COURT OF APPEALS

DECISION

DATED AND FILED

January 14, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP1053-CR Cir. Ct. No. 2016CF2395

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MATTHEW CURTIS SILLS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee

County: JEFFREY A. WAGNER, Judge. Reversed and cause remanded with 

directions. 

Before Brash, P.J., Kessler and Dugan, JJ.

¶1 DUGAN, J. Matthew Curtis Sills appeals from the judgment of 

conviction, following his guilty plea to one count of second-degree sexual assault. 
No. 2018AP1053-CR

2

¶2 Sills argues that the trial court erred in denying his motion to 

withdraw his guilty plea prior to sentencing even though the evidence establishes 

that he was not advised of the maximum fine for the second-degree sexual assault 

charge and that he did not know that any fine could be imposed. We agree. 

Therefore, we reverse the judgment and remand with directions to allow Sills to 

withdraw his plea. 

BACKGROUND

¶3 On June 4, 2016, Sills was charged with one count of first-degree 

sexual assault of a child under the age of thirteen. The victim was Elizabeth.

1

 The

complaint stated that the maximum penalty for first-degree sexual assault of a 

child under the age of thirteen is a sixty-year term of imprisonment, without any 

mention of a fine. 

¶4 Pursuant to a plea agreement, the State filed an amended information

on August 23, 2016, charging Sills with second-degree sexual assault of a child 

under the age of sixteen. The amended information stated that the maximum 

penalty for second-degree sexual assault of a child under the age of sixteen is a

forty-year term of imprisonment, a $100,000 fine, or both.

¶5 On August 23, 2016, the trial court conducted a plea hearing during 

which it informed Sills that the penalty for second-degree sexual assault of a child 

under the age of sixteen is a maximum forty-year term of imprisonment. 

 

1

 We have adopted the pseudonym Elizabeth used by the State to protect the victim’s 

identity. 
No. 2018AP1053-CR

3

However, the trial court did not tell Sills that he also faced a maximum $100,000

fine, either alone or in addition to the maximum forty-year term of imprisonment.

2

 

¶6 Original trial counsel then advised the trial court that he believed 

that Sills was having a panic attack and asked the trial court to order a competency 

evaluation for Sills. The trial court granted the request for the competency 

evaluation. 

¶7 Subsequently, the examining psychologist, Dr. Deborah L. Collins, 

director of the Wisconsin Forensic Unit, filed a report of her evaluation of Sills 

indicating that he was competent to proceed to trial.3 Sills contested the finding

and the trial court presided over an October 24, 2016 competency hearing where 

Dr. Collins testified that Sills was competent to stand trial. She also testified that 

Sills had borderline intellectual functioning. At the close of the hearing, the trial 

court found that Sills was competent to proceed to trial. 

¶8 On January 30, 2017, the State filed a second amended information 

charging Sills with repeated sexual assault of a child, which had a maximum sixtyyear term of imprisonment with a mandatory minimum twenty-five-year term of 

 

2

 At the plea hearing, the trial court and original trial counsel referred to a plea 

questionnaire and waiver of rights form dated August 13, 2016. The appellate record does not 

include that document. 

Sills was represented by two attorneys in succession. We refer to Sills’ first trial counsel 

as original trial counsel and to Sills’ second trial counsel as successor trial counsel. 

3

 Dr. Collins reported that Sills had a “special educational assignment” in school due to a 

learning disability. She also stated that, although Sills finished high school, he was given a 

certificate of completion, not a high school diploma. She further stated that it would be 

“imperative that those who communicate with Mr. Sills about his case do so using terms and 

language commensurate with his ability” and that he would “likely require assistance reading any 

written documentation.” 
No. 2018AP1053-CR

4

confinement, but no fine; and incest with a child, which had a maximum fortyyear term of imprisonment, a $100,000 fine, or both. 

¶9 Pursuant to a plea agreement, the State withdrew the second 

amended information and, on February 3, 2017, the trial court conducted a plea 

hearing on the charge of second-degree sexual assault of a child. A plea 

questionnaire and waiver of rights form regarding the charge of second-degree 

sexual assault of a child was filed by original trial counsel on February 3, 2017. 

The form stated that the penalty for the charge was forty years in a Wisconsin state 

prison. The form did not state that the penalty included a maximum fine of 

$100,000 and that both the fine and the maximum term of imprisonment could be 

imposed upon Sills. 

