State v. Gerald D. Taylor

2013 WI 34

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1030-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent,
v.
Gerald D. Taylor,
Defendant-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: April 23, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 6, 2012

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Outagamie
JUDGE: Dee R. Dyer

JUSTICES:
CONCURRED: Prosser, J., concurs. (Opinion filed.)
DISSENTED: Abrahamson, C.J., Bradley, J., dissent. (Opinion
filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
and oral argument by Andrew R. Hinkel, assistant state public
defender.
For the plaintiff-respondent, the cause was argued by
Thomas J. Balistreri, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
 2013 WI 34
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1030-CR
(L.C. No. 2009CF330)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED
v. APR 23, 2013
Gerald D. Taylor, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.

APPEAL from a judgment and an order of the Circuit Court

for Outagamie County, Dee R. Dyer, Judge. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This appeal is before

the court on certification by the court of appeals, pursuant to

Wis. Stat. § 809.61 (2009-10).1 The defendant, Gerald Taylor

(Taylor), pled no contest to charges of uttering a forgery as a

repeater. The penalty Taylor faced for uttering a forgery was

"a fine not to exceed $10,000 or imprisonment not to exceed 6

years, or both." Wis. Stat. § 939.50(3)(h). Additionally,

because Taylor was a repeat offender, his maximum term of

1
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
 No. 2011AP1030-CR

imprisonment could "be increased by not more than 2 years if the

prior convictions were for misdemeanors."2 Wis. Stat.

§ 939.62(1)(b). Therefore, Taylor faced a maximum term of

imprisonment of eight years.

¶2 Specifically, at the plea hearing, the circuit court

informed Taylor that it "could impose the maximum penalty here

of a $10,000 fine or six years in prison or both." Though the

court mentioned the repeater allegation several times, it did

not explicitly inform Taylor during the plea colloquy that he

faced an additional two-year penalty because of the repeater

allegation for a maximum term of imprisonment of eight years.

¶3 Thereafter, the circuit court sentenced Taylor to a

six-year term of imprisonment for uttering a forgery as a

repeater. Subsequently, Taylor filed a motion for

postconviction relief pursuant to Wis. Stat. § 809.30(2)(h).

Taylor moved to withdraw his no contest plea, arguing that it

was not entered knowingly, intelligently, and voluntarily.

¶4 The circuit court denied Taylor's motion without
requiring the State to prove, at a Bangert hearing, that Taylor

entered his plea knowingly, intelligently, and voluntarily.3 The

2
The complaint charges Taylor as a repeater, as he had been
convicted of at least three prior misdemeanors.
3
State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986)
outlines the procedure for withdrawal of a plea based on an
error in the plea colloquy:

Where the defendant has shown a prima facie violation
of sec. 971.08(1)(a) or other mandatory duties, and
alleges that he in fact did not know or understand the
information which should have been provided at the
2
 No. 2011AP1030-CR

court stated that since Taylor was informed that he faced a six-

year term of imprisonment and he received a six-year term of

imprisonment, any error was "harmless."

¶5 Taylor appealed the circuit court's denial of his

motion to withdraw his no contest plea. Taylor argued that it

was improper for the circuit court to find that its error was

"harmless," and that a plea that is not entered knowingly,

intelligently, and voluntarily is harmful under State v.

Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).

¶6 The court of appeals certified Taylor's appeal to this

court. It noted that "it is unclear whether understating the

potential penalty during a plea colloquy can properly be deemed

harmless error, and if so, where in the analytical framework of

Bangert such a determination should be made."

¶7 We granted the court of appeals' certification and now

affirm the judgment of the circuit court.

¶8 We hold that the defendant's plea was 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. Therefore, the circuit court did not

plea hearing, the burden will then shift to the state
to show by clear and convincing evidence that the
defendant's plea was knowingly, voluntarily, and
intelligently entered, despite the inadequacy of the
record at the time of the plea's acceptance.

Id. at 274.

3
 No. 2011AP1030-CR

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

contest plea.

¶9 Further, plea withdrawal "remains in the discretion of

the circuit court and will not be disturbed unless the defendant

shows that it is necessary to correct a manifest injustice."

State v. Cross, 2010 WI 70, ¶4, 326 Wis. 2d 492, 786 N.W.2d 64;

State v. Cain, 2012 WI 68, ¶20, 342 Wis. 2d 1, 816 N.W.2d 177.

Taylor has not demonstrated that withdrawal of his plea is

necessary to correct a manifest injustice. Accordingly, the

judgment and order of the circuit court is affirmed.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶10 On January 2, 2009, at an M&I Bank in Appleton,

Wisconsin, Taylor attempted to cash check number 4627, which was

drawn on the account of Finished Touch Inc. and was made payable

to Gerald Dwayne Taylor. The teller at the bank had previously

been alerted that someone named Gerald Taylor had passed

counterfeit checks at an M&I Bank in Green Bay, Wisconsin. The

teller delayed Taylor, giving Sgt. Michael Daul of the Appleton

Police Department time to arrive. Taylor acknowledged that he
had been the one attempting to cash the check and claimed that

he had done subcontracting work for Finished Touch Inc. Officer
Daul contacted James Smith of Finished Touch Inc. Smith

indicated that he was the person in charge of writing all the
checks for Finished Touch Inc., that he did not recall writing a

check to Taylor, that he did not have any employees or

subcontractors named Taylor, and that he still had check number

4627 in his book.
4
 No. 2011AP1030-CR

¶11 On May 8, 2009, the State filed a criminal complaint

charging Taylor with uttering a forgery as a repeater, in

violation of Wis. Stat. §§ 943.38(2),4 939.50(3)(h),5 and

939.62(1)(b).6 The complaint stated that upon conviction, Taylor

"may be fined not more than Ten Thousand Dollars ($10,000), or

imprisoned not more than six (6) years, or both." The complaint

also alleged that "because the defendant is a repeater, having

been convicted of at least three misdemeanors, which

conviction(s) remain of record and unreversed, the maximum term

of imprisonment . . . may be increased by not more than 2

years." The complaint listed Taylor's prior convictions,

including two disorderly conducts, resisting or obstructing an

officer, and criminal damage to property. At Taylor's bail

hearing on August 20, 2009, the court asked Taylor's attorney,

Michael Dally, if he wanted the complaint read. Attorney Dally

4
Wisconsin Stat. § 943.38(2), "Forgery," provides, in
relevant part:

Whoever utters as genuine or possesses with
intent to utter as false or as genuine any forged
writing or object mentioned in sub. (1), knowing it to
have been thus falsely made or altered, is guilty of a
Class H felony.
5
Wisconsin Stat. § 939.50(3)(h), "Classification of
felonies," provides that the penalty for a Class H felony is "a
fine not to exceed $10,000 or imprisonment not to exceed 6
years, or both."
6
Wisconsin Stat. § 939.62(1)(b), "Increased penalty for
habitual criminality," provides that "[a] maximum term of
imprisonment of more than one year but not more than 10 years
may be increased by not more than 2 years if the prior
convictions were for misdemeanors."

5
 No. 2011AP1030-CR

responded that the "Court does not have to read the complaint.

It does charge uttering a forged instrument as a repeat

offender. Priors appear to be for misdemeanors." Taylor

appeared in person at the bail hearing.

¶12 Taylor waived his right to a preliminary hearing on

November 24, 2009. At the waiver hearing, the court asked

Taylor: "Were you able to read over the criminal complaint in

this case to see what they say you did?" Taylor responded

"Yeah." The court confirmed "So you could understand that?"

Taylor responded "Yeah."

¶13 On December 1, 2009, the State filed an information

which stated that upon conviction for uttering a forgery, Taylor

may be "imprisoned not more than six (6) years." Further,

because Taylor is a repeat offender, the term of imprisonment

"may be increased by not more than 2 years if the prior

convictions were for misdemeanors."

¶14 At Taylor's arraignment on January 25, 2010, the court

asked Taylor's attorney, "Mr. Dally, have you received a copy of
the information?" Taylor's attorney responded, "We have Judge.

It's a charge of uttering with the repeater enhanced and alleged
as well."

¶15 Pursuant to plea negotiations, Taylor agreed to plead
no contest to the charge of uttering a forgery as a repeater,

and in return, the State would recommend, inter alia, three

years of probation. On August 23, 2010, Taylor completed a Plea

Questionnaire/Waiver of Rights form. In the "understandings"

section, Taylor acknowledged that he understood the judge was
6
 No. 2011AP1030-CR

"not bound by any plea agreement or recommendations and may

impose the maximum penalty." Taylor's maximum penalty was

handwritten on the form: "8 yrs prison/$10,000 fine or both."

Taylor signed the form, acknowledging that he "reviewed and

understand[s] this entire document and any attachments. I have

reviewed it with my attorney (if represented). I have answered

all questions truthfully and either I or my attorney have

checked the boxes. I am asking the court to accept my plea and

find me guilty." Taylor's attorney also signed the form and

acknowledged that he had "discussed this document and any

attachments with the defendant. I believe the defendant

understands it and the plea agreement. The defendant is making

this plea freely, voluntarily, and intelligently."

¶16 At the plea hearing held on August 23, 2010, the same

day Taylor filled out the plea questionnaire form, the court

mentioned the repeater several times and confirmed that Taylor

had read and understood the complaint and plea questionnaire

form:

THE COURT: Then how does your client wish to
plead to this one count of felony
uttering a forgery?

ATTORNEY DALLY: No contest, Judge.

THE COURT: And that is with the repeater still,
is it?

ATTORNEY DALLY: It is. There were several prior
misdemeanor convictions.

. . . .

7
 No. 2011AP1030-CR

THE COURT: How do you wish to plead to this
forgery, a felony as a repeater?

THE DEFENDANT: Plead no contest, Your Honor.

THE COURT: You did go over a plea questionnaire
form with Mr. Dally, did you?

THE DEFENDANT: Yes, I did.

THE COURT: When you did that, did you understand
all the information in these
documents?

THE DEFENDANT: Yes.

. . . .

THE COURT: Were you able to read over the
criminal complaint in this case and
understand what it says?

THE DEFENDANT: Yes.

THE COURT: And how about the plea questionnaire,
when you went over that, were you able
to understand all that?

THE DEFENDANT: Yes.

. . . .

THE COURT: And when you went over the plea
questionnaire form with him, did you
believe he understood that
information?

ATTORNEY DALLY: He seemed to. I believe he did.

THE COURT: Therefore, do you believe that he's
freely, voluntarily, and
understandingly entering his plea
today?

ATTORNEY DALLY: Yes.
The court asked Taylor if he understood that it was not bound by

any agreements or recommendations. Taylor acknowledged that he

8
 No. 2011AP1030-CR

understood. The court then stated: "I could impose the maximum

penalty here of a $10,000 fine or six years in prison or both if

I thought that's what was necessary. Do you understand that?"

Taylor said "Yes, I do." At the plea hearing, however, the

circuit court did not expressly inform Taylor that because of

the repeater allegation, the potential maximum term of

imprisonment was eight years.

¶17 On October 11, 2010, the circuit court sentenced

Taylor to a term of imprisonment of six years, consisting of

three years of initial confinement and three years of extended

supervision.

