State v. Kasey Ann Gomolla

2024 WI APP 13

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP199-CR

†Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KASEY ANN GOMOLLA,

DEFENDANT-APPELLANT.†

Opinion Filed: February 6, 2024
Submitted on Briefs: September 5, 2023
Oral Argument:

JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Megan Sanders-Drazen of Wisconsin Defense Initiative,
Madison.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Joshua L. Kaul, attorney general, and Kieran M. O’Day,
assistant attorney general.
2024 WI App 13

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.
February 6, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP199-CR Cir. Ct. No. 2016CF593

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KASEY ANN GOMOLLA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Brown
County: JOHN P. ZAKOWSKI, Judge. Judgment amended and, as amended,
affirmed; order affirmed.

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

¶1 STARK, P.J. Kasey Ann Gomolla appeals from a judgment, entered
upon her no-contest plea, convicting her of conspiracy to deliver methamphetamine
No. 2022AP199-CR

(more than fifty grams)1 and from the circuit court’s order denying her
postconviction motion for plea withdrawal. As part of the plea agreement in this
case, the State agreed to remove a second or subsequent offense enhancer from the
charged crime, which reduced Gomolla’s potential punishment from forty-six years
to forty years.2 However, defense counsel overlooked that fact in preparing
Gomolla’s plea questionnaire and in discussions with Gomolla prior to entry of her
plea, and Gomolla was incorrectly informed by counsel that she was subject to a
potential punishment of forty-six years. During the plea colloquy, the court did not
correct the error, as it failed to address the potential punishment at all beyond

1
There appears to be a clerical error in the judgment of conviction. The judgment
erroneously lists the offense of conviction as conspiracy to deliver amphetamine, rather than
methamphetamine, which both fall under the same statutory provision, WIS. STAT. § 961.41(1)(e)
(2021-22), and carry the same maximum statutory penalty. The transcript of the plea hearing
clearly and unambiguously reflects that Gomolla entered a plea to conspiracy to deliver
methamphetamine. See State v. Prihoda, 2000 WI 123, ¶24, 239 Wis. 2d 244, 618 N.W.2d 857
(“[A]n unambiguous oral pronouncement controls when a conflict exists between a court’s oral
pronouncement of sentence and a written judgment.”).

“Correcting a clerical error in a judgment does not constitute a modification of that
judgment; rather, it is simply a correction of the record to reflect the judgment the circuit court
actually rendered.” State v. Schwind, 2019 WI 48, ¶30 n.5, 386 Wis. 2d 526, 926 N.W.2d 742.
Accordingly, the defect in the judgment of conviction may be corrected at any time at the direction
of the circuit court, and no remand by this court is necessary. See Prihoda, 239 Wis. 2d 244, ¶¶5,
17, 51. Upon remittitur, the circuit court shall enter an amended judgment of conviction stating
that Gomolla was convicted of conspiracy to deliver methamphetamine, rather than amphetamine.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
State v. Finley, 2016 WI 63, ¶4, 370 Wis. 2d 402, 882 N.W.2d 761, explains that the
term “‘potential punishment’ has not been defined in the statutes or the case law,” but “[i]n
analyzing whether a defendant was correctly advised of the potential punishment, our cases have
looked to the maximum statutory penalty, that is, the maximum sentence provided for by statute.”
“Some cases use the phrase ‘range of punishments’ in addition to or in place of ‘potential
punishment.’ ‘Range of punishments,’ ‘potential punishment,’ ‘maximum statutory penalty,’ and
various other phrases are used synonymously in the cases to mean ‘potential punishment.’” Id.
Accordingly, we will use “potential punishment” and “maximum statutory penalty”
interchangeably throughout this decision.

2
No. 2022AP199-CR

confirming that Gomolla had reviewed the plea questionnaire that overstated
Gomolla’s potential punishment by six years.

¶2 Gomolla argues before this court that she is entitled to withdraw her
no-contest plea because the circuit court failed to advise her of the maximum
statutory penalty she faced during the plea colloquy, which constitutes a plea
colloquy defect. She further claims that because defense counsel misinformed her
of the potential punishment, she was unaware of the true penalty she faced;
therefore, her plea was not knowing, intelligent, and voluntary.

¶3 We assume, without deciding, that the circuit court’s plea colloquy
was defective because the court failed to establish that Gomolla understood her
potential punishment, which the court is required to ascertain under Wisconsin law.
See WIS. STAT. § 971.08; State v. Bangert, 131 Wis. 2d 246, 262, 389 N.W.2d 12
(1986).

¶4 We conclude, however, that despite the defective plea colloquy, the
State presented clear and convincing evidence that Gomolla nevertheless
understood the potential punishment she faced if convicted. While Gomolla was
informed that she faced a higher maximum statutory penalty than authorized by law,
pursuant to our supreme court’s decision in State v. Cross, 2010 WI 70, 326 Wis. 2d
492, 786 N.W.2d 64, “a defendant can be said to understand the range of
punishments as required by [WIS. STAT.] § 971.08 and Bangert when the maximum
sentence communicated to the defendant is higher, but not substantially higher, than
the actual allowable sentence.” See Cross, 326 Wis. 2d 492, ¶38. Although it was
counsel who provided the incorrect information to Gomolla, rather than the circuit
court as in Cross, the forty-six-year sentence communicated to Gomolla was higher,

3
No. 2022AP199-CR

but not substantially higher, than the forty-year maximum statutory penalty she
actually faced.