¶10 During the plea colloquy, the trial court asked Sills, “So you 

understand what you’re charged with, sir, the [forty]-year felony?” Sills 

responded, “Yes, sir.” The trial court did not advise Sills of the fine that could be 

imposed. Sills then pled guilty to the charge and the trial court accepted the plea. 

¶11 On February 15, 2017, Sills filed a pro se motion to withdraw his 

guilty plea. In March 2017, Sills filed additional pro se motions for orders

allowing him to withdraw his guilty plea, claiming that original trial counsel lied 

to him and bullied him into taking the plea. Original trial counsel then filed a 

motion to withdraw from representing Sills and, on March 24, 2017, the trial court 

granted original trial counsel’s motion to withdraw as Sills’ attorney. Successor 

trial counsel was then appointed to represent Sills. 
No. 2018AP1053-CR

5

¶12 Successor trial counsel filed a Bangert4 motion on May 29, 2017, 

seeking an order allowing Sills to withdraw his guilty plea. The motion alleged 

that Sills “did not enter his guilty plea with a full understanding of the elements of 

the offense, the consequences of his plea, and the information being discussed by 

the court at the plea hearing.” The motion stated that Sills was confused about 

much of what was discussed at the plea hearing, including how the trial court was 

not bound by the parties’ plea negotiations, he was only a “little bit” sure of what 

the elements of the offense were, he only understood some things about what was 

being discussed at the hearing, he did not understand the legal definition of 

“sexual contact,” and that the trial court did not discuss with him the definition of 

“sexual contact” contained in WIS JI—CRIMINAL 2101A. The State agreed that an 

evidentiary hearing on the motion was necessary. 

¶13 On June 15, 2017, the trial court conducted an evidentiary hearing 

on Sills’ motion to withdraw his guilty plea. Both Sills and original trial counsel 

testified at the hearing. Sills testified that he wanted to withdraw his plea. He also 

testified that he completed high school with a special diploma because he was in 

special education classes due to a learning disability. He further testified that he 

had depression and schizophrenia for which he took medications and received

social security benefits. 

 

4

 See State v. Bangert, 131 Wis. 2d 246, 260-62, 389 N.W.2d 12 (1986) (summarizing a 

trial court’s duties at a plea hearing, which are designed to ensure that a defendant’s guilty or nocontest plea is knowing, intelligent, and voluntary). If the trial court fails to fulfill one of the 

duties, it is called a Bangert violation and a motion raising the alleged error is called a Bangert 

motion. State v. Cross, 2010 WI 70, ¶19, 326 Wis. 2d 492, 786 N.W.2d 64. 
No. 2018AP1053-CR

6

¶14 During cross-examination, successor trial counsel asked original trial 

counsel whether the plea questionnaire and waiver of rights form listed the 

maximum penalties for second-degree assault of a child, as follows: 

[Successor trial counsel]: Did you write out ... the 

maximum fine? 

[Original trial counsel]: Looks like I neglected to do that. 

[Successor trial counsel]: Is that something that was not 

explained to [Sills] by you? 

[Original trial counsel]: I don’t recall. 

¶15 Successor trial counsel then conducted redirect examination of Sills

and asked him whether he understood at the time he entered the plea that the 

maximum penalty for second-degree sexual assault of a child was forty years in 

prison. Sills responded, “Yes.” Successor trial counsel next asked Sills whether 

he understood that the maximum fine he faced for second-degree sexual assault 

was $100,000. Sills responded, “No.” Successor trial counsel then asked Sills 

whether the $100,000 fine was something that original trial counsel had discussed 

with him. Sills again responded, “No.” Successor trial counsel then asked Sills, 

“And that’s not something you saw in the plea [questionnaire and waiver of rights]

form when you signed it?” Sills responded, “No.” 

