposed [his] offer to the State on the
day of the plea hearing?

A: Yes.

(Emphasis added.)
¶110 At the plea hearing, the error on the plea

questionnaire was repeated, but not until after the circuit

5
Finley's attorney could not determine, in retrospect, the
origin of the erroneous 19.5-year figure. One possibility comes
to mind, however. As stated, Finley faced a term of
imprisonment of up to 12.5 years for the reckless endangerment
charge and up to 5 years for the use of a dangerous weapon
enhancer; these numbers add to 17.5 years. The habitual
criminality statute provides enhancements of 2, 4, or 6 years
depending on the applicable maximum term of imprisonment and on
whether the prior convictions were for misdemeanors or felonies.
See Wis. Stat. § 939.62(1). If Finley's attorney incorrectly
applied the repeater enhancer from Wis. Stat. § 939.62(1)(a)
rather than from § 939.62(1)(c), he would have added 2 years to
Finley's term of imprisonment rather than 6. This would result
in an erroneous maximum term of imprisonment of 19.5 years.

9
 No. 2014AP2488-CR.akz

court correctly discussed the maximum applicable penalty. The

following exchange occurred:

THE COURT: The maximum penalty for the offense
would be a fine of not more than $25,000 or
imprisonment not more than twelve years and six months
or both.

MR. FINLEY: Yes, sir.

THE COURT: Okay. I take it -- are we pleading as
a repeater?

[THE STATE]: Yes, Your Honor.

THE COURT: Okay. That will be the base penalty.
Then because you are a repeater, then they could
increase the incarceration period by not more than an
additional six years. And they are basing the
repeater enhancement provision on the fact that you
were convicted of possession of cocaine as a
subsequent offender, and possession of THC as a
subsequent offender on September 12th, 2008, in Brown
County. Do you remember those two felonies?

MR. FINLEY: Yes, sir.

THE COURT: Okay. And they are also charging
that you used a dangerous weapon. And for the
enhancement provision of using a dangerous weapon then
the term of imprisonment can be increased by not more
than five years for that. Do you understand that
then?

MR FINLEY: Yeah.

THE COURT: All right. So the maximum you would
look at then nineteen years six months confinement.
Do you understand the maximum penalties?

MR. FINLEY: Yes, sir.

THE COURT: Now, did -- were you able to read the
criminal complaint in the past or have the criminal
complaint read to you in the past?

MR. FINLEY: Yeah.
(Emphasis added.)
10
 No. 2014AP2488-CR.akz

¶111 Despite the fact that, on the date of his plea

hearing, Finley was given information that conflicted with what

he had been told prior to that date, the record does not contain

evidence that Finley then informed either the court or his

attorney that he was confused by the inconsistency.6 In fact,

the circuit court asked Finley, shortly after the exchange just

provided:

THE COURT: Is there anything on the plea
questionnaire form that you didn't understand that
you'd like to ask your attorney questions or you would
like to ask me questions about it?

MR. FINLEY: No, sir.
¶112 The circuit court accepted Finley's plea of no contest

to first-degree reckless endangerment, domestic abuse, use of a

dangerous weapon, as a repeater.

¶113 On August 22, 2012, an agent at the Department of

Corrections prepared a presentence investigation report ("PSI")

for Finley's sentencing. The "Recommendation" portion of the

PSI, which appears on page 18 of that document, states in part:

Mr. Finley is facing sentencing for 1st Degree
Reckless Endangerment, Domestic Abuse, Use of a
Dangerous Weapon, Repeater, with this offense being
defined as a Class F felony with a maximum
imprisonment term of 12.5 years and a maximum
confinement term of 7.5 years coupled with a maximum
extended supervision term of 5 years. Further
invoking the provisions of 939.63(1)(b) because the
defendant committed this offense while using a

6
Finley's attorney testified that Finley said "something"
to him when the court advised him of the maximum applicable
penalty, but Finley's attorney could not recall what Finley had
said.

11
 No. 2014AP2488-CR.akz

dangerous weapon the maximum term of imprisonment may
be increased by not more than 5 years. Further
invoking the provisions of 939.62(1)([c]) because the
defendant is a repeater the maximum term of
imprisonment may be increased by not more than 6
years. Based upon the risk to re-offend as well as
the treatment needs it is therefore respectfully
recommended that Mr. Finley be sentenced to 10 to 12
years confinement followed by 5 years extended
supervision.
¶114 In a letter dated September 19, 2012, Finley's

attorney informed the circuit court:

My client and I have had the opportunity to
review the Pre-Sentence Investigation prepared by the
Department of Corrections in this case. At this time
we are requesting that the Sentencing Hearing . . . be
adjourned. . . . It appears as if some of the
information presented in the PSI may be
incorrect . . . .
(Emphasis added.)

¶115 On September 21, 2012, the sentencing hearing was

adjourned to October 19, 2012. On October 19, 2012, at

sentencing, proceedings began with a discussion of some of the

alleged errors in the PSI. Finley's attorney explained in part:

[FINLEY'S ATTORNEY]: I'll just note on page 12
there is a statement by Mr. Finley's father. The
first paragraph on page 12 where his father is
claiming that he broke [N.H.'s] jaw. There is nothing
here to support that. My client denies that.

. . .

[FINLEY'S ATTORNEY]: The other thing I wanted to
address is more of a legal issue would be on page 18
regarding the Challenge Incarceration and Earned
Release. Agent says that [Finley is] not eligible
because this is a Chapter 940 offense. My independent
presentence writer made the same mistake. This is a
Chapter 941 offense, so he is statutorily eligible for
those programs.

12
 No. 2014AP2488-CR.akz

(Emphasis added.) In other words, the record suggests that

Finley and his attorney closely reviewed the PSI. In fact, they

challenged information on the same page upon which appeared a

detailed explanation of Finley's maximum exposure. They did not

challenge the explanation of Finley's maximum exposure.

¶116 Eventually the circuit court sentenced Finley. The

court was clearly disgusted by the "horrific" nature of the

offense charged, observing that the injuries sustained by K.A.G.

"show[ed] a total, utter disregard for human life." The court

noted before pronouncing sentence:

I know that the Court of Appeals . . . looks
disfavorably upon maximum sentences, and they really
strictly review those sentences when judges impose
them. But I've been here on the bench twenty-one
years, and I've done criminal cases for most of those
twenty-one years. . . . And I don't know what cases
require the maximum if this one doesn't.

If you take time to go look at these photographs
and understand clearly what this victim endured, I
don't know if it takes thirty, forty, forty-nine,
slits of the knife for someone to realize that this
case is worth the maximum?
¶117 The court also reviewed Finley's decades-long criminal
history, noting the "variety of significant and serious criminal

convictions, many that show again [Finley's] disregard for other

human beings."

¶118 When the court eventually sentenced Finley, it stated:

I am going to impose the maximum sentence in this
case. I calculate that to be twenty-three point five
years consisting of eighteen point five years of
initial confinement and five years of extended
supervision.

13
 No. 2014AP2488-CR.akz

Moreover, the court informed Finley, "I can't think of any

reason . . . that you should be entitled to Challenge

Incarceration or [Earned] Release, therefore I'm going to deny

both."

¶119 At no time during the sentencing hearing did Finley's

attorney or Finley express any confusion as to the maximum

applicable penalty as meted out by the court. Indeed, at the

end of the hearing, the court verified:

THE COURT: . . . Anything the State didn't
consider -- or the Court didn't consider the State
would like addressed . . . ?

[THE STATE]: No, Your Honor.

THE COURT: [Finley's attorney]?

[FINLEY'S ATTORNEY]: No, Your Honor.
¶120 As the opinion of the court explains, on June 5, 2013,

Finley filed a postconviction Bangert motion alleging that

Finley's plea questionnaire misstated the applicable maximum

penalty, that the circuit court repeated this error, and that

Finley "did not know at the time of the plea hearing that the

court could impose a total of 23.5 years, consisting of 18.5

years of initial confinement and five years of extended

supervision." See State v. Bangert, 131 Wis. 2d 246, 389

N.W.2d 12 (1986). Finley requested "that the court enter an

order permitting Finley to withdraw his no contest plea; or

alternatively, that the court modify the judgment of conviction

to a maximum bifurcated sentence of 19.5 years, in keeping with

the information Finley received at the plea hearing."

14
 No. 2014AP2488-CR.akz

¶121 On July 19, 2013, a nonevidentiary hearing on Finley's

motion was held. The State acknowledged the errors that had

occurred but argued that Finley was nevertheless aware of the

maximum applicable penalty and had not made a prima facie

showing under Bangert. The State pointed in part to the

criminal information that Finley had received, to

representations on the record by Finley's attorneys7 that they

had reviewed with Finley the charges against Finley and the

maximum penalty associated with those charges, and to the

circuit court's piecemeal recitation to Finley of the maximum

penalty for first-degree reckless endangerment and the

additional penalties Finley faced when the dangerous weapon and

repeater enhancers were added. The State argued that Finley was

simply taking advantage of his attorney's mistake.

