State v. Taylor, 2011AP1030–CR.

• Decision Date: 23 April 2013
• Docket Number: No. 2011AP1030–CR.,2011AP1030–CR.
• Citation: 2013 WI 34,347 Wis.2d 30,829 N.W.2d 482
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Gerald D. TAYLOR, Defendant–Appellant.
• Court: Wisconsin Supreme Court

347 Wis.2d 30

829 N.W.2d 482

2013 WI 34

STATE of Wisconsin, Plaintiff–Respondent,

v.Gerald D. TAYLOR, Defendant–Appellant.

No. 2011AP1030–CR.

Supreme Court of Wisconsin.

Argued Sept. 6, 2012.

Decided April 23, 2013.

For the defendant-appellant-petitioner, there were briefs and oral argument by Andrew R. Hinkel, assistant state public defender.

For the plaintiff-respondent, the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

ANNETTE KINGSLAND ZIEGLER, J.

[347 Wis.2d 35]¶ 1 This appeal is before the court on certification by the court of appeals, pursuant to Wis. Stat. § 809.61 (2009–10).¹ The defendant, Gerald Taylor (Taylor), pled no contest to charges of uttering a forgery as a repeater. The penalty Taylor faced for uttering a forgery was “a fine not to exceed $10,000 or imprisonment not to exceed 6 years, or both.” Wis. Stat. § 939.50(3)(h). Additionally, because Taylor was a repeat offender, his maximum term of imprisonment could “be increased by not more than 2 years if the prior convictions were for misdemeanors.” ²Wis. Stat. § 939.62(1)(b). Therefore, Taylor faced a maximum term of imprisonment of eight years.

¶ 2 Specifically, at the plea hearing, the circuit court informed Taylor that it “could impose the maximum penalty here of a $10,000 fine or six years in prison or both.” Though the court mentioned the repeater allegation several times, it did not explicitly inform Taylor during the plea colloquy that he faced an additional two-year penalty because of the repeater allegation for a maximum term of imprisonment of eight years.

¶ 3 Thereafter, the circuit court sentenced Taylor to a six-year term of imprisonment for uttering a forgery as a repeater. Subsequently, Taylor filed a motion for postconviction relief pursuant to Wis. Stat. § 809.30(2)(h). Taylor moved to withdraw his no contest plea, arguing that it was not entered knowingly, intelligently, and voluntarily.

¶ 4 The circuit court denied Taylor's motion without requiring the State to prove, at a Bangert hearing, that Taylor entered his plea knowingly, intelligently, and voluntarily.³ The court stated that since Taylor was informed that he faced a six-year term of imprisonment and he received a six-year term of imprisonment, any error was “harmless.”

¶ 5 Taylor appealed the circuit court's denial of his motion to withdraw his no contest plea. Taylor argued that it was improper for the circuit court to find that its error was “harmless,” and that a plea that is not entered knowingly, intelligently, and voluntarily is harmful under State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986).

¶ 6 The court of appeals certified Taylor's appeal to this court. It noted that “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.”

¶ 7 We granted the court of appeals' certification and now affirm the judgment of the circuit court.

¶ 8 We hold that the defendant's plea was entered knowingly, intelligently, and voluntarily when the record makes clear that the defendant knew the maximum penalty that could be imposed and was verbally informed at the plea hearing of the penalty that he received. Therefore, the circuit court did not err by denying Taylor's postconviction motion to withdraw his no contest plea.

¶ 9 Further, plea withdrawal “remains in the discretion of the circuit court and will not be disturbed unless the defendant shows that it is necessary to correct a manifest injustice.” 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 withdrawal of his plea is necessary to correct a manifest injustice. Accordingly, the judgment and order of the circuit court is affirmed.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 10 On January 2, 2009, at an M&I Bank in Appleton, Wisconsin, Taylor attemptedto cash check number 4627, which was drawn on the account of Finished Touch Inc. and was made payable to Gerald Dwayne Taylor. The teller at the bank had previously been alerted that someone named Gerald Taylor had passed counterfeit checks at an M&I Bank in Green Bay, Wisconsin. The teller delayed Taylor, giving Sgt. Michael Daul of the Appleton Police Department time to arrive. Taylor acknowledged that he had been the one attempting to cash the check and claimed that he had done subcontracting work for Finished Touch Inc. Officer Daul contacted James Smith of Finished Touch Inc. Smith indicated that he was the person in charge of writing all the checks for Finished Touch Inc., that he did not recall writing a check to Taylor, that he did not have any employees or subcontractors named Taylor, and that he still had check number 4627 in his book.