¶5 We therefore conclude that Gomolla understood the potential
punishment, as required by WIS. STAT. § 971.08 and Bangert, and that her plea was
knowing, intelligent, and voluntary. Accordingly, Gomolla is not entitled to
withdraw her plea, and we affirm.

BACKGROUND

¶6 According to the State, Gomolla was a co-conspirator in an expansive
drug trafficking scheme. Gomolla observes that the “details regarding her role in
the trafficking scheme remain elusive,”3 but what is relevant for this appeal is that
Gomolla was charged with two drug crimes: conspiracy to deliver
methamphetamine (more than fifty grams) and soliciting the delivery of THC
(between 1,000 grams and 2,500 grams), both charges as a second and subsequent
offense.

¶7 Gomolla and the State reached an agreement wherein Gomolla would
plead no contest to conspiracy to deliver more than fifty grams of
methamphetamine—a Class C felony—while the soliciting delivery of between
1,000 grams and 2,500 grams of THC charge would be dismissed and read in. The
State also agreed to dismiss the second and subsequent offense enhancer. Without
the enhancer, Gomolla faced a forty-year maximum statutory penalty, while her
exposure was forty-six years with the enhancer. See WIS. STAT. §§ 939.50(3)(c),
961.48(1)(a). The State’s offer included a joint recommendation of seven years’

3
As the State explains, “[t]he probable cause section of Gomolla’s criminal complaint is
presently under seal. However, the factual background of her charges is not imperative to the
resolution of this appeal.”

4
No. 2022AP199-CR

initial confinement followed by ten years’ extended supervision, but if Gomolla
wished to argue, then the State agreed to cap its recommendation at eight years’
initial confinement followed by eight years’ extended supervision.

¶8 Gomolla completed a Plea Questionnaire/Waiver of Rights form. The
plea questionnaire correctly stated that she was pleading to the methamphetamine
charge, but the form incorrectly included the second and subsequent offense
enhancer as well as the forty-six-year potential maximum statutory penalty.
Gomolla initialed each section of the plea questionnaire and signed it.

¶9 At the plea hearing, the circuit court confirmed with Gomolla that she
reviewed the plea questionnaire with defense counsel and that Gomolla understood
the form. The court noted that “all of the penalties … have been attached” to the
plea questionnaire and asked if Gomolla “had enough time to go over this plea
form.” It also confirmed that Gomolla understood that the court was not required
to abide by any sentencing recommendation and could sentence her to the maximum
statutory penalty. However, apart from this discussion, the court did not further
address the potential punishment on the record.

¶10 After the plea colloquy, the circuit court announced that it would
accept Gomolla’s plea to conspiracy to deliver more than fifty grams of
methamphetamine with the second and subsequent offense enhancer. At that point,
the State interjected, stating, “[I]t’s the State’s understanding that the repeater was
going to be dismissed.” Defense counsel agreed, and the court dismissed the
enhancer. The court did not, however, correct the maximum statutory penalty on
the record. Later, the court sentenced Gomolla to twelve years’ initial confinement
followed by fifteen years’ extended supervision.

5
No. 2022AP199-CR

¶11 Gomolla then filed a postconviction motion to withdraw her plea,
seeking either resentencing on the ground of ineffective assistance of counsel or
plea withdrawal based on the circuit court’s failure to advise her of the maximum
statutory penalty she faced before accepting her plea, which Gomolla claimed she
did not otherwise know or understand.4 The court held an evidentiary hearing on
Gomolla’s motion, which served as both a Machner5 hearing and, as relevant here,
a Bangert hearing. Both defense counsel and Gomolla testified.

¶12 The circuit court then issued a written decision denying Gomolla’s
postconviction motion for resentencing or plea withdrawal. As relevant to the
Bangert claim, the court concluded:

[T]here was a satisfactory plea colloquy to establish that the
defendant’s plea was knowingly, intelligently and
voluntarily made. However, if one would find that the plea
colloquy was defective, the court believes the State clearly
demonstrated at the motion hearing by clear and convincing
evidence that the defendant understood her rights and that
her plea was knowingly, intelligently, and voluntarily made.

In reaching this conclusion, the court acknowledged defense counsel’s error
regarding the maximum statutory penalty communicated to Gomolla. However, the
court relied on our supreme court’s decision in Cross for the proposition that an
incorrectly communicated sentence does not constitute a Bangert violation “where
the sentence communicated to the defendant is higher, but not substantially higher,
than that authorized by law.” See Cross, 326 Wis. 2d 492, ¶40. Gomolla appeals.