¶18 Approximately four months later, on February 8, 2011,

Taylor filed a motion for postconviction relief, seeking to

withdraw his no contest plea. Taylor alleged that the plea

colloquy was deficient because it did not inform him of the

maximum penalty under Wis. Stat. § 971.08 and Bangert. In the

motion, Taylor also affirmatively alleged that he did not know

the correct maximum penalty.

¶19 The State moved the court to deny Taylor's motion,

arguing that the "defendant has failed to make a prima facie

showing that anything other than a harmless error occurred."

The State argued that under Brown, even if Taylor did not

understand that the maximum penalty was greater than six years,

it would be "harmless" because Taylor's sentence did not exceed

the maximum discussed during the plea colloquy. State v. Brown,

2006 WI 100, ¶78, 293 Wis. 2d 594, 716 N.W.2d 906.

9
 No. 2011AP1030-CR

¶20 The circuit court denied Taylor's motion without

requiring the State to prove that Taylor entered his plea

knowingly, intelligently, and voluntarily. The circuit court

believed that this case was similar to Brown. It noted that in

Brown, the defendant was not informed that his sentences for

separate crimes could be served consecutively, but it was a

harmless error because the sentence he received did not exceed

the sentence he was told he could receive. The circuit court

here believed its error was "harmless," similar to Brown,
because the court informed Taylor he could be sentenced to six

years and Taylor was sentenced to six years.

¶21 Taylor appealed the circuit court's denial of his

motion to withdraw his no contest plea. Taylor argued that it

was improper for the circuit court to find that its error was

"harmless," and argued that a plea that is not entered

knowingly, intelligently, and voluntarily is harmful under

Bangert. Taylor argued that because the circuit court did not

inform him of the correct maximum penalty during the plea

colloquy and because he alleged that he did not know the true

maximum penalty, he should have been entitled to a Bangert

hearing at which the State must prove, by clear and convincing

evidence, that his plea was entered knowingly, intelligently,

and voluntarily.7

¶22 The court of appeals certified Taylor's appeal to this

court. It noted that "it is unclear whether understating the

7
See supra note 3.

10
 No. 2011AP1030-CR

potential penalty during a plea colloquy can properly be deemed

harmless error, and if so, where in the analytical framework of

Bangert such a determination should be made." The court of

appeals noted that following either Brown or Cross in the

instant case could arguably lead to different results:

As in Brown, the defendant here was told that he faced
a lesser punishment than the law actually provided,
but the sentence actually imposed did not exceed the
amount of time the court had erroneously informed the
defendant he faced. The court's emphasis in Brown on
the fact that the defendant was not sentenced to more
time than he was told he faced suggests that the
harmless error doctrine might be applicable in these
circumstances——regardless of whether the defendant was
or was not aware of the actual penalty. That would
negate the necessity for a hearing. In contrast, the
court's discussion in Cross seems to suggest that the
due process concerns implicated whenever a defendant
has erroneously been informed that the penalty is less
than the actual maximum might, in fact, require a
hearing to determine whether the defendant was aware
of the actual penalty he faced.
¶23 We granted the court of appeals' certification by an

order dated March 15, 2012.

II. STANDARD OF REVIEW

¶24 "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.'" Brown, 293 Wis. 2d 594, ¶18

(citing State v. Thomas, 2000 WI 13, ¶16, 232 Wis. 2d 714, 605

N.W.2d 836). One way the defendant can show manifest injustice

is to prove that his plea was not entered knowingly,

11
 No. 2011AP1030-CR

intelligently, and voluntarily. Id. (citing State v.

Trochinski, 2002 WI 56, ¶15, 253 Wis. 2d 38, 644 N.W.2d 891).

¶25 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. Cross,

326 Wis. 2d 492, ¶14 (citing Brown, 293 Wis. 2d 594, ¶19).

Whether a plea was entered knowingly, intelligently, and

voluntarily is a question of constitutional fact that is

reviewed independently. Id. "In making this determination,
this court accepts the circuit court's findings of historical or

evidentiary facts unless they are clearly erroneous." Id.

¶26 Whether Taylor has pointed to a plea colloquy

deficiency that establishes a violation of Wis. Stat. § 971.08

or other mandatory duty at a plea hearing is a question of law

we review de novo. Brown, 293 Wis. 2d 594, ¶21.

III. ANALYSIS

¶27 When a defendant moves to withdraw his or her plea

based on an error in the plea colloquy, the proper analysis is

first to determine if the defendant should be allowed to

withdraw the plea because the circuit court violated its duty

under Wis. Stat. § 971.08 or other court-mandated duty, and

second to determine, if necessary, whether the failure to

withdraw the plea would otherwise result in a manifest

injustice.

¶28 In this case, Taylor was told at the plea colloquy

that he faced a maximum term of imprisonment of six years when

in fact he faced a maximum of eight years because of the
12
 No. 2011AP1030-CR

repeater allegation. However, the record is replete with

evidence that Taylor was nonetheless aware of the potential

eight-year term of imprisonment. Moreover, at the plea hearing,

the circuit court verbally informed Taylor of the six-year term

of imprisonment to which he was ultimately sentenced. As a

result, Taylor's plea was entered knowingly, intelligently, and

voluntarily, and it was not a violation of Taylor's due process

rights to deny his motion to withdraw his no contest plea.

Further, Taylor has not otherwise established that failure to

withdraw his no contest plea would result in a manifest

injustice.

A. Knowing, Intelligent, and Voluntary

¶29 Recent Wisconsin Supreme Court precedent requires us

to affirm the order of the circuit court that denied Taylor's

motion for plea withdrawal. Under the analysis set forth in

Cross and Brown, we conclude that Taylor's plea was entered

knowingly, intelligently, and voluntarily.

¶30 "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. Due process requires that "a

defendant's guilty plea must be affirmatively shown" to be

knowing, intelligent, and voluntary. Cross, 326 Wis. 2d 492,

¶16; Brown, 293 Wis. 2d 594, ¶25. Before the court accepts a

plea of guilty or no contest, it must "[a]ddress the defendant

personally and determine that the plea is made voluntarily with

13
 No. 2011AP1030-CR

understanding of the nature of the charge and the potential

punishment if convicted." Wis. Stat. § 971.08(1)(a).

¶31 In order to ensure that a plea is knowing,

intelligent, and voluntary, the court is required, at the plea

hearing and on the record, to do the following:

(1) Determine the extent of the defendant's
education and general comprehension so as to assess
the defendant's capacity to understand the issues at
the hearing;

(2) Ascertain whether any promises, agreements,
or threats were made in connection with the
defendant's anticipated plea, his appearance at the
hearing, or any decision to forgo an attorney;

(3) Alert the defendant to the possibility that
an attorney may discover defenses or mitigating
circumstances that would not be apparent to a layman
such as the defendant;

(4) Ensure the defendant understands that if he
is indigent and cannot afford an attorney, an attorney
will be provided at no expense to him;

(5) Establish the defendant's understanding of
the nature of the crime with which he is charged and
the range of punishments to which he is subjecting
himself by entering a plea;

(6) Ascertain personally whether a factual basis
exists to support the plea;

(7) Inform the defendant of the constitutional
rights he waives by entering a plea and verify that
the defendant understands he is giving up these
rights;

(8) Establish personally that the defendant
understands that the court is not bound by the terms
of any plea agreement, including recommendations from
the district attorney, in every case where there has
been a plea agreement;

14
 No. 2011AP1030-CR

(9) Notify the defendant of the direct
consequences of his plea; and

(10) Advise the defendant that '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 [or offenses] with which you are charged may
result in deportation, the exclusion from admission to
this country or the denial of naturalization, under
federal law,' as provided in Wis. Stat.
§ 971.08(1)(c).
Brown, 293 Wis. 2d 594, ¶35 (footnotes omitted).

¶32 If the court fails to fulfill one of the duties

mandated in Wis. Stat. § 971.08 or under the Bangert line of
cases (a "Bangert violation"), the defendant may move to

withdraw his plea. Bangert, 131 Wis. 2d at 274. In the motion

("Bangert motion"), the defendant must (1) make a prima facie

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

mandated duty, and (2) allege that the defendant did not, in

fact, know or understand the information that should have been

provided during the plea colloquy. Id. "A defendant attempting

to make this prima facie showing must point to deficiencies in

the plea hearing transcript; conclusory allegations are not

sufficient." Cross, 326 Wis. 2d 492, ¶19. Assuming the

defendant makes a proper Bangert motion, the defendant is

entitled to an evidentiary hearing ("Bangert hearing"), where
the State has the burden to prove by clear and convincing

evidence that the defendant's plea, despite the inadequacy of
the plea colloquy, was knowing, intelligent, and voluntary.

Bangert, 131 Wis. 2d at 274. One reason to shift the burden of
persuasion to the State is to encourage the State "to assist the

15
 No. 2011AP1030-CR

trial court in meeting its sec. 971.08" and other mandated

duties. Id. at 275. The State may use "any evidence" to prove

that the defendant's plea was knowing, intelligent, and

voluntary, including any documents in the record and testimony

of the defendant or defendant's counsel. Id. at 274-75.

¶33 In this case, we are concerned with the court's duty

to "[e]stablish the defendant's understanding of . . . the range

of punishments to which he is subjecting himself by entering a

plea." Brown, 293 Wis. 2d 594, ¶35 (citing Bangert, 131
Wis. 2d at 262). A recent decision of this court provides

extensive authority on this issue:

[W]here the sentence communicated to the defendant is
higher, but not substantially higher, than that
authorized by law, the incorrectly communicated
sentence does not constitute a Bangert violation and
will not, as a matter of law, be sufficient to show
that the defendant was deprived of his constitutional
right to due process of law.
Cross, 326 Wis. 2d 492, ¶40. In that case, the circuit court

informed Cross that his maximum term of imprisonment was 40

years, when in fact it was only 30 years, and Cross brought a

motion to withdraw his plea, arguing that it was not entered

knowingly, intelligently, and voluntarily. Id., ¶¶1, 11.

Though the circuit court granted his motion for resentencing, it

denied Cross's motion for plea withdrawal. Id., ¶2. This court

concluded that the circuit court was correct to deny Cross's

plea withdrawal motion. Id., ¶4. According to Cross, "a

defendant who has been told a maximum punishment higher, but not

substantially higher, than that authorized by law, has not

16
 No. 2011AP1030-CR

necessarily made a prima facie case that the requirements of

§ 971.08 and our case law have been violated." Id., ¶30. Cross

looked to the underlying purpose of the Bangert framework, to

ensure that the defendant's plea is entered knowingly,

intelligently, and voluntarily:

[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.
Id., ¶32. Additionally, Cross noted 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."8 Id., ¶33. Thus,

8
See also State v. Cross, 2010 WI 70, ¶33 n.7, 326
Wis. 2d 492, 786 N.W.2d 64; Williams v. Smith, 591 F.2d 169, 172
(2d Cir. 1979)("[T]he test in this circuit for determining the
constitutional validity of a state court guilty plea where the
defendant has been given sentencing misinformation is whether
the defendant was aware of actual sentencing
possibilities . . . ."). Cf. Worthen v. Meachum, 842 F.2d 1179,
1183 (10th Cir. 1988) (overruled on other grounds by Coleman v.
Thomson, 501 U.S. 722 (1991); overruling recognized by Mendoza
v. Hatch, 620 F.3d 1261 (2010)). In Worthen, the defendant
argued that his plea was not knowing and voluntary because he
was not advised on the record of acts sufficient to constitute
the offense:

[I]n order for a guilty plea to be 'voluntary in a
constitutional sense,' a defendant must . . . have a
competent understanding of the charge against him.
The Supreme Court has clearly indicated, however, that
17
 No. 2011AP1030-CR

"a defendant's due process rights are not necessarily violated

when he is incorrectly informed of the maximum potential

imprisonment," and in some cases, "small deviations" from the

Bangert line of cases do not amount to a Bangert violation.

