State Of Wis. v. Cross, No. 2009AP3-CR.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtMICHAEL J. GABLEMAN, J
Citation786 N.W.2d 64,2010 WI 70,326 Wis.2d 492
PartiesSTATE of Wisconsin, Plaintiff-Respondent,v.Travis Vondell CROSS, Defendant-Appellant.
Decision Date08 July 2010
Docket NumberNo. 2009AP3-CR.

326 Wis.2d 492
786 N.W.2d 64
2010 WI 70

STATE of Wisconsin, Plaintiff-Respondent,
v.
Travis Vondell CROSS, Defendant-Appellant.

No. 2009AP3-CR.

Supreme Court of Wisconsin.

Argued Dec. 1, 2009.
Decided July 8, 2010.


786 N.W.2d 65

COPYRIGHT MATERIAL OMITTED

786 N.W.2d 66
For the defendant-appellant there were briefs and oral argument by William E. Schmaal, assistant state public defender.

For the plaintiff-appellant the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
ON BYPASS FROM THE COURT OF APPEALS
MICHAEL J. GABLEMAN, J.

¶ 1 Travis Vondell Cross pled guilty to second degree sexual assault of a child, and was informed by the State, the circuit court, and his own attorney that this offense was punishable by 40 years imprisonment with a maximum initial confinement of 25 years. The circuit court imposed the maximum sentence. Cross later discovered that he should have been subject to a maximum of only 30 years imprisonment with 20 years initial confinement.

¶ 2 The circuit court denied Cross's postconviction motion requesting a plea withdrawal, but did grant his motion for resentencing, where Cross again received the maximum. Cross appealed, and the State petitioned this court for bypass pursuant to Wis. Stat. § (Rule) 809.60 (2007-08),1 which we granted.

¶ 3 The issue before us is whether Cross's plea was knowing, voluntary, and intelligent in spite of the fact that he was told an incorrect maximum potential sentence before entering his guilty plea.

¶ 4 We hold that where a defendant is told that he 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 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

786 N.W.2d 67
the defendant shows that it is necessary to correct a manifest injustice.

¶ 5 In this case, Cross was told he faced a maximum exposure of 25 years initial confinement with 15 years extended supervision, when the actual maximum was 20 years initial confinement with 10 years extended supervision. We conclude that Cross pled guilty under the belief that he faced a higher, but not substantially higher, maximum penalty. We hold that as a matter of law, Cross's plea was therefore made knowingly, voluntarily, and intelligently. Moreover, Cross 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. BACKGROUND

¶ 6 On December 8, 2005, Cross was charged with first degree sexual assault of a child contrary to Wis. Stat. § 948.02(1) (2001-02).2 The State alleged that Cross sexually assaulted his ten-year-old great-granddaughter in December 2002 and again in January 2003. At the arraignment, the circuit court informed Cross that the offense was a Class B felony, and that conviction could lead to a maximum sentence of 60 years.

¶ 7 On January 5, 2007, the State entered into a plea agreement with Cross. Cross agreed to plead guilty to a reduced charge of second degree sexual assault (a violation of Wis. Stat. § 948.02(2) (2001-02) 3), to have no contact with the child or her family, to register as a sex offender, to make necessary restitution, and to agree to lifetime supervision if he lived or worked in Wisconsin at any time in the future. In exchange, the State consented to the single, reduced charge and agreed to recommend a sentence of 24 months to be served concurrently with time he was already serving in Minnesota for similarly violating a minor family member.

¶ 8 At the plea hearing, counsel for Cross informed the circuit court that second degree sexual assault was a Class C felony and that the maximum total sentence was 40 years, consisting of a maximum initial imprisonment of 25 years followed by 15 years of extended supervision. An attachment to Cross's plea questionnaire and waiver of rights form, which he signed, also stated that the Class C felony carried a maximum sentence of 40 years with a maximum initial confinement in prison for 25 years. During Cross's plea colloquy, Judge Lundell repeated the same maximum punishments for a Class C felony (25 years maximum initial confinement plus 15 years of extended supervision). Judge Lundell also made clear that he would not be bound by “any agreement that the attorneys may have.” He then asked Cross if he understood that “in the end, I would make up my mind as to what's best for this case,” and that, “I'm not bound by any agreement.” To both inquiries, Cross replied, “Yes, sir.” After questioning Cross, Judge Lundell found that Cross “freely, voluntarily, and knowingly” waived his rights; he accepted Cross's guilty plea, and set a date for sentencing.

¶ 9 The sentencing hearing occurred on March 26, 2007. The court considered numerous victim impact statements filed in

786 N.W.2d 68
the case. According to those statements, Cross had molested or otherwise sexually assaulted many family members. The court called Cross's pattern of abuse “one of the saddest situations that I have come across.” Judge Lundell cited his almost two decades of judicial experience and years of prosecuting before his service on the bench and commented, “It is rare to have an individual your age have affected so many people in the same family.”

¶ 10 The court sternly admonished Cross, saying:

Frankly, I have no pity for you whatsoever. I think you should receive a serious sentence. I think that in and of
itself may help some of the misery you have caused, but it will never, of course, heal everything. The only way to deal with a person such as yourself who just-I can't comprehend why you did what you did, but I can deal with it. And my way of dealing with it is, frankly, never letting you out of prison until you die. That's how I deal with it. I don't want to give you any opportunity to molest anyone ever again in your family....
[W]hy bother trying to treat you? I don't think there's any hope for you. You have caused so much harm to your family that this is purely a punishment type case. I gave you, you know, for five seconds, I gave thought to rehabilitation of you. And I quickly dismissed that because, frankly, there's no need to rehabilitate you. For what you have done to your family, you deserve the worst. You deserve to be punished about as hard as I can punish you.