¶122 The postconviction court——the same court that had

sentenced Finley and that had interacted with Finley in the

courtroom——denied Finley's motion. The court concluded that

Finley "knew fully well" the maximum applicable penalty at the
time he entered his plea and that he had not made a prima facie

Bangert showing. Finley appealed.

¶123 On March 18, 2014, the court of appeals determined

that Finley had "established a Bangert violation as a matter of

law" and remanded for an evidentiary hearing. State v. Finley,

7
The State was likely referring to the statement at
Finley's arraignment. It is unclear to which other
representations the State was referring, given that Finley's
attorney had not yet presented any postconviction testimony.

15
 No. 2014AP2488-CR.akz

No. 2013AP1846-CR, unpublished slip op., ¶16 (Wis. Ct. App.

Mar. 18, 2014).

¶124 On June 13, 2014, at the resultant hearing, the State

called Finley's attorney to testify as to his interactions with

Finley. Much of this testimony has already been recounted,

including testimony of Finley's discussion with his attorney the

night before Finley's plea hearing. The State noted that Finley

made no objections at sentencing when the court pronounced

sentence. For his part, Finley decided to withdraw his request

for modification of his sentence; his attorney stated that

Finley only wished to withdraw his plea. On October 8, 2014, in

a written order, the court determined that the "State met its

burden of establishing that Finley knew the maximum penalty he

faced at the time he entered his plea." The court added that it

was "satisfied based on the testimony of [Finley's attorney]

that Finley actually knew the correct penalty at the time he

offered to enter a plea." Nevertheless, the court reduced

Finley's term of imprisonment to 19.5 years "in the interest of
justice." Finley appealed.

¶125 On appeal, the State did not attempt to argue that it

had met its burden at the Bangert evidentiary hearing. Instead,

it argued that, because the circuit court had reduced Finley's

sentence to what he had been told he could receive, no manifest

injustice resulted and Finley was not entitled to withdraw his

plea. On September 30, 2015, the court of appeals rejected the

State's argument and concluded that, given the fact that the
State did not attempt to argue it had met its burden at the

16
 No. 2014AP2488-CR.akz

Bangert evidentiary hearing, Finley was entitled to withdraw his

plea. State v. Finley, 2015 WI App 79, ¶¶36-37, 365

Wis. 2d 275, 872 N.W.2d 344. The State petitioned this court to

review the decision of the court of appeals, and we granted that

petition.

II

¶126 "When a defendant seeks to withdraw a guilty plea

after sentencing, he must prove, by clear and convincing

evidence, that a refusal to allow withdrawal of the plea would

result in 'manifest injustice.'" State v. Taylor, 2013 WI 34,

¶24, 347 Wis. 2d 30, 829 N.W.2d 482 (citation omitted). Barring

a defendant from withdrawing a plea that was not entered

knowingly, intelligently and voluntarily would result in a

manifest injustice. Id. (citation omitted).

¶127 This is so because "[u]nder the Due Process Clause of

the Fourteenth Amendment to the United States Constitution, a

defendant's guilty plea must be affirmatively shown to be

knowing, voluntary, and intelligent." State v. Cross, 2010 WI
70, ¶16, 326 Wis. 2d 492, 786 N.W.2d 64 (citing State v. Brown,

2006 WI 100, ¶25, 293 Wis. 2d 594, 716 N.W.2d 906). "A plea not

entered knowingly, intelligently, and voluntarily violates

fundamental due process, and a defendant therefore may withdraw

the plea as a matter of right." Taylor, 347 Wis. 2d 30, ¶25.

¶128 "The duties established in Wis. Stat. § 971.08, in

Bangert, and in subsequent cases are designed to ensure that a

defendant's plea is knowing, intelligent, and voluntary."
Brown, 293 Wis. 2d 594, ¶23. Our case law thus dictates that,

17
 No. 2014AP2488-CR.akz

after sentencing, if a defendant "(1) make[s] a prima facie

showing of a violation of Wis. Stat. § 971.08(1) or other court-

mandated duties by pointing to passages or gaps in the plea

hearing transcript; and (2) allege[s] that the defendant did not

know or understand the information that should have been

provided at the plea hearing," the defendant is entitled to a

postconviction evidentiary hearing at which the State must "show

by clear and convincing evidence that the defendant's plea was

knowing, intelligent, and voluntary despite the identified

inadequacy of the plea colloquy." Id., ¶¶39-40 (citations

omitted). If, at the hearing, the State fails to meet its

burden, "the defendant is entitled to withdraw his plea as a

matter of right." Cross, 326 Wis. 2d 492, ¶20. On the other

hand, if the State meets its burden, then "withdrawal of the

plea is left to the discretion of the circuit court and will not

be disturbed unless the defendant demonstrates a manifest

injustice will result from the court's refusal to allow the plea

to be withdrawn." Id. (citation omitted).
¶129 Importantly, an "identified inadequacy" in a plea

colloquy——a "Bangert violation," Cross, 326 Wis. 2d 492, ¶19——is

not itself a constitutional violation requiring plea withdrawal.

See, e.g., Bangert, 131 Wis. 2d at 273 ("[A] trial judge's

failure to personally ascertain a defendant's understanding of

the nature of the charge at the plea hearing constitutes a

violation of sec. 971.08, Stats., not a constitutional

violation."); id. at 261 ("[S]ection 971.08 is not a
constitutional imperative . . . ."); Cross, 326 Wis. 2d 492, ¶19

18
 No. 2014AP2488-CR.akz

("If the circuit court fails at one of [its] duties . . . the

defendant may be entitled to withdraw his plea" (emphasis added)

(citation omitted).). Instead, identification of an inadequacy,

combined with the defendant's allegation that "the defendant did

not know or understand the information that should have been

provided at the plea hearing," puts the court on notice that the

defendant's plea may not have been entered knowingly,

intelligently, and voluntarily——thus the need for an evidentiary

hearing to resolve that question. See, e.g., id., ¶¶19-20

(citation omitted).

¶130 We must always keep in mind that, ultimately, our

sometimes elaborate postconviction procedures are designed to

ensure that defendants are afforded their constitutional rights.

In further developing and refining the Bangert framework, this

court should not countenance its mechanical application——to the

detriment of the public——when it is apparent that the

defendant's constitutional rights have not been violated. See

id., ¶32 ("[R]equiring an evidentiary hearing for every small
deviation from the circuit court's duties during a plea colloquy

is simply not necessary for the protection of a defendant's

constitutional rights. The Bangert requirements exist as a

framework to ensure that a defendant knowingly, voluntarily, and

intelligently enters his plea. We do not embrace a formalistic

application of the Bangert requirements that would result in the

abjuring of a defendant's representations in open court for

insubstantial defects."). "[I]f a defendant does understand the
charge and the effects of his plea, he should not be permitted

19
 No. 2014AP2488-CR.akz

to game the system by taking advantage of judicial mistakes."

Brown, 293 Wis. 2d 594, ¶37 (emphasis added).

¶131 The record in this case, taken as a whole,

demonstrates what is really going on in this case: Finley is

simply unhappy with the sentence he received. First, he thought

he negotiated an outcome that would not approach the maximum

potential penalty. Second, he thought he negotiated an outcome

that would allow him to be found eligible for the Earned Release

and Challenge Incarceration programs. Unfortunately for Finley,

the court exercised its discretion to impose the maximum

sentence without eligibility for those programs.

¶132 Finley now seeks to escape the consequences of his

plea, and seizes upon a pair of errors in the proceedings below

to achieve this goal. Had the circuit court and counsel been

more careful in determining the actual maximum penalty, this

case would not even be pending on appeal. We do not conclude

that such errors will always pass constitutional muster, but for

the reasons that follow, the court errs in permitting Finley to
withdraw his plea.

A. The Two Misstatements In This Case, Taken Together,
Do Not Constitute A Bangert Violation.
¶133 As stated, a post-sentencing Bangert motion requires a

defendant to "(1) make a prima facie showing of a violation of

Wis. Stat. § 971.08(1) or other court-mandated duties by

pointing to passages or gaps in the plea hearing transcript; and

(2) allege that the defendant did not know or understand the
information that should have been provided at the plea hearing."

Brown, 293 Wis. 2d 594, ¶39 (citation omitted). Relevant to
20
 No. 2014AP2488-CR.akz

this case, Wis. Stat. § 971.08 states in part: "(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." Wis. Stat. § 971.08(1)(a) (emphasis added).

Similarly, Bangert requires trial courts, before accepting pleas

of guilty or no contest, "[t]o establish the accused's

understanding of the nature of the crime with which he is

charged and the range of punishments which it carries."

Bangert, 131 Wis. 2d at 262 (emphasis added).

¶134 Despite these general rules, we recently clarified in

Cross that "not all small deviations from the requirements in

our Bangert line of cases equate to a Bangert violation and

require a formal evidentiary hearing." Cross, 326 Wis. 2d 492,

¶38. More specifically, we concluded that "a defendant's due

process rights are not necessarily violated when he is

incorrectly informed of the maximum potential imprisonment."
Id., ¶37.