¶16 The trial court then asked, “Anything else[?]” The State and 

successor trial counsel responded, “No.” The trial court then made its ruling 

denying Sills’ motion to withdraw his plea, stating: 

[I]t appears after having the [c]ourt read the guilty plea 

questionnaire and waiver of rights form, and the fact that 

the instructions were in fact included as to the elements of 

the offense and including [sexual] contact ... I think it was 

February 3, 2017—it would appear that the [c]ourt went 

over completely what the elements were. Appropriate 

questions were in fact asked of the defendant, whether or 
No. 2018AP1053-CR

7

not he understood ... what the issues were. And when the 

[c]ourt—at times during the colloquy with the defendant, 

there were times when the [c]ourt ... went off the record, 

and the defense then had the opportunity to explain more 

based upon the questions that were being solicited by the 

[c]ourt. So there’s—there was time that was taken. It 

appeared that the answer[s] that the defendant was giving 

did appear to be somewhat [in]appropriate, but that was 

rectified by the [c]ourt going off the record and counsel 

discussing with him those issues. 

It does appear that the attorney had read the

complaint or the defendant had read it to him. That he

understood what the penalties were. That he understood his 

rights. He understood the discovery. What his options 

were in the case. 

The defendant doesn’t have any absolute right to 

withdraw his plea. And after having heard both the

defendant and [original trial counsel], the [c]ourt would 

conclude that there’s no absolute right to withdraw his plea. 

And there’s no adequate reason to withdraw his plea. And

there’s no fair and just reason to allow him to withdraw his 

plea. So the plea stands.

¶17 Successor trial counsel then asked the trial court to address whether 

Sills could withdraw his plea because he did not understand the maximum possible 

penalties for the crime to which he pled guilty. Successor trial counsel based his 

argument on original trial counsel’s testimony that he had not written the 

maximum fine for second-degree sexual assault of a child on the plea 

questionnaire and waiver of rights form and that he could not recall if he had 

discussed the $100,000 fine with Sills, Sills’ testimony that he did not understand 

that there was a maximum $100,000 fine for second-degree sexual assault of a 

child, and the fact that the trial court had not advised Sills of the $100,000 

maximum fine. 

¶18 The trial court responded, “Well, he understood what the complaint 

said. And within that complaint there’s the penalty provision.” Successor trial 

counsel then interjected, “It was an amended information. The original complaint 
No. 2018AP1053-CR

8

had a different charge.” The trial court then continued stating “Or the 

information.” It then stated: 

I’m not going to allow [Sills] to withdraw his plea 

because ... from the testimony and based upon the 

transcript, I believe that the plea was taken voluntarily and 

knowingly and intelligently. And there was a significant 

amount of time that [original trial] counsel went over that 

paperwork with the defendant, as did the [c]ourt. 

¶19 On July 19, 2017, the trial court sentenced Sills to nine years of 

initial confinement to be followed by six years of extended supervision. The 

judgment of conviction was entered on July 21, 2017. 

¶20 This appeal follows. 

DISCUSSION

¶21 The sole issue on appeal is whether the trial court erred in denying 

Sills’ motion to withdraw his guilty plea. Based on the record, which shows that a 

Bangert violation occurred during the plea hearing, we conclude that the trial 

court was required to allow Sills to withdraw his plea.5 

¶22 Sills argues that the trial court’s plea colloquy was deficient because 

it failed to advise him of the maximum fine for the second-degree sexual assault 

charge. He further states that he did not understand the maximum fine. Sills 

argues that this constitutes a Bangert violation and that the State failed to prove 

that he in fact knew about the maximum fine. He then contends that, as a matter 

of right, he is entitled to withdraw his plea. 

 

5

 The issue on appeal is whether Sills made a prima facie showing that the trial court 

committed a Bangert violation during the plea hearing. Sills does not argue that he alleged a 

“fair and just” reason to withdraw his plea prior to sentencing.
No. 2018AP1053-CR

9

I. Applicable law 

¶23 Bangert summarizes a trial court’s duties at a plea hearing, which 

are designed to ensure that a defendant’s guilty or no-contest plea is knowing, 

intelligent, and voluntary. See id., 131 Wis. 2d 246, 260-62, 389 N.W.2d 12 

(1986); see also State v. Brown, 2006 WI 100, ¶¶22, 34, 293 Wis. 2d 594, 716 

N.W.2d 906 (“reexamin[ing] the legal tenets fundamental to guilty pleas” and 

“restat[ing] and supplement[ing] the Bangert outline”). A plea may be 

involuntary because the defendant does not have a complete understanding of the 

charge. State v. Van Camp, 213 Wis. 2d 131, 139-40, 569 N.W.2d 577 (1997). 