Ultimately, Judge Lundell disregarded the recommendation of the State and sentenced Cross to the maximum 25 years imprisonment followed by 15 years of extended supervision.

¶ 11 Cross moved for postconviction relief on multiple grounds, only one of which is relevant to us today.4 On the night before the hearing on his postconviction motion, Cross's attorney discovered that the offense occurred prior to the changeover from Truth in Sentencing 1 guidelines (“TIS-1”) to Truth in Sentencing 2 guidelines (“TIS-2”).5 Cross had been advised of and sentenced to the maximum according to the TIS-2 penalties, which classified his offense as a Class C felony with a 40-year maximum, including 25 years of initial confinement. Under the TIS-1 guidelines, the felony should have been treated as Class BC, which carries a maximum initial sentence of 20 years in prison followed by 10 years extended supervision, for a total of 30 years. Cross argued that because he was incorrectly advised of the penalties prior to his guilty plea, his plea was not knowing and intelligent and he was entitled to withdraw his plea.6

¶ 12 On March 24, 2008, the circuit court denied Cross's motion for withdrawal of his guilty plea, but did vacate the sentence and order resentencing. Cross was resentenced on July 23, 2008, this time under the correct TIS-1 guidelines. He was sentenced again to the maximum penalty allowed-20 years of initial confinement in prison followed by 10 years of extended supervision.

¶ 13 On December 26, 2008, Cross appealed the judgment of conviction and the denial of his motion for plea withdrawal. The State petitioned this court to bypass the court of appeals, which we granted.

II. STANDARD OF REVIEW

¶ 14 A plea 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. Brown, 2006 WI 100, ¶ 19, 293 Wis.2d 594, 716 N.W.2d 906. Whether a plea was entered knowingly, voluntarily, and intelligently presents 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.

III. DISCUSSION

¶ 15 This case raises a threshold question of how to analyze a claim for plea withdrawal when a defendant was informed that his maximum punishment was higher, but not substantially higher, than the law actually authorized. We address this question in Part A, concluding that this does not constitute a Bangert violation, and therefore, the burden is on the defendant in such situations to demonstrate that granting plea withdrawal is necessary to correct a manifest injustice. In Part B, we apply this analytical framework to the facts in the case at bar. We conclude that Cross is not entitled to withdraw his guilty plea.

A. Analytical Framework

¶ 16 Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, a defendant's guilty plea must be affirmatively shown to be knowing, voluntary, and intelligent. Brown, 293 Wis.2d...

To continue reading

Request your trial
43 practice notes
  • State v. Cain, No. 2010AP1599–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2012
    ...(citation omitted). In such cases, this court independently reviews the trial court's determination. See [816 N.W.2d 184]State v. Cross, 2010 WI 70, ¶ 14, 326 Wis.2d 492, 786 N.W.2d 64,cert. denied,562 U.S. ––––, 131 S.Ct. 1044, 178 L.Ed.2d 867 (2011).[342 Wis.2d 14]III. DISCUSSION ¶ 22 The......
  • State v. Lopez, No. 2011AP2733–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 7, 2014
    ...State v. Howell, 301 Wis.2d 350, ¶ 28, 734 N.W.2d 48. 25.State v. Brown, 2006 WI 100, 293 Wis.2d 594, 716 N.W.2d 906;State v. Cross, 2010 WI 70, 326 Wis.2d 492, 786 N.W.2d 64. 1. The majority also suggests that Lopez intentionally waited until after receiving the presentence investigation (......
  • State v. Taylor, No. 2011AP1030–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • April 23, 2013
    ...and will not be disturbed unless the defendant shows that it is necessary to correct a manifest injustice.” [347 Wis.2d 38]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 withdrawa......
  • State v. Chamblis, No. 2012AP2782–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 12, 2015
    ...23 L.Ed.2d 274 (1969), fundamental 362 Wis.2d 384due process requires that a plea be knowing, intelligent, and voluntary. State v. Cross, 2010 WI 70, ¶ 16, 326 Wis.2d 492, 786 N.W.2d 64. A defendant contemplating a guilty plea must possess “sufficient awareness of the relevant circumstances......
  • Request a trial to view additional results
43 cases
  • State v. Cain, No. 2010AP1599–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2012
    ...(citation omitted). In such cases, this court independently reviews the trial court's determination. See [816 N.W.2d 184]State v. Cross, 2010 WI 70, ¶ 14, 326 Wis.2d 492, 786 N.W.2d 64,cert. denied,562 U.S. ––––, 131 S.Ct. 1044, 178 L.Ed.2d 867 (2011).[342 Wis.2d 14]III. DISCUSSION ¶ 22 The......
  • State v. Lopez, No. 2011AP2733–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 7, 2014
    ...State v. Howell, 301 Wis.2d 350, ¶ 28, 734 N.W.2d 48. 25.State v. Brown, 2006 WI 100, 293 Wis.2d 594, 716 N.W.2d 906;State v. Cross, 2010 WI 70, 326 Wis.2d 492, 786 N.W.2d 64. 1. The majority also suggests that Lopez intentionally waited until after receiving the presentence investigation (......
  • State v. Taylor, No. 2011AP1030–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • April 23, 2013
    ...and will not be disturbed unless the defendant shows that it is necessary to correct a manifest injustice.” [347 Wis.2d 38]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 withdrawa......
  • State v. Chamblis, No. 2012AP2782–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 12, 2015
    ...23 L.Ed.2d 274 (1969), fundamental 362 Wis.2d 384due process requires that a plea be knowing, intelligent, and voluntary. State v. Cross, 2010 WI 70, ¶ 16, 326 Wis.2d 492, 786 N.W.2d 64. A defendant contemplating a guilty plea must possess “sufficient awareness of the relevant circumstances......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT