State v. Dillard
| Decision Date | 26 November 2014 |
| Docket Number | No. 2012AP2044–CR.,2012AP2044–CR. |
| Citation | 859 N.W.2d 44,358 Wis.2d 543 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Myron C. DILLARD, Defendant–Appellant. |
| Court | Wisconsin Supreme Court |
358 Wis.2d 543
859 N.W.2d 44
STATE of Wisconsin, Plaintiff–Respondent–Petitioner
v.
Myron C. DILLARD, Defendant–Appellant.
No. 2012AP2044–CR.
Supreme Court of Wisconsin.
Argued Sept. 4, 2014.
Decided Nov. 26, 2014.
For the plaintiff-respondent-petitioner, the cause was argued by Katherine D. Lloyd, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, there was a brief and oral argument by Donna L. Hintze, assistant state public defender.
Opinion
SHIRLEY S. ABRAHAMSON, C.J.
Myron C. Dillard, the defendant, was convicted of armed robbery and sentenced to 25 years of confinement and 15 years of extended supervision after a negotiated plea agreement. The circuit court for Winnebago County, Scott C. Woldt, Judge, denied the defendant's postconviction motion to withdraw his no-contest plea. The court of appeals reversed the judgment of conviction and the circuit court's order denying the defendant's postconviction motion. We now review the decision of the court of appeals.1
¶ 2 Two issues of law are presented:
¶ 3 The first issue is whether, under the totality of the circumstances, the defendant has the right as a matter of law to withdraw his no-contest plea on the ground that it was not entered knowingly, intelligently, and voluntarily. The basis for the defendant's challenge to his plea is that when he was deciding whether to accept the State's plea offer or go to trial, the State, the court, and the defendant's trial counsel mistakenly advised the defendant that he was facing a mandatory sentence of life in prison without the possibility of extended supervision.
¶ 4 The second issue is whether, under the totality of the circumstances, the defendant has the right as a matter of law to withdraw his no-contest plea on the ground that he has demonstrated ineffective assistance of counsel. The alleged ineffective assistance of counsel is that defendant's trial counsel mistakenly advised the defendant that he was facing a mandatory sentence of life in prison without the possibility of extended supervision if he did not accept the State's plea offer.
The error of law in the instant case, which permeated the entire proceeding and which is the basis of the defendant's claims, was the State's erroneous attachment of a persistent repeater enhancer to the armed robbery charge.
¶ 6 If the defendant had been convicted of armed robbery under the persistent repeater statute, he would have faced a mandatory sentence of life in prison without the possibility of extended supervision. It is undisputed that the defendant did not meet the criteria for being a persistent repeater. The error did not come to light until after sentencing. Thus, the State, the court, the defendant's trial counsel, and the defendant proceeded under the mistaken belief that the persistent repeater
enhancer applied to the defendant and that he therefore could have faced a mandatory life sentence if he did not accept the State's offer and enter a plea.
¶ 7 The circuit court denied the defendant's postconviction motion to withdraw his no-contest plea, holding that the plea was knowing, intelligent, and voluntary and that the defendant did not receive ineffective assistance of counsel.
¶ 8 The court of appeals reversed the judgment of conviction and the circuit court's order denying the defendant's postconviction motion to withdraw his no-contest plea. It remanded the matter to the circuit court to allow the defendant to withdraw his plea. The court of appeals concluded that the defendant's plea was not knowing, intelligent, and voluntary and that the defendant received ineffective assistance of counsel.
¶ 9 With regard to the first issue, we conclude that the defendant has proved that the no-contest plea was not knowing, intelligent, and voluntary and thus that the matter should be remanded to the circuit court to allow the defendant to withdraw his no-contest plea.
Although the matter is resolved on the first issue, we also address the second issue. We conclude that the defendant has proved that he received ineffective assistance of trial counsel and thus that the matter should be remanded to the circuit court to allow the defendant to withdraw his no-contest plea.
¶ 11 Accordingly, the decision of the court of appeals is affirmed.
I
¶ 12 For purposes of this review, the following facts and procedural history are not in dispute.
¶ 13 This case arises out of an armed robbery that took place in December 2009 in Menasha, Wisconsin. The victim was sitting in her car in a shopping center parking lot when a man opened the passenger-side door and entered her vehicle. He put a gun up to the victim's arm and told her to begin driving. He also told the victim to hand over her cash, which she did. The man directed the victim to pull the car over near some apartments. He then informed her he would exit the vehicle. He instructed her to count to 30 after he exited and then to drive away.
¶ 14 The victim cooperated with law enforcement to identify the man who robbed her. First, she helped investigators develop a composite sketch of the man. The defendant was on probation at the time of the robbery. His probation agent thought the composite sketch resembled the defendant. However, when the victim was provided with a photo array that included a photo of the defendant, she did not recognize him as the robber.
¶ 15 Several months later, the victim saw a photograph of the defendant while looking through an online sex offender database. This photograph was the
same one the victim had viewed in the photo array. The victim contacted the police and said she believed the defendant was the man who robbed her.
¶ 16 The defendant was arrested and charged with two counts: armed robbery in violation of Wis. Stat. § 943.32(2) (2011–12),2 with a persistent repeater enhancer pursuant to Wis. Stat. § 939.62, and false imprisonment in violation of Wis. Stat. § 940.30, with a repeater enhancer pursuant to Wis. Stat. § 939.62.
¶ 17 Had the defendant been convicted of armed robbery as a persistent repeater, he would have faced a mandatory sentence of life in prison without the possibility of extended supervision.
¶ 18 Had the defendant been convicted of armed robbery and of false imprisonment as a repeater, without the persistent repeater enhancer erroneously attached to the armed robbery charge, he would have faced a maximum sentence of 32 years of confinement and 18 years of extended supervision.
¶ 19 The State offered a plea agreement in which the persistent repeater enhancer was dropped, as was the false imprisonment charge. The defendant agreed to plead to the charge of armed robbery without any penalty enhancer.
¶ 20 The plea colloquy in the present case correctly informed the defendant of the penalty for armed robbery without a penalty enhancer.
¶ 21 Adhering to the plea agreement, the prosecutor recommended a sentence of eight years' initial confinement with an open term of extended supervision. A presentence investigation report (PSI) recommended
a sentence of 10 to 11 years of confinement and five to six years of extended supervision.
¶ 22 The plea agreement permitted the defendant to argue for a more lenient sentence. The defendant's trial counsel urged the circuit court to impose a sentence of five years' initial confinement to run consecutive to a sentence the defendant was then serving. Trial counsel further requested “a lengthy term of extended supervision.”
¶ 23 The circuit court sentenced the defendant to a bifurcated sentence of 25 years of initial confinement and 15 years of extended supervision.
¶ 24 Again, the error of law pervading these proceedings was the attachment of the persistent repeater enhancer to the armed robbery charge against the defendant.
¶ 25 From the defendant's initial appearance through sentencing, the court, the prosecuting attorney, and the defendant's trial counsel all advised the defendant that he was subject to the persistent repeater enhancer.
¶ 26 At the defendant's initial appearance, prior to the appointment of defense counsel, the court commissioner twice informed the defendant that the criminal complaint alleged that he is a persistent repeater subject to life imprisonment without the possibility of parole.3 The court commissioner stated and then restated:
The Court: It is alleged in Count 1 of the criminal Complaint that you've committed the offense of armed robbery. It is alleged that you would be a persistent repeater as that term is defined under the Wisconsin State Statutes, that would therefore subject you, if convicted on the persistent repeater, of...
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