2014 WI 123

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP2044-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Myron C. Dillard,

 Defendant-Appellant.

REVIEW OF A COURT OF APPEALS DECISION

Reported at 350 Wis. 2d 331, 838 N.W.2d 112

(Ct. App. 2013 – Published)

PDC No.: 2013 WI 108

OPINION FILED: November 26, 2014

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 4, 2014

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Winnebago

JUDGE: Scott C. Woldt

JUSTICES:

CONCURRED:

DISSENTED: ROGGENSACK, PROSSER, ZIEGLER, JJJ., dissent. 

(Opinion filed.)

NOT PARTICIPATING: 

ATTORNEYS:

For the plaintiff-respondent-petitioner, the cause was 

argued by Katherine D. Lloyd, assistant attorney general, with 

whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant, there was a brief and oral 

argument by Donna L. Hintze, assistant state public defender. 
2014 WI 123

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP2044-CR

(L.C. No. 2011CF157)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Myron C. Dillard,

 Defendant-Appellant.

FILED

NOV 26, 2014

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 SHIRLEY S. ABRAHAMSON, C.J. Myron C. Dillard, the 

defendant, was convicted of armed robbery and sentenced to 25

years of confinement and 15 years of extended supervision after 

a negotiated plea agreement. The circuit court for Winnebago 

County, Scott C. Woldt, Judge, denied the defendant's 

postconviction motion to withdraw his no-contest plea. The 

court of appeals reversed the judgment of conviction and the 
No. 2012AP2044-CR 

2

circuit court's order denying the defendant's postconviction 

motion. We now review the decision of the court of appeals.1

¶2 Two issues of law are presented:

¶3 The first issue is whether, under the totality of the 

circumstances, the defendant has the right as a matter of law to 

withdraw his no-contest plea on the ground that it was not 

entered knowingly, intelligently, and voluntarily. The basis 

for the defendant's challenge to his plea is that when he was 

deciding whether to accept the State's plea offer or go to 

trial, the State, the court, and the defendant's trial counsel 

mistakenly advised the defendant that he was facing a mandatory 

sentence of life in prison without the possibility of extended 

supervision.

¶4 The second issue is whether, under the totality of the 

circumstances, the defendant has the right as a matter of law to 

withdraw his no-contest plea on the ground that he has 

demonstrated ineffective assistance of counsel. The alleged 

ineffective assistance of counsel is that defendant's trial

counsel mistakenly advised the defendant that he was facing a 

mandatory sentence of life in prison without the possibility of 

extended supervision if he did not accept the State's plea 

offer.

¶5 The error of law in the instant case, which permeated 

the entire proceeding and which is the basis of the defendant's 

 

1 State v. Dillard, 2013 WI App 108, 350 Wis. 2d 331, 838 

N.W.2d 112.
No. 2012AP2044-CR 

3

claims, was the State's erroneous attachment of a persistent 

repeater enhancer to the armed robbery charge. 

¶6 If the defendant had been convicted of armed robbery 

under the persistent repeater statute, he would have faced a 

mandatory sentence of life in prison without the possibility of 

extended supervision. It is undisputed that the defendant did 

not meet the criteria for being a persistent repeater. The 

error did not come to light until after sentencing. Thus, the 

State, the court, the defendant's trial counsel, and the 

defendant proceeded under the mistaken belief that the 

persistent repeater enhancer applied to the defendant and that 

he therefore could have faced a mandatory life sentence if he 

did not accept the State's offer and enter a plea.

¶7 The circuit court denied the defendant's 

postconviction motion to withdraw his no-contest plea, holding 

that the plea was knowing, intelligent, and voluntary and that 

the defendant did not receive ineffective assistance of counsel.

¶8 The court of appeals reversed the judgment of 

conviction and the circuit court's order denying the defendant's 

postconviction motion to withdraw his no-contest plea. It 

remanded the matter to the circuit court to allow the defendant 

to withdraw his plea. The court of appeals concluded that the 

defendant's plea was not knowing, intelligent, and voluntary and 

that the defendant received ineffective assistance of counsel.

¶9 With regard to the first issue, we conclude that the 

defendant has proved that the no-contest plea was not knowing, 

intelligent, and voluntary and thus that the matter should be 
No. 2012AP2044-CR 

4

remanded to the circuit court to allow the defendant to withdraw 

his no-contest plea.

¶10 Although the matter is resolved on the first issue, we 

also address the second issue. We conclude that the defendant

has proved that he received ineffective assistance of trial 

counsel and thus that the matter should be remanded to the 

circuit court to allow the defendant to withdraw his no-contest

plea. 

¶11 Accordingly, the decision of the court of appeals is 

affirmed.

I

¶12 For purposes of this review, the following facts and 

procedural history are not in dispute.

¶13 This case arises out of an armed robbery that took 

place in December 2009 in Menasha, Wisconsin. The victim was 

sitting in her car in a shopping center parking lot when a man 

opened the passenger-side door and entered her vehicle. He put 

a gun up to the victim's arm and told her to begin driving. He 

also told the victim to hand over her cash, which she did. The 

man directed the victim to pull the car over near some 

apartments. He then informed her he would exit the vehicle. He

instructed her to count to 30 after he exited and then to drive 

away. 

¶14 The victim cooperated with law enforcement to identify 

the man who robbed her. First, she helped investigators develop 

a composite sketch of the man. The defendant was on probation 

at the time of the robbery. His probation agent thought the 
No. 2012AP2044-CR 

5

composite sketch resembled the defendant. However, when the 

victim was provided with a photo array that included a photo of 

the defendant, she did not recognize him as the robber.

¶15 Several months later, the victim saw a photograph of 

the defendant while looking through an online sex offender 

database. This photograph was the same one the victim had 

viewed in the photo array. The victim contacted the police and 

said she believed the defendant was the man who robbed her.

¶16 The defendant was arrested and charged with two 

counts: armed robbery in violation of Wis. Stat. § 943.32(2)

(2011-12),

2 with a persistent repeater enhancer pursuant to Wis. 

Stat. § 939.62, and false imprisonment in violation of Wis. 

Stat. § 940.30, with a repeater enhancer pursuant to Wis. Stat. 

§ 939.62.

¶17 Had the defendant been convicted of armed robbery as a 

persistent repeater, he would have faced a mandatory sentence of 

life in prison without the possibility of extended supervision.

¶18 Had the defendant been convicted of armed robbery and 

of false imprisonment as a repeater, without the persistent 

repeater enhancer erroneously attached to the armed robbery 

charge, he would have faced a maximum sentence of 32 years of 

confinement and 18 years of extended supervision.

¶19 The State offered a plea agreement in which the 

persistent repeater enhancer was dropped, as was the false 

 

2 All references to the Wisconsin Statutes are to the 2011-

12 version unless otherwise noted.
No. 2012AP2044-CR 

6

imprisonment charge. The defendant agreed to plead to the 

charge of armed robbery without any penalty enhancer.