WISCONSIN STAT. § 971.08(1)(a) (2017-18)6requires the trial court to “determine 

that the plea is made voluntarily with understanding of ... the potential punishment 

if convicted.” Bangert requires a trial court to establish that a defendant 

understands the nature of the crime with which he is charged and “the range of 

punishments to which he is subjecting himself by entering a plea”, and it must 

“[n]otify the defendant of the direct consequences of his plea[.]” Brown, 293 Wis. 

2d 594, ¶35. A fine is part of the range of punishments a defendant faces. See 

WIS. STAT. § 939.50(3); State v. Ramel, 2007 WI App 271, ¶15, 306 Wis. 2d 654, 

743 N.W.2d 502. 

¶24 When a defendant seeks to withdraw his or her plea based on a 

Bangert violation, the defendant must make a prima facie showing that the trial 

court did not comply with WIS. STAT. § 971.08 or other mandatory procedures. 

Bangert, 131 Wis. 2d at 274. If the defendant makes such a showing 

 

6

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2018AP1053-CR

10

and alleges that he in fact did not know or understand the 

information which should have been provided at the plea 

hearing, the burden will then shift to the [S]tate to show by 

clear and convincing evidence that the defendant’s plea was 

knowingly, voluntarily, and intelligently entered, despite 

the inadequacy of the record at the time of the plea’s 

acceptance.

Id. “The State may ‘rely on the totality of the evidence, much of which will be 

found outside the plea hearing record.’” See State v. Hoppe, 2009 WI 41, ¶47, 

317 Wis. 2d 161, 765 N.W.2d 794 (citation omitted). “The rule in Bangert and 

Brown is that if the State cannot meet its burden of proof, the defendant is entitled 

to withdraw his plea.” State v. Finley, 2016 WI 63, ¶94, 370 Wis. 2d 402, 882 

N.W.2d 761. “When 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.’” Brown, 293 Wis. 2d 594, ¶19 (citation 

omitted).

¶25 We will not upset the trial court’s findings of evidentiary or 

historical facts unless they are clearly erroneous. See State v. Turner, 136 Wis. 2d 

333, 343-44, 401 N.W.2d 827 (1987); see also WIS. STAT. § 805.17(2). 

II. The trial court breached its duties at the plea hearing

A. Sills did not forfeit his Bangert claim

¶26 The State argues that Sills did not move for relief under Bangert and 

therefore, forfeited that claim. However, the record refutes that contention. First, 

Sills’ motion to withdraw his plea that was filed by successor counsel cites 

Bangert. Further, at the evidentiary hearing on Sills’ plea withdrawal motion, 

Sills testified that he did not understand that the maximum fine he faced was 

$100,000. Sills’ testimony is consistent with the fact that the fine was not listed 
No. 2018AP1053-CR

11

on the plea questionnaire and waiver of rights form, and original trial counsel’s 

testimony that he did not recall whether he had told Sills about the fine. 

¶27 During the hearing on the motion to withdraw his plea, successor 

trial counsel questioned original trial counsel regarding the $100,000 fine and then 

recalled Sills to question him about his knowledge of the $100,000 fine. The State 

did not object to either examination. See State v. Goodrum, 152 Wis. 2d 540, 549, 

449 N.W.2d 41 (Ct. App. 1989) (stating that failure to object during questioning 

results in forfeiture of alleged improprieties in questioning).7 

¶28 Finally, successor trial counsel explicitly asked the trial court to rule 

that Sills’ lack of understanding required plea withdrawal: “So [Sills] didn’t 

understand the maximum possibilities. And I believe that’s another basis to allow 

him to withdraw his plea.” The State raised no objection to successor trial 

counsel’s request for that ruling. See id. (stating that failure to object to alleged 

improprieties in closing argument results in forfeiture of that alleged error). The 

trial court then denied the motion to withdraw the plea. 

¶29 We conclude that Sills sufficiently raised the issue of plea 

withdrawal based on his claimed Bangert violation because he was not advised of 

the maximum possible penalty for second-degree sexual assault of a child, which 

included the possible maximum fine of $100,000, in addition to the forty-year 

term of confinement.

 

7

 Forfeiture of the right to appellate review occurs by the failure to object. See State v. 

Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612 (discussing the difference between 

the legal concepts of forfeiture versus waiver). The word “waives” is used in State v. Goodrum,

152 Wis. 2d 540, 549, 449 N.W.2d 41 (Ct. App. 1989). However, the more accurate term in this 

context is forfeiture. See Ndina, 315 Wis. 2d 653, ¶¶29-30. 
No. 2018AP1053-CR

12

B. The record does not show that Sills was ever informed 

of or knew about a possible fine

¶30 Sills argues that the trial court’s failure to advise him of the 

maximum fine for the charge of second-degree sexual assault of a child under the 

age of sixteen, together with his own testimony that he did not understand the 

maximum fine, constitutes a Bangert violation which entitles him to withdraw his 

plea because he did not knowingly, voluntarily, and intelligently enter his plea. 

¶31 Here, the trial court discussed the consequences of entering a plea to 

second-degree sexual assault of a child under sixteen with Sills on two different 

occasions—August 23, 2016, and February 3, 2017. Both times the trial court 

failed to advise Sills that, in addition to a prison term, the offense carried a 

maximum $100,000 fine. The State did not correct the trial court’s error on either 

occasion. The fine was also omitted from the plea questionnaire and waiver of 

rights form. 

¶32 At the evidentiary hearing on Sills’ plea withdrawal motion, Sills 

testified that he did not understand that the maximum fine he faced was $100,000. 

Sills’ testimony is consistent with the fact that the fine was not listed on the plea 

questionnaire and waiver of rights form and original trial counsel’s testimony that 

he did not recall whether he had told Sills about the fine. 

¶33 We conclude that the record shows that Sills was never informed of 

and did not know about a possible fine.

C. The issue on appeal is a Bangert violation—not whether Sills 

had a fair and just reason to withdraw his plea 

¶34 The State analyzes Sills’ request to withdraw his plea under a fair 

and just reason standard applicable to a motion to withdraw a plea prior to 
No. 2018AP1053-CR

13

sentencing. In support of its argument, the State cites to State v. Jenkins, 2007 

WI 96, ¶43, 303 Wis. 2d 157, 736 N.W.2d 24.8 

¶35 Although the State correctly summarizes the standard for a motion to 

withdraw a plea prior to sentencing, that standard does not apply in this case. Sills 

seeks to withdraw his plea based upon a Bangert violation. He does not allege 

that he asserted a fair and just reason that would allow him to withdraw his plea 

prior to sentencing. Jenkins did not involve a Bangert violation. Bangert, not 

Jenkins, sets forth the standard of review and the procedures to be followed when 

there is an alleged violation of a court’s statutory or other mandatory duties when 

taking a defendant’s plea. 

¶36 As noted above, pursuant to Bangert, a defendant must make a 

prima facie showing that the trial court did not comply with WIS. STAT. § 971.08 

or other mandatory procedures, and must allege that he or she did not know or 

 

8

 The State further argues that, if we conclude that the trial court erroneously exercised 

its discretion in denying Sills’ motion to withdraw the plea, we should remand this matter to the 

trial court for a “retrospective” hearing so that the State has a chance to present evidence that it 

would be prejudiced if Sills was allowed to withdraw his plea. 

The State also argues that, although Sills previously filed a pro se motion for an order 

allowing him to withdraw his plea because his attorney coerced him, he abandoned that claim and 

we do not have to address it. The State further argues that the motion filed by successor trial 

counsel sought an order allowing Sills to withdraw his plea because Sills did not understand the 

term “sexual contact” in the context of the crime of second-degree sexual assault of a child, but 

that, because on appeal Sills does not argue that as a basis for withdrawing his plea, he has also 

abandoned that claim. 

Sills’ appeal is limited to the trial court’s ruling regarding his request to withdraw his 

plea based on the trial court’s failure to advise him that in pleading guilty to second-degree sexual 

assault of a child, the trial court could impose a maximum $100,000, in addition to ordering his 

confinement for a maximum term of forty years. Therefore, Sills is deemed to have abandoned 

the other grounds raised in his motions to withdraw his plea. See A.O. Smith Corp. v. 

Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998).
No. 2018AP1053-CR

14

understand the information that should have been provided at the plea hearing. 