¶135 In Cross the defendant was told by his attorney, the

State, and the circuit court that the maximum penalty applicable

to the offense to which the defendant pleaded was higher than it

actually was. Id., ¶1. We concluded that Cross was not

entitled to withdraw his plea, even though we determined that

Cross "pled guilty under the belief that he faced a

higher . . . maximum penalty." Id., ¶5. We instead held:

[W]here a defendant is told that he faces a maximum
possible sentence that is higher, but not
21
 No. 2014AP2488-CR.akz

substantially higher, than that authorized by law, the
circuit court has not violated the plea colloquy
requirements outlined in Wis. Stat. § 971.08 and our
Bangert line of cases. In other words, where a
defendant pleads guilty with the understanding that he
faces a higher, but not substantially higher, sentence
than the law allows, the circuit court has still
fulfilled its duty to inform the defendant of the
range of punishments.
Id., ¶4. Put yet another way, we concluded that "a defendant

can be said to understand the range of punishments as required

by [Wis. Stat.] § 971.08 and Bangert when the maximum sentence

communicated to the defendant is higher, but not substantially

higher, than the actual allowable sentence." Id., ¶38.

¶136 In Taylor, decided a few years later, we confronted

what was in some ways the opposite situation as that which

occurred in Cross: the circuit court in Taylor suggested to the

defendant that the maximum penalty applicable to the offense to

which the defendant pleaded was lower than it actually was,

because the court failed to discuss fully a two-year repeater

penalty enhancer. Taylor, 347 Wis. 2d 30, ¶¶1-2, 34. Although

we acknowledged a statement in Cross that, unlike the situation

in Cross, "when the defendant is told the sentence is lower than

the amount allowed by law, a defendant's due process rights are

at greater risk and a Bangert violation may be established," we

nevertheless concluded that the circuit court did not err in

denying the defendant's motion to withdraw his plea. Id., ¶¶8-

9, 34. Specifically, we characterized the circuit court's

omission as an "insubstantial defect," concluding that a

"defendant's plea [is] entered knowingly, intelligently, and
voluntarily when the record makes clear that the defendant knew

22
 No. 2014AP2488-CR.akz

the maximum penalty that could be imposed and was verbally

informed at the plea hearing of the penalty that he received."

Id., ¶8. We noted that the record in that case was "replete

with evidence" that the defendant was aware of the maximum

applicable penalty. Id., ¶35.

¶137 Cross and Taylor demonstrate that the nature and

effect of an alleged error and what the record demonstrates

about a defendant's understanding of any omitted information are

factors relevant to a court's consideration of a Bangert motion.

This stands to reason, as the Bangert procedures are designed to

ensure than an error does not result in an unknowing,

unintelligent, or involuntary plea. See, e.g., Taylor, 347

Wis. 2d 30, ¶30. An evidentiary hearing is often needed in

order to resolve allegations that a plea was entered

unknowingly, unintelligently, or involuntarily, but not always.

"Courts must not be rendered powerless to reject a conclusory

allegation——'I didn't know'——that is disproven by the existing

record." Id., ¶82 (Prosser, J., concurring). Put differently,
if it is obvious from a record that a defendant's plea was

entered knowingly, intelligently, and voluntarily, an

evidentiary hearing should not be required to determine whether

a plea was entered knowingly, intelligently, and voluntarily.

See id., ¶¶34, 39, 42.

23
 No. 2014AP2488-CR.akz

¶138 The record in the current case establishes that no

Bangert violation occurred below.8 The two misstatements in this

case amount to an "insubstantial defect" given the enormous

amount of evidence in the record indicating that Finley was

fully aware of the maximum applicable plea.

¶139 First, Finley received a copy of the information,

which correctly stated the maximum applicable penalties.

Second, Finley reviewed the information, including maximum

penalties, with his first attorney, a fact the attorney

confirmed in court with no objection from Finley. Third,

Finley's attorney waived a formal reading of the information at

Finley's arraignment, again with no objection from Finley.

Fourth, the circuit court below correctly stated the maximum

applicable penalty for the offense to which Finley pleaded no

contest, correctly stated the maximum additional exposure

because of the dangerous weapon penalty enhancer, and correctly

stated the maximum additional exposure because of the repeater

penalty enhancer. Fifth, after Finley's plea was entered,
Finley and his attorney received a PSI that correctly stated the

maximum applicable penalty, and Finley's attorney represented to

the circuit court in a letter that he and Finley had had an

opportunity to review the PSI. In fact, the transcript of the

sentencing hearing suggests that Finley and his attorney

8
For purposes of this section of my analysis, I do not rely
on testimonial evidence in the record provided by Finley's
attorney at the postconviction hearing, because without a
finding of a Bangert violation this hearing would not have
occurred.

24
 No. 2014AP2488-CR.akz

reviewed the PSI quite closely, including the specific page upon

which the correct maximum penalty appeared. Yet, although

Finley and his attorney challenged specific portions of the PSI,

they never raised any concerns about the statement of the

maximum applicable penalty as stated on the PSI. Finally,

neither Finley nor his attorney objected when the circuit court

announced the incorrect maximum applicable penalty at the plea

hearing. Nor did they do so when the circuit court pronounced

sentence and announced the correct maximum applicable penalty.

¶140 Given this evidence, Finley's claim that he "did not

know" the maximum applicable penalty in light of one erroneous

statement on the plea questionnaire and one erroneous statement

by the circuit court below is simply not believable. In light

of the many different times that Finley was correctly informed

of the maximum potential penalty——before, during, and after he

entered his plea——with no protestation from Finley, the error

that occurred in this case

is, on review of this record, an "insubstantial
defect" such that an evidentiary hearing is not
required to determine if [Finley] entered his plea
knowingly, intelligently, and voluntarily. A Bangert
violation occurs, and a hearing is required, when the
plea is not entered knowingly, intelligently, and
voluntarily. No such hearing is required here because
this record reflects that [Finley] indeed pled
knowingly, intelligently, and voluntarily.
Taylor, 347 Wis. 2d 30, ¶39. Simply put, "[a] court is not

obligated to accept a defendant's statement if the record

demonstrates that the statement is not credible." Id., ¶83
(Prosser, J., concurring). Cf. State v. Howell, 2007 WI 75,

¶¶75-77, 301 Wis. 2d 350, 734 N.W.2d 48.
25
 No. 2014AP2488-CR.akz

¶141 Thus, as the State originally argued before the

circuit court below, and as the circuit court correctly

determined, no Bangert violation occurred in this case. The

record demonstrates that Finley's plea was made knowingly,

intelligently, and voluntarily. Because no Bangert violation

occurred, the circuit court was not required to grant Finley an

evidentiary hearing on his postconviction motion and had

discretion to grant or deny Finley's motion for plea withdrawal,

assuming that Finley could not otherwise establish a manifest

injustice (and Finley has not argued that he can). See Cross,

32 Wis. 2d 492, ¶¶4, 41-44; Taylor, 347 Wis. 2d 30, ¶¶34-35, 39,

50 n.18.

B. The Circuit Court's Finding That Finley Knew The Maximum
Penalty Applicable To His Plea Is Not Clearly Erroneous.
¶142 Despite the foregoing, Finley was in fact granted an

postconviction evidentiary hearing, at which the State bore the

burden of showing "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." Bangert, 131 Wis. 2d at 274 (citation

omitted). At the hearing, the State called Finley's defense

counsel as a witness and questioned him about his meeting with

Finley the day before the plea hearing. The State also noted

the lack of objection from Finley at sentencing when the circuit

court sentenced him.

¶143 The circuit court concluded in its written order that
the State had met its burden of showing that Finley knew the

maximum penalty he faced at the time he entered his plea. The
26
 No. 2014AP2488-CR.akz

court was "satisfied based on the testimony of [Finley's

attorney] that Finley actually knew the correct penalty at the

time he offered to enter a plea." It denied Finley's motion to

withdraw his plea.