¶20 The plea colloquy in the present case correctly 

informed the defendant of the penalty for armed robbery without 

a penalty enhancer. 

¶21 Adhering to the plea agreement, the prosecutor 

recommended a sentence of eight years' initial confinement with 

an open term of extended supervision. A presentence 

investigation report (PSI) recommended a sentence of 10 to 11

years of confinement and five to six years of extended 

supervision.

¶22 The plea agreement permitted the defendant to argue 

for a more lenient sentence. The defendant's trial counsel 

urged the circuit court to impose a sentence of five years' 

initial confinement to run consecutive to a sentence the 

defendant was then serving. Trial counsel further requested "a 

lengthy term of extended supervision."

¶23 The circuit court sentenced the defendant to a 

bifurcated sentence of 25 years of initial confinement and 15

years of extended supervision.

¶24 Again, the error of law pervading these proceedings 

was the attachment of the persistent repeater enhancer to the 

armed robbery charge against the defendant. 

¶25 From the defendant's initial appearance through 

sentencing, the court, the prosecuting attorney, and the 

defendant's trial counsel all advised the defendant that he was 

subject to the persistent repeater enhancer. 
No. 2012AP2044-CR 

7

¶26 At the defendant's initial appearance, prior to the 

appointment of defense counsel, the court commissioner twice 

informed the defendant that the criminal complaint alleged that 

he is a persistent repeater subject to life imprisonment without 

the possibility of parole.3 The court commissioner stated and 

then restated:

The Court: It is alleged in Count 1 of the criminal 

Complaint that you've committed the offense of armed 

robbery. It is alleged that you would be a persistent 

repeater as that term is defined under the Wisconsin 

State Statutes, that would therefore subject you, if 

convicted on the persistent repeater, of life 

imprisonment without the possibility of parole. 

¶27 At the preliminary hearing, the court commissioner 

again referenced the persistent repeater enhancer, telling the 

defendant that "there is the persistent repeater enhancer on 

Count 1 so there is significant incarceration and penalties 

involved in regards to this case." Neither the prosecuting 

attorney nor the defendant's trial counsel corrected this 

mistake of law. 

¶28 At sentencing, after the persistent repeater enhancer 

had been dismissed by the State and only the armed robbery 

charge remained, the circuit court referenced the mandatory life 

sentence the defendant would have faced if convicted of armed 

robbery as a persistent repeater. 

 

3 See Wis. Stat. § 757.69 (stating the powers of court 

commissioners).
No. 2012AP2044-CR 

8

¶29 The prosecutor misinformed the court and the defendant 

that the defendant was subject to the persistent repeater 

enhancer. 

¶30 At the initial appearance, in requesting a $100,000 

cash bond, the prosecutor noted that the defendant "qualifies as 

a persistent repeater. If he gets convicted of Count 1 that's 

life without parole."

¶31 On March 21, 2011, after the preliminary examination, 

the State filed an information that included the persistent 

repeater enhancer. 

¶32 As we explain more fully later, the defendant's trial 

counsel advised the defendant that he was subject to the 

persistent repeater enhancer and therefore faced mandatory life 

imprisonment without extended supervision. Trial counsel based 

her advice to the defendant about accepting the plea agreement 

on this mistaken view of the law. 

¶33 That the persistent repeater enhancer was an error of 

law, that is, a legal impossibility, did not come to light until 

after sentencing.

II

¶34 We first address whether, under the totality of the 

circumstances, the defendant has the right as a matter of law to

withdraw his no-contest plea on the ground that it was not 

entered knowingly, intelligently, and voluntarily. The basis 

for the defendant's challenge to his plea is that when he was 

deciding whether to accept the State's plea offer or go to 

trial, the State, the court, and the defendant's trial counsel 
No. 2012AP2044-CR 

9

mistakenly advised the defendant that he was facing a mandatory 

sentence of life in prison without the possibility of extended 

supervision. 

¶35 We agree with the court of appeals that "the 

fundamental error of law [about the applicability of the 

persistent repeater enhancer to the defendant] that pervaded the 

plea negotiations and sentencing" rendered the defendant's plea 

unknowing, unintelligent, and involuntary.4

¶36 The applicable standard of review is as follows: To 

withdraw a guilty plea after sentencing, a defendant must show 

by clear and convincing evidence that a refusal to allow 

withdrawal of the plea would result in manifest injustice, that 

is, that there are "serious questions affecting the fundamental 

integrity of the plea."

5 The defendant has the burden to 

establish manifest injustice.6

 

4 Dillard, 350 Wis. 2d 331, ¶21.

5 State v. Denk, 2008 WI 130, ¶71, 315 Wis. 2d 5, 758 

N.W.2d 775.

6 State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 

(1996).

In past cases, the court has recited that the clear and 

convincing evidence standard applies to the defendant's burden 

of proving manifest injustice, without distinguishing between 

the various ways that manifest injustice can be proven. We 

apply the clear and convincing evidence standard in the present 

case.
No. 2012AP2044-CR 

10

¶37 There are several ways a defendant may demonstrate 

manifest injustice.7 One way is to show that the defendant did 

not enter the plea knowingly, intelligently, and voluntarily.8 A 

plea that was "not entered knowingly, voluntarily, and 

intelligently violates fundamental due process, and a defendant 

therefore may withdraw the plea as a matter of right."

9

¶38 Whether a defendant's plea was entered knowingly, 

intelligently, and voluntarily is a question of constitutional 

fact.10 An appellate court upholds the circuit court's findings 

of historical facts unless they are clearly erroneous.11 An 

appellate court independently determines whether those facts 

demonstrate that the defendant's plea was knowing, intelligent, 

and voluntary, benefiting from the analyses of the circuit court 

and court of appeals.12 

¶39 In numerous cases, the court has held that affirmative 

misinformation about the law provided by the prosecutor and 

 

7 State v. Cain, 2012 WI 68, ¶26, 342 Wis. 2d 1, 816 

N.W.2d 177.

8 State v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d 594, 716 

N.W.2d 906.

9 State v. Cross, 2010 WI 70, ¶14, 326 Wis. 2d 492, 786

N.W.2d 64.

10 Cross, 326 Wis. 2d 492, ¶14; Bentley, 201 Wis. 2d at 311.

11 State v. Dawson, 2004 WI App 173, ¶7, 276 Wis. 2d 418, 

688 N.W.2d 12.

12 State v. Hoppe, 2009 WI 14, ¶61, 317 Wis. 2d 161, 765 

N.W.2d 794.
No. 2012AP2044-CR 

11

defense counsel can support a holding that withdrawal of a plea 

of guilty or no contest must be permitted because the plea is 

uninformed and its voluntariness is compromised.13 Appellate 

 

13 See, e.g., State v. Riekkoff, 112 Wis. 2d 119, 332 

N.W.2d 744 (1983) (holding that when the defendant pled guilty 

incorrectly believing he could seek appellate review of an 

evidentiary order, he misunderstood the effects of his plea and 

the plea was therefore involuntary); State v. Brown, 2004 WI App 

179, 276 Wis. 2d 559, 687 N.W.2d 543 (holding that when the 

State promised to drop, but did not drop, all charges requiring 

the defendant to register as a sex offender or subjecting the 

defendant to Chapter 980 civil confinement, the defendant's plea 

was involuntary); Dawson, 276 Wis. 2d 418 (holding that the 

legally unenforceable reopen-and-amend provision of the 

defendant's plea deal rendered the plea involuntary); State v. 

