State v. Sutton, 2005AP1693-CR.

• Decision Date: 17 May 2006
• Docket Number: No. 2005AP1694-CR.,No. 2005AP1693-CR.,2005AP1693-CR.,2005AP1694-CR.
• Citation: 718 N.W.2d 146,2006 WI App 118
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Wayne A. SUTTON, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: Wisconsin Court of Appeals

718 N.W.2d 146

2006 WI App 118

STATE of Wisconsin, Plaintiff-Respondent, v. Wayne A. SUTTON, Defendant-Appellant.^†

No. 2005AP1693-CR.

No. 2005AP1694-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs January 19, 2006.

Opinion Filed May 17, 2006.

COPYRIGHT MATERIAL OMITTED

On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, Assistant State Public Defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and William C. Wolford, Assistant Attorney General.

Before SNYDER, P.J., NETTESHEIM and ANDERSON, JJ.

¶ 1 SNYDER, P.J

Wayne A. Sutton appeals from judgments of conviction and subsequent orders denying postconviction relief. He contends that his plea was not knowingly, intelligently, and voluntarily made because he was not advised of the potential punishment for his crimes. Sutton asserts that WIS. STAT. § 971.08(1)(a) (2003-04),¹ which directs a court to advise a defendant of "the potential punishment if convicted" prior to accepting a plea of guilty or no contest, requires a court to advise the defendant of the maximum term of initial confinement associated with a bifurcated sentence under Wisconsin's truth-in-sentencing law (TIS). This is a case of first impression, requiring us to apply State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986), under TIS.² Sutton also contends that there was no sufficient factual basis for the charge of first-degree recklessly endangering safety and thus the circuit court erred when it accepted his plea to that charge. We hold that there was a sufficient factual basis in the record to support the conviction, and we further hold that the circuit court properly informed Sutton of "the potential punishment" when it advised him of the maximum term of imprisonment. We therefore affirm the judgments and orders of the circuit court.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 This appeal stems from consolidated cases against Sutton, the first charging him with felony battery and misdemeanor bail jumping, and the second charging him with his fifth offense of operating a motor vehicle with a prohibited alcohol concentration (PAC), felony bail jumping, and a second offense of operating a motor vehicle after revocation. By plea agreement, the State amended the felony battery charge to first-degree reckless endangerment and agreed to dismiss and read in the misdemeanor bail jumping charge in exchange for Sutton's plea of guilty or no contest. The State also agreed to dismiss and read in the felony bail jumping and operating after revocation charges in exchange for a plea of guilty or no contest to the fifth offense of PAC. Consequently, Sutton pled to a Class D felony, first-degree reckless endangerment under WIS. STAT. § 941.30(1) (2001-02), and a Class H felony, a fifth PAC offense under WIS. STAT. §§ 346.63(1)(b) and 346.65(2)(e).³

¶ 3 Both convictions are subject to bifurcated sentences under Wisconsin's TIS.⁴ The Class D felony under TIS-I is punishable by a fine and an overall sentence of not more than ten years' imprisonment, of which the term of initial confinement may not exceed five years. WIS. STAT. §§ 939.50(3)(c) and 973.01(2)(b)4. (1999-2000). The Class H felony under TIS-II is punishable by a fine and an overall sentence of not less than six months nor more than six years' imprisonment, of which the term of initial confinement may not exceed three years. WIS. STAT. §§ 346.65(2)(e), 939.50(3)(h), 973.01(2)(b)8.

¶ 4 During the plea colloquy regarding the reckless endangerment charge, the circuit court advised Sutton that the penalty for the Class D felony reckless endangerment included a "maximum penalty of $10,000 or ten years imprisonment or both." Regarding the PAC charge, the court stated, "If you are convicted of that offense, sir, which would be your 5th offense for an OWI-related incident, that would be a Class H felony, and ... you would be looking at a fine of between $600 and $10,000 and imprisonment for between six months and six years." The court also advised Sutton of the maximum term of imprisonment for the charges that were dismissed but read in under the plea agreement. The court later advised Sutton that it would not have to follow the sentencing recommendations of either party and could impose the "maximum that the law allows," including "ten years in prison" for first-degree reckless endangerment and "six years in prison" for the PAC offense.

¶ 5 With regard to the conviction for recklessly endangering safety, the circuit court imposed an eight-year sentence, with three years of initial confinement and five years of extended supervision. The court imposed a four-year sentence in connection with the PAC conviction, ordering fourteen months of initial confinement in prison and thirty-four months of extended supervision. The court ordered the sentences to be served consecutively.