¶144 "Whether a plea was entered knowingly, intelligently,

and voluntarily is a question of constitutional fact that is

reviewed independently. 'In making this determination, this

court accepts the circuit court's findings of historical or

evidentiary facts unless they are clearly erroneous.'" Taylor,

347 Wis. 2d 30, ¶25 (citation omitted).

¶145 The court's finding that Finley knew the maximum

penalty he faced at the time he entered his plea is not clearly

erroneous. The evidence in the record supporting this finding,

now including additional evidence provided by the testimony of

Finley's attorney——the fact that Finley was given a copy of the

information; the representation by Finley's attorney in court

that he had given Finley a copy of the information and had

reviewed with Finley the nature of the charges against him and
the maximum applicable penalties; Finley's waiver of a formal

reading of the information; testimony from Finley's own attorney

that, to the best of the attorney's knowledge, Finley was aware

of the maximum applicable penalties the day before his plea

hearing; the fact that the plea agreement eventually reached

between Finley and the State stemmed from an offer made by

Finley and his own attorney, an offer made before the plea

questionnaire form was completed; the correct piecemeal
explanation of the maximum applicable penalty at Finley's plea

27
 No. 2014AP2488-CR.akz

hearing; Finley's failure to object at the plea hearing when the

incorrect maximum applicable penalty was provided; the correct

statement of the maximum applicable penalty on Finley's PSI;

Finley's failure to object to that statement despite his other

PSI-related objections; and Finley's failure to object at

sentencing to the sentence he was given by the circuit court——is

overwhelming. See, e.g., State v. Denson, 2011 WI 70, ¶73, 335

Wis. 2d 681, 799 N.W.2d 831; State v. Hoppe, 2009 WI 41, ¶50,

317 Wis. 2d 161, 765 N.W.2d 794.

¶146 As if this were not enough, the record demonstrates a

history of deceitful behavior on the part of Finley. Early on

in the case, Finley's competency was examined by Dr. Richard

Hurlbut and by Dr. James Armentrout. Although Dr. Hurlbut

concluded "to a reasonable degree of professional certainty that

[Finley] . . . lack[ed] the substantial mental capacity to

understand the proceedings and assist in his own defense,"

Dr. Armentrout concluded "to a reasonable degree of professional

certainty" that Finley was "malingering cognitive disability in
an attempt to evade legal accountability for his charged

offenses," and that Finley did not "lack competency to proceed

in court." Dr. Armentrout later testified,

Malingering refers to the intentional production
or exaggeration of symptoms of either physical or
psychological problems with the motivation to gain
something the person wants to gain. . . . And in this
case certainly I thought Mr. Finley was doing that
because he hoped to evade accountability for the
charges that had been made against him.
The circuit court eventually stated that it accepted the
testimony of Dr. Armentrout and made a finding that Finley was
28
 No. 2014AP2488-CR.akz

competent to proceed. At sentencing, the State reminded the

circuit court of the "incompetency sort of fiasco that we all

went through."

¶147 Finally, at sentencing, the circuit court noted

Finley's "twenty to thirty aliases" and concluded that these

aliases indicated Finley was "willing to change [his] name to

try to avoid responsibility." It also noted Finley's "criminal

record that goes back into the mid-1990's."

¶148 These additional facts about Finley's character,

combined with the other evidence in the record already

discussed, establish that it was entirely reasonable for the

circuit court, which had spent extensive time with Finley, to

have concluded that Finley was not telling the truth about what

he knew at the time of his plea hearing.9 Again, the circuit

court's determination is entitled to deference. See, e.g.,

Moonen v. Moonen, 39 Wis. 2d 640, 646, 159 N.W.2d 720 (1968)

("The trial court is in better position than the supreme court

to make a judgment concerning credibility and a judgment so made
should not be disturbed."); Onalaska Elec. Heating, Inc. v.

Schaller, 94 Wis. 2d 493, 501, 288 N.W.2d 829 (1980) ("It is

9
Finley claimed he did not know the applicable maximum
penalty at the time he entered his plea. The court found that
he did, and thus implicitly found Finley's claim not credible.
See State v. Echols, 175 Wis. 2d 653, 673, 499 N.W.2d 631 (1993)
("Where it is clear under applicable law that the trial court
would have granted the relief sought by the defendant had it
believed the defendant's testimony, its failure to grant the
relief is tantamount to an express finding against the
credibility of the defendant" (citing Marshall v. Lonberger, 459
U.S. 422, 433 (1983).).

29
 No. 2014AP2488-CR.akz

well established that when the trial judge acts as the finder of

fact, he is the ultimate arbiter of the credibility of the

witnesses when there is a conflict in the testimony, and his

findings will be sustained unless they are against the great

weight and clear preponderance of the evidence. Also when more

than one reasonable inference can be drawn from the evidence,

this court is obliged to support the finding made by the trial

court."); Trible v. Tower Ins. Co., 43 Wis. 2d 172, 180, 168

N.W.2d 148 (1969) ("The trial court obviously believed the

testimony of the plaintiff. It was his function to determine

the credibility of the witnesses.").

¶149 In sum, although Finley was not entitled to an

evidentiary hearing, he was granted one. The circuit court

determined subsequent to that hearing that Finley actually knew

the correct penalty at the time he offered to enter a plea.

This finding was not clearly erroneous, and should not be

upset.10 Given this finding, there is no basis for concluding

that Finley's plea was anything but knowing, intelligent, and
voluntary.

10
Although the State now agrees with Finley that Finley did
not know the maximum applicable penalty at the time of his plea,
the State did not do so below, and the circuit court found that
Finley knew the maximum applicable penalty. In conducting our
inquiry in this case, "this court accepts the circuit court's
findings of historical or evidentiary facts unless they are
clearly erroneous." State v. Taylor, 2013 WI 34, ¶25, 347
Wis. 2d 30, 829 N.W.2d 482 (emphases added) (citation omitted).
The circuit court's finding has never been displaced; the court
of appeals did not determine that the finding was clearly
erroneous. State v. Finley, 2015 WI App 79, ¶23, 365
Wis. 2d 275, 872 N.W.2d 344.

30
 No. 2014AP2488-CR.akz

C. Plea Withdrawal Is Not The Only Available
Remedy In This Case.
¶150 Finally, even if this court were to discard the record

in this case and accept that Finley did not know the maximum

applicable penalty at the time he entered his plea, plea

withdrawal is not the only available remedy in this case.

Specifically, the circuit court's decision to reduce Finley's

term of imprisonment to the amount he was told he could receive,

19.5 years, remedied any error that had occurred.11 A number of

propositions, considered together, explain why a sentence-

reduction remedy best fits the alleged wrong that occurred in

this case.

¶151 First, the "high standard" that must be met by

defendants wishing to withdraw pleas after sentencing——proof by

clear and convincing evidence that refusal to allow withdrawal

would result in a manifest injustice——stems from the State's

interest in the finality of convictions. State v. Black, 2001

WI 31, ¶9, 242 Wis. 2d 126, 624 N.W.2d 363 (citations omitted).

In other words, we do not uproot convictions without adequate

reason. If there is a means of correcting errors below without

11
The plea questionnaire and circuit court informed Finley
he faced a potential of "19 years, 6 months confinement." While
the word "confinement" might be construed to mean initial
confinement, Finley's postconviction motion confirms that he
understood it to mean "term of imprisonment," as he requested in
that motion "that the court enter an order permitting Finley to
withdraw his no contest plea; or alternatively, that the court
modify the judgment of conviction to a maximum bifurcated
sentence of 19.5 years, in keeping with the information Finley
received at the plea hearing." (Emphasis added.)

31
 No. 2014AP2488-CR.akz

disturbing a settled conviction and without violating the

constitutional rights of the defendant, this court should not

hesitate to use it. As is said in the broader context of the

manifest injustice test, the question is "not . . . whether the

circuit court should have accepted the plea in the first

instance, but rather . . . whether the defendant should be

permitted to withdraw the plea." State v. Cain, 2012 WI 68,

¶30, 342 Wis. 2d 1, 816 N.W.2d 177.

¶152 Second, although Bangert made clear that "[w]hen a

defendant establishes a denial of a relevant constitutional

right, withdrawal of the plea is a matter of right," Bangert,

131 Wis. 2d at 283 (emphasis added), we also explained in Cross

that "the great weight of authorities from other state and

federal courts reject the notion that the failure to understand

the precise maximum punishment is a per se due process

violation." Cross, 326 Wis. 2d 492, ¶33. Likewise, Bangert

stated that, although a violation of Wis. Stat. § 971.08 "may

have constitutional ramifications," such a violation is "itself
not constitutionally significant." Bangert, 131 Wis. 2d at 261

n.3 (emphasis added).

¶153 There is a principle present in both Cross and

Taylor——namely, that incorrect or insufficient knowledge about

an aspect of a plea does not necessarily invalidate the entire

plea——that this court should apply here. In Cross, for

instance, in explaining that a "defendant who has been told a

maximum punishment higher, but not substantially higher, than
that authorized by law, has not necessarily made a prima facie

32
 No. 2014AP2488-CR.akz

case that the requirements of [Wis. Stat.] § 971.08 and our case

law have been violated," we reasoned that "a defendant who

believes he is subject to a greater punishment is obviously

aware that he may receive the lesser punishment. Thus, [a]

defendant . . . who was told he faced 19 years, six months

maximum exposure, was certainly aware that he faced 16 years

imprisonment." Cross, 326 Wis. 2d 492, ¶¶30-31. And in Taylor

where, again, the defendant was verbally informed of the maximum

applicable penalty for the charge of uttering forgery, but not

of the additional two-year repeater penalty, we stated:

We reject [the defendant's] argument——that
because he was not specifically, verbally advised by
the circuit court at the plea hearing of the
potential, additional two-year term of imprisonment
from the alleged repeater, his entire plea is not
knowing, intelligent, and voluntary——because he did in
fact plead knowingly, intelligently, and voluntarily
to the underlying crime of uttering a forgery. At the
plea hearing, the court did verbally inform [the
defendant] that he faced a maximum term of
imprisonment of six years for the underlying charge of
uttering a forgery.

Taylor, 347 Wis. 2d 30, ¶45.
¶154 Finally, "[t]he concern of due process is fundamental

fairness. '[D]ue process is flexible and calls for such

procedural protections as the particular situation demands.'"

