State v. Russell L. Wilson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 23, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP49-CR Cir. Ct. No. 2015CF163

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RUSSELL L. WILSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Washburn County: EUGENE D. HARRINGTON, Judge. Reversed and cause
remanded with directions.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 HRUZ, J. Russell Wilson appeals a judgment of conviction for
repeated sexual assault of a child and an order denying his postsentencing motion
for plea withdrawal. Wilson contends the Information, his attorney, the plea
No. 2019AP49-CR

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

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

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No. 2019AP49-CR

BACKGROUND

¶3 In December 2015, Wilson was charged with repeated
second-degree sexual assault of a child, contrary to WIS. STAT. §§ 948.02(2) and
948.025(1)(e) (2017-18).1 The complaint accurately reflected that this offense was
a Class C felony that carried a maximum sentence of forty years’ imprisonment,
which, by statute, can be comprised of no more than twenty-five years’ initial
confinement and fifteen years’ extended supervision. See WIS. STAT.
§§ 939.50(3)(c); 973.01(2)(b)3. and (2)(d)2. The complaint did not charge Wilson
with any sentence enhancer.

¶4 At the conclusion of the preliminary hearing, the circuit court stated
that Wilson faced a potential sentence of forty years’ imprisonment. The court
then stated: “I think there’s also a penalty enhancer here because … if the state
proves a repeater status, there’s life imprisonment under [WIS. STAT.
§] 940.225(1), and I also think there’s a minimum mandatory [twenty-five] years
confinement. That’s not reflected in the Information.”2 Wilson then pleaded not
guilty.

¶5 The Information filed the same day as the preliminary hearing again
charged Wilson with violating WIS. STAT. § 948.025(1)(e), and it correctly noted
that the maximum potential sentence was forty years’ imprisonment. The
Information, however, further stated that under WIS. STAT. § 939.618(2)(b),

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
In fact, there does not appear to be a mandatory minimum sentence for a violation of
WIS. STAT. § 948.02(2). See WIS. STAT. § 939.616.

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No. 2019AP49-CR

because the defendant was convicted of a previous
violation of s. 940.225(1) or for a comparable crime under
federal law or the law of any state, 1st Degree Sexual
Assault of Child, which conviction remains of record and
unreversed, the maximum term of imprisonment for the
violation of s. 940.225(1) is life imprisonment without the
possibility of parole or extended supervision.

¶6 Wilson eventually entered into a plea agreement with the State. In
exchange for his guilty plea, the State agreed it would cap its sentencing
recommendation at fifteen years’ initial confinement. The plea agreement
apparently did not include any agreement regarding the amount of extended
supervision the State would recommend, and the prosecutor made no mention of a
recommended amount of extended supervision at sentencing.

¶7 On October 13, 2016, Wilson pleaded guilty as charged in the
Information, including the penalty enhancer. The plea questionnaire and waiver of
rights form, which was signed by Wilson and his attorney, reflected that Wilson
was forty-nine years old and that he understood the elements of the charged
offense. The form also included a handwritten statement that the charge carried a
“maximum of life w/o extended supervision via repeater.” The circuit court
likewise twice advised Wilson during the plea colloquy that his maximum possible
sentence was life without extended supervision. The court then accepted Wilson’s
guilty plea.

¶8 Wilson was sentenced on December 21, 2016. The State noted at
the outset of the hearing that the plea agreement required the State to recommend
no more than fifteen years of initial confinement. After listening to defense
counsel’s arguments and Wilson’s apology, the circuit court began its remarks by
explaining that the maximum sentence would be forty years’ imprisonment but for
the penalty enhancer, which increased the maximum penalty to life in prison. The

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No. 2019AP49-CR

court ultimately sentenced Wilson to twenty years’ initial confinement and twenty
years’ extended supervision.

¶9 The Department of Corrections subsequently sent the circuit court a
letter noting that the enhancer in section WIS. STAT. § 939.618(2)(b) did not apply
to Wilson’s conviction under section WIS. STAT. § 948.025(1)(e), and that the
maximum amount of extended supervision that could be imposed on Wilson was
fifteen years. In response, the court commuted the excess five years of extended
supervision in an amended judgment of conviction.