Woods, 173 Wis. 2d 129, 496 Wis. 2d 144 (Ct. App. 1992) (holding 

that a guilty plea entered at least in part based on inaccurate 

legal information about sentencing was neither knowing nor 

voluntary).
No. 2012AP2044-CR 

12

courts at the state14 and federal15 levels have similarly 

concluded that misinformation given to a defendant about the 

consequences of conviction may warrant withdrawal of a guilty 

plea. 

¶40 In determining whether a similar holding is 

appropriate here, we review the totality of the circumstances, 

 

14 See, e.g., Reeves v. State, 564 N.E.2d 550, 553 (Ind. Ct. 

App. 1991) (trial counsel's recommendation that Reeves "accept 

the plea agreement to avoid being charged as an habitual 

offender——when Reeves was not habitual eligible" rendered the 

plea involuntary); Nash v. State, 429 N.E.2d 666, 672 (Ind. Ct. 

App. 1981) ("In the instant case, Nash was a 30 year old man 

facing a possibility of a substantial amount of time being 

tacked on to his sentence by virtue of the improper habitual 

offender counts. Even if we accept the proposition that this 

was not the 'main' motivation for his guilty plea, the 

uncontradicted testimony leads unerringly to the conclusion that 

it played a significant part in the plea negotiations and 

therefore rendered the bargain illusory."); People v. Graves, 

523 N.W.2d 876, 878 (Mich. Ct. App. 1994) ("Because there is a 

legal bar to conviction on the charge that was dismissed 

pursuant to the plea bargain, and defendant's plea was induced 

by a promise to forgo that charge, defendant was misinformed 

concerning the benefit of his plea. Thus, defendant is entitled 

to withdraw his guilty plea as not having been understandingly 

and voluntarily made."); People v. Lawson, 255 N.W.2d 748, 750 

(Mich. Ct. App. 1977) ("Since defendant surrendered his right to 

trial in apparent misapprehension of the value of commitments 

made to him, he should be allowed to withdraw his plea.").

15 See, e.g., Hammond v. United States, 528 F.2d 15, 19 (4th 

Cir. 1975) ("Where, as here, counsel's alleged advice, 

corroborated by the information supplied by the court, grossly 

exaggerated the benefit to be derived from the pleas of guilty, 

it would follow that the pleas were not voluntary.").
No. 2012AP2044-CR 

13

including the record of the postconviction hearing at which only 

the defendant and his trial counsel testified.

16

¶41 The defendant testified at the postconviction hearing 

that, early on, he intended to go to trial because he believed 

the State's case was weak. The main weakness of the State's 

case, in the defendant's opinion, was the victim's failure to 

identify him when provided with a photo array that included his 

photo. The State acknowledged this weakness of its case.

¶42 The prosecuting attorney explained at the sentencing 

hearing that the State had agreed to recommend the sentence it 

did in exchange for the defendant's plea "because there were 

some underlying factual burdens that were going to be difficult 

for the State. . . . [I]dentity may have been a problem . . . ."

¶43 In addition, the State's reply brief in this court 

acknowledges that "it can be problematic to show an eye witness 

a photo of a suspect during a subsequent photo array when the 

witness has previously seen, and failed to identify, that photo 

at a previous array."

17

 

16 The hearing on the defendant's postconviction motion was 

a Machner hearing. See State v. Machner, 92 Wis. 2d 797, 804, 

285 N.W.2d 905 (1979). Several cases discuss the allegations 

required in a postconviction motion seeking plea withdrawal to

entitle a defendant to a Machner hearing on the ground that the 

plea resulted from ineffective assistance of counsel. See, 

e.g., Bentley, 201 Wis. 2d at 316; State v. Saunders, 196 

Wis. 2d 45, 48, 538 N.W.2d 546 (Ct. App. 1995). The defendant's 

motion in the present case was obviously sufficient under these 

cases. A Machner hearing took place.

17 Reply Brief of Plaintiff-Respondent-Petitioner at 11.
No. 2012AP2044-CR 

14

¶44 The defendant testified that, in spite of his initial 

intention to go to trial, when he considered the possibility of 

receiving a sentence of life in prison without extended 

supervision he decided he "couldn't take that chance." The 

defendant thus entered a no-contest plea because, in his words,

"even though there's not a lot of proof, I can't take the chance 

of not coming out . . . . I mean life without parole is life 

without parole . . . it's just too much."

¶45 The defendant further testified that the greatest 

benefit of the plea deal was "getting rid of the persistent 

repeater." He stated that he entered the plea to "make the life 

without parole go away so that I could get myself a chance to 

get out."

¶46 The defendant acknowledged that he might not have 

filed a postconviction motion for plea withdrawal if he had 

received the sentence the State recommended. He nonetheless 

insisted that the dropped persistent repeater enhancer was his 

main reason for accepting the plea offer and that the 

inapplicability of that enhancer rendered his plea involuntary.

¶47 The defendant's trial counsel confirmed the 

defendant's declarations to a large extent. Trial counsel 

testified that the defendant had expressed a strong desire for 

the "opportunity for a life on the outside with his wife"; that 

prior to receiving the State's plea offer, the defendant never 

said he did not want to go to trial; and that trial counsel knew 

the defendant was greatly concerned about the persistent 

repeater enhancer.
No. 2012AP2044-CR 

15

¶48 Trial counsel further testified that the State's offer 

to drop the persistent repeater enhancer was the most 

significant factor motivating her recommendation that the 

defendant accept the plea deal. A letter trial counsel sent the 

defendant after the State made its plea offer corroborates this 

testimony. The letter was entered into evidence at the 

postconviction hearing. It states:

If convicted on count one as alleged, you would face 

life in prison with NO POSSIBILITY of parole or 

extended supervision. . . . The State is recommending 

that you plead to count one, without the persistent 

repeater. . . .

In light of the State's willingness to dismiss 

the persistent repeater in count one and to dismiss 

outright the charge of false imprisonment in count 

two, I believe that it is in your best interest to 

give serious consideration to the State's offer. You 

are still able to argue for a lower sentence through 

me, however you would not face life in prison if 

convicted.

(Emphasis in original.)

¶49 Trial counsel also testified that she would have 

advised the defendant to enter the plea agreement regardless of 

the persistent repeater enhancer. Trial counsel considered the 

State's offer to recommend just eight years' initial confinement 

a good deal for the defendant.