Bangert, 131 Wis. 2d at 274. There is no requirement that a defendant allege that 

the error in the plea colloquy effected his or her decision to plea. If the defendant 

makes the required showing

and alleges that he in fact did not know or understand the 

information which should have been provided at the plea 

hearing, the burden will then shift to the [S]tate to show by 

clear and convincing evidence that the defendant’s plea was 

knowingly, voluntarily, and intelligently entered, despite 

the inadequacy of the record at the time of the plea’s 

acceptance.

Id. “The rule in Bangert and Brown is that if the State cannot meet its burden of 

proof, the defendant is entitled to withdraw his plea.” Finley, 370 Wis. 2d 402, 

¶94. As explained in Brown, “[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.’” Id., 293 Wis. 2d 594, ¶19

(citation omitted). Further, in Brown, the court stated “[u]nder our rules, a 

defendant can wait until he knows his sentence before he moves to withdraw his 

plea, and he may not be disadvantaged by this delay as long as he is able to point 

to a deficiency in the plea colloquy.” Id. ¶38.9

¶37 Thus the question, here, is whether Sills must be permitted to 

withdraw his plea under the Bangert standard. The sole focus is whether his plea 

was knowingly, intelligently, and voluntarily entered. If his plea was not so 

entered, Sills is absolutely entitled to withdraw his plea:

 

9

 In State v. Brown, our supreme court explained that “[t]hus, only the court, with the 

assistance of the district attorney, can prevent potential sandbagging by a defendant by engaging 

the defendant at the plea colloquy and making a complete record.” See id., 2006 WI 100, ¶38, 

293 Wis. 2d 594, 716 N.W.2d 906.
No. 2018AP1053-CR

15

A defendant must ordinarily show a manifest injustice in 

order to be entitled to withdraw a guilty or no contest 

plea.... When a defendant establishes a denial of a relevant 

constitutional right, withdrawal of the plea is a matter of 

right. The trial court reviewing the motion to withdraw has 

no discretion in the matter in such an instance. 

See Van Camp, 213 Wis. 2d at 153 (citing Bangert, 131 Wis. 2d at 283; emphasis 

added).

¶38 The situation here is analogous to the situation in Finley, 370 

Wis. 2d 402, ¶¶92-94, where the defendant’s plea colloquy was deficient and the 

defendant made a prima facie showing of a Bangert violation. As in Finley, the 

trial court misinformed Sills of the potential punishment he faced if convicted—

information that the trial court was required to give him. See id., ¶95. The State 

had the opportunity to prove Sills’ knowledge of the information set forth in WIS.

STAT. § 971.08 and the case law. See Finley, 370 Wis. 2d 402, ¶¶92, 94. 

However, the State did not present any evidence and it does not argue on appeal 

that the record shows that Sills had knowledge of the fine. “A defendant’s lack of 

understanding of the potential punishment when he or she enters a guilty or no 

contest plea is relevant for determining whether the plea was entered knowingly, 

intelligently, and voluntarily.” Id., ¶94. “The rule in Bangert and Brown is that if 

the State cannot meet its burden of proof, the defendant is entitled to withdraw his 

plea as a matter of right.” Finley, 370 Wis. 2d 402, ¶94. 

CONCLUSION

¶39 Based on the record before this court, Sills established that the trial 

court’s plea colloquy was deficient because it failed to advise Sills of the 

maximum fine for the charge and that he did not know about any fine, let alone the 

maximum $100,000 fine. Therefore, the withdrawal of Sills’ plea was a matter of 
No. 2018AP1053-CR

16

right and the trial court had no discretion to refuse to grant Sills’ motion to 

withdraw his plea.10 The trial court erred as a matter of law when it denied Sills’

motion to withdraw his plea. We reverse the judgment and remand to the trial 

court with directions to permit Sills to withdraw his plea. 

By the Court.—Judgment reversed and cause remanded with 

directions. 

Not recommended for publication in the official reports. 

 

10

 As noted, the State alternatively requests that we remand this matter to the trial court 

for a retrospective hearing so that it has a chance to present evidence that it would be prejudiced 

if Sills was allowed to withdraw his plea. Whether the State is prejudiced when a defendant is 

allowed to withdraw his or her plea is relevant under the “fair and just” standard—it is not 

relevant under the Bangert plea withdrawal standard. When a defendant establishes a Bangert 

violation, the trial court reviewing the motion to withdraw has no discretion in the matter and 

withdrawal of the plea is a matter of right. Thus, we deny the State’s request.