Id., ¶¶37-38. Further, Cross surmised that when a defendant is

given a sentence in excess of that authorized by law, which

"presumably would also involve an error in the understanding of

the possible maximum penalty," the proper remedy is to commute

the sentence under Wis. Stat. § 973.13,9 not plea withdrawal.

Id., ¶34.
¶34 We recognize that the Cross court noted 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." Id., ¶39. Under these

facts, however, we conclude that Taylor's due process rights

a defendant of sufficient 'intelligence and experience
in the criminal justice system' may, in some
circumstances, be presumed to have understood the
nature of the charge even though a specific
explanation is not shown on the plea record.

Id. (citing Marshall v. Lonberger, 459 U.S. 422, 436-37 (1983)).
Thus, in some circumstances, a guilty plea will still be
knowing, intelligent, and voluntary, and the defendant's due
process rights will not be violated, when the defendant is
informed of the incorrect maximum sentence. See Cross, 326
Wis. 2d 492, ¶37.
9
Wisconsin Stat. § 973.13 provides: "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."

18
 No. 2011AP1030-CR

were not violated when the circuit court denied his motion to

withdraw his no contest plea. At the plea colloquy, the court

verbally informed Taylor that he faced a potential six-year term

of imprisonment for the underlying offense and that he also was

pleading to being a repeat offender. Ultimately, he was

sentenced to a six-year term of imprisonment. Thus, on this

record, a failure to discuss the additional two-year repeater

penalty enhancer at the plea hearing is an insubstantial defect.

¶35 The record in this case is replete with evidence that

Taylor was aware of the potential eight-year term of

imprisonment, comprised of a six-year term of imprisonment for

the underlying charge and an additional two-year term of

imprisonment from the alleged repeater. For example, the

complaint, filed on May 8, 2009, stated that Taylor faced a term

of imprisonment of "not more than six (6) years," which "may be

increased by not more than 2 years if the prior convictions were

for misdemeanors." The complaint listed Taylor's prior

convictions, including two disorderly conducts, resisting or
obstructing an officer, and criminal damage to property.

¶36 At Taylor's bail hearing on August 20, 2009, the court
asked Taylor's attorney if he wanted the complaint read.

Attorney Dally responded that the "Court does not have to read
the complaint. It does charge uttering a forged instrument as a

repeat offender. Priors appear to be for misdemeanors." Taylor
appeared personally at the bail hearing. At the preliminary

hearing, on November 24, 2009, the court asked Taylor if he had

19
 No. 2011AP1030-CR

read the complaint, and Taylor responded that he had read the

complaint.

¶37 Further, the information, filed on December 1, 2009,

stated that upon conviction, Taylor could be sentenced to "not

more than six (6) years" and that the maximum term "may be

increased by not more than 2 years if the prior convictions were

for misdemeanors." At the arraignment on January 25, 2010, the

court asked Taylor's attorney if he had received a copy of the

information. The attorney responded "We have, Judge. It's a

charge of uttering with the repeater enhanced and alleged as

well."

¶38 Additionally, Taylor completed a Plea

Questionnaire/Waiver of Rights form on August 23, 2010.

Handwritten on the form is Taylor's acknowledgement that the

judge is not bound by any agreement or recommendation, and that

the judge may impose the maximum penalty: "8 yrs prison/$10,000

fine or both." Taylor signed the form, acknowledging that he

had read and understood the form. Taylor's attorney also signed
the form, acknowledging that he had discussed the document with

Taylor, and that he believed Taylor understood the form. At the
plea hearing, held on the same day that Taylor completed the

plea questionnaire form, the court asked Taylor if he had read
the complaint and understood it, and Taylor answered "Yes." The

court also asked Taylor if he had gone over the plea
questionnaire form with his attorney and if he understood all of

the information. Taylor answered "Yes" to both questions.

Later in the hearing, the court once again asked Taylor if he
20
 No. 2011AP1030-CR

had gone over the plea questionnaire form and if he understood

it. Taylor answered "Yes." The court then asked Taylor's

attorney if he had gone over the plea questionnaire form with

Taylor and if the attorney believed Taylor understood the form.

The attorney answered that he had gone over the form with

Taylor, and he believed that Taylor understood the form. The

attorney acknowledged on the plea questionnaire form that he

believed Taylor was entering his plea "freely, voluntarily, and

intelligently."

¶39 To conclude that Taylor was not aware of the maximum

eight-year term of imprisonment, we would have to assume that

Taylor's trial counsel misrepresented, on the plea questionnaire

form itself and to the court, that he had read the form with

Taylor and that Taylor understood it. We would also have to

assume that Taylor misrepresented to the court that he had

received, read, and understood the complaint and plea

questionnaire form. "[I]f a defendant does understand the

charge and the effects of his plea, he should not be permitted

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

Brown, 293 Wis. 2d 594, ¶37. "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." Cross, 326 Wis. 2d 492, ¶32. The

failure to specifically reference the two-year repeater penalty

enhancer at the plea hearing is, on review of this record, an

"insubstantial defect" such that an evidentiary hearing is not

required to determine if Taylor entered his plea knowingly,
21
 No. 2011AP1030-CR

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 Taylor indeed pled

knowingly, intelligently, and voluntarily. He knew of the

eight-year maximum term of imprisonment, and in any event, he

was verbally informed by the court at the plea hearing of the

sentence that he actually received.

¶40 The certification from the court of appeals points out

that it is unclear, after Cross and Brown, whether understanding
the potential penalty during the plea colloquy can properly be

deemed harmless error, and if so, where in the analytical

framework of Bangert such a determination should be made.

Taylor and the State agree, but for different reasons, that the

harmless error doctrine should not apply to this case. We also

agree that here the harmless error does not apply.10 Taylor

argues that this error was not "harmless" because "the unknowing

plea is itself the harm caused by the court's error." The State

argues that no case has ever applied the harmless error doctrine

10
Taylor argues that in addition to Cross, 326 Wis. 2d 492,
another Wisconsin case lends support to the proposition that
erroneous information about the possible sentence is not
"harmless" simply because the defendant received a sentence
within the erroneous range given. See State v. Mohr, 201
Wis. 2d 693, 549 N.W.2d 497 (Ct. App. 1996). We need not
address Taylor's argument, since we determine that neither Cross
nor State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716
N.W.2d 906, adopted the harmless error analysis when analyzing a
defendant's motion to withdraw a guilty or no contest plea based
on an alleged violation of Wis. Stat. § 971.08 or other court-
mandated duty during the plea colloquy.

22
 No. 2011AP1030-CR

to the Bangert framework, and that the proper focus is whether

failure to withdraw Taylor's plea would result in a manifest

injustice. In this case, the circuit court determined that,

under Brown, since Taylor was informed of and actually received

a six-year term of imprisonment, any error was "harmless."

¶41 Brown, however, was not a harmless error case. The

court did not undertake the harmless error analysis. Instead,

in Brown, the court considered whether the defendant entered his

plea knowingly, intelligently, and voluntarily. Brown alleged

that the circuit court failed to enumerate the elements of the

charges to which he pled guilty, failed to inform him of the

constitutional rights he waived by pleading guilty, and failed

to adequately explain the potential punishment he faced. Brown,

293 Wis. 2d 594, ¶3. The court concluded that Brown was

entitled to a Bangert hearing based on the circuit court's

failure to inform him of the elements of the crime and the

circuit court's failure to inform him that when he pled, he was

waiving certain constitutional rights. Id., ¶¶66, 77. While

Brown did make two short references to harmlessness, it clearly

did not engage in a harmless error analysis.11 For example,
11
See State v. Martin, 2012 WI 96, ¶¶45-46, 343
Wis. 2d 278, 816 N.W.2d 270.

Nor did Cross undertake the harmless error analysis. The
only time Cross mentioned harmless error was in the context of
discussing federal rules that support the proposition that not
every plea colloquy error should result in withdrawal: "Rule
11(h) states that any 'variance from the requirements of this
rule is harmless error if it does not affect substantial
rights.'" Cross, 326 Wis. 2d 492, ¶36 (citing Fed. R. Crim. P.
11(h)).

23
 No. 2011AP1030-CR

Brown noted that if a defendant's Bangert motion does not

properly allege that the defendant lacked understanding with

regard to the plea, "any shortcoming in the plea colloquy is

harmless." Id., ¶63. Brown instructs that before the defendant

is entitled to a hearing on a motion to withdraw a guilty or no

contest plea, the defendant's Bangert motion must satisfy two

requirements: (1) it must make a prima facie showing of a

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

duty, and (2) it must allege that the defendant did not know or

understand the information that should have been provided at the

plea hearing. Id., ¶39. Brown also used the phrase "harmless"
when it concluded that even if the court had erred by not

telling Brown that his sentences could run consecutively, it

would be "harmless" because Brown's total sentence was not

greater than the sentence he was informed he could receive.

Id., ¶78. Much like the case we have before us today, the Brown

In a court of appeals case, State v. Johnson, the court
focused mainly on whether failure to allow the defendant to
withdraw his plea would result in manifest injustice where the
circuit court failed to inform the defendant that it was not
bound by the plea agreement. 2012 WI App 21, 339 Wis. 2d 421,
811 N.W.2d 441. The court also noted that under Cross, this was
a harmless error. Id., ¶¶14-15. We note that the "harmless
error" doctrine is a distinct legal analysis. See Martin, 343
Wis. 2d 278, ¶¶45-46. We repeat, however, that neither Brown
nor Cross undertook the harmless error analysis; nor does this
court today undertake the harmless error analysis to determine
whether the defendant may withdraw his plea after alleging a
violation of the court's Wis. Stat. § 971.08 or other mandated
duties. Rather, the focus is on whether the defendant's plea
was entered knowingly, intelligently, and voluntarily, and
whether the defendant is otherwise able to prove that failure to
withdraw the plea would result in a manifest injustice.

24
 No. 2011AP1030-CR

court determined that this "error" did not prevent Brown's plea

from being knowing, intelligent, and voluntary because it is a

"reasonable conclusion when a defendant is confronted with

multiple charges [] that the defendant could face multiple

punishments." Id.