4
Gomolla does not renew her ineffective assistance of counsel claim on appeal and has
therefore abandoned it. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588
N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the [circuit] court, but not raised on appeal, is
deemed abandoned.”).
5
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

6
No. 2022AP199-CR

DISCUSSION

¶13 After sentencing, “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.” State v. Taylor, 2013 WI 34,
¶48, 347 Wis. 2d 30, 829 N.W.2d 482. A defendant may demonstrate a manifest
injustice by showing that he or she did not knowingly, intelligently, and voluntarily
enter his or her plea. State v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d 594, 716
N.W.2d 906. “A plea that was ‘not entered knowingly, voluntarily, and intelligently
violates fundamental due process, and a defendant therefore may withdraw the plea
as a matter of right.’” State v. Dillard, 2014 WI 123, ¶37, 358 Wis. 2d 543, 859
N.W.2d 44 (citation omitted).

¶14 In Wisconsin, “[t]he 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 (footnote
omitted). Section 971.08, for example, “sets forth mandatory requirements that
must be met before the circuit court may accept a defendant’s guilty or no contest
plea,” State v. Pegeese, 2019 WI 60, ¶22, 387 Wis. 2d 119, 928 N.W.2d 590,
including that courts must “[a]ddress the defendant personally and determine that
the plea is made voluntarily with understanding of the nature of the charge and the
potential punishment if convicted,” § 971.08(1)(a). “Although [§] 971.08 is not a
constitutional imperative, the procedure of the statute nevertheless is designed to
assist the [circuit] court in making the constitutionally required determination that a
defendant’s plea is voluntary.” Bangert, 131 Wis. 2d at 261. The requirement that
the court personally address the defendant and establish that the defendant
understand “the nature of the crime with which he [or she] is charged and the range
of punishments to which he [or she] is subjecting himself [or herself] by entering a

7
No. 2022AP199-CR

plea” is just one item on a list of the court’s duties at a plea hearing developed by
our supreme court to ensure a knowing, intelligent, and voluntary plea. Brown, 293
Wis. 2d 594, ¶¶34-35 (citing Bangert, 131 Wis. 2d at 261-62).

¶15 If the circuit court fails to fulfill one of the listed duties—either
court-mandated or under WIS. STAT. § 971.08—the defendant may move to
withdraw his or her plea. Bangert, 131 Wis. 2d at 274. In this motion—referred to
as a Bangert motion—the defendant “must (1) make a prima facie showing of a
violation of [§] 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.” Taylor, 347 Wis. 2d 30, ¶32.

¶16 If the defendant’s Bangert motion meets these requirements, then he
or she is entitled to an evidentiary hearing. Pegeese, 387 Wis. 2d 119, ¶27. At the
Bangert hearing, the burden shifts to the State to prove “by clear and convincing
evidence that the defendant’s plea, despite the inadequacy of the plea colloquy, was
knowing, intelligent, and voluntary.” Pegeese, 387 Wis. 2d 119, ¶27 (citation
omitted).

If a defendant does not understand the nature of the
charge and the implications of the plea, he [or she] should
not be entering the plea, and the [circuit] court should not be
accepting the plea. On the other hand, if a defendant does
understand the charge and the effects of his [or her] plea, he
[or she] should not be permitted to game the system by
taking advantage of judicial mistakes.

Brown, 293 Wis. 2d 594, ¶37. “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.” Taylor, 347
Wis. 2d 30, ¶32 (citation omitted). If the State does not meet its burden at the

8
No. 2022AP199-CR

Bangert hearing, then the defendant is entitled to withdraw his or her guilty or
no-contest plea. Pegeese, 387 Wis. 2d 119, ¶27.

¶17 “Where a defendant seeks to withdraw a guilty or no contest plea
post-sentencing due to a claimed error in the plea colloquy, the proper analysis has
two steps”: (1) we “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 (2) “we ‘determine, if necessary, whether the failure to
withdraw the plea would otherwise result in a manifest injustice.’” Pegeese, 387
Wis. 2d 119, ¶25 (citation omitted).

¶18 Here, the circuit court held an evidentiary hearing on Gomolla’s
motion for plea withdrawal, which presupposes a deficient colloquy. See Brown,
293 Wis. 2d 594, ¶40. The question before this court is, therefore, whether the
circuit court properly concluded that the State met its burden to prove that
Gomolla’s plea was knowing, intelligent, and voluntary. See State v. Hoppe, 2009
WI 41, ¶44, 317 Wis. 2d 161, 765 N.W.2d 794. Our review of a circuit court’s
denial of a defendant’s postconviction motion for plea withdrawal after an
evidentiary hearing is a question of constitutional fact: “[W]e accept the circuit
court’s findings of historical and evidentiary fact unless they are clearly erroneous,”
but “[w]e independently determine whether those facts demonstrate that the
defendant’s plea was knowing, intelligent, and voluntary.” Id., ¶45.