State v. Chamblis, 2015 WI 53, ¶54, 362 Wis. 2d 370, 864

N.W.2d 806. The "arid logic" of the majority opinion, see North

Carolina v. Alford, 400 U.S. 25, 39 (1970)——the formulaic

assessment that two misstatements in the record, plus Finley's

allegation that he did know the omitted information, plus a lack
of argument from the State on appeal that Finley knew the

33
 No. 2014AP2488-CR.akz

omitted information, equals automatic plea withdrawal——is

inconsistent with these maxims.

¶155 In summary, three propositions are relevant here: (1)

we do not permit withdrawal of plea without adequate reason; (2)

failure of a defendant to understand the precise maximum

punishment is not a per se due process violation, and incorrect

or insufficient knowledge about an aspect of a plea does not

necessarily invalidate the entire plea; and (3) due process is

flexible and calls for such procedural protections as the

particular situation demands. These propositions suggest the

appropriate remedy: reduce Finley's sentence to that which he

alleges he knew he could receive, a 19.5-year term of

imprisonment. "In order to prevent the continuation of unjust

sentences, the circuit court has inherent authority to modify a

sentence." State v. Ninham, 2011 WI 33, ¶88, 333 Wis. 2d 335,

797 N.W.2d 451. And reduction cures any "manifest injustice"——

Finley does not receive a sentence lengthier than he was

informed he could receive and which he believed he could receive
at the time he entered his plea. Finley can then be said to

have had an "understanding of . . . the potential punishment if

convicted" at the time he entered his plea. Wis. Stat.

§ 971.08(1)(a).

¶156 The propriety of this solution is confirmed by the

fact that this precise remedy has been used by this court in the

past. In Preston v. State, the defendant was erroneously

informed by the circuit court that he could receive a maximum
sentence of 20 years on an attempted murder charge; the

34
 No. 2014AP2488-CR.akz

defendant eventually received a sentence of 25 years. Preston

v. State, 58 Wis. 2d 728, 729, 206 N.W.2d 619 (1973) (per

curiam). We stated:

Under the circumstances of this case, this error
reaches constitutional proportions . . . . [S]ince the
defendant was informed prior to his plea that he could
receive a maximum sentence of only [20] years on the
attempted murder charge, fundamental fairness requires
that he not receive a greater sentence on that charge.

The sentence imposed on the attempted murder
charge is hereby reduced from [25] years to [20].
Id. at 729-30 (citation omitted). In Garski v. State, 75

Wis. 2d 62, 248 N.W.2d 425 (1977), we discussed the requirement

"that the defendant be informed of the full range of statutorily

authorized penalties for commission of the crime charged,

particularly the maximum sentence possible," Garski, 75 Wis. 2d

at 76 (citation omitted), and cited Preston for the proposition

that "where a trial court misinforms the defendant as to the

maximum penalty in accepting a guilty plea, the court cannot

then impose a greater sentence than that of which he was

informed." Id. (citation omitted).

¶157 We also explained that the statement above regarding

the requirement that a defendant be provided with information

about the "maximum sentence possible" derived from an

interpretation of the standard set forth in State v. Reppin, 35

Wis. 2d 377, 385 n.2, 151 N.W.2d 9 (1967) (which was in turn

taken from a list of standards promulgated by the American Bar

Association) that "a defendant might be permitted to withdraw
his plea of guilty if he is able to prove by clear and

convincing evidence that his plea was made under the following
35
 No. 2014AP2488-CR.akz

circumstances: '(3) the plea . . . was entered without

knowledge . . . that the sentence actually imposed could be

imposed.'" Garski, 75 Wis. 2d at 75-76 (emphasis added)

(citation omitted). The phrasing of this standard is notable

for present purposes, because if a defendant's sentence is

reduced to that which he believed he could receive, then his

plea is no longer one "entered without knowledge . . . that the

sentence actually imposed could be imposed."

¶158 Our plea withdrawal procedures may have changed since

Preston and Garski, but the constitutional guarantee of due

process has not. This court should use the remedy set forth in

Preston in this case.

¶159 Further, reducing Finley's sentence to what he was

told he could receive is perfectly consistent with the logic of

Taylor: a "defendant's plea [is] entered knowingly,

intelligently, and voluntarily when the record makes clear that

the defendant knew the maximum penalty that could be imposed and

was verbally informed at the plea hearing of the penalty that he
received." Taylor, 347 Wis. 2d 30, ¶8. If Finley's sentence is

reduced, then he both knew the maximum penalty that could be

imposed and was verbally informed at the plea hearing of the

penalty that he received.

¶160 Finally, a sentence-reduction remedy finds analogy in

this court's decision last year in Chamblis. In that case, we

assumed without deciding that a circuit court had erred in

excluding evidence that might have changed the charge faced by
the defendant from operating with a prohibited alcohol

36
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concentration ("PAC") as a sixth offense to operating with a PAC

as a seventh offense and that might have enhanced the applicable

penalty from a maximum of 6 years imprisonment to a maximum of

10 years imprisonment. Chamblis, 362 Wis. 2d 370, ¶¶1-5.

Nevertheless, we concluded that the court of appeals' proposed

remedy——"remanding the case to the circuit court with

instructions to enter an amended judgment of conviction for

operating with a PAC as a seventh offense and impose sentence

for a seventh offense"——violated the defendant's right to due

process. Id., ¶¶6, 40. The defendant "entered a knowing,

intelligent, and voluntary guilty plea to operating with a PAC

as a sixth offense, not as a seventh offense," we explained, and

"[b]ecause a seventh offense carries a greater range of

punishment than does a sixth offense, the court of appeals'

remedy renders [the defendant's] plea unknowing, unintelligent,

and involuntary." Id., ¶6. In effect, we recognized that

although the defendant should have faced a maximum of 10 years,

rather than 6 years, we would allow the defendant to keep his 6-
year-maximum plea because that was the maximum he believed he

could receive. The corollary of this holding is that where, as

here, the defendant should have faced a maximum of 23.5 years

imprisonment, rather than 19.5 years, we can allow the defendant

to "keep" the 19.5-year-maximum sentence he was informed he

might receive by reducing the sentence to that amount.

¶161 The State's proposed remedy in this case also comports

with precedent outside of Wisconsin. See, e.g., United States
v. Perez-Carrera, 243 F.3d 42, 42-44 (1st Cir. 2001) (defendant

37
 No. 2014AP2488-CR.akz

who was misinformed that a count carried a mandatory 5-year

penalty rather than a mandatory 10-year penalty and who was

sentenced was not entitled to withdraw his plea; the district

court was instructed, on remand, to modify the sentence imposed

by reducing the incarcerative term to 5 years); Moore v. United

States, 592 F.2d 753, 754-56 (4th Cir. 1979) (defendant who

claimed he understood maximum penalty for offense to be 15 years

and who was sentenced to 15 years imprisonment plus a 3-year

special parole term not entitled to withdraw plea; court

remanded to district court to allow it, in its discretion, to

either reduce the prison sentence to 12 years such that "the

combined sentence of prison and parole will correspond to what

[the defendant] claims he understood to be the maximum penalty,"

or to allow the defendant to "set aside the plea and allow [the

defendant] to plead again.").

¶162 Plea agreements are often referred to as plea

"bargains." E.g., Chamblis, 362 Wis. 2d 370, ¶56. If Finley

indeed was unaware of the maximum applicable penalty, he should
not be deprived of the "benefit of his bargain"——he is entitled

to some kind of remedy. Id., ¶55. But that does not mean that

Finley is entitled to plea withdrawal.

¶163 Finley alleges he pleaded no contest with the

understanding that he would not be sentenced to more than a

19.5-year term of imprisonment. He was sentenced to a 23.5-year

term of imprisonment. Assuming that Finley actually did not

know the maximum applicable penalty, I would affirm the circuit
court's decision to reduce Finley's sentence to a 19.5-year term

38
 No. 2014AP2488-CR.akz

of imprisonment, which eliminates any "manifest injustice" that

might result in refusing to allow Finley to withdraw his plea.

I do not join the majority, which concludes that plea withdrawal

is the only appropriate remedy, and which therefore "embrace[s]

a formalistic application of the Bangert requirements" without

proper regard for what the Constitution actually requires in

this scenario. Cross, 326 Wis. 2d 492, ¶32.

III

¶164 The majority's decision to allow Finley to withdraw

his plea is particularly tragic given the circumstances of this

case. In a letter to the circuit court prior to sentencing,

K.A.G.'s father wrote, "[P]lease help [K.A.G.] and our family

heal by issuing the maximum penalty allowed by law. . . . I

cannot describe to you how this would help my daughter. It

would give all of us faith in the justice system . . . ."

¶165 Further, the circuit court below considered the need

to protect the public "the most significant factor in this

case." The court told Finley:

I believe your next victim will not survive. . . .

[T]he fact that you keep endearing yourself to these
women who then will allow you to father their children
and you go from one to one to the next to the other,
and you've got this history of violence and being
abusive to them . . . tells me that you're going to
find another woman. . . .

And my fear is your next victim will not
survive. . . .

I cannot impose a sentence on you that allows you to
get back on the streets and have another victim.