¶42 As in Brown, it is a "reasonable conclusion" that

Taylor understood that he faced an enhanced penalty since he was

charged with a repeater penalty enhancer. The court informed

Taylor of the repeater allegation several times at the plea

colloquy, and the record provides clear evidence that Taylor was

aware of the additional two-year term of imprisonment he faced

because of the repeater allegation. Also, Taylor's actual

sentence, like Brown's, did not exceed the six-year term of

imprisonment that the court, at the plea hearing, specifically

informed him that he could receive. Thus, under the precedent

of Cross and Brown, we conclude that the circuit court's failure
at the plea hearing to inform Taylor of the additional two-year

term of imprisonment does not render Taylor's plea not knowing,

intelligent, and voluntary, and the circuit court did not err by

25
 No. 2011AP1030-CR

denying Taylor's plea withdrawal motion without holding a

Bangert hearing.12

B. Manifest Injustice

¶43 Taylor's request for plea withdrawal is properly

analyzed under the manifest injustice framework. Taylor has not

proven that withdrawal is necessary to correct a manifest

injustice.

1. Following the Precedent of Cain, Taylor's Motion is Properly
Analyzed under the Manifest Injustice Framework

12
In this opinion, we afford due respect to longstanding
precedent which requires that before the court accepts a guilty
or no contest plea, it must "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); Brown, 293 Wis. 2d 594, ¶35 (requiring the court
at the plea colloquy to "[e]stablish the defendant's
understanding of the nature of the crime with which he is
charged and the range of punishments to which he is subjecting
himself by entering a plea."). The dissent incorrectly implies
that the defendant cannot knowingly, intelligently, and
voluntarily enter a plea without being specifically advised of
the potential maximum term of confinement and also the potential
maximum term of extended supervision. Dissent, ¶116. We have
never held, and we do not hold today, that the court must parse
out and specifically advise the defendant of the potential term
of confinement and also the potential term of extended
supervision at the plea colloquy. In fact, to so advise a
defendant could be misleading since a defendant's initial term
of confinement may be increased during the confinement phase or
the extended supervision phase. See Wis. Stat. § 302.113(3)(a)
("If an inmate subject to this section violates any regulation
of the prison or refuses or neglects to perform required or
assigned duties, the department may extend the term of
confinement in prison portion of the inmate's bifurcated
sentence."); § 302.113(9)(am) (stating that if person violates a
condition of extended supervision, supervision can be revoked
and the person ordered to return to confinement for a time not
exceeding remaining time on the bifurcated sentence).

26
 No. 2011AP1030-CR

¶44 Taylor is arguing that because the circuit court did

not verbally inform him at the plea hearing of the potential,

additional two-year term of imprisonment from the repeater

allegation, his entire plea is not knowing, intelligent, and

voluntary. Taylor argues that he is entitled to a Bangert

hearing and that he should be able to withdraw his entire plea

based on his alleged lack of knowledge of the additional two-

year term of imprisonment from the repeater allegation.

However, the fact that the circuit court did not verbally

discuss the additional two-year term of imprisonment at the plea

hearing, while not ideal, does not automatically trigger a

hearing under Bangert and its progeny.
¶45 We reject Taylor'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 Taylor that he faced a maximum

term of imprisonment of six years for the underlying charge of

27
 No. 2011AP1030-CR

uttering a forgery.13 See supra, ¶16. Taylor does not argue

that he did not knowingly, intelligently, and voluntarily plead

to the underlying charge of uttering a forgery, which he knew

carried a six-year term of imprisonment. Moreover, Taylor never

argued that the repeater allegation should be dismissed because

of the plea hearing deficiency.14 Instead, Taylor argues that

the entire plea should be withdrawn because he did not know of

the additional two-year term of imprisonment from the repeater

allegation.15 The record reflects that Taylor in fact received a

13
As we noted in Part III.A. above, if a defendant is given
a sentence greater than that authorized by law, presumably
including "an error in the understanding of the possible maximum
penalty," the proper remedy for that error is to commute the
sentence, not plea withdrawal. Cross, 326 Wis. 2d 492, ¶34.
Thus, had Taylor actually been sentenced to the full eight
years, Wis. Stat. § 973.13 would have applied to commute his
sentence to six years, which would be the amount authorized by
law.
14
Clearly, the circuit court could consider his prior
criminal convictions at sentencing regardless of whether the
State charged Taylor as a repeater.
15
Unlike in Bangert, where the error was a failure to
advise the defendant of the potential sentence for the
underlying crime, Taylor's argument relates only to the two-year
repeater, not the penalty for the underlying crime.

28
 No. 2011AP1030-CR

six-year term of imprisonment. As previously discussed, Taylor

knew that the charges carried a maximum eight-year term of

imprisonment.

¶46 In addition, recent precedent and the record in this

case do not support Taylor's argument. We are bound by the

precedent of Cain, 342 Wis. 2d 1. Taylor's argument for plea

withdrawal is remarkably similar to the unsuccessful argument

presented by Cain. Cain pled no contest to manufacturing

tetrahydrocannabinol (THC) in an amount of more than four but

less than twenty marijuana plants. Id., ¶¶5-6. Cain argued
that he should be allowed to withdraw his plea because he

admitted to manufacturing only four plants, not more than four

plants. Id., ¶27. Like Taylor, Cain faced an enhanced penalty

Further, under State v. Harris, the court can apply a
repeater enhancement only if it seeks to sentence the defendant
to a greater amount than the maximum allowed for the underlying
offense. 119 Wis. 2d 612, 619, 350 N.W.2d 633 (1984). In this
case, since the circuit court sentenced Taylor to only six
years, the sentence enhancement from the repeater allegation
never applied. Therefore, this case is distinguishable from
Bangert; Taylor cannot argue that his plea to the underlying
forgery was not knowing, intelligent, and voluntary because the
court did not violate any mandated duty with regard to that
charge. The proper remedy for failure to inform the defendant
of an additional two-year penalty from the repeater allegation
would be to commute that part of the sentence under Wis. Stat.
§ 973.13, not withdrawal of the entire plea. That remedy is not
necessary here, since Taylor was given a six-year term of
imprisonment.

29
 No. 2011AP1030-CR

if he pled to manufacturing more than four plants.16 The court

analyzed Cain's argument under the manifest injustice framework,

not under the Bangert framework. Id., ¶¶33-37. Looking at the

entire record of the proceedings——including documents and

statements from Cain and his attorney that indicated a number of

plants greater than four——the court determined that Cain had not

met his burden to show that plea withdrawal was necessary to

correct a manifest injustice. Id., ¶37.

¶47 In this case, the crux of Taylor's argument is that he

did not know or understand the potential, additional two-year

term of imprisonment from the repeater allegation at the time he

entered his plea. Under the logic of Cain, Taylor's claim is

properly analyzed under the manifest injustice framework.

2. Taylor has not Proven that Plea Withdrawal is Necessary to
Correct a Manifest Injustice
¶48 The circuit court has discretion to determine whether

a plea should be withdrawn, and a plea will not be disturbed

unless the defendant establishes by clear and convincing

evidence that failure to withdraw the guilty or no contest plea

will result in a manifest injustice. Cross, 326 Wis. 2d 492,

¶20 (citing Trochinski, 253 Wis. 2d 38, ¶15; Thomas, 232

Wis. 2d 714, ¶16). The clear and convincing standard for plea

16
Under Wis. Stat. § 961.41(1m)(h), manufacturing four or
less marijuana plants is a Class I felony, and manufacturing
more than four but less than twenty plants is a Class H felony.
The maximum term of imprisonment for a Class I felony is three
years and six months, and the maximum term of imprisonment for a
Class H felony is six years. Wis. Stat. § 939.50(3)(h)——(i).

30
 No. 2011AP1030-CR

withdrawal after sentencing, which is higher than the "fair and

just" standard before sentencing, "reflects the State's interest

in the finality of convictions, and reflects the fact that the

presumption of innocence no longer exists." Id., ¶42. The

higher burden "is a deterrent to defendants testing the waters

for possible punishments." State v. Nawrocke, 193 Wis. 2d 373,

379-80, 534 N.W.2d 624 (Ct. App. 1995) (citing State v. Booth,

142 Wis. 2d 232, 237, 418 N.W.2d 20 (Ct. App. 1987)).

¶49 Showing that a plea was not entered knowingly,

intelligently, and voluntarily is one way to prove a manifest

injustice. The defendant can otherwise establish a manifest

injustice by showing that there has been a "serious flaw in the

fundamental integrity of the plea." Id. at 379. Disappointment
in the eventual punishment does not rise to the level of a

manifest injustice. Id. Prior cases have recognized

nonexhaustive examples of manifest injustice:

(1) ineffective assistance of counsel; (2) the
defendant did not personally enter or ratify the plea;
(3) the plea was involuntary; (4) the prosecutor
failed to fulfill the plea agreement; (5) the
defendant did not receive the concessions tentatively
or fully concurred in by the court, and the defendant
did not reaffirm the plea after being told that the
court no longer concurred in the agreement; and, (6)
the court had agreed that the defendant could withdraw
the plea if the court deviated from the plea
agreement.
State v. Krieger, 163 Wis. 2d 241, 251 n.6, 471 N.W.2d 599 (Ct.
App. 1991) (citing ABA Standards for Criminal Justice sec. 14-

31
 No. 2011AP1030-CR

2.1(b)(ii)(A)——(F) (2d ed. 1980 & Supp. 1986)).17 "The reviewing

court looks at the entirety of the record to determine whether,

considered as a whole, the record supports the assertion that

manifest injustice will occur if the plea is not withdrawn."

Cain, 342 Wis. 2d 1, ¶31.

¶50 In this case, the State argues that the manifest

injustice test under Reppin governs whether Taylor should be

allowed to withdraw his plea.18 State v. Reppin, 35 Wis. 2d 377,

381, 151 N.W.2d 9 (1967). The State argues that in Reppin, this

17
See also State v. Cain, 2012 WI 68, ¶26, 342 Wis. 2d 1,
816 N.W.2d 177. In addition to adopting the ABA's examples of
manifest injustice, Wisconsin courts have found that there may
be manifest injustice in other situations. Id., ¶26 n.6. For
example, defendants have previously attempted to overturn a
conviction or withdraw a guilty or no contest plea where new
evidence was discovered. See State v. Krieger, 163 Wis. 2d 241,
471 N.W.2d 599 (Ct. App. 1991); State v. Nawrocke, 193
Wis. 2d 373, 534 N.W.2d 624 (Ct. App. 1995). Manifest injustice
also occurs if the circuit court fails to establish a factual
basis that, as admitted by the defendant, constitutes the
offense pleaded to. State v. Thomas, 2000 WI 13, ¶17, 232
Wis. 2d 714, 605 N.W.2d 836 (citation omitted). See also 9
Christine M. Wiseman & Michael Tobin, Wisconsin Practice Series:
Criminal Practice & Procedure § 23:32 (2d ed. 2008 & Supp.
2012).
18
The State's argument goes further, arguing that State v.
Reppin, 35 Wis. 2d 377, 151 N.W.2d 9 (1967) is the only standard
that should govern the withdrawal of Taylor's plea and that the
Reppin standard survives after Bangert, Brown, and Cross. The
State argues that Bangert and its progeny have shifted the
burden, but that in this case, the manifest injustice standard
is the only test necessary to determine if Taylor may withdraw
his plea. However, when a defendant seeks to withdraw his plea
based on an alleged violation of Wis. Stat. § 971.08 or other
court-mandated duty, the court should analyze the alleged error
under Bangert and, if necessitated by the defendant's motion,
under the manifest injustice standard.