¶10 Wilson later moved for postconviction relief, arguing he was entitled
to withdraw his plea under Bangert and State v. Cross, 2010 WI 70, 326 Wis. 2d
492, 786 N.W.2d 64. Wilson asserted the circuit court had incorrectly informed
him during his plea colloquy of the maximum sentence he faced, and he requested
a hearing on his motion. Specifically, Wilson alleged the maximum sentence he
could receive was not life in prison with no extended supervision, but rather was
forty years’ imprisonment, comprised of twenty-five years’ initial confinement
and fifteen years’ extended supervision.

¶11 After reviewing Wilson’s motion, the State agreed that Wilson was
entitled to withdraw his plea, and the parties filed a stipulation to that effect. In a
subsequent telephonic conference, the circuit court told the parties it would not
sign the stipulation, and it scheduled an oral ruling on the motion. Wilson
reiterated in a letter sent to the court before the oral ruling the reasons why he was
seeking plea withdrawal under Bangert and related cases.

¶12 At the first hearing on Wilson’s motion, the circuit court agreed that
Wilson was “entitled to a Bangert hearing” and that the “State must prove by clear
and convincing evidence that [Wilson’s] plea was knowing, voluntary, and

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No. 2019AP49-CR

intelligent.” The court opined that this case was different from Cross insomuch as
Cross did not involve a maximum sentence that was due to a penalty enhancer.
The court further noted that “it will be important to hear from three potential
witnesses, the defendant, Wilson; Tom Frost, who was the prosecutor; and
potentially Chris Gramstrup, who was the defense attorney.”

¶13 At the subsequent evidentiary hearing, the parties agreed that the
penalty enhancer discussed throughout the plea process did not apply in Wilson’s
case and that he had been incorrectly informed otherwise. The parties disagreed as
to whether those circumstances constituted a manifest injustice entitling Wilson to
plea withdrawal. The State called Wilson’s trial attorney, Christopher Gramstrup,
as its only witness. The State focused its questioning on Wilson’s decision to
enter into the plea deal, and it did not specifically ask Gramstrup whether he had
any basis to believe that Wilson knew that the sentence enhancer did not apply.
Gramstrup did testify, however, that the possibility of serving a life sentence
without extended supervision was a “significant factor” in Wilson’s decision to
enter the plea.

¶14 The circuit court denied Wilson’s motion. It concluded that the
court’s admitted failure, during the plea colloquy, to accurately advise Wilson of
the maximum sentence he faced “did not affect [Wilson’s] decision to accept ...
the offered plea from the State” or otherwise have a “significant impact on the
outcome of this case.” The court made no finding that Wilson otherwise knew his
actual maximum possible sentence at the time he pled. Wilson now appeals.

DISCUSSION

¶15 “When a defendant seeks to withdraw a guilty plea after sentencing,
he must prove, by clear and convincing evidence, that a refusal to allow

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No. 2019AP49-CR

withdrawal of the plea would result in ‘manifest injustice.’” State v. Taylor, 2013
WI 34, ¶24, 347 Wis. 2d 30, 829 N.W.2d 482 (citations omitted). A “manifest
injustice” may arise in a variety of circumstances. As relevant to this case, “[o]ne
way the defendant can show manifest injustice is to prove that his plea was not
entered knowingly, intelligently, and voluntarily. 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.” Id., ¶¶24-25 (citations
omitted); see also State v. Van Camp, 213 Wis. 2d 131, 139, 569 N.W.2d 577
(1997). Whether a plea was entered knowingly, voluntarily and intelligently
presents a question of constitutional fact that is reviewed independently. State v.
Brown, 2006 WI 100, ¶19, 293 Wis. 2d 594, 716 N.W.2d 906.

¶16 To help ensure that pleas are knowing, intelligent and voluntary, our
statutes and case law require circuit courts to inform a defendant of various
consequences of his or her plea before the court can accept the plea. See WIS.
STAT. § 971.08(1); Bangert, 131 Wis. 2d at 261-62. This requirement includes the
duty to “establish the [defendant]’s understanding of the … range of punishments
[the charged crime] carries.” Bangert, 131 Wis. 2d at 261-62; see also
§ 971.08(1)(a). Bangert also established a specific process for determining
whether a defendant is entitled to withdraw a guilty plea due to the circuit court’s
failure to fulfill its duties while accepting a guilty plea. See Cross, 326 Wis. 2d
492, ¶¶19-20 (outlining this process).