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 No. 2014AP2488-CR.akz

¶166 Perhaps it goes without saying, but it has now been

five years since the complaint in this case was filed. Quite

obviously, the decision of the court——that Finley is allowed to

start over——may very well raise significant issues as to whether

this case can even be tried. Concluding that this is a

constitutional violation and that plea withdrawal is the remedy

may have profound impact on the viability of the case. The

reality, however, highlights the need for courts and counsel to

get it right.

¶167 I do not join the majority opinion because I would not

allow Finley to withdraw his plea of no contest, for three

reasons. First, the two misstatements in this case as to the

maximum penalty applicable to Finley's plea, taken together, do

not constitute a Bangert violation. Second, even if a Bangert

violation could be said to have occurred in this case, the

circuit court's finding subsequent to the Bangert hearing that

Finley knew the maximum applicable penalty is not clearly

erroneous. Third, even if a Bangert violation could be said to
have occurred in this case, and even if the circuit court's

finding subsequent to the Bangert hearing that Finley knew the

maximum applicable penalty is clearly erroneous, plea withdrawal

should not be the only available remedy; Finley's sentence can

be reduced to a 19.5-year term of imprisonment. The entirety of

the record in this case demonstrates that Finley's motion is

really based upon the fact that he did not receive the sentence

he hoped he would receive pursuant to his plea negotiations.
¶168 For the foregoing reasons, I respectfully dissent.

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 No. 2014AP2488-CR.rgb

¶169 REBECCA G. BRADLEY, J. (dissenting). We are asked

to decide whether Finley should be allowed to withdraw the plea

that he entered on June 25, 2012 pursuant to a plea agreement he

not only made but actively negotiated. In exchange for a plea

of no contest to one count of first-degree reckless endangerment

as an act of domestic abuse, while using a dangerous weapon and

as a repeat offender, the State agreed to dismiss and read-in

three additional domestic abuse charges: substantial battery,

strangulation and suffocation, and false imprisonment. The

criminal complaint and information contained the correct range

of punishment: first-degree reckless endangerment carried the

potential maximum penalty of up to twelve years, six months and

a fine of not more than $25,000; the use of a dangerous weapon

added up to an additional five years and because he was charged

as a repeat offender, he could receive up to another six years.

No cumulative total was listed in the complaint or information.

The plea questionnaire did list the "maximum penalty" "upon

conviction" as "19 years, 6 months confinement and $25,000 fine
and court costs." (Emphasis added.) Adding together 12.5 + 6 +

5, the correct total maximum sentence including both confinement

and extended supervision is 23.5 years.

¶170 At the plea hearing, the circuit court established

Finley's understanding of the range of punishments at issue when

it specifically referred to each crime's range by asking Finley

to confirm he understood the maximum of each charge:

THE COURT: The maximum penalty for the offense would
be a fine of not more than twenty-five thousand or
imprisonment for not more than twelve years six months
or both.
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 No. 2014AP2488-CR.rgb

MR. FINLEY: Yes sir.
. . .

THE COURT: . . . Then because you are a repeater, then
they could increase the incarceration period by not
more than an additional six years. And they are
basing the repeater enhancement provision on the fact
that you were convicted of possession of cocaine as a
subsequent offender on September 12th, 2008, in Brown
County. Do you remember those felonies?

MR. FINLEY: Yes, sir.

THE COURT: Okay. And they are also charging that you
used a dangerous weapon. And for the enhancement
provision of using a dangerous weapon, then the term
of imprisonment can be increased by not more than five
years for that. Do you understand that then?

MR. FINLEY: Yeah.
¶171 This recitation correctly informed Finley of the

maximum range of punishments for each of the crimes to which he

was pleading. The circuit court, however, went on to recite an

incorrect confinement cumulative total by referring to the 19.5

years listed on the plea questionnaire: "So, the maximum you

would look at then nineteen years six months confinement. Do

you understand the maximum penalties?" Finley answered, "Yes,
sir."

¶172 The circuit court accepted Finley's plea. Finley

returned to circuit court on October 19, 2012 for sentencing.

The circuit court determined based on the proper sentencing

factors that Finley should be sentenced to the maximum. This

time, however, the circuit court added the numbers correctly and

imposed a 23.5 year sentence, consisting of 18.5 years' initial
confinement followed by 5 years' extended supervision. There

were no objections by Finley at sentencing to the maximum
2
 No. 2014AP2488-CR.rgb

sentence of 23.5 years, even though the circuit court, after

imposing the sentence, asked Finley's lawyer if there was

anything the court did not consider or Finley would like

addressed.

¶173 Finley filed a postconviction motion seeking two

remedies: (1) plea withdrawal or (2) commutation of his

sentence from 23.5 years to 19.5 years. The circuit court,

based on its review of the portion of the plea hearing where

Finley acknowledged he understood the correct individual maximum

punishments, denied the motion:

I'm satisfied the defendant has not made a prima facie
case that the plea was made anything but knowingly and
voluntarily. I think he knew fully well. I think if
you look at that transcript, I went piecemeal by
piecemeal, twelve point five, five, six, I went
through exactly why it was being added on. He knew
his base and he knew exactly each reason why the
numbers would be added on. They are consistent with
the information placed in the information.

Now, in essence what he wants to claim is, oh, in
that case it should get me out of this plea. I think
where the information is provided clearly orally, and
I think I'm required to provide the length of the
sentence orally. . . .

So, I orally have him sitting in that chair
exactly right there. We are this distance apart, and
I went over the base penalty and the reason why he was
receiving each of the enhancements and what the
enhancement was. Now, clearly he hasn't made a prima
facie case to this Court that he didn't make that plea
knowingly and voluntarily.
The circuit court also denied Finley's request to commute the

sentence.

¶174 Finley appealed the circuit court's decision to the
court of appeals, which held Finley made a prima facie case

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 No. 2014AP2488-CR.rgb

because the two references to the 19.5 years of confinement

constituted a Bangert deficiency.1 It remanded the case to the

circuit court for an evidentiary hearing to give the State the

chance to prove despite the Bangert violation, Finley entered

his plea knowingly, intelligently, and voluntarily. See State

v. Finley, No. 2013AP1846-CR, unpublished slip op., ¶16 (Wis.

Ct. App. Mar. 18, 2014) (per curiam). This step is required to

ensure a defendant does not "game the system by taking advantage

of judicial mistakes." See State v. Brown, 2006 WI 100, ¶37,

293 Wis. 2d 594, 716 N.W.2d 906.

¶175 Upon remand, the circuit court held the hearing as

directed. The State called Finley's trial counsel to testify.

He testified:

 A number of plea proposals went back and forth and he

remembers meeting with Finley in the county jail the day

before the plea hearing.

 Finley did not like the plea proposal from the State

because he wanted to be eligible for the Challenge
Incarceration or Earned Release Programs. Finley made a

counter proposal to plead to a charge that would make him

statutorily eligible even though Finley's proposal

carried higher maximum penalties than what the State had

proposed.

 He specifically remembers discussing with Finley the day

before the hearing that Finley's proposal carried a

1
See State v. Bangert, 131 Wis. 2d 246, 260-62, 389 N.W.2d
12 (1986).

4
 No. 2014AP2488-CR.rgb

higher maximum penalty and he would not have a client

plead unless the client was aware of the maximum

exposure.

The prosecutor questioned Finley's trial lawyer further on

this:

Q So, that would have been something you would have
covered with him so he knew, okay, you may become
eligible, but now you are looking at this
specific exposure; is that correct?

A Yes.

Q And on that date is there any reason to believe
that you didn't give him the correct maximum
exposure?

A No.

Q You did not do the plea form on that date; is
that correct?

A No. Because we didn't have any chance on a
Sunday evening to discuss the matter with [the
prosecutor].

Q So, to the best of your knowledge, the day before
when he was willing to plead to this charge with
these enhancers, he was fully aware of the
maximum potential penalties?

A Yes.

Q At the plea hearing at the time the [circuit
court], utilizing the document that was
incorrect, indicated the potential maximum
sentence, did the defendant turn to you and say,
wow, that's lower than what you told me?

A He said something to me. I don't recall what.

Q But the evening before he had already been told
the correct amount, that would have been your
practice?

A That would have been my practice.
5
 No. 2014AP2488-CR.rgb

Q And you, of course, were present in the courtroom
when the Judge detailed the correct maximum
penalties separately which were just hearing the
numbers; is that correct?

A Yes.

Q So, as you entered into the plea hearing, would
it be your opinion at this point in time that the
defendant was fully apprised of the maximum --
correct maximum exposure?

A That would be my practice, yes.
¶176 Cross-examination of Finley's attorney, as material,

provided:

Q [Counsel], do you have a specific recollection of
telling Mr. Finley the maximum penalties in this
case?

A Not a specific recollection, no.

. . .

Q Now, I would draw your attention to the
understandings where it says, "The maximum
penalty I face upon conviction is nineteen years
six months confinement and $25,000 fine and court
costs." That's typewritten, correct?

A The nineteen -- yes.

Q It was typed in. Where the math came from, I
have no idea.