32
 No. 2011AP1030-CR

court adopted the ABA's examples of what constitutes manifest

injustice, see id. at 385-86 & n.2, and that the ABA commentary

expressly stated that "[f]or example, if the judge misstates the

maximum penalty as being lower than that provided by law but the

defendant's sentence does not exceed that stated as possible by

the judge, there is no manifest injustice." ABA Standards for

Criminal Justice, Commentary to Standard 14-2.1(b)(ii).

¶51 Taylor argues that the Reppin manifest injustice test

has been supplanted by the Bangert line of cases. Taylor also

argues that even if there were still a Reppin standard, the

Reppin case stated that the four examples of manifest injustice

it adopted were not exhaustive, and that the Reppin case did not

adopt the ABA commentary upon which the State relies.

¶52 In this case, Taylor has not established by clear and

convincing evidence that withdrawal of his plea is necessary to

correct a manifest injustice. Taylor has not demonstrated that

there was a "serious flaw in the fundamental integrity of the

plea." Nawrocke, 193 Wis. 2d at 379. First, the circuit court

informed Taylor that he could receive a maximum term of

imprisonment of six years. Taylor received a six-year term of

imprisonment.19 In other words, Taylor received a sentence that

he was verbally informed he could receive.

19
The sentencing transcript evinces the judge's belief that
Taylor is a habitual criminal who deserves the maximum possible
punishment:

You've been given every opportunity in the
community, Mr. Taylor, and I wish that it was a
situation that I could impose probation, but it's not.
33
 No. 2011AP1030-CR

¶53 As previously discussed, this record makes it

abundantly clear that Taylor was informed of the potential

eight-year term of imprisonment. There were several court

hearings that preceded his plea where the charges and penalties

were discussed. To conclude now that he did not know of the

penalty enhancer, we would have to assume that both Taylor and

his attorney repeatedly misrepresented to the court that they

had received, read, and understood the criminal complaint,

information, and plea questionnaire. Based on the record, we

conclude that Taylor was aware of the potential eight-year term

of imprisonment.

¶54 Therefore, it was not manifestly unjust to deny

Taylor's motion to withdraw his no contest plea where (1) the

circuit court informed Taylor at the plea colloquy that he could

receive a six-year term of imprisonment; (2) Taylor actually

received a six-year term of imprisonment; and (3) the record is

The time has come, Mr. Taylor, for you to feel the
significant consequences of a prison term because
you've earned that. You've earned that by just simply
continuing on your own selfish road in life.

You've had your probations revoked five
times. . . .

. . . .

You've lived a criminal lifestyle, Mr. Taylor,
and it's not going to stop until you decide to make it
stop, and I can't let you free in the community to
make more victims. Our community is tired of that.
Everything that could be done for you in this
community and others has been done.

34
 No. 2011AP1030-CR

abundantly clear that Taylor was nonetheless aware of the two-

year penalty enhancer from the alleged repeater.

IV. CONCLUSION

¶55 We hold that the defendant's plea was 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. Therefore, the circuit court did not

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

contest plea.

¶56 Further, plea withdrawal "remains in the discretion of

the circuit court and will not be disturbed unless the defendant

shows that it is necessary to correct a manifest injustice."

Cross, 326 Wis. 2d 492, ¶4; Cain, 342 Wis. 2d 1, ¶20. Taylor

has not demonstrated that withdrawal of his plea is necessary to

correct a manifest injustice.

By the Court.—The judgment and order of the circuit court

is affirmed.

35
 No. 2011AP1030-CR.dtp

¶57 DAVID T. PROSSER, J. (concurring). This case

requires the court to address an alleged Bangert violation; that

is, an alleged violation of Wis. Stat. § 971.08, or other

mandatory requirements for a plea colloquy, set out in State v.

Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and subsequent

cases such as State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716

N.W.2d 906, and State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786

N.W.2d 64.

¶58 The defendant entered a plea of no contest to a charge

of uttering a forgery. After he was sentenced, he moved to

withdraw his plea on grounds that the plea was not knowing,

intelligent, and voluntary. His motion relied upon Bangert
principles, alleging, first, that his plea colloquy was

deficient because the court did not inform him of the correct

maximum penalty for a conviction under Wis. Stat.

§ 939.50(3)(h), with a repeater enhancement under Wis. Stat.

§ 939.62(1)(b) and (2); and, second, that he did not know or

understand the correct maximum penalty when he entered his plea.

¶59 The circuit court denied the defendant's
postconviction motion without conducting an evidentiary hearing.

Had such an evidentiary hearing been held, the State would have

been required to prove that the defendant's plea was knowing,

intelligent, and voluntary, notwithstanding a deficiency in the

plea colloquy.

¶60 Most members of the court are satisfied that the

defendant is not entitled to withdraw his plea because his plea

was knowing, intelligent, and voluntary. Most members of the

1
 No. 2011AP1030-CR.dtp

court are willing to reach this conclusion without affording the

defendant a Bangert hearing.

¶61 The real issue in this case is why the defendant does

not get a Bangert hearing. My principal purpose in writing

separately is to address this issue.

I

¶62 This court has set standards that a defendant must

meet if he seeks to withdraw his plea. See State v. Cain, 2012

WI 68, ¶24, 342 Wis. 2d 1, 816 N.W.2d 177. When a defendant

moves to withdraw his plea before sentencing, the circuit court

should freely allow the withdrawal if the defendant supplies any

"fair and just reason" unless withdrawal would substantially

prejudice the prosecution. Id. (quoting State v. Jenkins, 2007
WI 96 ¶2, 303 Wis. 2d 157, 736 N.W.2d 240). After sentencing,

however, the defendant must show that withdrawal is necessary to

correct a "manifest injustice." Id. (quoting Jenkins, 303

Wis. 2d 157, ¶2 n.2).

¶63 This court adopted "the manifest injustice test" in

State v. Reppin, 35 Wis. 2d 377, 386, 151 N.W.2d 9 (1967). The
test was based on the tentative draft on Standards Relating to

Pleas of Guilty issued by the American Bar Association Project
on Minimum Standards for Criminal Justice in February 1967. Id.

at 385.1 The Reppin court said:

1
The ABA House of Delegates subsequently approved the
tentative draft, as amended, in March 1968. Am. Bar Ass'n
Project on Minimum Standards for Criminal Justice, Standards
Relating to Pleas of Guilty (Approved Draft, 1968).

2
 No. 2011AP1030-CR.dtp

These standards adopt the "manifest injustice" test of
Rule 32(d) of the Federal Rules of Criminal Procedure
and implement[ ] it with four factual situations which
the advisory committee believes independently
establish manifest injustice when proved by the
defendant. We agree and adopt this standard. We
think too the four fact situations are not exhaustive
of situations which might constitute manifest
injustice. And, a court would abuse its discretion if
it denied a request to withdraw a plea of guilty when
any one of these four grounds was proved.
Id. at 386 (emphasis added) (footnote omitted).

¶64 The four fact situations identified by the advisory

committee were as follows:

2.1 Plea[] withdrawal.

(a) . . . .

(ii) Withdrawal is necessary to correct
a manifest injustice whenever the defendant
proves that:

(1) he was denied the effective
assistance of counsel guaranteed to him by
constitution, statute, or rule;

(2) the plea was not entered or
ratified by the defendant or a person authorized
to so act in his behalf;

(3) the plea was involuntary, or
was entered without knowledge of the charge or
that the sentence actually imposed could be
imposed; or

(4) he did not receive the charge
or sentence concessions contemplated by the plea
agreement and the prosecuting attorney failed to
seek or not to oppose these concessions as
promised in the plea agreement.

Id. at 385 n.2.

3
 No. 2011AP1030-CR.dtp

¶65 In the years following the Reppin decision, the court

repeatedly quoted (in whole or in part), or alluded to, the four

fact situations adopted in Reppin.2

¶66 Over time, however, the court began to shift its focus

from the "manifest injustice" test to the development of rules

for particular fact situations. For instance, our rules for

plea withdrawal because of a defective plea colloquy were

established in Bangert and restated in Brown. Our rules for

plea withdrawal on account of ineffective assistance of counsel

are found in State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50
(1996), and State v. Allen, 2004 WI 106, 274 Wis. 2d 568, 682

N.W.2d 433. In recent years, our attention has often been

directed more toward the application of these rules than to the

broader mantra of "manifest injustice."

2
See, e.g., State v. Rock, 92 Wis. 2d 554, 558–59, 285
N.W.2d 739 (1979); State v. Lee, 88 Wis. 2d 239, 248–49, 276
N.W.2d 268 (1979); Spinella v. State, 85 Wis. 2d 494, 498, 271
N.W.2d 91 (1978); Hatcher v. State, 83 Wis. 2d 559, 564, 266
N.W.2d 320 (1978); State v. Jackson, 69 Wis. 2d 266, 270–72, 230
N.W.2d 832 (1975); Libke v. State, 60 Wis. 2d 121, 124–25, 208
N.W.2d 331 (1973); Young v. State, 49 Wis. 2d 361, 366, 182
N.W.2d 262 (1971); Kruse v. State, 47 Wis. 2d 460, 464–65, 177
N.W.2d 322 (1970); State v. Weidner, 47 Wis. 2d 321, 328–29, 177
N.W.2d 69 (1970); State v. Wolfe, 46 Wis. 2d 478, 484, 175
N.W.2d 216 (1970); Meunier v. State, 46 Wis. 2d 271, 277, 174
N.W.2d 277 (1970); Brisk v. State, 44 Wis. 2d 584, 587, 172
N.W.2d 199 (1969); Ernst v. State, 43 Wis. 2d 661, 666, 170
N.W.2d 713 (1969); State v. Biastock, 42 Wis. 2d 525, 529, 167
N.W.2d 231 (1969); Reiff v. State, 41 Wis. 2d 369, 372, 164
N.W.2d 249 (1969); Galvin v. State, 40 Wis. 2d 679, 682 n.1, 162
N.W.2d 622 (1968); LeFebre v. State, 40 Wis. 2d 666, 669–70, 162
N.W.2d 544 (1968); State v. Harrell, 40 Wis. 2d 187, 192–93, 161
N.W.2d 223 (1968); Cresci v. State, 36 Wis. 2d 287, 293, 152
N.W.2d 893 (1967). See also Wiseman & Tobin, 9 Wis. Practice:
Criminal Practice and Procedure § 23:32 (2d ed. Supp. 2012).

4
 No. 2011AP1030-CR.dtp

¶67 In 1991 the court of appeals rewrote the four fact

situations adopted in Reppin and added two more, without much

notice or explanation of what it was doing. See State v.

Krieger, 163 Wis. 2d 241, 251 n.6, 471 N.W.2d 599 (Ct. App.

1991). The Krieger court's new formulation has been followed

uncritically3 even though the two additional "factual

situations," id. at 251 n.6, relate to judicial participation in

plea bargaining, which is not approved under Wisconsin law. See

State v. Hampton, 2004 WI 107, ¶27, 274 Wis. 2d 379, 683
N.W.2d 14.

¶68 The majority opinion states that "Taylor's request for

plea withdrawal is properly analyzed under the manifest

injustice framework. Taylor has not proven that withdrawal is

necessary to correct a manifest injustice." Majority op., ¶43.