¶17 While this general framework continues, our supreme court in Cross
determined that, as to the requirement that circuit courts inform a defendant of the
“range of punishments,” precision is not required. Specifically, the Cross court
concluded that when the maximum sentence communicated to a defendant is
“higher, but not substantially higher, than that authorized by law,” a defendant has

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No. 2019AP49-CR

not demonstrated a Bangert violation in the first instance, and the circuit court’s
error, standing alone, is insufficient to show that the defendant was deprived of his
or her constitutional right to due process. Cross, 326 Wis. 2d 492, ¶40. But, if
“the difference is significant … a defendant’s due process rights are at greater
risk.” Id., ¶39. The court also stated that when this type of misinformation—i.e.,
a defendant being told his or her possible sentence is higher, but not substantially
higher, than that authorized by law—results in a defendant receiving a sentence
insubstantially higher than that authorized by law, the proper remedy is to
commute the defendant’s sentence under WIS. STAT. § 973.13, as opposed to plea
withdrawal.3 Id., ¶34.

¶18 Here, Wilson filed a Bangert motion that demonstrated a violation
of WIS. STAT. § 971.08(1) insomuch as the circuit court, during the plea colloquy,
did not ascertain Wilson’s understanding of the “potential punishment if
convicted” of his charged crime. The court did not make a contrary finding, and
the State has not—either below or now on appeal—disputed this fact. In addition,
Wilson’s motion alleged that he did not know or understand the information that
should have been provided at the plea hearing—i.e., his correct maximum possible
sentence. Furthermore, at the Bangert hearing in this case, the State did nothing
to establish that Wilson, in fact, otherwise knew his correct maximum possible
sentence at the time he pled. Again, this fact is undisputed.

3
In this regard, we read Cross as holding that such a remedy is only available if the
circuit court has already determined that a Bangert violation itself has not occurred. State v.
Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64; State v. Bangert, 131 Wis. 2d 246, 389
N.W.2d 12 (1986). That is to say, commutation is appropriate if the misinformation only resulted
in the actual sentence being “insubstantially higher” than that authorized by law, but plea
withdrawal remains the proper remedy if the maximum possible sentence communicated to a
defendant is substantially higher than that authorized by law.

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No. 2019AP49-CR

¶19 Nonetheless, the circuit court determined that its failure to accurately
advise Wilson of the maximum sentence Wilson faced “did not affect [Wilson’s]
decision to accept the ... offered plea from the State” or otherwise have a
“significant impact on the outcome of this case.” The court may have concluded
that no Bangert violation occurred here based on its application of Cross, although
that determination is unclear from the court’s decision. To the extent the court’s
decision was based on a conclusion that Wilson failed to show that he would have
pled differently had he known the correct maximum sentence, Cross makes clear
that such a legal standard is incorrect. See Cross, 326 Wis. 2d 492, ¶40
(withdrawing language stating such a requirement from State v. Quiroz, 2002 WI
App 52, 251 Wis. 2d 245, 641 N.W.2d 715). Rather, the court’s “holding is more
straightforward: where 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,” such that “the defendant is not
entitled to an evidentiary hearing.”4 Id., ¶¶40, 45.

¶20 Regardless of the basis for the circuit court’s decision, on appeal, the
State’s only relevant argument against a Bangert violation having occurred5 is to

4
Part of the apparent disconnect and reason for our qualified language regarding the
basis for the circuit court’s decision is because at the earlier hearing, the court concluded that
Wilson had established he was “entitled to a Bangert hearing,” and it therefore ordered one. As
Cross makes clear, however, a Bangert hearing is unnecessary if Cross applies, as there is no
Bangert violation in the first instance. Still, it is possible the court ordered the evidentiary
hearing with the expectation the State would try to prove Wilson’s actual knowledge of the
correct maximum sentence. Upon the State’s failure to do so, the court at that point may have
realized it needed to apply the Cross test, regardless of the evidence adduced at the evidentiary
hearing. In any event, the actual basis for the court’s decision is immaterial to our disposition of
this appeal, given the applicable standard for our review.
5
In its response brief, the State seems to suggest that other considerations besides the
Bangert violation in this case prevent Wilson from withdrawing his plea. We reject this notion.
The supreme court explained in State v. Taylor, 2013 WI 34, ¶49, 347 Wis. 2d 30, 829 N.W.2d
482, how Bangert provides one method—but not the only one—of establishing a manifest
(continued)

