State v. Finley

• Decision Date: 12 July 2016
• Docket Number: No. 2014AP2488–CR.,2014AP2488–CR.
• Citation: 370 Wis.2d 402,882 N.W.2d 761
• Parties: STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Timothy L. FINLEY, Jr., Defendant–Appellant.
• Court: Wisconsin Supreme Court

370 Wis.2d 402

882 N.W.2d 761

STATE of Wisconsin, Plaintiff–Respondent–Petitioner,

v.Timothy L. FINLEY, Jr., Defendant–Appellant.

No. 2014AP2488–CR.

Supreme Court of Wisconsin.

Argued April 7, 2016.

Decided July 12, 2016.

For the plaintiff-respondent-petitioner, the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the briefs was Brad D. Schimel, attorney general.

For the defendant-appellant, there was a brief by Catherine R. Malchow, assistant state public defender, and oral argument by Catherine R. Malchow.

SHIRLEY S. ABRAHAMSON, J.

¶ 1 This is a review of a published decision of the court of appeals, State v. Finley, 2015 WI App 79, 365 Wis.2d 275, 872 N.W.2d 344. The court of appeals reversed a judgment and order of the Circuit Court for Brown County, William M. Atkinson, Judge, and remanded the cause to the circuit court with directions to permit the defendant, Timothy L. Finley, Jr., to withdraw his plea of no contest to first- degree recklessly endangering safety as domestic abuse.

¶ 2 The court of appeals ordered the remedy of plea withdrawal, relying on the remedy set forth in State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986), for cases in which a circuit court fails to comply with Wis. Stat. § 971.08(1) (2011–12) or other mandatory duties at a plea colloquy and the defendant does not knowingly, intelligently, and voluntarily enter his or her plea.¹

¶ 3 Wisconsin Stat. § 971.08(1)(a) provides that before the circuit court accepts a plea of guilty or no contest, it shall, among other things, “address 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. ” Wis. Stat. § 971.08(1)(a) (emphasis added).²

¶ 4 This case involves felonies. Throughout this opinion, we use the statutory phrase “potential punishment” to describe the felony sentencing information a circuit court is required to impart to a defendant under the statute and case law. The phrase “potential punishment” has not been defined in the statutes or the case law. In 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 lieu of the statutory phrase “potential punishment.” “Range of punishments,” “potential punishment,” and “maximum statutory penalty” are used synonymously in the cases.³

The case law also uses other phrases to mean “potential punishment.”⁴

¶ 5 Wisconsin Stat. § 939.50(3) sets forth the maximum statutory penalty for felonies.⁵ Other statutes add enhancements to the penalties specified in Wis. Stat. § 939.50(3). For example, there are enhancements for repeat offenses, domestic abuse offenses, and offenses committed with the use of a dangerous weapon. See, e.g., Wis. Stat. §§ 939.62, 939.621, 939.63.

¶ 6 This opinion uses the phrase “maximum statutory penalty” interchangeably with the statutory phrase “potential punishment.” We do so because, as already explained, our cases refer to the “maximum statutory penalty” (or similar phrase) in describing potential punishment. Furthermore, the issue in the instant case is the remedy when the circuit court misstates the potential punishment by telling the defendant an incorrect maximum statutory penalty for his offense.

¶ 7 Before we continue, we note that circuit courts, the court of appeals, and this court have not used consistent terminology in discussing the duty of circuit courts to advise a defendant of the potential punishment before accepting a plea. We have therefore appended a glossary of terms to assist the reader and the courts in using and understanding the correct terminology. Throughout our opinion, terms that are included in the glossary are identified by an asterisk to call attention to their meaning, a meaning that may not be obvious to the reader.⁶ The glossary includes references to statutes and case law that should be consulted for further and more precise information.

¶ 8 The “potential punishment,” that is, the maximum statutory penalty Finley faced in entering his plea, is 23 years, 6 months' imprisonment.^* The circuit court advised Finley during the plea colloquy accepting Finley's no contest plea that the potential punishment was confinement ^* in prison for 19 years, 6 months rather than imprisonment ^* for 23 years, 6 months. Nowhere in the circuit court record was this misinformation corrected. Thus, the circuit court misstated the potential punishment if Finley were convicted.