These statements follow an extensive discussion of Taylor's

claim of a Bangert violation (because the circuit court did not

correctly state the maximum penalty during the plea colloquy)

and this court's conclusion that Taylor's plea was knowing,

intelligent, and voluntary nonetheless.
¶69 "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.'" Brown, 293 Wis. 2d 594, ¶18

(citing State v. Thomas, 2000 WI 13, ¶16, 232 Wis. 2d 714, 605

3
State v. Cain, 2012 WI 68, ¶26, 342 Wis. 2d 1, 816
N.W.2d 177; State v. Daley, 2006 WI App 81, ¶20 n.3, 292
Wis. 2d 517, 716 N.W.2d 146; State v. Washington, 176
Wis. 2d 205, 213-14 n.2, 500 N.W.2d 331 (Ct. App. 1993).

5
 No. 2011AP1030-CR.dtp

N.W.2d 836). "One way for a defendant to meet this burden is to

show that he did not knowingly, intelligently, and voluntarily

enter" his plea. Brown, 293 Wis. 2d 594, ¶18 (citing State v.

Trochinski, 2002 WI 56, ¶15, 253 Wis. 2d 38, 644 N.W.2d 891).

Here, the court has determined that Taylor knowingly,

intelligently, and voluntarily entered his plea. Majority op.,

¶8. In making this determination, the court has rejected the

defendant's specific complaint about the plea colloquy. Thus, I

do not understand the need for a separate section on manifest

injustice.

¶70 A defendant could expound multiple theories for plea

withdrawal and if he did, the court would have to address each

of the theories. Here, however, Taylor has advanced only one

theory——a Bangert violation leading to a plea that was not
knowing, intelligent, and voluntary. Once that single claim has

been rejected, the case is over.

¶71 The manifest injustice test was adopted more than 40

years ago. Reppin, 35 Wis. 2d at 386. The court should find a

way to carefully update the "manifest injustice" test, with a
comprehensive catalog of fact situations requiring withdrawal,

when a defendant satisfies his burden of proof, along with

citations supporting these situations.

II
¶72 Once again, the real question in this case is why

Taylor did not get a Bangert hearing.

¶73 Taylor filed a postconviction motion stating that he

was "misinformed by the court of the maximum penalty that he

6
 No. 2011AP1030-CR.dtp

faced upon conviction, and [he] did not understand the true

maximum." Taylor affirmatively alleged that he did not know the

correct maximum penalty that he faced at the time he entered his

no contest plea and moved the court to withdraw his plea "on the

ground that his plea was not knowingly, voluntarily and

intelligently entered."

¶74 In Brown, the court said:

A circuit court's failure to fulfill a duty at
the plea hearing will necessitate an evidentiary
hearing if a defendant's postconviction motion alleges
he did not understand an aspect of the plea because of
the omission [or misstatement].

. . . .

After sentencing, in cases that involve an
alleged deficiency in the plea colloquy, an attempt to
withdraw a guilty plea proceeds as follows. The
defendant must file a postconviction motion under Wis.
Stat. § 809.30 or other appropriate statute. The
motion must (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.

When a Bangert motion is filed, it is reviewed by
the court. If the motion establishes a prima facie
violation of Wis. Stat. § 971.08 or other court-
mandated duties and makes the requisite allegations,
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
defendant's plea was knowing, intelligent, and
voluntary despite the identified inadequacy of the
plea colloquy. When the defendant has met his two
burdens, the burden of producing persuasive evidence
at the evidentiary hearing shifts to the state.
Brown, 293 Wis. 2d 594, ¶¶36, 39-40 (citations and footnotes

omitted).

7
 No. 2011AP1030-CR.dtp

¶75 Against this background, I find it difficult to

contend that Taylor's motion does not satisfy the requisite

criteria for a Bangert hearing. Why, then, did he not get an

evidentiary hearing?

¶76 Taylor did get a postconviction hearing. He was

brought to Outagamie County from the Racine Correctional

Institution and appeared in court on April 21, 2011.

¶77 In my view, Taylor did not receive an evidentiary

hearing because there would have been no point in taking

testimonial evidence.

¶78 The court already understood that Taylor had come to

court on August 23, 2010, for the purpose of entering a plea.
There was evidence in the record that the defendant had read the

complaint, which correctly stated the maximum sentence, and had

met with his attorney to discuss a negotiated plea agreement and

go over the plea questionnaire. The plea questionnaire included

information about the maximum penalty. Defense counsel made a

notation: "8 yrs prison/$10,000 fine or both." "Yrs" is

shorthand for "years." "8 yrs prison" is likely shorthand for
"8 years of imprisonment."

¶79 The record also showed that the court had made a

conscientious effort to discharge its duties under Wis. Stat.

§ 971.08, Bangert, and Brown, and had succeeded except for an

inadvertent misstatement of the maximum penalty. The court

knew, in considering the postconviction motion, that it had

informed Taylor of more than the penalty he actually received,

8
 No. 2011AP1030-CR.dtp

so that the court's misstatement had no adverse impact on Taylor

under the circumstances.

¶80 Taylor's claim that he lacked understanding of the

maximum sentence was objectively incredible given the ample

evidence in the record of the correct information he had

received. The record also revealed that Taylor had a lengthy

criminal history so that he had familiarity with the courts.

Multiple charges of uttering a forgery were pending in Brown

County on the date of the plea.

¶81 If we look back to the foundational case of Reppin, we

are reminded that the defendant had the burden of proof in all

four fact situations. Reppin, 35 Wis. 2d at 386. This burden

of proof has been relaxed in defective plea colloquy situations

because evidence of a deficient plea colloquy should be obvious

in the plea hearing record, and a defendant's allegation that he

did not understand something because of the deficiency, while

"admittedly, conclusory," would be "difficult to expand on,"

except through sworn testimony. Hampton, 274 Wis. 2d 379, ¶¶57-

59.
¶82 This court is firmly committed to the principle that

when a defendant files a motion showing a prima facie Bangert

violation and the requisite claim that he lacked understanding

because of a deficiency in the plea colloquy, he is entitled to
a burden-shifting Bangert hearing. Adherence to this principle

tends to encourage careful, conscientious plea colloquies.

Nonetheless, there are often limits to even the most salutary

principle. Courts must not be rendered powerless to reject a

9
 No. 2011AP1030-CR.dtp

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

existing record.4

¶83 In Birts v. State, the court said: "We have held that

in determining whether to grant a motion to withdraw a guilty

plea, 'the trial court is not obligated to accept the

defendant's statements as verities.'" Birts, 68 Wis. 2d 389,

394, 228 N.W.2d 351 (1975) (quoting Ernst v. State, 43

Wis. 2d 661, 668, 170 N.W.2d 713 (1969)). A court is not

obligated to accept a defendant's statement if the record

demonstrates that the statement is not credible.5

4
State v. Burns, 226 Wis. 2d 762, 594 N.W.2d 799 (1999), is
a classic example of an appellate court's common sense review of
the record:

We affirm the judgment of conviction . . . even
though the defendant did not expressly and personally
articulate a plea of no contest on the record in open
court, because the only inference possible from the
totality of the facts and circumstances in the record
is that the defendant intended to plead no contest.

Burns, 226 Wis. 2d at 764 (emphasis added).
5
In his postconviction motion, the defendant asserted that
"[d]uring the plea colloquy, the court erroneously informed Mr.
Taylor that the maximum penalty he faced was six years of
imprisonment——that is, the penalty without the enhancer. (Plea
hearing transcript at 7)." At the hearing on the motion, the
defendant's postconviction counsel discussed State v. Cross,
2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64, and asserted that
"the court . . . did go on to say that in a case where the
defendant was informed that a penalty was lower than it is[,]
that remains a potential Bangert violation."

10
 No. 2011AP1030-CR.dtp

¶84 In this case, requiring the State to establish through

testimonial evidence the notice about the sentence that the

defendant could receive——in light of the lesser sentence the

defendant actually did receive, and in light of the information

in the record——was simply unnecessary.

¶85 Having read this court's decision in Brown, the

circuit court understood that there are times when a defendant

"should not be permitted to game the system by taking advantage

of judicial mistakes." Brown, 293 Wis. 2d 594, ¶37. This was
one of those times.

The dissent has reformulated the defendant's argument.
Instead of arguing that the circuit court understated the
maximum penalty at the plea hearing, the dissent asserts that
the defendant "was not told in straight, simple English that the
punishment for the crime was eight years' imprisonment."
Dissent, ¶91. "The circuit court . . . advised the defendant
(incorrectly) of the term of confinement without advising him
correctly of the term of imprisonment." Id., ¶102 n.19.

The dissent acknowledges that the circuit court will
satisfy Bangert, Brown, and Wis. Stat. § 971.08(1)(a) by stating
the maximum term of imprisonment, "without explicitly stating
the component parts of the bifurcated sentence," i.e.,
confinement and supervision. Id., ¶101. Yet this concession
undermines Taylor's position because the complaint and
information both correctly stated the maximum term of
imprisonment and Taylor admitted that he had read and understood
the complaint. In fact, the complaint states that Taylor
supplied the information on his prior convictions to Sergeant
Michael Daul of the Appleton Police Department.

There is a very high likelihood that Taylor's attorney,
Michael Dally, explained the meaning of eight years of
imprisonment to Taylor. But if Dally actually spoke of eight
years "in prison," instead of "imprisonment," just as the
circuit court spoke of six years "in prison," then the case is
covered by this court's decision in Cross.

11
 No. 2011AP1030-CR.dtp

¶86 Requiring the court to conduct an evidentiary hearing

to receive what was already evident throughout the record would

have served no legitimate purpose in this case.

¶87 For the foregoing reasons, I respectfully concur.

12
 No. 2011AP1030-CR.ssa

¶88 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The case

before us presents a clear example of a flawed plea colloquy

under Bangert,1 Brown,2 and Wis. Stat. § 971.08(1)(a).3

According to the case law and the statute, in taking a guilty

plea or no-contest plea the circuit court must establish the

accused's understanding of the range of punishments which the

crime carries.

¶89 The concurrence has it right: The defendant has met

his two burdens under Bangert, which entitles him to an

evidentiary hearing: (1) The defendant has made a prima facie

showing of a violation of Wis. Stat. § 971.08(1)(a); and (2) The

defendant has alleged that he did not know or understand the

information (the range of punishments) that should have been

provided at the plea hearing.4

1
Prior to accepting a guilty plea, it is the circuit
court's duty "[t]o establish the accused's understanding
of . . . the range of punishments which [the crime]
carries . . . ." State v. Bangert, 131 Wis. 2d 246, 262, 389
N.W.2d 12 (1986).
2
"During the course of the plea hearing, the court must
address the defendant personally and . . . establish the
defendant's understanding of the . . . range of punishments to
which he is subjecting himself by entering a plea . . . ."
State v. Brown, 2006 WI 100, ¶35, 293 Wis. 2d 594, 716
N.W.2d 906.
3
Wisconsin Stat. § 971.08(1)(a) provides in relevant part
as follows: "Before the [circuit] court accepts a plea of
guilty or no contest, it shall . . . [a]ddress the defendant
personally and determine that the plea is made voluntarily with
understanding of . . . the potential punishment if convicted."
4
Concurrence, ¶¶73-75.