¶ 11 On May 8, 2009, the State filed a criminal complaint charging Taylor with uttering a forgery as a repeater, in violation of Wis. Stat. §§ 943.38(2), ⁴[347 Wis.2d 39]939.50(3)(h),⁵ and 939.62(1)(b).⁶ The complaint stated that upon conviction, Taylor “may be fined not more than Ten Thousand Dollars ($10,000), or imprisoned not more than six (6) years, or both.” The complaint also alleged that “because the defendant is a repeater, having been convicted of at least three misdemeanors, which conviction(s) remain of record and unreversed, the maximum term of imprisonment ... may be increased by not more than 2 years.” The complaint listed Taylor's prior convictions, including two disorderly conducts, resisting or obstructing an officer, and criminal damage to property. At Taylor's bail hearing on August 20, 2009, the court asked Taylor's attorney, Michael Dally, if he wanted the complaint read. Attorney Dally responded that the “Court does not have to read the complaint. It does charge uttering a forged instrument as a repeat offender. Priors appear to be for misdemeanors.” Taylor appeared in person at the bail hearing.

¶ 12 Taylor waived his right to a preliminary hearing on November 24, 2009. At the waiver hearing, the court asked Taylor: “Were you able to read over the criminal complaint in this case to see what they say you did?” Taylor responded “Yeah.” The court confirmed “So you could understand that?” Taylor responded “Yeah.”

¶ 13 On December 1, 2009, the State filed an information which stated that upon conviction for uttering a forgery, Taylor may be “imprisoned not more than six (6) years.” Further, because Taylor is a repeat offender, the term of imprisonment “may be increased by not more than 2 years if the prior convictions were for misdemeanors.”

¶ 14 At Taylor's arraignment on January 25, 2010, the court asked Taylor's attorney, “Mr. Dally, have you received a copy of the information?” Taylor's attorney responded, “We have Judge. It's a charge of uttering with the repeater enhanced and alleged as well.”

¶ 15 Pursuant to plea negotiations, Taylor agreed to plead no contest to the charge of uttering a forgery as a repeater, and in return, the State would recommend, inter alia, three years of probation. On August 23, 2010, Taylor completed a Plea Questionnaire/Waiver of Rights form. In the “understandings” section, Taylor acknowledged that he understood the judge was “not bound by any plea agreement or recommendations and may impose the maximum penalty.” Taylor's maximum penalty was handwritten on the form: “8 yrs prison/$10,000 fine or both.” Taylor signed the form, acknowledging that he “reviewed and understand[s] this entire document and any attachments. I have reviewed it with my attorney (if represented). I have answered all questions truthfully and either I or my attorney have checked the boxes. I am asking the court to accept my plea and find me guilty.” Taylor's attorney also signed the form and acknowledged that he had “discussed this document and any attachments with the defendant. I believe the defendant understands it and the plea agreement. The defendant is making this plea freely, voluntarily, and intelligently.”

¶ 16 At the plea hearing held on August 23, 2010, the same day Taylor filled out the plea questionnaire form, the court mentioned the repeater several times and confirmed that Taylor had read and understood the complaint and plea questionnaire form:

THE COURT: Then how does your client wish to plead to this one count of felony uttering a forgery?

ATTORNEY DALLY: No contest, Judge.

THE COURT: And that is with the repeater still, is it?

ATTORNEY DALLY: It is. There were several prior misdemeanor convictions.

....

THE COURT: How do you wish to plead to this forgery, a felony as a repeater?

THE DEFENDANT: Plead no contest, Your Honor.

THE COURT: You did go over a plea questionnaire form with Mr. Dally, did you?

THE DEFENDANT: Yes, I did.

THE COURT: When you did that, did you understand all the information in these documents?

THE DEFENDANT: Yes.

....

THE COURT: Were you able to read over the criminal complaint in this case and understand what it says?

THE DEFENDANT: Yes.

THE COURT: And how about the plea questionnaire, when you went over that, were you able to understand all that?

THE DEFENDANT: Yes.

....

THE COURT: And when you went over the plea questionnaire form with him, did you believe he understood that information?

ATTORNEY DALLY: He seemed to. I believe he did.

THE COURT: Therefore, do you believe that he's freely, voluntarily, and understandingly entering his plea today?

ATTORNEY DALLY: Yes.

The court asked Taylor if he understood that it was not bound by any agreements or recommendations. Taylor acknowledged that he understood. The court then stated: “I could impose the maximum penaltyhere of a $10,000 fine or six years in prison or both if I thought that's what was necessary. Do you understand that?” Taylor said “Yes, I do.” At the plea hearing, however, the circuit court did not expressly inform Taylor that because of the...