¶ 6 Sutton moved for postconviction relief, arguing that his pleas were not knowingly, intelligently, and voluntarily entered with respect to the potential punishment. Sutton also contended that there was no factual basis for the amended charge of first-degree reckless endangerment. The circuit court denied Sutton's motion, holding that the plea colloquy met the requirements of Bangert. Sutton appeals.

DISCUSSION

¶ 7 Sutton presents two issues for our review. First, we must determine whether the circuit court complied with the mandate of WIS. STAT. § 971.08(1)(a), which requires that a defendant be informed of the potential punishment he or she faces if convicted. It is well established that a criminal defendant must enter a plea of guilty or no contest knowingly, intelligently, and voluntarily. State v. Bollig, 2000 WI 6, ¶15, 232 Wis.2d 561, 605 N.W.2d 199. When a defendant is not aware of the potential punishment, the plea is not entered knowingly, intelligently, and voluntarily, and the result is a manifest injustice. State ex rel. Warren v. Schwarz, 219 Wis.2d 615, 635-36, 579 N.W.2d 698 (1998).

¶ 8 Second, we must determine whether the circuit court complied with WIS. STAT. § 971.08(1)(b), which requires a court to "[m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged." Unless it was clearly erroneous, we will uphold the circuit court's determination that there existed a sufficient factual basis to accept the plea. State v. Harrington, 181 Wis.2d 985, 989, 512 N.W.2d 261 (Ct.App.1994).

Potential Penalty Under TIS

¶ 9 The circuit court's duty when accepting a plea of guilty or no contest is codified in WIS. STAT. § 971.08 and further developed in Bangert. Our specific focus is on the statutory language requiring the circuit court to determine that the defendant understands "the potential punishment if convicted," and the Bangert standard requiring a court to "establish the accused's understanding of ... the range of punishments" associated with the crime charged. Bangert, 131 Wis.2d at 261-62, 389 N.W.2d 12.

¶ 10 Sutton asserts that when a defendant, who is subject to a bifurcated sentence under TIS, is advised of a maximum term of imprisonment without being advised of the maximum term of initial confinement, the result is coercive because the term "imprisonment" connotes confinement.⁵ Sutton was told that his maximum penalty included "ten years' imprisonment" on the reckless endangerment charge and "imprisonment for between six months and six years" on the PAC charge. As he understood it, Sutton faced up to sixteen years in prison on these two charges. The statutes, however, dictate a maximum of five years' initial confinement and three years' initial confinement respectively. WIS. STAT. §§ 973.01(2)(b)4 (1999-2000) and 973.01(2)(b)8. Had he been advised of the maximum terms of initial confinement, Sutton implies, he may have weighed differently his decision to plead guilty or no contest.

¶ 11 Making a defendant aware of the potential punishment generally means that a defendant must be aware of the direct consequences of his or her plea. See State v. Byrge, 2000 WI 101, ¶60, 237 Wis.2d 197, 614 N.W.2d 477. A direct consequence of a plea has "a definite, immediate and largely automatic effect on the range of a defendant's punishment." Id., ¶¶ 60-61, 614 N.W.2d 477. However, the circuit court need not inform a defendant of collateral consequences of a plea. Id., ¶ 61, 614 N.W.2d 477. "The distinction between direct and collateral consequences essentially recognizes that it would be unreasonable and impractical to require a circuit court to be cognizant of every conceivable consequence before the court accepts a plea." Id., ¶ 61, 614 N.W.2d 477.

¶ 12 Sutton argues that the maximum term of initial confinement is a direct consequence of a plea and the circuit court had an obligation to include that information in the colloquy. Sutton turns to Byrge for support. There, the circuit court sentenced Byrge to life imprisonment for first-degree intentional homicide and set a parole eligibility date of July 2, 2095, noting that Byrge would be 120 years old at that time. Id., ¶¶21, 56, 614 N.W.2d 477. The State maintained that the circuit court's power to set the parole eligibility date represents only a collateral consequence of the plea, and therefore WIS. STAT. § 971.08(1)(a) did not obligate the circuit court to notify Byrge that it would exercise its option to set parole eligibility. See Byrge, 237 Wis.2d 197, ¶ 62, 614 N.W.2d 477. The Byrge court rejected the State's position, holding:

[A] different set of considerations arises in the limited circumstances in which a sentencing court itself sets the parole eligibility date. If a circuit court elects to exercise the statutory option set forth in WIS. STAT. § 973.014(2), as it did in this case, the parole eligibility date links automatically to the period of incarceration, which in turn has a direct and automatic effect on the range of punishment. At...