Withdrawing a Plea After Sentencing

Withdrawing a plea after sentencing has always been difficult, but it is all but impossible, with the exception of the recent case of State v. Taylor , 2013 WI 34 (April 23, 2013), where the Wisconsin Supreme Court ruled that a defendant is not entitled to withdraw his plea after sentencing, even if the trial court erred during the plea colloquy. Under previous law, the defendant was entitled to withdraw the plea if he or she could show an error occurred during the plea and that because of the error, the defendant was not aware of all direct consequences of the plea. This has been the law in Wisconsin for over 20 years.

However, in Taylor, the Wisconsin Supreme Court applied the harmless err doctrine and argued that even though there was a mistake made during the plea hearing, the defendant was not entitled to withdraw his plea as the circuit court reasoned the error was harmless.

This will make it much more difficult for individuals after sentencing to withdraw their plea. Even if there is an error made during the plea discussion between the circuit court and the defendant, it will be difficult for the client to prove that his or her plea should be withdrawn, even if there was an error.

This is especially true, as during the hearings, the government can bring forth extraneous evidence to show — notwithstanding the error — the defendant knew what the maximum sentence was or the rights being given up. In the Taylor case, it was a misstatement of the possible penalties that could have been received upon conviction. Although the trial court did not utilize the excessive amount of penalties that could have been imposed, it is clear the trial court erred in informing the defendant as to the maximum sentence that could have been imposed. It was shown in Taylor that although the circuit court made an error in citing the maximum sentence, extraneous evidence proved that the defendant was aware of the possible penalties, even though the trial court did not utilize the maximum penalty and simply used the penalty that the circuit court made aware to the defendant.

I think it's clear that had the circuit court gone beyond the six years it informed the defendant was the maximum and actually cited the eight-year maximum, the results would have been different. The dissent in Taylor was very critical of the majority. The dissent simply focused on the fact that the defendant in that case was not subject to six years, but to eight years. Because of the error, the defendant should have been allowed to withdraw his plea, even though he received six years and not eight years.

This puts into flux exactly what a defendant must prove to withdraw a plea after sentencing. It is always key to remember that attempting to withdraw a plea after sentencing is much more difficult than to withdraw a plea before sentencing. The courts do not take a very positive view of a defendant who did not receive what he or she felt should be received and then wants to withdraw the plea after sentencing. It is always an uphill battle but, under Taylor, a defendant's ability to withdraw a plea after sentencing is much more difficult and often impossible. Special care must be taken to ensure that clients understand exactly the maximum penalty and all elements of the offense when entering a plea. If an individual is considering withdrawing a plea, it should be done prior to sentencing, as it is a much easier battle.

Bucher Law Group, LLC, is well-versed in plea withdrawal, whether before or after sentencing. While Taylor makes it much more difficult to withdraw a plea, it does not deem such action impossible. We are available to assist any client who wishes to withdraw his or her plea.

If you have questions or need advice on this important issue, please do not hesitate to contact us at Bucher Law Group, LLC.