1
 No. 2011AP1030-CR.ssa

¶90 Thus, the question posed for this court, as the

concurrence correctly and simply explains, is "[w]hy, then, did

he not get an evidentiary hearing?"5

¶91 This is an easy case: According to the record of the

initial appearance,6 the bail hearing,7 the waiver of a

preliminary hearing,8 the arraignment,9 the plea hearing,10 and

the sentencing hearing,11 the defendant either was not told of

the punishment or was not told in straight, simple English that

In Brown, the court concluded that the failure to advise
the defendant that the punishment for each charge could run
consecutively did not entitle the defendant to an evidentiary
hearing "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.

I also agree with the concurrence, Part I, ¶¶62-71, that
the majority errs in undertaking a manifest injustice analysis.
The manifest injustice analysis is unnecessary under the facts
of this case. The Bangert analysis suffices, as explained by
the concurrence. This conclusion is apparent in the majority
opinion itself. The majority opinion's manifest injustice
analysis simply repeats its own Bangert analysis. See also
State v. Lichty, 2012 WI App 126, ¶¶8, 9, 344 Wis. 2d 733, 823
N.W.2d 830 (explaining the relationship of a Bangert violation
and the manifest injustice approach).
5
Concurrence, ¶¶61, 72, 75.
6
May 26, 2009 (defendant did not appear).
7
August 20, 2009 (nothing said of the penalty).
8
November 24, 2009 (nothing said of the penalty).
9
January 25, 2010 (Attorney states that he received a copy
of the information. Formal reading of information was waived).
10
August 23, 2010.
11
October 11, 2010.
2
 No. 2011AP1030-CR.ssa

the punishment for the crime was eight years' imprisonment.12

Because the defendant was never told the correct punishment, no

one can reach the conclusion on the basis of the record that the

defendant knew or understood the penalty. I therefore conclude

that the defendant is entitled to an evidentiary hearing.

¶92 The majority and concurring opinions offer different

explanations for not affording the defendant an evidentiary

hearing, but both rely on the record to conclude that the

defendant must have known (should have known, would have known,

or is presumed to have known) the penalty for the crime.

¶93 At their core, the majority and concurring opinions

are changing the law. The present law requires that a court

determine whether the individual defendant (to use the Bangert

terminology) "in fact" knows or understands the information that

should have been provided at the plea hearing——a subjective

test.13

¶94 The refusal of the majority and concurring opinions to

afford the defendant an evidentiary hearing can be read as
declaring that a court may determine from the paper record that

a reasonable person must have known (should have known, would

have known, or is presumed to have known) the information the

12
The defendant's brief states the issue before the court
as follows: Is a defendant's no contest plea knowing, voluntary
and intelligent when the defendant is mistakenly informed by the
trial court that the maximum sentence was six years rather than
the correct eight years imprisonment and believes that the
maximum sentence is lower than it actually is?
13
Bangert, 131 Wis. 2d at 257, 274-75 (citing Boykin v.
Alabama, 395 U.S. 238, 242-43 (1969)).

3
 No. 2011AP1030-CR.ssa

court was required to provide at the plea hearing——an objective

test. The majority and concurring opinions seem to be

substituting an objective test for the subjective test set forth

in Bangert, Brown, and Wis. Stat. § 971.08(1)(a). Neither the

majority opinion nor the concurring opinion considers the

constitutional implications of their respective approaches.

¶95 Because the majority and concurring opinions

drastically break with precedent, I dissent.

¶96 Although the majority and concurring opinions offer

various and different rationales for their ultimate decision in

the present case,14 they essentially reason that no evidentiary

14
The majority opinion states and restates its rationale
and holding in several different ways so that it is difficult to
determine what test the majority adopts or uses to determine
that the defendant's plea was knowingly, intelligently, and
voluntarily made.

The majority opinion can be read in a number of ways:

The defendant's plea is knowing, intelligent, and voluntary
because the complaint and information stated the correct maximum
penalty. Majority opinion, passim.

The defendant's plea is knowing, intelligent, and voluntary
because the record makes clear that the defendant knew the
maximum penalty that could be imposed and the defendant was
orally informed at the plea hearing of the penalty he received.
Majority op., ¶¶8, 28.

The defendant's plea is knowing, intelligent, and voluntary
because the defendant was orally informed by the circuit court
at the plea hearing of the sentence that he actually received.
Majority op., ¶¶8, 28, 39, 42, 52, 54.

The defendant's plea is knowing, intelligent, and voluntary
because the circuit court's misstatement of the penalty is an
insubstantial defect. Majority op., ¶¶34, 39.

4
 No. 2011AP1030-CR.ssa

hearing is needed because "the record makes clear that the

defendant knew the maximum penalty . . . . The record in this

case is replete with evidence that [the defendant] was aware of

the potential eight-year term of imprisonment, comprised of a

six-year term of imprisonment for the underlying charge and an

additional two-year term of imprisonment from the alleged

repeater [charge]." Majority op., ¶¶8, 35 (emphasis added).

¶97 In contrast, I conclude that the record clearly and

unambiguously demonstrates that the defendant was never told

that he was subject to an eight-year term of imprisonment.

Indeed the record is replete with inconsistencies and confusion

by the circuit court and the defense counsel (with the

• The majority opinion does not attempt to define
"insubstantial defect." By applying an insubstantial
defect test, is the majority opinion really applying a
harmless error test by a different name?

• Is the majority opinion abrogating the Cross
decision with regard to the doctrine of insubstantial
error?

The Cross opinion states that when "the sentence
communicated to the defendant is higher, but not substantially
higher, than that authorized by law, the incorrectly
communicated sentence does not constitute a Bangert violation
and will not, as a matter of law, be sufficient to show that the
defendant was deprived of his constitutional right to due
process of law. . . . We conclude that Cross has not made a
prima facie showing that the circuit court failed to comply with
Wis. Stat. § 971.08 or the requirements outlined in Brown and
Bangert . . . ." State v. Cross, 2010 WI 70, ¶¶40-41, 326
Wis. 2d 492, 786 N.W.2d 64. In contrast with Cross, the
majority opinion treats the instant case as one with a flawed
plea colloquy; treats the error in the plea colloquy as an
insubstantial defect; and requires the circuit court to review
the record to determine whether the plea was entered knowingly,
intelligently, and voluntarily.

5
 No. 2011AP1030-CR.ssa

prosecuting attorney remaining silent) regarding the maximum

penalty the defendant faced.15

¶98 Because the defendant was never apprised of the

maximum penalty, this court cannot determine that the defendant

knew or understood the maximum penalty——information that should

have been provided at the plea hearing. This court should order

an evidentiary hearing in the present case to determine whether

the defendant did know and understand the maximum penalty he

faced.16

¶99 Before I turn to the record, I must state the actual

maximum penalty. Knowing the actual maximum penalty helps put

in perspective the inaccurate information the defendant

received.

15
Indeed it is often difficult to follow the majority
opinion's discussion of what the defendant knew as the opinion
continually shifts, not always precisely or correctly, between
referring to "imprisonment" (which encompasses confinement and
extended supervision) and "prison" (which encompasses only
confinement).

For a discussion of the statutory use of the term
"imprisonment," see Wis. Stat. § 973.01(1) and State v. Cole,
2003 WI 59, ¶16, 262 Wis. 2d 167, 663 N.W.2d 700 (under Wis.
Stat. § 973.01, the word "imprisonment" refers to a "bifurcated
sentence" consisting of a "term of confinement in prison
followed by a term of extended supervision."). See also 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.").
16
"If a defendant does not understand . . . the
implications of the plea, he should not be entering the plea,
and the court should not be accepting the plea." Brown, 293
Wis. 2d 594, ¶37.

6
 No. 2011AP1030-CR.ssa

¶100 According to the defendant's brief and my

calculations, the maximum penalty was imprisonment not to exceed

eight years, which could consist of not more than five years of

initial confinement (prison) and not more than three years of

extended supervision.17

¶101 A circuit court's telling the defendant at the plea

hearing the maximum term of imprisonment, without explicitly

17
It takes some time and effort to understand how the
penalty statutes work together in the instant case.

Here is how I calculated the maximum penalty when the
defendant is charged with Uttering a Forgery, Repeater, a Class
H Felony.

The potential penalty for a Class H felony is "a fine not
to exceed $10,000 or imprisonment not to exceed 6 years, or
both." Wis. Stat. § 939.50(3)(h).

"For a Class H felony, the term of confinement in prison
may not exceed 3 years." Wis. Stat. § 973.01(2)(b)8.

"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: . . . For a Class H
felony, the term of extended supervision may not exceed 3
years." Wis. Stat. § 973.01(2)(d)5.

Because the defendant was a repeater due to prior
convictions for misdemeanors, "[a] maximum term of imprisonment
of more than one year but not more than 10 years may be
increased by not more than 2 years if the prior convictions were
for misdemeanors . . . ." Wis. Stat. § 939.62(1)(b).

"Subject to the minimum period of extended supervision
required under par. (d), the maximum term of confinement in
prison specified in par. (b) may be increased by any applicable
penalty enhancement statute. If the maximum term of confinement
in prison specified in par. (b) is increased under this
paragraph, the total length of the bifurcated sentence that may
be imposed is increased by the same amount." Wis. Stat.
§ 973.01(2)(c).

7
 No. 2011AP1030-CR.ssa

stating the component parts of the bifurcated sentence,

satisfies Bangert, Brown, and Wis. Stat. § 971.08(1)(a).18

¶102 The majority opinion gratuitously and cavalierly warns

that a circuit court's advising a defendant of the possible term

of confinement and extended supervision at the plea hearing

"could be misleading." Majority op., ¶42 n.12.19

¶103 The majority opinion thus opens the door for

additional post-conviction motions. I have read many

transcripts of plea colloquies; circuit courts often state the

component parts of the imprisonment during the plea colloquy,

although they are not required to do so. The majority opinion

should not be read to mean that the circuit court commits a

"Bangert" error if it provides a defendant with information

about the components of the bifurcated sentence, as long as the

circuit court gives the defendant the correct information about

the maximum term of imprisonment.

¶104 And now to the record.

¶105 The complaint and information——documents available to
the circuit court, defense counsel, prosecuting attorney and the

defendant——stated that the defendant could be "imprisoned not

more than six (6) years" with an additional penalty enhancer of

"not more than 2 years."

18
Lichty, 344 Wis. 2d 733, ¶14 (citing State v. Sutton,
2006 WI App 118, ¶15, 294 Wis. 2d 330, 718 N.W.2d 146).
19
The circuit court in the present case advised the
defendant (incorrectly) of the term of confinement without
advising him correctly of the term of imprisonment.

8
 No. 2011AP1030-CR.ssa

¶106 These are correct statements of the statutory

language, although it takes some calculation and legal knowledge

to translate the legalese found in the complaint and information

into knowing and understanding that the maximum penalty is

"imprisoned not more than eight (8) years." Thus it is not

clear from the complaint and information that the defendant was

apprised of the maximum penalty of eight years of imprisonment,

as the majority repeatedly and inaccurately states.