¶50 In the letter quoted above, trial counsel explained 

that if the defendant chose to go to trial, the State intended 

to introduce other acts evidence of the defendant's past 

convictions, which involved multiple counts of armed robbery and 

sexual assault. Trial counsel advised the defendant that this 
No. 2012AP2044-CR 

16

evidence, along with evidence that the victim identified him as 

a result of looking at a sex offender database, would be "very 

devastating" to his case. Trial counsel informed the defendant 

that the victim made a very credible witness.

¶51 Finally, trial counsel testified that, in her view,

the defendant agreed to plead no contest based on the totality 

of the circumstances, not just the dropped penalty enhancer.

¶52 The defendant presented a persuasive account 

(including his testimony, that of defense counsel, and trial 

counsel's letter to the defendant) of why, absent the 

misinformation he received about the persistent repeater 

enhancer, he would not have entered a no-contest plea, why he 

would have gone to trial, and why the no-contest plea was not 

knowing, intelligent, and voluntary.

¶53 The State points to several parts of the record to

support its contention that, regardless of the mistake of law 

regarding the applicability of the persistent repeater enhancer

to the defendant, he would have accepted the State's plea offer. 

The State argues there were multiple factors at play, including 

the potential admission of other acts evidence and the apparent 

credibility of the State's main witness (the victim).

¶54 The State emphasizes trial counsel's statement that 

she believed the defendant accepted the plea offer based on "the 

totality of the circumstances," which included the potential 

admission of other acts evidence and the apparent credibility of 

the State's main witness (the victim). But the State 

acknowledges that trial counsel also identified the dropped 
No. 2012AP2044-CR 

17

persistent repeater enhancer as "the most significant factor"

contributing to the defendant's decision to enter a plea of no 

contest.

¶55 The State also points to trial counsel's statement 

that she would have advised the defendant to enter a plea 

regardless of the dropped enhancer. In contrast, the 

defendant's testimony supports the conclusion that the defendant 

would not have heeded his counsel's advice to accept the plea 

agreement if he had known the persistent repeater enhancer was 

inapplicable.

¶56 Finally, the State argues the defendant's motivation 

for moving to withdraw his plea is evidence the plea was

knowing, intelligent, and voluntary. The defendant conceded at 

the postconviction hearing that had he received the sentence the 

State recommended, he would not now be challenging his plea. 

¶57 The circuit court raised this point at the conclusion 

of the postconviction hearing, announcing as follows: "[T]he 

only reason we're here on appeal is because I did not go along 

with those recommendations and I gave him the maximum 

sentence. . . . [N]ow that he's got the sentence he doesn't like 

it and now he wants to appeal it and find a way to do so." 

¶58 The State asserts that because the defendant admitted 

that his dissatisfaction with his sentence drove his decision to 

challenge the plea, his challenge must fail. 

¶59 The court of appeals was not persuaded by the State's 

arguments. Neither are we. 
No. 2012AP2044-CR 

18

¶60 First, for a defendant to show that a plea was not 

knowing, intelligent, and voluntary, the case law does not 

require that the decision to plead no contest be based 

exclusively on the misinformation the defendant received.

18 

Rather, a guilty or no-contest plea is not voluntary unless the 

defendant is "fully aware of the direct consequences [of his

plea], including the actual value of any commitments made to him

by the court, prosecutor, or his own counsel . . . ."19 

¶61 In the instant case, the defendant's no-contest plea 

was not made with full knowledge of the factors pertinent to a 

decision regarding whether to plead or proceed to trial. The 

defendant did not know the actual value of the commitments made 

to him by the prosecutor in the plea offer. 

 

18 See, e.g., Woods, 173 Wis. 2d 129 (a guilty plea entered 

at least in part based on inaccurate legal information about 

sentencing was neither knowing nor voluntary).

19 The United States Supreme Court stated the standard for 

voluntariness in Brady v. United States, 397 U.S. 742, 755 

(1970), as follows:

The standard as to the voluntariness of guilty pleas 

must be essentially that defined by Judge Tuttle of 

the Court of Appeals for the Fifth Circuit:

"(A) plea of guilty entered by one fully aware of the 

direct consequences, including the actual value of any 

commitments made to him by the court, prosecutor, or 

his own counsel, must stand unless induced by threats 

(or promises to discontinue improper harassment), 

misrepresentation (including unfulfilled or 

unfulfillable promises), or perhaps by promises that

are by their nature improper as having no proper 

relationship to the prosecutor's business (e.g. 

bribes).' 242 F.2d at page 115."
No. 2012AP2044-CR 

19

¶62 Second, the defendant repeatedly asserted that 

eliminating the possibility of receiving a mandatory life 

sentence was his primary motivation for entering the plea 

agreement. Trial counsel's testimony supports the defendant's 

testimony.

¶63 Third, the disparity between the sentence the 

defendant thought he would face if convicted of armed robbery 

with a persistent repeater enhancer and the maximum sentence he 

would have faced without the persistent repeater enhancer 

attached to the armed robbery charge was significant. According 

to the court of appeals, "[t]he hope that one will live long 

enough to have a life outside the prison walls is, as the 

advertisement goes, priceless." Because the defendant "thought 

he had to bargain for that hope," he pled no contest.

¶64 At oral argument, Justice Prosser and the State 

posited that the State could have amended its complaint to 

attach a repeater enhancer (as opposed to a persistent repeater 

enhancer) to the armed robbery charge. Had the State done so, 

the defendant would have faced an additional six years of 

confinement, for a total of 38 years of confinement. 

¶65 The implication of this reasoning is that, for this

51-year-old defendant, there is no significant difference 

between a maximum sentence of 32 or 38 years in prison and a 

mandatory sentence of life in prison without the possibility of 

extended supervision. 

¶66 This reasoning overlooks the crucial fact that the 

statutory penalty of 32 or 38 years in prison represents the 
No. 2012AP2044-CR 

20

maximum penalty a circuit court may impose. A circuit court 

may, in its discretion, impose a lesser term of confinement. In 

contrast, the persistent repeater enhancer imposes life in 

prison as a mandatory sentence. The circuit court has no choice 

but to impose that sentence. The possibility that a circuit 

court may impose a sentence less than the statutory maximum is 

important to the defendant in deciding whether to enter a plea.

¶67 Fourth, while the sentence imposed by the circuit 

court may be driving the defendant's pursuit of plea withdrawal,

the appropriate inquiry is not into the defendant's motivation 

for filing the postconviction motion. Rather, the appropriate 

inquiry is into the defendant's motivation for entering the nocontest plea in the first place. The defendant's subsequent 

satisfaction or dissatisfaction with his sentence has no bearing 

on whether his initial decision to enter a plea was knowing, 

intelligent, and voluntary. 