¶19 The volume of case law on the subject of plea colloquies is robust.
However, this appeal presents what appears to be a factually distinguishable set of
circumstances. The State and Gomolla disagree as to precisely how we should
analyze this case. We agree with the State, however, that Gomolla is arguing two
errors that occurred during the plea process. First, Gomolla argues that “[t]he circuit

9
No. 2022AP199-CR

court failed to address the maximum penalties—at all—during the plea colloquy.”
See Brown, 293 Wis. 2d 594, ¶35 (“range of punishments”); WIS. STAT.
§ 971.08(1)(a) (“potential punishment”). Second, Gomolla argues that defense
counsel “told [her] the wrong maximum penalties when they went through the plea
questionnaire together,” that the plea questionnaire contained the incorrect
maximum penalty, and that neither the State nor the court corrected the error at the
plea hearing.6 Accordingly, because Gomolla was not told the correct maximum
statutory penalty, she claims the State could not prove “by clear and convincing
evidence that [her] plea, despite the inadequacy of the plea colloquy, was knowing,
intelligent, and voluntary.” See Pegeese, 387 Wis. 2d 119, ¶27 (citation omitted).

I. Plea Colloquy Defect

¶20 On the first issue, the State concedes that the circuit “court’s failure
to discuss the range of punishment likely merited an evidentiary hearing by itself,”
see Brown, 293 Wis. 2d 594, ¶¶35-36; therefore, “because the circuit court failed to
mention Gomolla’s potential maximum [statutory penalty], the State [does] not
dispute that Gomolla made a prima facie showing of a Bangert violation.” Given
the State’s concession, we need not address whether the court’s plea colloquy was

6
We pause here to reiterate that Gomolla has abandoned her ineffective assistance of
counsel claim on appeal. Thus, defense counsel’s deficient performance by failing to inform
Gomolla of the correct maximum statutory penalty is not at issue before this court. Further, as
Gomolla argues that the circuit court did not address the potential punishment at all, she is not
claiming the incorrect maximum statutory penalty issue itself as a Bangert violation. See State v.
Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). In other words, Gomolla is not arguing that the
court informed her of the incorrect maximum statutory penalty. See State v. Cross, 2010 WI 70,
¶¶1-5, 326 Wis. 2d 492, 786 N.W.2d 64.

10
No. 2022AP199-CR

legally deficient, and we will assume, without deciding, that it was.7 The State
acknowledges, then, that under the circumstances, the burden shifted, requiring it to
present sufficient evidence that Gomolla otherwise understood the potential
punishment. According to the State, it “easily met that burden.”

¶21 When the burden shifts to the State at the Bangert hearing, “the [S]tate
[is] required to show that the defendant in fact possessed the constitutionally
required understanding and knowledge which the defendant alleges the inadequate
plea colloquy failed to afford him [or her].” Bangert, 131 Wis. 2d at 275. To do
so, “[t]he [S]tate may examine the defendant or defendant’s counsel to shed light on
the defendant’s understanding or knowledge of information necessary for him [or
her] to enter a voluntary and intelligent plea.” Id. Accordingly, it is not the
execution of the court-mandated or WIS. STAT. § 971.08 duties in and of themselves
that make a defendant’s plea knowing, intelligent, and voluntary—although the
circuit court’s “duty to inform … is a logical outgrowth of the constitutional
standard that a defendant’s plea be knowingly, voluntarily, and intelligently
entered.” See Bangert, 131 Wis. 2d at 269-70. Instead, the court’s duties in this
regard are “designed to ensure that a defendant’s plea is knowing, intelligent, and
voluntary,” Brown, 293 Wis. 2d 594, ¶23 (emphasis added), and to “assist the
[circuit] court in making the constitutionally required determination that a
defendant’s plea is voluntary” by confirming that the defendant understands the
nature of the charge and the rights that he or she is waiving by pleading guilty or no
contest, Bangert, 131 Wis. 2d at 261, 265-66, 270 (emphasis added).

7
For a discussion of this issue, see Bangert, 131 Wis. 2d at 267-68; State v. Brown, 2006
WI 100, ¶¶46-48, 293 Wis. 2d 594, 716 N.W.2d 906; State v. Hoppe, 2009 WI 41, ¶¶32-34, 317
Wis. 2d 161, 765 N.W.2d 794; State v. Pegeese, 2019 WI 60, ¶37, 387 Wis. 2d 119, 928 N.W.2d
590; State v. Moederndorfer, 141 Wis. 2d 823, 828, 416 N.W.2d 627 (Ct. App. 1987); and State
v. Hansen, 168 Wis. 2d 749, 755-56, 485 N.W.2d 74 (Ct. App. 1992).

