State v. Gerald D. Taylor

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Appeal No. 2011AP1030-CR Cir. Ct. No. 2009CF330
WISCONSIN COURT OF APPEALS

DISTRICT Il
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT, FILED
V. FEB 09, 2012
GERALD D. TAYLOR, Autiog Cork of
Suprene Court
DEFENDANT-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Vergeront, Sherman and Blanchard, JJ.

Gerald Taylor appeals a criminal conviction and an order denying
his postconviction motion to withdraw his plea on the grounds that the tial court
failed to inform him during the plea colloquy—and he failed to understand—that
he faced an increased penalty due to a repeater allegation. The sole issue on
appeal is whether the tial court propery employed the harmless error doctrine to
deny the defendant's plea withdrawal motion without a hearing. As we explain
below, we believe that existing case law suggests two different approaches to
resolving this issue, each leading to a different result. Specifically, 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. Accordingly, we certify the appeal in this

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case to the Wisconsin Supreme Court for its review and determination pursuant to
WIS. STAT. RULE 809.61 (2009-10).1
BACKGROUND
The facts relevant to the determination of this appeal are undisputed.
Taylor was charged with one count of uttering a forgery, as a repeat offender.
Uttering a forgery is a Class H felony, punishable by up to three years of initial
confinement and three years of extended supervision. WIS. STAT. §§ 943.38(2),
939.50(3)(h) and 973.01. The repeater allegation increases the potential initial
confinement to five years, making the total potential imprisonment eight years.
WIS. STAT. § 939.62(1)(b).
Taylor agreed to enter a plea to the charge in exchange for a
probation recommendation by the State. At the plea hearing, the circuit court
erroneously informed Taylor that the maximum sentence he faced was six years,
without mentioning the sentence enhancer. The court ultimately sentenced Taylor
to three years of initial confinement and three years of extended supervision.
Taylor moved to withdraw his plea, alleging it had not been
knowingly, voluntarily, and intelligently entered because the court misinformed
Taylor about the maximum sentence he faced with a repeater allegation, and he
did not in fact understand the actual enhanced penalty. The circuit court denied
the motion without an evidentiary hearing, ruling that any error in failing to advise
Taylor about the potential increased penalty for habitual criminality prior to the
1 All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
noted.

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entry of his plea was harmless because the court did not actually apply the
sentence enhancer.
DISCUSSION
The standard methodology for evaluating a plea withdrawal request
premised upon an inadequate plea colloquy was established in State v. Bangert,
131 Wis. 2d 246, 389 N.W.2d 12 (1986). When a defendant makes a prima facie
showing that the court failed to comply with WIS. STAT. § 971.08(1) or some other
mandated duty to provide the defendant with information necessary to evaluate
whether to enter a plea, and the defendant further alleges a failure to understand
the information that should have been provided, the defendant is entitled to an
evidentiary hearing at which the State bears the burden of showing that the plea
was nonetheless knowingly, voluntarily, and intelligently given. Id. at 274-75.
This burden-shifting procedure for deficient plea colloquies is an exception to the
general rule wherein a defendant bears the burden of both alleging sufficient facts
to warrant a hearing and then establishing a manifest injustice by clear and
convincing evidence in order to withdraw a plea. See State v. Krieger, 163
Wis. 2d 241, 250-51, 471 N.W.2d 599 (Ct. App. 1991). Two recent cases address
the application of Bangert to situations in which a defendant claimed to have been
misinformed about the potential penalty he faced.
In Brown, a defendant attempted to withdraw his pleas to multiple
charges based in part on the trial court’s failure to inform him that the sentences
for the multiple counts could be imposed consecutively. State v. Brown, 2006 WI
100, ¶78, 293 Wis. 2d 594, 716 N.W.2d 906. The Wisconsin Supreme Court held
that the omission did not constitute a violation of the court’s mandatory duty under
WIS. STAT. § 971.08(1) to inform the defendant of the punishment he faced if

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convicted on each count, since it should be self-evident to a defendant facing
multiple charges that there could be multiple punishments. Id. The court went on
to observe that, even if the court were required to inform a defendant that
sentences on multiple charges could be imposed consecutively, such an error
would be harmless in the case before it because the defendant’s “total sentence did
not reach the maximum on even one of the [counts].”
In Cross, a defendant attempted to withdraw his plea on the grounds
that the trial court had erroneously informed him that he faced twenty-five years of
initial incarceration and ten years of extended supervision, when the actual
maximum potential penalty for the crime of conviction was only twenty years of
initial incarceration and ten years of extended supervision. State v. Cross, 2010
WI 70, ¶5, 326 Wis. 2d 492, 786 N.W.2d 64. The Wisconsin Supreme Court held
that the trial court did not violate its mandatory duty under WIS. STAT. § 971.08(1)
and Bangert to inform the defendant of the potential punishment he faced, since
the erroneously overstated penalty was not “substantially higher” than the penalty
actually authorized by law. Id., ¶¶4-5, 38. Among other factors, the court
considered that a defendant who is erroneously informed that he is subject to a
greater punishment is necessarily aware that he is subject to a lesser punishment;
that other jurisdictions have rejected the proposition that a failure to understand
the precise maximum punishment is a per se due process violation; and that
federal rules apply a harmless error rule to such alleged violations. Id., ¶¶31-36.
The court noted, however, 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 (emphasis added).
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

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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.
Accordingly, we believe there is a threshold issue requiring
clarification as to whether and under what circumstances the harmless error
doctrine can be applied to a plea withdrawal motion premised on the trial court
having advised a defendant that the maximum sentence was lower than it actually
was. Assuming that the harmless error doctrine can properly be applied to a plea
withdrawal motion prior to holding an evidentiary hearing, the question then
becomes whether the failure to advise a defendant about a charged penalty
enhancer constitutes a Bangert violation, and if so, whether that error becomes
harmless if the court does not actually impose an enhanced sentence. See
generally State v. Harris, 119 Wis. 2d 612, 350 N.W.2d 633 (1984) (stating that
being a repeater is not a crime; it is a status that renders the defendant eligible for
an increased penalty and only applies after the maximum penalty on the
underlying crime has been imposed).

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The application of the harmless error doctrine to Bangert violations
is an issue that appears likely to recur,2 and is plainly of statewide importance to
parties, victims, and the courts. We believe that the Wisconsin Supreme Court is
in the best position to harmonize Brown and Cross and give direction as to the
proper analysis to employ in these circumstances. See generally Wisconsin Pub.
Serv. Corp. v. Public Serv. Comm’n of Wis., 176 Wis. 2d 955, 958 n.1, 501
N.W.2d 36 (1993) (Abrahamson, J., concurring) (noting that it is appropriate to
certify to the supreme court appeals raising issues which that body might
otherwise ultimately consider on a petition for review, in order to reduce the
burden and expense of the appellate process on both the parties and the judicial
system). Accordingly, we hereby certify the appeal.
2 For example, we note that another district of this court has recently had occasion to
consider whether a court’s failure to advise a defendant that the court would not be bound by any
plea agreement could be deemed harmless error. See State v. Johnson, No. 2011AP348-CR
(Jan. 24, 2012), recommended for publication.

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