¶68 Fifth, if the defendant's trial counsel were 

ineffective (and we conclude in Part III that she was 

ineffective), it follows that the defendant's plea was not 

knowing, intelligent, and voluntary. "[T]he sine qua non to a 

voluntary plea of guilty is the assistance of counsel 'within 

the range of competence required of attorneys representing 

defendants in criminal cases.'"20

 

20 Hammond, 528 F.2d at 18 (citing Parker v. North Carolina, 

397 U.S. 790, 797-98 (1970)).
No. 2012AP2044-CR 

21

¶69 Considering the totality of the circumstances, we 

conclude that the defendant entered into the plea agreement 

without knowing the actual value of the State's plea offer and 

relying on misinformation from the court, the State, and trial 

counsel about the applicability of the persistent repeater 

enhancer. As a result, the defendant was prevented from making 

a reasoned decision whether to proceed to trial or plead. The 

misinformation undermined the defendant's capacity to knowingly, 

intelligently, and voluntarily choose between accepting the 

State's plea offer and proceeding to trial. Thus, we conclude 

that the defendant established that he did not knowingly, 

intelligently, and voluntarily enter the plea of no contest. 

¶70 A plea that was "not entered knowingly, voluntarily, 

and intelligently violates fundamental due process, and a 

defendant therefore may withdraw the plea as a matter of 

right."21 The defendant must be permitted to withdraw his nocontest plea.

¶71 Before we turn to the second issue regarding 

ineffective assistance of counsel, we examine the State's 

argument that the instant case is governed by State v. Denk, 

2008 WI 130, 315 Wis. 2d 5, 758 N.W.2d 775, and that the court 

of appeals incorrectly applied Denk to the instant case.

22 

 

21 Cross, 326 Wis. 2d 492, ¶14.

22 The State asserts that the court of appeals incorrectly 

applied the Cross case to the instant case. Both the State and 

the defendant agree that Cross is inapplicable to the instant 

case. We agree. 

(continued)
No. 2012AP2044-CR 

22

¶72 We briefly state the facts in the Denk case to compare 

it to the present case. 

¶73 Denk was charged with Class I felony possession of 

methamphetamine, Class H felony possession of drug 

paraphernalia, misdemeanor possession of marijuana, and 

misdemeanor possession of drug paraphernalia. Pursuant to a 

plea agreement, Denk pled no contest to felony possession of 

methamphetamine. The State dismissed the remaining charges. 

¶74 Denk subsequently filed a postconviction motion to 

withdraw his plea, arguing that "there was no factual basis for 

charging him with one felony count of possession of 

methamphetamine paraphernalia [the dismissed charge]. . . and 

thus, the district attorney's offer to drop the charge provided 

an illusory benefit."23 Denk's appellate counsel argued that the 

methamphetamine paraphernalia in Denk's possession "was intended 

for personal use," while the statute relating to paraphernalia 

 

The defect alleged in Cross was "insubstantial" 

misinformation about the penalty given to the defendant during 

the plea colloquy. In contrast, the plea colloquy in the 

present case correctly informed the defendant of the penalty for 

armed robbery without a penalty enhancer. 

In the present case, unlike in Cross, the defendant's 

acceptance of the State's proposed plea agreement and the 

defendant's entry of the plea of no-contest to armed robbery 

were induced by "significant" misinformation the defendant 

received prior to the plea colloquy regarding the penalty he 

would face if he did not accept the State's proposed plea 

agreement and enter a plea of no contest. 

23 Denk, 315 Wis. 2d 5, ¶23.
No. 2012AP2044-CR 

23

under which he was charged "related to the manufacture of 

methamphetamine." Thus, Denk argued that the State's dropping 

the charge provided an illusory benefit. This court did not 

allow Denk to withdraw his plea.24

¶75 There is a superficial similarity between Denk and the 

instant case. The two cases are, however, significantly 

different. The instant case is not a Denk case. It is a case 

of first impression.

¶76 In short, in Denk the charge that was dismissed 

pursuant to Denk's plea agreement did not pose a legal or 

factual impossibility. The Denk court did not decide (and the 

record did not demonstrate) that there was no factual or legal 

basis for that charge.

¶77 In Denk, there was a factual and legal dispute about 

what Denk was doing with the methamphetamine paraphernalia, 

about whether the State could have proved the dismissed charge 

beyond a reasonable doubt, and about the proper scope of the 

 

24 Denk distinguished a line of cases in which (1) "the 

dispute involved the charge to which the defendant actually 

pled"; (2) "the consequence for which the defendant had 

bargained when he entered the plea to the charge was a legal 

impossibility"; and (3) "the defendant failed to understand the 

inevitable consequences of his plea to that charge, thus 

rendering his plea . . . involuntary." Denk, 315 Wis. 2d 5, 

¶75. These three factors were not set out as the sole 

prerequisites in all cases to proving a plea was entered 

unknowingly, unintelligently and involuntarily. Rather, Denk

outlined these factors to summarize our prior plea cases 

involving mistakes of law and legally unenforceable promises by 

the State.
No. 2012AP2044-CR 

24

statute applicable to the dismissed felony. The Denk court 

recognized that it was uncertain whether the State would have 

prevailed on the dismissed charge. At that stage in the 

proceeding, however, Denk had not demonstrated that the 

dismissed charge was a factual or legal impossibility. Denk 

thus benefitted when the felony drug paraphernalia charge was 

dropped pursuant to the plea agreement.

¶78 In contrast, it is undisputed in the present case that 

the persistent repeater enhancer attached to the armed robbery 

charge could not, as a matter of law, have been applied to the 

defendant. The law required the State to drop the persistent 

repeater enhancer. The State's offer to drop the persistent 

repeater enhancer as part of the plea agreement provided no 

benefit to the defendant. 

¶79 In the present case, the plea offer was significantly 

less valuable than the defendant believed because the persistent 

repeater enhancer was a legal impossibility. Dropping the 

enhancer provided an illusory benefit to the defendant. When 

entering his plea of no contest, the defendant failed to 

understand "the actual value" of the plea offer he accepted. 

¶80 No prior case has addressed the validity of a guilty 

or no-contest plea entered to avoid a penalty enhancer attached 

to a felony charge when that penalty enhancer was indisputably a 

legal impossibility. The instant case presents a question of 

first impression. We have addressed that question here. 

III
No. 2012AP2044-CR 

25

¶81 Although the matter is resolved on the first issue, we 

turn now to the second issue: Under the totality of the 

circumstances, did the defendant have the right as a matter of 

law to withdraw his no-contest plea on the ground that he 

demonstrated ineffective assistance of counsel? The basis for 

the defendant's ineffective assistance of counsel claim is that 

the defendant's trial counsel mistakenly advised the defendant 

he would face a mandatory sentence of life in prison without the 

possibility of extended supervision if he did not accept the 

plea agreement.

¶82 We agree with the court of appeals that the 

defendant's trial counsel was constitutionally ineffective.