11
No. 2022AP199-CR

¶22 At the evidentiary hearing, defense counsel testified that she “had over
[twenty-five] meetings with [Gomolla] on [this case and one in another county] and
those were in-person meetings.” Defense counsel stated that Gomolla had never
been to prison before, so counsel was careful to explain “the concept of a bifurcated
prison sentence” and even “diagrammed what a bifurcated prison sentence is on at
least two separate occasions” because “the concept of a bifurcated prison sentence
is fairly difficult for people to understand.” Defense counsel also testified that she
“tried to explain … the options of the contested sentencing versus the stipulated
sentencing and [counsel] believed that [Gomolla] understood that.” According to
defense counsel, she was “mindful of the fact that Ms. Gomolla had a mental health
condition,” and counsel even postponed a plea in another county “because
[Gomolla] was not on her medication and [counsel] was not comfortable doing the
plea[].”

¶23 As to Gomolla’s plea questionnaire, defense counsel admitted that she
“made a mistake” and “did not delete the penalty enhancer as far as the maximum
penalty,” and counsel “accept[ed] responsibility for that.” Nevertheless, defense
counsel testified: “I do believe [Gomolla] understood the offer.” Defense counsel
further explained:

My practice is to go through the plea advisement line by line
with the client and have them initial it. After I’m satisfied
that they understand it[,] I normally read it to them and ask
them to explain it back to me. I also go over the jury
instructions with them.

Defense counsel’s testimony was further supported by the plea questionnaire in the
record, which includes Gomolla’s initials on each line of the form. The circuit court
additionally questioned defense counsel as to whether she reviewed the maximum
statutory penalty with Gomolla, and counsel affirmed that she was “sure” that she

12
No. 2022AP199-CR

had and that the maximum statutory penalty advisement on the plea questionnaire
was also initialed by Gomolla.

¶24 In contrast, Gomolla testified at the evidentiary hearing that defense
counsel “went over [the questionnaire] with [her] … but [she was] sure [counsel]
didn’t go over it with [her] properly.” According to Gomolla, defense counsel
“rushes through stuff” and “doesn’t just take her time.” Gomolla admitted that she
signed the plea questionnaire and that she reviewed each line of the form with
defense counsel. However, Gomolla did not “remember [counsel] ever going over
[the lines of the form] with me very properly.” In response to a question regarding
whether Gomolla remembered a conversation with defense counsel regarding the
maximum statutory penalty, Gomolla responded, “No. Not really.” According to
Gomolla, she could not “even remember doing the questionnaire.”

¶25 Based on this testimony, the circuit court found that Gomolla’s plea
was knowingly, intelligently, and voluntarily made. The court specifically found
Gomolla not credible. It stated:

The court does not believe, contrary to Gomolla’s testimony,
that the plea questionnaire was rushed through given the
physical evidence of the plea form itself. It is clear that there
was sufficient time spent going over this plea questionnaire.
It was one of the more detailed plea questionnaires that the
court has seen. There is information on the plea
questionnaire that is rarely seen including the high school
that the defendant attended, the medical diagnosis that the
defendant was being treated for, and some of the medications
that she was tak[ing] and the frequency that they were taken.
One has to take the time to physically write out “Wausau
East, depression, anxiety, ADD, prescribed Prozac two times
a day and Celexa one time a day” in addition to having the
defendant personally sign each and every single line. This
would also indicate to the court, as was argued by the State,
that the plea questionnaire was a document which had to be
prepared with close consultation between the defendant and
her attorney. There was informational input from the
defendant to her attorney.

13
No. 2022AP199-CR

The defendant remembered some of the items of the plea
questionnaire but later testified she does not remember
filling it out at all.

The court finally concluded that “if one would find that the plea colloquy was
defective, the court believes the State clearly demonstrated at the motion hearing by
clear and convincing evidence that the defendant understood her rights and that her
plea was knowingly, intelligently, and voluntarily made.”

¶26 We agree with the circuit court’s ultimate conclusion.8 Setting aside
for a moment that Gomolla was informed by defense counsel that the potential
punishment was forty-six years rather than forty years and considering the question
purely from the posture of the plea colloquy defect—that being, the court’s failure
to address the maximum statutory penalty with Gomolla—we conclude that the
State met its burden. The court properly determined, based on the entire record and
the testimony of Gomolla and defense counsel, that Gomolla was aware of and
understood the “[potential punishment] to which [she was] subjecting [her]self by
entering a plea,” despite the court’s failure to address the issue during the plea
colloquy. See Brown, 293 Wis. 2d 594, ¶35; see also WIS. STAT. § 971.08(1)(a).
In other words, absent the fact that defense counsel informed Gomolla of the wrong
maximum statutory penalty, our review would end here.

II. Higher Potential Punishment

¶27 Our conclusion above then begets the next question: what impact
does the fact that Gomolla was told the incorrect potential punishment have on
Gomolla’s claim that her plea was not knowingly, voluntarily, and intelligently
made? Gomolla argues that the incorrect potential punishment changes

8
Gomolla does not challenge any of the circuit court’s findings of fact as being clearly
erroneous.

14
No. 2022AP199-CR

everything: “Misinformation from [defense] counsel plus zero information from
the circuit court does not equal information sufficient to establish the validity of Ms.
Gomolla’s plea.” Essentially, Gomolla claims, the State could not meet its burden
to prove “that [Gomolla] understood the penalties she faced [where] her lawyer got
them wrong, and [where] the circuit court was silent on the topic.” According to
the State, however, answering this question “is where Cross comes in.”