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No. 2019AP49-CR

suggest we apply Cross and hold that “[g]iven Wilson’s age at the time he pled,
there was no substantial difference between the possible maximum sentence the
court communicated and the legally permissible maximum.” If the State is
correct, this proposition would be true as a matter of law and regardless of
Wilson’s actual understanding at the time he pled; in the State’s view, Wilson’s
actual understanding is irrelevant because there has been no Bangert violation.
Again, the issue is one of law, which we review de novo. Brown, 293 Wis. 2d
594, ¶19.

¶21 We conclude that the maximum possible sentence communicated to
Wilson was substantially higher than that authorized by law. Whether the
difference between “the maximum sentence communicated to the defendant” and
“the actual allowable sentence” is substantial “will depend on the facts of the
case.” Cross, 326 Wis. 2d 492, ¶¶38, 40-41. Critically, here, the incorrectly
stated maximum sentence is the harshest criminal sentence available in Wisconsin
(sometimes called “life without”). It all but ensures that the individual will die in
prison. The United States Supreme Court has recognized the unique impact of
such sentences.6 See Graham v. Florida, 560 U.S. 48, 69-70 (2010).

injustice that allows plea withdrawal. Thus, even without a Bangert violation, a “defendant can
otherwise establish a manifest injustice by showing that there has been a ‘serious flaw in the
fundamental integrity of the plea.’” Taylor, 347 Wis. 2d 30, ¶49 (citation omitted). Contrary to
the State’s apparent notion, the court was not suggesting that these were additional factors that a
defendant must establish in addition to his or her Bangert claim to show a manifest injustice.
6
According to the Court:

[L]ife without parole sentences share some characteristics with
death sentences that are shared by no other sentences. The State
does not execute the offender sentenced to life without parole,
but the sentence alters the offender’s life by a forfeiture that is
irrevocable. It deprives the convict of the most basic liberties
without giving hope of restoration, except perhaps by executive
(continued)

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No. 2019AP49-CR

¶22 In reaching our conclusion, we note that both the quantity of
incarceration and the quality attendant to a “life without” sentence make it
“substantially higher” than the actual maximum sentence Wilson faced here. To
elaborate on this point, if Wilson were sentenced to life without the possibility of
extended supervision, he would have no expectation of—or reason to anticipate—
ever being free again.7 It would only be a matter of time before he would die in
prison. A sentence of twenty-five years of initial confinement, however, would
provide him reason to contemplate and prepare for a possible time when he is
allowed to live in an unconfined, nonpenal setting, albeit under extended
supervision. In other words, a sentence of “life without” would deprive Wilson of
all such yearning, and it is this fundamental aspect of a “life without” sentence that
makes it “substantially higher” than a possible sentence of twenty-five years’
initial confinement. Cf. Cross, 326 Wis. 2d 492, ¶38. Indeed, in “life without”
cases, the principal consideration is less with the time gap between a defendant’s
believed and actual potential release dates, such as in Cross, but rather on whether
he or she will ever be released.

clemency—the remote possibility of which does not mitigate the
harshness of the sentence. As one court observed in overturning
a life without parole sentence for a juvenile defendant, this
sentence “means denial of hope; it means that good behavior and
character improvement are immaterial; it means that whatever
the future might hold in store for the mind and spirit of [the
convict], he will remain in prison for the rest of his days.”

Graham v. Florida, 560 U.S. 48, 69-70 (2010) (citations omitted).
7
Wilson would be precluded from seeking sentence adjustment under WIS. STAT.
§§ 302.114(1) and 973.014(1g)(a)3.