¶83 The applicable standard of review for this issue is 

the same as for the first issue: To withdraw a guilty plea 

after sentencing, a defendant must show by clear and convincing 

evidence that a refusal to allow withdrawal of the plea would 

result in manifest injustice, that is, that there are "serious 

questions affecting the fundamental integrity of the 
No. 2012AP2044-CR 

26

plea . . . ."25 There are several ways the defendant can meet 

this burden of proof.26

¶84 One way to demonstrate manifest injustice is to 

establish that the defendant received ineffective assistance of 

counsel.27 Ineffective assistance of counsel claims are rooted 

in the United States and Wisconsin constitutions. Article I, 

Section 7 of the Wisconsin Constitution and the Sixth Amendment 

to the United States Constitution (applied to the states by the 

Fourteenth Amendment) guarantee criminal defendants the right to 

effective assistance of counsel. 

¶85 To show he has been deprived of that right, the 

defendant must prove (1) that trial counsel's performance was 

deficient; and (2) that this deficiency prejudiced the 

defendant. Strickland v. Washington, 466 U.S. 668 (1984).

¶86 Whether the defendant received ineffective assistance 

of counsel is a question of constitutional fact.28 An appellate 

 

25 Denk, 315 Wis. 2d 5, ¶71. See also Brown, 293 

Wis. 2d 594, ¶18; Bentley, 201 Wis. 2d at 311.

In past cases, the court has recited that the clear and 

convincing evidence standard applies to the defendant's burden 

of proving manifest injustice, without distinguishing between 

the various ways that manifest injustice can be proven. We 

apply the clear and convincing evidence standard in the present 

case.

26 Cain, 342 Wis. 2d 1, ¶26.

27 Bentley, 201 Wis. 2d at 311.

28 State v. Jenkins, 2014 WI 59, ¶38, 355 Wis. 2d 180, 848 

N.W.2d 786.
No. 2012AP2044-CR 

27

court upholds the circuit court's findings of fact unless they 

are clearly erroneous. "Findings of fact include 'the 

circumstances of the case and the counsel's conduct and 

strategy.'"29 An appellate court independently determines 

whether those historical facts demonstrate that defense 

counsel's performance met the constitutional standard for 

ineffective assistance of counsel, benefiting from the analyses 

of the circuit court and court of appeals.30 

¶87 We first explore whether trial counsel's performance 

was deficient.

¶88 The test for deficiency of performance is objective: 

Under the totality of the circumstances, did trial counsel's 

performance fall "outside the wide range of professionally 

competent assistance"?31 "Normally, judicial scrutiny of an 

attorney's performance will be highly deferential."32

¶89 The State has not challenged the defendant's 

contention that trial counsel's performance fell below an 

objective standard of reasonableness.

¶90 A defendant's decision whether to go to trial or plead 

no contest (or guilty) is generally the most important decision 

 

29 State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 

N.W.2d 305

30 Jenkins, 355 Wis. 2d 180, ¶38.

31 Strickland v. Washington, 466 U.S. 668, 690 (1984); State 

v. Smith, 207 Wis. 2d 258, 274, 558 N.W.2d 379 (1997).

32 Smith, 207 Wis. 2d at 274. 
No. 2012AP2044-CR 

28

to be made in a criminal case. A defendant should have the 

benefit of an attorney's advice on this crucial decision.33

¶91 We agree with the court of appeals that the defendant 

has shown that trial counsel performed deficiently when she 

failed to ascertain that the persistent repeater enhancer was, 

as a matter of law, inapplicable to the defendant and when she 

advised the defendant to enter the plea agreement based in large 

part on the State's offer to drop that enhancer.

¶92 Our decisions in State v. Carter, 2010 WI 40, 324 

Wis. 2d 640, 782 N.W.2d 695, and State v. Domke, 2011 WI 95, 337 

Wis. 2d 268, 805 N.W.2d 364, are instructive regarding the 

extent to which counsel is required to know or investigate the 

relevant law. These cases teach that to meet the constitutional 

standard for effective assistance, "[c]ounsel must either 

reasonably investigate the law and facts or make a reasonable 

 

33 United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998) 

(quoting Boria v. Keane, 99 F.3d 492, 496–97 (2d Cir. 1996)

(quoting Anthony G. Amsterdam, Trial Manual 5 for the Defense of 

Criminal Cases § 201, at 339)). See also Patterson v. LeMaster, 

21 P.3d 1032, 1036 (N.M. 2001) (citing Gordon).

See also ABA Standards for Criminal Justice § 14-3.2 (3d 

ed. 1999)("To aid the defendant in reaching a decision defense 

counsel, after appropriate investigation, should advise the 

defendant of the alternatives available . . . . Defense counsel 

should not recommend acceptance of a plea unless appropriate 

investigation and study of the case has been completed.").
No. 2012AP2044-CR 

29

strategic decision that makes any further investigation 

unnecessary."34

¶93 Trial counsel in the present case offered no reason——

strategic or otherwise——for failing to know or investigate the 

persistent repeater enhancer statute or for failing to challenge 

the persistent repeater enhancer attached to the armed robbery 

charge. The persistent repeater enhancer statute is not obscure 

or unsettled law as applied to the facts of the present case. 

Thus, trial counsel performed deficiently because she did not 

know or reasonably investigate a clear statute erroneously 

applied to the defendant and because she offered no explanation 

for her failure to know or investigate the statute. 

Furthermore, defense counsel's advice to the defendant about his 

plea was based on the erroneously applied statute. 

¶94 We turn to the prejudice prong of the Strickland test 

for ineffective assistance of counsel.

¶95 To prove prejudice, a defendant "must show that there 

is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome."35

 

34 State v. Domke, 2011 WI 95, ¶41, 337 Wis. 2d 268, 805 

N.W.2d 364 (citing Carter, 324 Wis. 2d 640, ¶23 (quoting 

Strickland, 466 U.S. at 691: "[C]ounsel has a duty to make 

reasonable investigations or to make a reasonable decision that 

makes particular investigations unnecessary.")).

35 Strickland, 466 U.S. at 694.
No. 2012AP2044-CR 

30

¶96 Thus, the defendant in the present case must 

demonstrate that there is a reasonable probability he would not 

have pled no contest and that he would have gone to trial had he 

known the persistent repeater enhancer was a legal 

impossibility.36

¶97 The State argues that the defendant did not prove that 

trial counsel's deficient performance was prejudicial. The 

State characterizes the circuit court's declaration that the 

defendant would have pled no contest even absent the error of 

including the penalty enhancer as a finding of fact and a 

finding about the defendant's credibility. 

¶98 The circuit court never explicitly or implicitly made 

a finding that the defendant's testimony was incredible. 

Rather, the circuit court concluded, as a matter of law, that 

under the totality of circumstances the defendant failed to show 

that there was a reasonable probability he would have gone to 

trial absent counsel's error. 