¶28 In Cross, the defendant was misinformed as to his maximum potential
punishment by the circuit court, the State, and his attorney at his plea hearing.
Cross, 326 Wis. 2d 492, ¶8. Cross pled guilty to second-degree sexual assault, at
which time he was told that he was subject to forty years’ imprisonment rather than
thirty years’ imprisonment. Id., ¶1. The court sentenced Cross to what it believed
to be the maximum—forty years. Id., ¶10. Cross later moved for postconviction
relief, arguing, among other things, that his plea was not knowing, intelligent, and
voluntary because he was incorrectly advised of the maximum term of
imprisonment. Id., ¶11 & n.4. The court denied plea withdrawal, but it granted
resentencing and later resentenced Cross to the appropriate thirty-year maximum.
Id., ¶12.

¶29 Our supreme court affirmed the denial of Cross’ motion to withdraw
his plea. Id., ¶5. In doing so, the court held:

[W]here a defendant is told that he [or she] faces a maximum
possible sentence that is higher, but not substantially higher,
than that authorized by law, the circuit court has not violated
the plea colloquy requirements outlined in WIS. STAT.
§ 971.08 and our Bangert line of cases. In other words,
where a defendant pleads guilty with the understanding that
he [or she] faces a higher, but not substantially higher,
sentence than the law allows, the circuit court has still
fulfilled its duty to inform the defendant of the range of
punishments. Therefore, the defendant is not entitled to an
evidentiary hearing, and plea withdrawal remains in the
discretion of the circuit court and will not be disturbed unless

15
No. 2022AP199-CR

the defendant shows that it is necessary to correct a manifest
injustice.

Cross, 326 Wis. 2d 492, ¶4. According to the court, “[t]his [holding] accords with
common sense; not all small deviations from the requirements in our Bangert line
of cases equate to a Bangert violation and require a formal evidentiary hearing.”
Cross, 326 Wis. 2d 492, ¶38. The court continued that “when the difference is
significant, or when the defendant is told the sentence is lower than the amount
allowed by law, a defendant’s due process rights are at greater risk and a Bangert
violation may be established.” Cross, 326 Wis. 2d 492, ¶39. Finally, the court
refused to otherwise find that plea withdrawal was necessary to correct a manifest
injustice, explaining that “[t]he only flaw Cross points to is that the plea was made
with a misunderstanding of the precise maximum sentence.” Id., ¶¶42-44.

¶30 According to the State, “Cross stands for the proposition that no
Bangert violation occurs, and there is therefore no manifest injustice warranting
plea withdrawal, where the ‘maximum sentence communicated to the defendant is
higher, but not substantially higher, than the actual allowable sentence,’” which “is
what occurred here.” See Cross, 326 Wis. 2d 492, ¶38. The State argues that, in
this case, “[h]ad it been the circuit court that informed Gomolla that she faced 46
years instead of 40, that mistake alone would not have warranted a Bangert hearing
at all, let alone plea withdrawal.” See Cross, 326 Wis. 2d 492, ¶30. “It would be
illogical,” explains the State, “for the same mistake to not merit an evidentiary
hearing on one hand but permit plea withdrawal on the other. Defense counsel’s
miscommunication of a potential range of punishment is still communication of a
potential range of punishment.”

¶31 We agree with the State that Cross provides persuasive guidance. The
circumstances in this case are very similar to those in Cross: both defendants were

16
No. 2022AP199-CR

informed that the maximum statutory penalty was higher than that authorized by
law; defense counsel informed both defendants of the incorrect potential
punishment; the incorrect maximum statutory penalty was included on the plea
questionnaire; and the circuit court did not correct the error at the plea hearing. Id.,
¶¶1, 8. We agree with the State that if the court, here, had questioned Gomolla on
the record regarding her understanding of the incorrect maximum statutory penalty,
instead of not addressing it, then this case would have been controlled by Cross.
Given that the six-year difference between the actual maximum statutory penalty
and the sentence communicated to Gomolla was less than the ten-year difference
approved in Cross, we are confident that Gomolla would have been denied a
Bangert hearing based on her failure to make a prima facie showing of a violation
of WIS. STAT. § 971.08 or other court-mandated duty. See Cross, 326 Wis. 2d 492,
¶4; Taylor, 347 Wis. 2d 30, ¶32.

¶32 Instead, the key difference between this case and Cross is the lack of
the circuit court’s direct involvement in the error. However, in both cases, the
defendant was misinformed regarding the maximum statutory penalty and did not
know the actual maximum statutory penalty; thus, the result in each case should be
the same whether the misinformation as to the potential punishment was provided
only by the defendant’s counsel or by counsel and the court.