¶107 Moreover, it would take a proverbial Philadelphia

lawyer to figure out what "imprisoned" means in the complaint

and information in the present case. The word "imprisoned"

takes on special significance in the present case because of the

enhanced penalty, and the record shows that the defendant was

told about "prison," not about being "imprisoned."

¶108 Although the defendant stated he was familiar with the

complaint and information, neither document stated the maximum

penalty as eight years' imprisonment. Nevertheless, the

majority opinion can be read to state that when the complaint

and information in the record state the penalty in the exact

terms of the statute, as they do in the present case——a

circumstance that will likely occur frequently——the defendant

has been adequately told of the maximum penalty and is held to

know and understand the maximum penalty. Such a holding

completely undercuts Bangert.

¶109 I therefore examine the rest of the record to

determine whether the defendant was apprised of the maximum

penalty and understood the maximum penalty of eight years'

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imprisonment. I look at the plea colloquy and the plea

questionnaire. Then I look at the sentencing hearing.

¶110 Neither the circuit court nor the defense attorney

correctly translated the statutory penalty provisions in the

complaint and information into plain English to advise the

defendant of the correct maximum penalty in the plea colloquy or

plea questionnaire, imprisonment for a maximum of eight years.

¶111 During the plea colloquy, the circuit court changed

the description of the penalty, telling the defendant that he

faced the possibility of "six years in prison." Majority op.,

¶2.20 The circuit court erred. The defendant was not subject to

six years in prison. (Remember, six years in prison is not the

same penalty as six years of imprisonment; his maximum prison

(confinement) time, as I have stated previously and which never

appears correctly in the record, is five years).

¶112 The plea questionnaire (obviously completed by the

defense counsel and signed by the defendant) also errs in

telling the defendant of the maximum penalty. The plea
questionnaire states that the defendant could face a maximum

penalty of "8 yrs prison." The defendant was not subject to an

eight-year prison term. (Remember, eight years in prison

(confinement) is not the same penalty as eight years of

imprisonment; the defendant's maximum time in prison, which

never appears correctly in the record, is five years). Once

20
The transcript reads: "The Court: I could impose the
maximum penalty here of a $10,000 fine or six years in prison or
both if I thought that's what was necessary. Do you understand
that?"

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again, the defendant was told of a different and incorrect

penalty.

¶113 Nevertheless, the concurrence inexplicably,

inaccurately, and incorrectly states that the complaint,

information, and plea questionnaire correctly stated the

defendant's maximum penalty and that the defendant's knowledge

was "already evident throughout the record." Concurrence, ¶¶78,

86.

¶114 Neither the defense counsel nor the prosecuting

attorney offered assistance to the circuit court during the plea

colloquy to state the maximum penalty correctly. Our prior

cases impose a burden on the prosecutor to ensure that the plea

colloquy is sufficient. "As we explained in Bangert, part of

the reason the burden shifts from the defendant to the state is

that this burden-shifting 'will encourage the prosecution to

assist the trial court in meeting its § 971.08 and other

expressed obligations.'"21

¶115 At the sentencing hearing, the circuit court again
incorrectly stated the maximum punishment under the statute.

The circuit court advised the defendant that the felony (with

the penalty enhancer) was "punishable by a $10,000 fine or six

years in prison or both, but then there is the two additional

years of possible prison because of the repeater." So once

again the defendant was advised he faced eight years in prison

(confinement), not eight years' imprisonment.

21
Brown, 293 Wis. 2d 594, ¶40 n.24 (citation omitted)
(quoting Bangert, 131 Wis. 2d at 275).

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¶116 To summarize the record: The defendant was never

explicitly told in plain English that the maximum penalty was

eight years' imprisonment. The complaint and information were

worded in terms of imprisonment——not more than six years for the

offense, which may be increased by not more than two years for

the repeater charge. But these documents did not translate the

legalese into plain English or calculate the effect of the

penalty enhancer on the potential term of imprisonment. The

plea colloquy set forth the maximum penalty in terms of prison——

six years. The plea questionnaire set forth the maximum penalty

in terms of prison——eight years. The defect in the plea hearing

was not remedied at sentencing. Even at sentencing, the

defendant was told incorrectly of a maximum prison term but was

never told that the maximum penalty was eight years'

imprisonment.

¶117 According to the record, the defendant was repeatedly

given inconsistent and conflicting information about the maximum

punishment he faced. When he was not told the maximum
punishment, how can anyone conclude that the defendant knew and

understood the maximum punishment? Nevertheless, the majority

opinion concludes that on the basis of the complaint and

information, the plea colloquy, and the plea questionnaire that

the defendant was nonetheless aware of the "maximum eight-year

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term of imprisonment."22 Majority op., ¶¶8, 35, 39. The

majority seems to reach its conclusion by substituting the word

"imprisonment" for the word "prison" in the plea questionnaire.23

The only point in the record that the number eight appears is in

the plea questionnaire, which incorrectly refers to eight years

in prison. The number five, the correct prison term, never

appears in the record.
22
The majority asserts: "To conclude that Taylor was not
aware of the maximum eight-year term of imprisonment, we would
have to assume that Taylor's trial counsel misrepresented, on
the plea questionnaire form itself and to the court, that he had
read the form with Taylor and that Taylor understood it. We
would also have to assume that Taylor misrepresented to the
court that he had received, read, and understood the complaint
and plea questionnaire form." Majority op., ¶39 (emphasis
added).

The irony, of course, is that defense counsel and the
majority opinion confuse prison and imprisonment. The
concurrence rewrites defense counsel's notation of "8
yrs/prison" on the plea questionnaire, interpreting it as
"likely shorthand for '8 years of imprisonment.'" Concurrence,
¶22. The concurrence also assumes that "[t]here is a very high
likelihood that Taylor's attorney, Michael Dally, explained the
meaning of eight years of imprisonment to Taylor." Concurrence,
¶27 n.5.

Were we to grant the evidentiary hearing required by
Bangert, we would not have to make any assumptions about the
defendant's understanding and defense counsel's advice. Whether
a defendant is entitled to a Bangert hearing does not turn on
this court's retrospective speculation of what defense counsel
likely meant on the plea questionnaire or whether "there is a
very high likelihood" that defense counsel properly explained
the meaning of "eight years of imprisonment."
23
Majority op., ¶39 (quoted at note 22, supra). In Brown,
293 Wis. 2d 594, ¶12-13, 52-53, the plea colloquy was flawed but
the defendant had stated on the record during the plea colloquy
that he understood the charges, that he had had the complaint
read to him, and that he had gone over the elements of the
charges with his attorney. This record was still not sufficient
to refuse the defendant an evidentiary hearing.
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 No. 2011AP1030-CR.ssa

¶118 As I explained previously, according to the

defendant's brief and my calculations, the defendant was subject

to a maximum penalty of imprisonment not to exceed eight years,

which could consist of not more than five years of initial

confinement (prison) and not more than three years of extended

supervision. As I have shown, the defendant was never so

advised, and nothing in the record demonstrates that the circuit

court, prosecuting attorney, defense counsel, or the defendant

knew the correct maximum penalty. The record is anything but

clear and consistent in establishing that the defendant "in

fact" knew the true and correct maximum penalty he faced. From

this record the majority concludes not only that the defendant

was told of the maximum penalty but that he knew and understood

it.

¶119 I have, until now, focused on the majority opinion.

The concurring opinion strikes out in a somewhat different

direction, focusing more on the defendant's understanding of the

maximum penalty. The concurring opinion concludes that the

defendant does not "receive an evidentiary hearing because there

would have been no point in taking testimonial

evidence. . . . [The defendant's] claim that he lacked

understanding of the maximum sentence was objectively incredible

given the ample evidence in the record of the correct

information he had received. . . . [A] defendant 'should not be

permitted to game the system by taking advantage of judicial

mistakes. . . .'" "Requiring the court to conduct an

evidentiary hearing to receive what was already evident

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throughout the record would have served no legitimate purpose in

this case." Concurrence, ¶¶21, 24, 29, 30.

¶120 The concurrence worries about the defendant gaming the

system. Concurrence, ¶29; see also majority op., ¶39. I do not

favor allowing the defendant (or anyone else) to game the

system. Here the defendant satisfied the Bangert requirements,

requirements established by this court that entitle him to an

evidentiary hearing. How is the defendant gaming the system?24

¶121 According to the concurring opinion, a circuit court

should decide whether to hold a Bangert evidentiary hearing

based on what it surmises the evidence will be at the

evidentiary hearing and what it predicts the outcome of the

evidentiary hearing will be about the defendant's knowledge and

understanding. What legal principle or theory allows courts to

decide whether to hold an evidentiary hearing based on court

conjecture?

¶122 When the circuit court, prosecuting attorney, and

defense counsel all failed to recognize that the defendant was
being told different and inconsistent maximum penalties and

failed to explain the correct maximum punishment, how can the

majority and concurring opinions indifferently conclude that the

defendant knew and understood that his charges carried a maximum

sentence of eight years of imprisonment and not six or eight

24
Justice Prosser, writing for the court in Brown,
explained how to prevent a defendant from gaming the system:
"Thus, only the [circuit] court, with the assistance of the
district attorney, can prevent potential sandbagging by a
defendant by engaging the defendant at the plea colloquy and
making a complete record." Brown, 293 Wis. 2d 594, ¶38.

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years in prison, numbers the defendant was given by the court

and defense counsel? The majority and concurring opinions are

telling us (with straight faces) that although all the legally

trained, courtroom-experienced participants in the plea colloquy

and sentencing (namely the judge, the defense counsel, and the

prosecuting attorney) displayed their ignorance of the correct

maximum penalty, the defendant, the only participant in the plea

hearing who did not have the benefit of a legal education, is

the only participant who actually knew and understood the

correct maximum penalty. This cannot be right.

* * * *

¶123 Plea colloquies, indeed many, many plea colloquies,

are being conducted every day in courtrooms across this state.

Plea colloquies upon a plea of guilty or no contest are the

"bread and butter" of criminal practice. Plea colloquies are

frequent and recurrent court events with constitutional

overtones and ramifications.

¶124 More than 25 years ago, the court decided the Bangert

case. The court has clearly and decisively adhered to Bangert

declaring that "[c]omplying with the requisite standards [of

Bangert] is not optional."25

¶125 The Bangert line of cases sets down relatively simple,

relatively "bright-line" rules instructing the circuit courts,

the court of appeals, this court, defendants, and counsel about

the goals of a plea colloquy, how a plea colloquy should be

conducted, and the route to be taken when the plea colloquy is

25
Brown, 293 Wis. 2d 594, ¶52.

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defective. There is no indication the framework is not working.

Once again, I ask, "Why disturb it now?"26

¶126 The majority opinion and concurrence have

unnecessarily muddied waters often plied, to the detriment of us

all. We now have an inconsistent "jurisprudence of flawed plea

colloquies" apparently governing an overstatement of a penalty,

an understatement of a penalty, a substantial misstatement of a

penalty, and an insubstantial misstatement of a penalty. This

court is supposed to clarify the law. It has not.

¶127 For the reasons set forth, I dissent.

¶128 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.

26
Cross, 326 Wis. 2d 492, ¶47 (Abrahamson, C.J.,
concurring).

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