Q I just mean --

A I've racked my brain to try and figure out where
that number came from. I have no recollection.
¶177 Finley's lawyer continued that he believed someone

from his office typed that information on the form as well as

the information regarding the plea agreement:

Plea to count one as charged. State will dismiss and
read in the remaining charges in 2011 CF 671 as well
as the charges in 2011 CM 953. The State will cap its
6
 No. 2014AP2488-CR.rgb

recommendation at ten years initial confinement. We
are free to argue.
¶178 Finley's lawyer clarified that the State's cap was on

confinement not the entire sentence, and then answered a series

of questions about the last-minute plea negotiations, and

whether he recalls when and where he went over the plea

questionnaire form with Finley. Finley's lawyer did not

remember the exact time or location. The cross-examination

concluded with two questions and answers, which the court of

appeals used in its decision:

Q Would it be your practice when meeting with your
client to go through the plea questionnaire line
by line?

A Yes.

Q And when you got to the understandings, would it
be your practice to read off for him the
"nineteen years six months confinement"?

A Yes.

¶179 Re-direct examination provided:

Q But the plea form itself was not utilized when
you met with him for this lengthy meeting the day
before the plea hearing; is that correct?

A No. It wouldn't have been prepared by then for
the reason we didn't have the discussion with the
[prosecutor].

Q So, the erroneous amount of nineteen and a half,
that was first introduced after the defendant had
already proposed this offer to the State on the
day of the plea hearing?

A Yes.

7
 No. 2014AP2488-CR.rgb

¶180 In arguments, the State argued it had met its burden

to prove Finley knowingly, intelligently, and voluntarily

entered into the plea:

The plea offer was from the defendant. It took
place as negotiations were considered. It sounds like
they were consider[ed], meeting took place where many
factors had to be considered and really with the idea
that you were trading the possibility of being
eligible for a program and risking further exposure.
Any defense attorney would make sure that the client
was clear on that point.

[Finley's lawyer] has been in these courts many
many times, many many years. His usual practice would
be, well, if you are willing to plead to this, you
certainly need to know what the maximum is. There is
no suggestion that he was given the wrong maximum on
the date that he met with him to discuss what should
they offer to [the prosecutor]. That's not at all in
evidence.

The sums are not difficult. There was not
sixteen counts that one has to figure it all out. It
was basic mathematics and presented, the record would
indicate, based on his normal practice, correctly to
the defendant. At the time the defendant said, yes,
go offer this. This is what I plead to. So, at that
point the State has established that he understood the
maximums, the correct maximums, as he indicated he
would plead to the charge as it was and see if [the
prosecutor] would take that.

. . . .

It's unfortunate the wrong number got put down.
[Finley's trial lawyer] doesn't remember the defendant
at any point in time -- I don't see any record such as
when the presentence was done where people were
saying, well, wait a minute, we were expecting it to
be much lower. The maximums are usually outlined in
the presentence report.

I don't remember and I haven't seen all the
transcripts, but was there any exclamations when the
sentence was given out, judge, you can't do that. We
all thought it was going to be the nineteen because
8
 No. 2014AP2488-CR.rgb

nobody relied on that. It was an erroneous number
that was just unfortunately set there. The defendant
already knew the accurate penalty at the time he
offered to make the plea.
¶181 Finley's postconviction lawyer then argued the State

failed to prove Finley knew the correct maximum sentence and

asked the court to consider commuting Finley's sentence under

State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482:

Now, I did want to also mention, Your Honor, the
other issue that's been in this litigation that no
court has ruled on yet, and that is that if this Court
concludes that Mr. Finley -- I'm sorry. It's a
separate type of relief based on Taylor. And that is
that the Court was bound by the number that was given
to Mr. Finley on the plea questionnaire and out loud
in court, that being nineteen and a half years.

The claim is based on a footnote in this Taylor
decision. It's suggested that -- well, the problem in
Taylor was a different one than the one here. The
Court seemed to suggest in this footnote that if the
defendant is told a number, that's the most he can
get. It's a little unclear to me what the Supreme
Court meant when they said that.

It's -- let's see if I can find it -- actually
it's paragraph 40, I believe, of the decision. And
what they seem to be saying is that if the defendant -
- just to use a hypothetical, let's say the real
maximum penalty is twenty years and the defendant is
told the maximum is fifteen years and gets fourteen
years, that there would be no problem with that
because he got less than he was told. By suggestion
they are saying that if he gets more than what he was
told, the sentence must be commuted to what he was
informed. I have not seen any cases since Taylor that
deal with that issue, but I think that it is one
that's suggested by the decision.

So, if the -- however, the Court rules on our
motion to withdraw his plea, and that is what Mr.
Finley wants, wishes to withdraw his plea, that there
is also this other issue that the sentence should be
commuted to a total of nineteen and a half years

9
 No. 2014AP2488-CR.rgb

bifurcated between both initial confinement and
extended supervision.
¶182 At this point, the circuit court asked if it would

have to deny Finley's motion to withdraw his plea in order to

reduce his sentence to the amount he was told at the plea

hearing. Finley's postconviction lawyer asked for a short

recess to speak with Finley. After the recess, Finley's lawyer

withdrew "the second claim based on Taylor" and explained "Mr.

Finley is maintaining that he would like to withdraw his plea

and so that is the only claim that we are making." The circuit

court asked the State its position on this, and the State

advised that "if the Court is going to rule that we haven't met

our burden," "[b]ased on the Taylor case, we would ask [the

sentence] be modified as such."

¶183 The circuit court then denied the motion to withdraw

the plea and ordered Finley's sentence modified to 19.5 years,

consisting of 14.5 years of initial confinement followed by 5

years of extended supervision. There were no objections and

Finley's lawyer offered to prepare an order.

¶184 The written order following this hearing contained the

following:

 "The Court now finds that the State met its burden of

establishing that Finley knew the maximum penalty he

faced at the time he entered his plea. However, the

Court also believes that it is in the interest of justice

to commute Finley's sentence to the maximum represented

to him by the Court at the time of sentencing."

10
 No. 2014AP2488-CR.rgb

 "While the Court is satisfied based on the testimony of

[Finley's trial lawyer] that Finley actually knew the

correct penalty at the time he offered to enter a plea,

the Court erred when it told Finley that 19.5 years was

the maximum penalty possible and then imposed a sentence

in excess of that amount. Therefore, the Court believes

that it is in the interest of justice to commute Finley's

sentence to the maximum represented to him at the time of

sentencing."

¶185 Finley appealed a second time to the court of appeals,

which reversed the circuit court's determination that the State

proved Finley knew the correct maximum and that he entered a

knowing, intelligent, and voluntary plea. See State v. Finley,

2015 WI App 79, 365 Wis. 2d 275, 872 N.W.2d 344. Its reversal

was based on two things: (1) it suggested the circuit court's

finding that Finley was aware of the correct maximum penalty was

clearly erroneous; and (2) the State's appellate argument

focused on its request for a new remedy in plea withdrawal cases
where the error relates only to the correct maximum penalty——

commutation of the sentence to the amount the defendant was

told. Id., ¶¶2-3, 22-23, 32. The court of appeals reversed the

circuit court and ordered plea withdrawal.

¶186 We accepted the State's petition for review and heard

oral argument in this case on April 7, 2016. At oral argument,

the assistant attorney general (AAG) representing the State did

not remember that the circuit court found that Finley entered
his plea knowingly, intelligently, and voluntarily or that the

11
 No. 2014AP2488-CR.rgb

circuit court found Finley knew the correct maximum at the plea

hearing. The AAG was not interested in discussing that issue,

but instead argued for an alternative remedy under the

circumstances here——that of sentence commutation rather than

plea withdrawal.

¶187 I would reverse the court of appeals' decision

ordering plea withdrawal. My position is based on: (1) the

circuit court finding that the State proved Finley knew the

correct maximum sentence at the time of the plea hearing through

the testimony of his trial lawyer; and (2) this court's duty to

apply the pertinent law to the facts of record in this case even

when a party's attorney is not well-versed in the record and not

interested in discussing the dispositive issue.

I. APPLICABLE LAW

¶188 A defendant seeking to withdraw a plea after

sentencing must prove by clear and convincing evidence that

withdrawal is required to prevent a manifest injustice. See

Brown, 293 Wis. 2d 594, ¶18. Plea withdrawal is within the
discretion of the circuit court. See State v. Garcia, 192

Wis. 2d 845, 860, 532 N.W.2d 111 (1995). The manifest injustice

test is satisfied if a plea was not knowingly, intelligently,

and voluntarily entered. Brown, 293 Wis. 2d 594, ¶18. This

presents an issue of constitutional fact. Id., ¶19. "We accept

the circuit court's findings of historical and evidentiary facts

unless they are clearly erroneous but we determine independently

whether those facts demonstrate that the defendant's plea was
knowing, intelligent, and voluntary." Id.

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¶189 Wisconsin Stat. § 971.08 and State v. Bangert, 131

Wis. 2d 246, 260-62, 389 N.W.2d 12 (1986), establish duties to

ensure a defendant enters a knowing, intelligent, and voluntary

plea. Brown, 293 Wis. 2d 594, ¶23. Wisconsin Stat. § 971.08

provides:

(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.