¶33 While it is true, as Gomolla argues, that the posture of Cross was
pre-Bangert hearing, so the burden to prove that her plea was knowing, voluntary,
and intelligent had not yet shifted to the State, Gomolla fails to provide a persuasive
argument for why her misunderstanding of the precise maximum statutory penalty
requires a different result in this post-Bangert-hearing case. Gomolla asserts that
in Cross, the plea was presumed to be knowing, intelligent, and voluntary and that
Cross had the burden to overcome that presumption by establishing a Bangert

17
No. 2022AP199-CR

violation. As a result, the “benefit of the doubt” went to the State. Gomolla
contends that, in this case, her plea is presumed to be invalid because the Bangert
violation was established; therefore, “the benefit of the doubt goes to Ms. Gomolla.”

¶34 We conclude that regardless of whether or not we presume Gomolla’s
plea was invalid, and whether or not the burden shifted to the State to prove that
Gomolla’s plea was knowingly, intelligently, and voluntarily made, we must
determine whether Gomolla understood the potential punishment she faced if
convicted. To answer that question, according to Cross, we must determine whether
the “maximum sentence communicated to the defendant [was] higher, but not
substantially higher, than the actual allowable sentence.” See Cross, 326 Wis. 2d
492, ¶38.

¶35 Here, defense counsel told Gomolla that the maximum statutory
penalty she faced was forty-six years, and the clear and convincing evidence at the
evidentiary hearing established that Gomolla knew and understood that the
maximum statutory penalty was forty-six years when she entered her plea. Cross
unequivocally states that

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 and will not, as a matter of law, be
sufficient to show that the defendant was deprived of his [or
her] constitutional right to due process of law.

Cross, 326 Wis. 2d 492, ¶40.

¶36 While the forty-six-year maximum statutory penalty was incorrect,
“the sentence communicated to [Gomolla was] higher, but not substantially higher,
than” the forty-year maximum statutory penalty authorized by law. See id. If
Gomolla understood she was subject to a potential punishment of forty-six years,

18
No. 2022AP199-CR

then she “[was] obviously aware that” she could receive a forty-year sentence.
See id., ¶¶30-31 (“[A] defendant who believes he [or she] is subject to a greater
punishment is obviously aware that he [or she] may receive the lesser punishment”
and is not “likely to be affected by insubstantial differences in possible
punishments.”); see also State v. Finley, 2016 WI 63, ¶153, 370 Wis. 2d 402, 882
N.W.2d 761 (Ziegler, J., dissenting) (“There is a principle present in both Cross and
Taylor—namely, that incorrect or insufficient knowledge about an aspect of a plea
does not necessarily invalidate the entire plea ….”).

¶37 Therefore, we conclude that Gomolla should not be allowed to
withdraw her plea based on the circuit court’s failure to address the potential
punishment during the plea colloquy because Gomolla’s plea was knowing,
intelligent, and voluntary. See Pegeese, 387 Wis. 2d 119, ¶25. The State
established that fact by clear and convincing evidence. The only flaw in Gomolla’s
plea is that it was made with a misunderstanding of the precise maximum statutory
penalty. Gomolla, nevertheless, understood the potential punishment, and plea
withdrawal is not required to correct a manifest injustice. See Cross, 326 Wis. 2d
492, ¶38.

¶38 In reply, Gomolla challenges the “State’s peculiar reframe of the
issue,” claiming that the State’s argument “disaggregates the question presented into
misleading parts and conflates discrete issues in the process.” She claims that the
State argues that Gomolla need only grasp “a potential range of punishment,” even
if incorrect, which is a “low bar,” “makes little sense, violates case law, and would
lead courts to uphold pleas that fall short of the constitutional standard[s].”
According to Gomolla:

Whether Ms. Gomolla’s plea was knowing, intelligent,
and voluntary despite her defective colloquy turns on
whether she learned what she needed to—the penalties she

19
No. 2022AP199-CR

actually faced—from sources outside the colloquy…. But
proving that the person learned the wrong thing from an
extrinsic source, as here, does no good. Such evidence is
worse than irrelevant: it suggests the defendant lacked a full
understanding of the direct consequences of her plea—that
she was misled before waiving a host of constitutional rights.
It undercuts, rather than proves, the validity of her plea.

¶39 We understand Gomolla’s concern, and we certainly do not suggest
that the circuit court or counsel should provide anything other than accurate
potential punishment information to defendants. However, Gomolla’s argument
here ignores the important purpose of a Bangert hearing: to discover whether there
is “any evidence” in the record demonstrating that the defendant was in fact
provided the necessary information from a source other than the circuit court.
See Bangert, 131 Wis. 2d at 275 (“In essence, the [S]tate will be required to show
[at a Bangert hearing] that the defendant in fact possessed the constitutionally
required understanding and knowledge which the defendant alleges the inadequate
plea colloquy failed to afford him [or her].”); Taylor, 347 Wis. 2d 30, ¶32 (citation
omitted). To that end, we conclude that the holding in Cross applies to the question
of whether Gomolla “possessed the constitutionally required understanding and
knowledge” that “the inadequate plea colloquy failed to afford” her. See Bangert,
131 Wis. 2d at 275.