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No. 2019AP49-CR

¶23 We acknowledge there may be situations where the maximum
amount of initial confinement for the correct possible sentence is effectively a life
sentence for a defendant, such that the above considerations might be of less
significance. But that is not the case here. As even the State notes, Wilson’s
average life expectancy when he was sentenced at forty-nine years old was about
eighty years of age. After twenty-five years of initial confinement, Wilson would
thus be seventy-four years old upon release.8 Also, given that Wilson was
convicted of a Class C felony, he would be eligible under WIS. STAT. § 973.195
for sentence adjustment when he has served eighty-five percent of his twenty-five
years of initial confinement. In that instance, he would be approximately age
seventy upon release. But even if he served a full twenty-five years of initial
confinement, Wilson could reasonably expect to spend some of his final years in
society rather than confined to a prison cell. We refuse to gainsay the import of an
individual having a reasonable opportunity to spend some portion of his or her
later years of life without being incarcerated, even if while being under extended
supervision.

¶24 Likewise, given the unique nature of a “life without” sentence versus
one that is set by a term of days or years, Cross’s comments concerning the
“abjuring of a defendant’s representations in open court” regarding guilt are less
compelling. Id., ¶32. It strains credulity to assert that one’s belief that he or she
could be sentenced to life without the possibility of extended supervision is not a
meaningful inducement to plead guilty in hopes of avoiding that harsh sentence.

8
Wilson was born on November 29, 1966. Wilson was arrested around his forty-ninth
birthday, and on December 1, 2015, he was given a $25,000 cash bond that he never posted.
Because Wilson is entitled to credit for presentence custody from at least December 1, 2015,
forward, this date represents the effective start of his sentence. See WIS. STAT. § 973.155.

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No. 2019AP49-CR

Additionally, the State’s promise to recommend a fifteen-year term of initial
confinement is much more meaningful in the context of a potential “life without”
sentence versus a potential sentence of twenty-five years’ initial confinement.

¶25 In addition to the fact that the incorrect maximum sentence in this
case was “life without,” our conclusion is buttressed by a few other factual
distinctions from the incorrect sentence communicated in Cross that was found not
to be “substantially higher” than the actual possible sentence. In Cross, the circuit
court had misinformed Cross that his maximum term of imprisonment was forty
years, when in fact it was thirty years—with five years less each of initial
confinement and extended supervision. Id., ¶¶1, 11. But there was more at play.
As our supreme court stated:

Under the original charge, first degree sexual assault, Cross
understood that he faced a maximum sentence of 60 years.
He agreed to plead guilty to second degree sexual assault,
which he understood as subjecting him to 40 years
imprisonment. In fact, the reduced charge resulting from
the plea agreement was even more favorable to him than he
thought when he entered into it, because it reduced his
maximum exposure to 30 years. The record also reflects
that the prosecutor could have charged him with multiple
counts of first degree sexual assault, which would have
likely made the State’s case stronger. Cross’s plea
agreement provided him with benefits that were only
enhanced by the reduced maximum sentence.

Id., ¶43. Here, and unlike in Cross, Wilson’s plea agreement was to his originally
charged offense, not to a lesser one. Moreover, there is nothing in the record here
reflecting that the State’s case could have been enhanced with the potential for
multiple other charges. Indeed, Wilson was charged with repeated sexual assault.

¶26 Finally, we emphasize that our conclusion here only relates to the
first step in the process of a Bangert claim, as informed by the rule Cross

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No. 2019AP49-CR

established that a certain plea colloquy error regarding the potential punishment is
insufficient to constitute a Bangert violation. The State is still accorded the
opportunity to prove at an evidentiary hearing that the defendant’s plea was
knowing, voluntary, and intelligent despite the deficiencies in the plea hearing on
the basis that the defendant was otherwise aware of the correct maximum sentence
he or she faced.9 We remand for further proceedings, directing that Wilson be
allowed to withdraw his guilty plea.

By the Court.—Judgment and order reversed; cause remanded with
directions.

Not recommended for publication in the official reports.

9
Notably, the State has already stipulated that Wilson should be allowed to withdraw his
plea. When the State was given the opportunity to further develop the facts surrounding Wilson’s
understanding of the correct maximum penalty, it instead focused its efforts on demonstrating that
Wilson would have accepted the plea deal irrespective of the penalty enhancer’s applicability.
Under these circumstances, it is not necessary for the circuit court to hold a further evidentiary
hearing.

14