(c) Address the defendant personally and advise the
defendant as follows: "If you are not a citizen of
the United States of America, you are advised that a
plea of guilty or no contest for the offense with
which you are charged may result in deportation, the
exclusion from admission to this country or the denial
of naturalization, under federal law."

(d) Inquire of the district attorney whether he or she
has complied with s. 971.095 (2).
When a defendant files a motion to withdraw a plea, after

sentencing, based on an allegedly deficient plea colloquy, the

motion is reviewed to determine whether the defendant has

established a prima facie violation of Wis. Stat. § 971.08 or

Bangert, and whether the defendant has alleged he or she "did

not know or understand the information that should have been

provided at the plea hearing." Brown, 293 Wis. 2d 594, ¶39. If

the defendant meets both burdens, "the court must hold a

postconviction evidentiary hearing at which the state is given
an opportunity to show by clear and convincing evidence that the

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defendant's plea was knowing, intelligent, and voluntary despite

the identified inadequacy of the plea colloquy." Id., ¶40. If

the State meets its burden, the circuit court denies the

defendant's motion for plea withdrawal. Id., ¶41. If the State

does not meet its burden, the circuit court grants the

defendant's motion for plea withdrawal unless the circumstances

fall under Wis. Stat. § 973.13, State v. Cross, 2010 WI 70, 326

Wis. 2d 492, 786 N.W.2d 64, or Taylor, in which case the

sentence may stand or be modified. Wisconsin Stat. § 973.13

provides:

Excessive sentence, errors cured. In any case where
the court imposes a maximum penalty in excess of that
authorized by law, such excess shall be void and the
sentence shall be valid only to the extent of the
maximum term authorized by statute and shall stand
commuted without further proceedings.
¶190 Cross involved a defendant who was incorrectly told

the maximum penalty was 40 years total with a maximum of 25

years' initial confinement. Cross, 326 Wis. 2d 492, ¶1. The

correct maximum was 30 years total with a maximum of 20 years'

initial confinement. The circuit court sentenced Cross to 40

years, but after Cross's postconviction motion for plea

withdrawal pointed out the error, the circuit court modified the

sentence to 30 years with 20 years of initial confinement. Id.,

¶2. We held that despite the incorrect information, Cross's

plea was knowing, voluntary, and intelligent and there was no

Wis. Stat. § 971.08 or Bangert violation. We also upheld the

modified sentence because no manifest injustice occurred.
Cross, 326 Wis. 2d 492, ¶¶3-5. We did observe in Cross that

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when the misinformation on the maximum sentence is "significant,

or when the defendant is told the sentence is lower than the

amount allowed by law, a defendant's due process rights are at

greater risk and a Bangert violation may be established" and if

that is the case, the burden shifts to "the State to prove at an

evidentiary hearing that the plea was knowing, voluntary, and

intelligent." Cross, 326 Wis. 2d 492, ¶39.

¶191 Taylor involved a defendant who faced a maximum

penalty of six years on the underlying charge, plus two

additional years for a repeater enhancer. Taylor, 347 Wis. 2d

30, ¶1. At the plea hearing, the circuit court told Taylor the

maximum penalty was six years and referred to the repeater

enhancer, but did not specifically explain it added an

additional two years. Id., ¶2. Nonetheless, we concluded that

the plea in Taylor was knowing, voluntary, and intelligent

because the circuit court informed Taylor of the repeater

enhancer at the plea hearing, Taylor understood he was charged

with the repeater enhancer, the record demonstrated that Taylor
knew the repeater enhancer could tack on an additional two

years, and ultimately he was only sentenced to six years. Id.,

¶42.

II. ANALYSIS

A. Circuit Court's Finding

¶192 The circuit court, after conducting the evidentiary

hearing, specifically found that the State proved Finley knew

the correct maximum penalty and entered his plea knowingly,
intelligently, and voluntarily. In addition, the circuit court

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modified Finley's sentence to a term of 19.5 years. This, in my

opinion, should end the matter and result in reversal of the

court of appeals and a denial of Finley's request to withdraw

his plea.

¶193 The circuit court's finding is not clearly erroneous

as the direct testimony of Finley's lawyer supports it.

Finley's lawyer testified that Finley proposed the plea he took

and that Finley knew the maximum penalty associated with that

proposal. Finley's lawyer testified about how Finley's proposal

carried a longer sentence than the one proposed by the State but

Finley chose the lengthier sentence with the hope of being

eligible for Challenge Incarceration and other programs. The

testimony elicited on cross-examination, although inconsistent

with the direct testimony, does not operate to erase the direct

testimony or the circuit court's reliance on it. The circuit

court saw and heard Finley's lawyer testify live. It observed

the demeanor, facial expressions, tone, and inflection of

Finley's lawyer. It assessed whether Finley's lawyer's answers
were an emphatic or reluctant "yes" as to whether Finley knew

the correct maximum. The circuit court, as the factfinder here,

is in a better position to assess credibility and resolve any

inconsistencies in the testimony. This is why appellate courts

defer to the factfinder on witness credibility. See Gauthier v.

State, 28 Wis. 2d 412, 415, 137 N.W.2d 101 (1965). An appellate

court should not substitute its judgment unless the circuit

court relied on "inherently or patently incredible" evidence.
Id. at 416. As an appellate court, we review a black and white

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transcript of words. This puts us at a disadvantage in

assessing credibility and resolving inconsistencies. Id. Here,

the circuit court found Finley's lawyer's direct testimony

credible to show Finley knew the correct maximum despite the

double reference to "19.5 years confinement." Finley's lawyer

explained why: it was Finley's proposal, they had a lengthy

discussion about it, it was his normal practice, and he

specifically remembers discussing the penalties with Finley.

Further, the record shows no objection, discussion, or confusion

when the sentencing court imposed 23.5 years instead of 19.5.

The reasonable inference from the record suggests that both

Finley and his lawyer knew 23.5 was the correct amount.2

2
Although my position does not require an analysis of State
v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64, or State
v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482, or the
fact the incorrect 19.5 referred only to confinement rather than
the full sentence, I address them briefly. The plea
questionnaire and the reference to it at the plea hearing note
that the maximum penalty Finley faced was 19.5 years of
confinement. While this amount was wrong, it was only off by
one year, not four, because it referred to confinement time, not
total length of sentence. Finley's total length of sentence was
23.5 years, which consisted of a maximum of 18.5 years of
confinement and 5 years of extended supervision. Moreover, the
correct individual amounts were accurately described and
acknowledged by Finley. Like the defendants in Cross and
Taylor, Finley knew the amount he faced and entered a knowing,
intelligent, and voluntary plea. Under such circumstances,
Finley's due process rights were not violated and no manifest
injustice occurred; consequently, the circuit court did not
erroneously exercise its discretion when it denied Finley's plea
withdrawal motion.

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B. Our Duty to Follow the Law

¶194 The law is clear in this case. The circuit court

found the State met its burden of proving Finley knew the

correct maximum and entered his plea knowingly, intelligently,

and voluntarily. That finding is not clearly erroneous. It was

based on the testimony of Finley's trial lawyer who negotiated

the plea and would certainly be the one to know if Finley had

the correct penalty information at the time of his plea. Thus,

under Bangert and Brown, that ends the matter. Finley is not

entitled to withdraw his plea. How the AAG handled or argued

this case on appeal does not alter the law. Although we are

entitled to accept concessions by a party, we are not required

to do so. See State v. St. Martin, 2011 WI 44, ¶13 n.6, 334

Wis. 2d 290, 800 N.W.2d 858 (we are "not bound by the parties'

interpretation of the law or obligated to accept a party's

concession [on the] law") (citation and one set of quotation

marks omitted). Justice should not depend on how adeptly or

ineptly a party's arguments are presented. It should depend on
what the law is. Here, the law says a defendant may only

withdraw a plea after sentencing if the defendant establishes a

manifest injustice. A manifest injustice occurs when a plea is

not entered knowingly, voluntarily, and intelligently. The

circuit court, which is charged with deciding whether the State

proved that Finley's plea was so entered, heard the testimony

and argument and reached a reasonable determination based on the

facts and law. It held that Finley did know the correct range
of punishment because he discussed it with his trial lawyer the

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night before the plea hearing and the range of punishment for

the plea agreement Finley wanted was greater than that being

proposed by the State. The majority casts aside the circuit

court's ruling as if it does not exist because the State

meandered down a different path on appeal. I will not do so.3

¶195 Accordingly, I respectfully dissent.

3
It also appears to me that Finley played fast and loose
with the system, which is something this court frowns upon. See
State v. Petty, 201 Wis. 2d 337, 346-47, 548 N.W.2d 817 (1996).
Finley argued in his postconviction motion, on his first appeal
and through most of the evidentiary hearing that he wanted
sentence modification under Taylor. When it appeared the
circuit court was leaning toward that remedy, Finley reversed
course and insisted solely on a remedy of plea withdrawal.
Although this scenario does not fit precisely into judicial
estoppel, it definitely smells like an intentional manipulation
of the judicial system. See Petty, 201 Wis. 2d at 346-47.

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