¶ 9 The issue presented in the instant case does not focus on whether the circuit court erred during the plea colloquy by misstating the potential punishment. The State concedes that the circuit court erred.⁷ Instead, the focus in the instant case is on the remedy for the circuit court's misstatement of the potential punishment if convicted, when Finley lacked knowledge of the potential punishment. Thus, we are reviewing the plea colloquy in the instant case in a unique posture—we are asked to decide what remedy should be provided in the circumstances of the instant case.

¶ 10 The State's petition for review and the parties' briefs state the issue of the remedy as follows: When a defendant who pleads guilty or no contest is misinformed that the maximum statutory penalty is lower than the maximum actually allowed by law, and the sentence imposed is more than the defendant was told he could get, can the defect be remedied by reducing the sentence to the maximum the defendant was informed and believed he could receive instead of letting the defendant withdraw his plea?⁸

¶ 11 This court has advised circuit courts of the importance of discharging the statutorily and judicially mandated requisites of the plea colloquy: “The faithful discharge of these duties is the best way we know for courts to demonstrate the critical importance of pleas in our system of justice and to avoid constitutional problems.”⁹

¶ 12 A violation of Wis. Stat. § 971.08(1)(a) may have constitutional ramifications.¹⁰ A defendant's understanding of the potential punishment if convicted is relevant for determining whether the plea was knowingly, intentionally, and voluntarily entered.¹¹ “The United States Constitution sets forth the standard that a guilty or no contest plea must be affirmatively shown to be knowing, intelligent, and voluntary.”¹²

¶ 13 The court has declared that “[w]hen a guilty plea is not knowing, intelligent, and voluntary, a defendant is entitled to withdraw the plea as a matter of right because such a plea ‘violates fundamental due process.’ ”¹³

¶ 14 The State argues that Finley entered his plea knowingly, intelligently, and voluntarily in the constitutional sense because his sentence was ultimately reduced (commuted)¹⁴ to the maximum penalty of which he was advised. The State is proposing a novel interpretation of the due process requirement that a plea be entered knowingly, intelligently, and voluntarily, without support in the United States Supreme Court's case law.

¶ 15 The following exchange at oral argument is instructive regarding the State's position in the instant case and the focus of the parties and this court on the remedy for the circuit court's misstatement to Finley:

State: And I want—and as long as you're bringing that up, I made this absolutely clear in my petition for review, I made this absolutely clear in my brief, ... we are not contesting Finley's assertion that his plea was not ... entered with an understanding of the correct maximum penalty.

Justice Ziegler: That's the question, why are you conceding that?.... Counsel that's really the question that's behind these questions, if I'm reading my colleagues correctly.... I'm just asking why you're conceding that. That's really what's behind their questions I think. Why are you making that concession?

State: Because the evidence—and I want to make clear what we are conceding, that's my whole point—I am not ... conceding that this plea was not knowingly entered, I am absolutely not conceding that. That's my entire argument, that it was knowingly entered. What I am conceding is that the defendant did not know the correct maximum penalty when he pleaded guilty.

Justice Ziegler: Well, how can you knowingly, intelligently, and voluntarily plead if you don't know the penalty to which you plead?

State: You can do it if you know the penalty that you actually get, and that is the whole point of my argument. If you are told that you can get a certain penalty ... and understand that you can get that penalty when you plead guilty, and you in fact wind up getting that penalty that you know you could get when you plead guilty, your plea is in fact knowing in the constitutional sense. Now there's an error, no question about that, and we're conceding this, there is an error, he was misadvised of the correct maximum penalty, but that error was harmless. It was harmless because he did not get the actual maximum.

¶ 16 In addressing the remedy for the circuit court's misstating the potential punishment Finley faced if convicted, Finley relies on Bangert, “a timeless primer on the foundation principles of the plea colloquy,”¹⁵ and State v. Brown, 2006 WI 100, ¶¶ 22, 34, 293 Wis.2d 594, 716 N.W.2d 906, which “reexamine[d] the legal tenets fundamental to guilty pleas” and “restate [d] and supplement[ed] the Bangert outline.”

¶ 17 Bangert and Brown are the seminal cases analyzing the requirements for plea colloquies set forth in Wis. Stat. § 971.08(1) and the case law, as well as the remedy when a defendant entered his plea not knowing the information (here the potential punishment) that circuit courts are required to impart to a defendant.

¶ 18 Finley argues that under Bangert and Brown his failure to know the potential punishment if convicted (after the State was given the opportunity to prove at an evidentiary...