¶99 This court determines independently, as a matter of 

law, whether the facts demonstrate prejudice, that is, whether 

under the totality of the circumstances there is a reasonable 

probability the defendant would not have pled no contest and 

would have gone to trial had he known the persistent repeater 

 

36 Hill v. Lockhart, 474 U.S. 52, 59 (1985) ("[I]n order to 

satisfy the 'prejudice' requirement, the defendant must show 

that there is a reasonable probability that, but for counsel's 

errors, he would not have pleaded guilty and would have insisted 

on going to trial."); Bentley, 201 Wis. 2d at 312.
No. 2012AP2044-CR 

31

enhancer was a legal impossibility. "[I]t is by no means 

obvious how a court is to determine the probability that a 

defendant would have gone to trial. It is clear enough that a 

defendant must make more than a bare allegation that he 'would 

have pleaded differently and gone to trial' . . . ."37 The 

defendant in the present case made more than a bare allegation 

that he would have pleaded differently and gone to trial. 

¶100 The defendant does not rely on a conclusory assertion 

of prejudice. Rather, he presented a persuasive factual account 

of the special circumstances that support his contention that he 

would have gone to trial absent the misinformation he received 

about the persistent repeater enhancer.38 The defendant detailed 

why his plea of no contest was a direct consequence of the 

misinformation he received about the penalty he faced. The 

defendant's testimony is supported by trial counsel's testimony 

and the record. The record allows the court to meaningfully 

address the defendant's claim of prejudice. 

¶101 The defendant explained that he perceived the State's 

case as having a weak spot (which the State acknowledged at 

sentencing and in this court) and that he would have gone to 

 

37 United States v. Horne, 987 F.2d 833, 835-36 (D.C. Cir. 

1993), cert. denied, 510 U.S. 852 (1993).

38 Hill, 474 U.S. at 50 (the defendant should allege that 

had counsel correctly informed him about the penalty, he would 

have insisted on going to trial and should further allege 

special circumstances that might support the conclusion that he 

placed particular emphasis on the misinformation in deciding 

whether to plead no contest).
No. 2012AP2044-CR 

32

trial absent his overwhelming desire to avoid a mandatory 

sentence of life in prison. The disparity in penalty between 

the sentence for armed robbery with the persistent repeater

enhancer (mandatory life in prison) and the sentence for armed 

robbery without such an enhancer (a circuit court discretionary 

determination of prison for a term of years) was significant to 

the defendant. He did not want to forever foreclose the 

opportunity to be released from prison. Under these 

circumstances the State's dropping the (legally impermissible) 

persistent repeater enhancer was a substantial inducement to the 

defendant to accept the plea agreement. 

¶102 Trial counsel's testimony and written communications 

with the defendant were consistent with the defendant's account 

of the defendant's state of mind and the events leading up to 

the plea agreement. 

¶103 The record support a determination of prejudice under 

Strickland. Strickland "does not require certainty or even a 

preponderance of the evidence that the outcome would have been 

different with effective assistance of counsel"; it requires 

only "reasonable probability."

39

 

39 Magana v. Hofbauer, 263 F.3d 542, 547 (6th Cir. 2001).

See William v. Taylor, 529 U.S. 362, 405-06 (2000), in 

which the Court explained Strickland as follows:

Take, for example, our decision in Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 

L.Ed.2d 674 (1984). If a state court were to reject a 

prisoner's claim of ineffective assistance of counsel 

on the grounds that the prisoner had not established 

(continued)
No. 2012AP2044-CR 

33

¶104 Under the totality of the circumstances set forth in 

the record (and we have detailed the testimony at ¶¶41-51), we 

conclude that the defendant has satisfied the prejudice prong of 

the Strickland standard. He has established that there was a 

reasonable probability that he would not have pled no-contest 

and would instead have gone to trial had he known he did not 

face a mandatory sentence of life in prison without the 

possibility of extended supervision. 

¶105 The recent federal district court decision in Pidgeon 

v. Smith, No. 13-cv-57-bbc, 2014 WL 4294965 (W.D. Wis. 2014), is 

instructive on the question of prejudice. The issue in Pidgeon, 

a federal habeas corpus proceeding, was whether Pidgeon was 

denied effective assistance of counsel and was entitled to a 

trial. 

¶106 In Pidgeon, the prosecutor proposed a plea agreement 

promising the defendant that he would not be prosecuted for a 

sexual offense in a separate case and that the prosecutor would 

recommend a sentence of 10 years in prison followed by 10 years 

of supervision. Pidgeon agreed to plead no contest after being 

misinformed by his trial counsel of the possibility that, should 

 

by a preponderance of the evidence that the result of 

his criminal proceeding would have been different, 

that decision would be "diametrically different," 

"opposite in character or nature," and "mutually 

opposed" to our clearly established precedent because 

we held in Strickland that the prisoner need only 

demonstrate a "reasonable probability that . . . the 

result of the proceeding would have been different.
No. 2012AP2044-CR 

34

he decline the plea offer, he might be subject to Wisconsin's 

persistent repeater enhancer statute mandating life in prison 

without extended supervision.

¶107 After sentencing, Pidgeon learned (as a result of his 

own research) that his prior conviction and the offense in the 

separate case did not render him subject to the statutory 

persistent repeater enhancer. He sought to withdraw his nocontest plea. A hearing was held, and Pidgeon and his trial 

counsel were the only witnesses. Pidgeon testified that he 

entered the plea agreement because he believed he was facing a 

mandatory sentence of life in prison.

¶108 The federal district court concluded that Pidgeon's 

trial counsel's failure to investigate the prior conviction and 

the applicable law was objectively unreasonable: "[A] reasonably 

capable lawyer . . . would not tell a client that he faced a 

mandatory life sentence without undertaking an investigation to 

determine that the advice was accurate."40

¶109 The federal district court further concluded that 

Pidgeon's trial counsel's deficient performance was prejudicial, 

noting that "[t]he only evidence on point is petitioner's 

unrebutted testimony: he would have taken his chances at trial" 

had trial counsel not misinformed him that "he ran a strong risk 

of getting a life sentence . . . ."41 The federal court stated 

 

40 Pidgeon v. Smith, No. 13-cv-57-bbc, 2014 WL 4294965, at 

*5 (W.D. Wis. 2014).

41 Id.
No. 2012AP2044-CR 

35

that trial counsel "neither adduced any evidence that would tend 

to call petitioner's testimony into question nor suggested that 

even if counsel misrepresented the potential sentence petitioner 

could receive, it was not significantly different from what he 

could actually have received."42 Thus, Pidgeon showed a 

reasonable probability that he would not have pled guilty absent 

trial counsel's error.

¶110 In sum, with regard to the first issue, we conclude 

that the defendant's no-contest plea was not knowing, 

intelligent, and voluntary and that the matter should be 

remanded to the circuit court to allow the defendant to withdraw 

his no-contest plea.

¶111 We also conclude that the defendant received 

ineffective assistance of trial counsel and that the matter 

should be remanded to the circuit court to allow the defendant 

to withdraw his no-contest plea.

¶112 Accordingly, the court of appeals' decision remanding 

the matter to the circuit court to allow the defendant to 

withdraw his no-contest plea is affirmed.

By the Court.—The decision of the court of appeals is 

affirmed.