¶40 As to Gomolla’s claim that her case “turns on whether she learned
what she needed to—the penalties she actually faced—from sources outside the
colloquy,” we disagree. Importantly, we see no requirement in Cross that the State
prove that Cross actually knew the precise maximum statutory penalty, even though
Cross was informed of the wrong potential punishment. See Cross, 326 Wis. 2d
492, ¶¶40-41. That fact was inconsequential. Instead, given the facts in Cross, it is
clear that Cross entered his plea without knowing the correct maximum statutory

20
No. 2022AP199-CR

penalty because the parties belatedly became aware of the issue.9 Yet, our supreme
court concluded “that Cross did understand the [potential punishment].” Cross, 326
Wis. 2d 492, ¶41; see also Finley, 370 Wis. 2d 402, ¶¶70, 73-74.

¶41 Therefore, under Cross, it is within constitutional boundaries that a
defendant may have an incorrect understanding of the maximum statutory penalty
and still enter his or her plea knowingly, intelligently, and voluntarily, as long as the
sentence communicated is higher, but not substantially higher, than that authorized
by law. See Cross, 326 Wis. 2d 492, ¶40.

¶42 Finally, Gomolla argues that our supreme court’s decision in Finley
“is a much closer analog to the case at hand.” In Finley, the defendant was informed
by the circuit court during the plea colloquy that the maximum statutory penalty was
nineteen years and six months, when the maximum was actually twenty-three years
and six months. Finley, 370 Wis. 2d 402, ¶8. The sentencing information was not
corrected, and Finley was subsequently sentenced to the maximum, which was more
time than he was told he would face. Id., ¶¶32-33.

¶43 By the time the case reached our supreme court (after remand and a
second appeal), the State had conceded that the circuit court erred and had
abandoned an argument that it satisfied its burden to prove that Finley knew the
potential punishment he faced when he entered his plea. Id., ¶9 & n.7, ¶53. Thus,
the focus of the case was “on the remedy”—either commutation of Finley’s sentence
or plea withdrawal—“for the circuit court’s misstatement of the potential
punishment if convicted, when Finley lacked knowledge of the potential

9
Cross’ defense counsel discovered the error after filing a motion for postconviction relief
based on the “changeover from Truth in Sentencing 1 guidelines … to Truth in Sentencing 2
guidelines.” Cross, 326 Wis. 2d 492, ¶11 & n.4. Accordingly, there is no possibility that Cross
was actually ever informed of the correct maximum statutory penalty prior to his plea.

21
No. 2022AP199-CR

punishment.” Id., ¶¶9-10. Under the circumstances of the case, the court held that
the appropriate remedy was to allow the defendant to withdraw his plea. Id., ¶95.
Gomolla explains that she seeks the same treatment here.

¶44 Finley is clearly distinguishable on its facts.10 Unlike in Gomolla’s
case, Finley was misinformed by the circuit court and on the plea questionnaire
about the potential maximum statutory penalty, and the sentence communicated to
Finley was lower, not higher, than the actual maximum statutory penalty. Id., ¶¶8,
28-29. Finley’s counsel also had no independent recollection of discussing the
maximum statutory penalty with him. Id., ¶47. Further, the circuit court in Finley
imposed the maximum statutory penalty, such that Finley was sentenced to more
incarceration than he had been aware he was facing. Id., ¶33. And, finally, the State
in Finley conceded on appeal that it failed to prove that Finley understood the
potential punishment. Id., ¶9 & n.7, ¶53. Therefore, we are not convinced that the
court’s conclusion in Finley requires any particular result here.

¶45 The final step in our analysis, then, is to determine “whether the
failure to withdraw the plea would otherwise result in a manifest injustice.”
See Pegeese, 387 Wis. 2d 119, ¶25 (citation omitted). “The ‘manifest injustice’ test
requires a defendant to show ‘a serious flaw in the fundamental integrity of the
plea.’” State v. Thomas, 2000 WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d 836
(citation omitted). Like in Cross, “[t]he only flaw [Gomolla] points to is that the
plea was made with a misunderstanding of the precise maximum sentence.”
See Cross, 326 Wis. 2d 492, ¶42. We, too, conclude that Gomolla’s

10
The Finley court also concluded that the facts of that case were “substantially different
from those in Cross.” Finley, 370 Wis. 2d 402, ¶74. That being said, the court did not overrule or
modify Cross’ holding. See Finley, 370 Wis. 2d 402, ¶95.

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No. 2022AP199-CR

misunderstanding is insufficient under the facts of this case to establish a manifest
injustice. See id.

¶46 Therefore, we affirm the circuit court’s order denying Gomolla’s
motion to withdraw her plea based on the court’s failure to address the potential
punishment during the plea colloquy and the fact that Gomolla was informed of a
higher, but not substantially higher, maximum statutory penalty. Gomolla’s plea
was entered knowingly, intelligently, and voluntarily.

By the Court.—Judgment amended and, as amended, affirmed; order
affirmed.

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