 

42 Id.
No. 2012AP2044-CR.pdr

1

¶113 PATIENCE DRAKE ROGGENSACK, J. (dissenting). Myron C. 

Dillard was convicted of armed robbery based on his plea of no 

contest. He received the maximum permissible sentence for armed 

robbery. He moved to withdraw his plea, asserting that manifest 

injustice will result if his plea is not vacated. Dillard 

asserts his plea was not entered knowingly and intelligently 

because his counsel did not tell him that the State could not 

prosecute him as a persistent repeater for armed robbery. He 

claims ineffective assistance of counsel based on the same 

assertion. 

¶114 In order to withdraw his plea subsequent to 

sentencing, Dillard bears the burden to prove manifest injustice 

by clear and convincing evidence. State v. Bentley, 201 Wis. 2d 

303, 311, 548 N.W.2d 50 (1996). Dillard failed to shoulder that 

burden because he submitted insufficient factual-objective 

information at the plea withdrawal hearing. Furthermore, the 

circuit court found that Dillard's testimony was not credible. 

Accordingly, I would reverse the court of appeals; affirm the 

circuit court; and I respectfully dissent from the majority 

opinion. 

I. BACKGOUND

¶115 The State's charges against Dillard arose from 

Dillard's victimization of a young woman, T.L., on December 4, 

2009. T.L. was seated in her car in a parking lot when Dillard 

opened the front passenger-side door and entered her car. He 

forcefully placed a gun against her right shoulder and told her 

to drive. T.L. complied, fearing Dillard would shoot her if she 
No. 2012AP2044-CR.pdr

2

did not. Dillard asked for money, and T.L. gave him all she 

had. He ordered her to drive to various locations, then to 

stop, and he exited the car. As he was leaving, he told her not 

to call the police or he would come after her and her family and 

that he knew where to find her. 

¶116 Dillard was convicted of armed robbery, contrary to 

Wis. Stat. § 943.32(2) (2011-12).1 His conviction was based on a 

plea agreement wherein the State dismissed a count of false 

imprisonment, charged as a repeater; dismissed a persistent 

repeater charge, in regard to the armed robbery; and the 

district attorney recommended eight years of incarceration 

consecutive to the time that Dillard was serving. Dillard was 

then serving a sentence of four years, seven months and nine 

days based on revocation of his parole for two past armed 

robberies and two sexual assaults, and revocation of his 

extended supervision for convictions of theft and identity 

theft. 

¶117 At the plea hearing, the court explained to Dillard 

that a conviction of armed robbery had a maximum imprisonment of 

40 years, with 25 years incarceration and 15 years extended 

supervision. The court asked Dillard if he understood that the 

court was not bound by any plea agreements and that the court 

could sentence him to the maximum for the crime of conviction. 

Dillard said that he understood. The court thoroughly reviewed 

the constitutional rights that Dillard was giving up through his 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated. 
No. 2012AP2044-CR.pdr

3

plea and informed him of the consequences of his plea if he were 

not a United States citizen and asked Dillard if he understood. 

Dillard said, "Yes, Your Honor." The court asked whether 

Dillard was satisfied with the representation that his attorney 

had provided to him, and Dillard said that he was. The court 

also asked Dillard whether he wanted to ask the court any 

questions, and Dillard said, "No, sir, none." The circuit court 

then concluded: 

The court will find that the defendant understands 

these proceedings and is entering his plea to Count 1 

without the repeater freely, voluntarily, and 

intelligently, and I find that there's a factual basis 

for the plea and, therefore, accept the same and will 

adjudicate him guilty. Count 2 will be dismissed. 

¶118 At the time the plea was accepted, the assistant 

district attorney, trial counsel and the judge all mistakenly 

believed that the armed robbery charge was subject to a 

persistent repeater charge.2 If that belief had been correct, 

Dillard would have been subject to a mandatory sentence of life 

in prison pursuant to Wis. Stat. § 939.62(2m)(c). 

¶119 In addressing the victim, her family and the court at 

sentencing, Dillard admitted he committed armed robbery, saying, 

"Good morning, everybody. Well, I'm the person who robbed Miss 

[T.L.] in December. . . . Not only did I rob Miss [L.] of 

money, I frightened her half to death as well. . . . So I'm 

 

2 Dillard was not subject to a persistent repeater charge 

because both of his prior armed robbery convictions occurred on 

the same day. Wis. Stat. § 939.62(2m)(b)1.; State v. Long, 2009 

WI 36, ¶¶35-36, 317 Wis. 2d 92, 765 N.W.2d 557. 
No. 2012AP2044-CR.pdr

4

sorry, Miss [L.] for what I've done in harming you." The 

defendant was then 50 years of age. 

¶120 T.L.'s father spoke at sentencing, and in a prior 

letter to the court, T.L.'s father said: 

Among other consequences of the assault, [T.] has 

been unable to sleep, has had nightmares in which she 

relived the assault and has had to relive the 

experience over and over each time she has come to 

court either testifying or expecting to testify. She 

has been unable to concentrate, and has experienced 

fear, anxiety, and apprehension. In addition, she has 

suffered financially——she is unable to go to work at 

times, has been unable to get back into the car in 

which the robbery took place, has been in counseling 

and has required medication to deal with the 

consequences.

¶121 Testimony given at sentencing explained that during 

the robbery Dillard had "made threats that he would come back to 

her family after this occurred if she told the police and he 

knew where to find her." 

¶122 In deciding what sentence it would impose, the court 

knew of the ongoing problems of the victim who suffered from 

post-traumatic stress disorder because of Dillard's crimes and 

who had had an acute reaction to the stress of testifying that 

required hospitalization after the final hearing. 

¶123 The court was very concerned about the repetitive 

nature of Dillard's conduct as this was the third robbery of a 

young woman under very similar circumstances, the other two 

involving sexual assaults as well as robbery. The court said:

What goes towards character is the fact that you 

had two other very similar incidents in 1989 with 

robberies and sexual assaults. You sat——served a 

prison sentence on those, you were paroled and were 

revoked. You were on supervision at the time of this 
No. 2012AP2044-CR.pdr

5

incident. You had Sexual Offender Treatment, and you 

had all of the treatment in the prison system, and you 

still got out and you still did this, and you did it 

again. That goes towards character. That also goes 

towards the need to protect the public.

In this case, when you have treatment, you go through 

everything, your rehabilitative needs are addressed in 

prison, and you get out and you still do the same 

thing. . . . What I'm going to do on this case is a 

40-year prison sentence, 25 years[] initial 

confinement, 15 years[] extended supervision. I just 

think he needs a long supervision if he gets out. I 

figure if he's 75, at least maybe he's not going to be 

doing this anymore when he gets out. I'm going to run 

it concurrent to his other sentences, so I don't know 

where——where he's at with credit. The reason I'm 

doing it concurrent is because the reason he's sitting 

now is because of these facts. That's the reason he 

got revoked.

¶124 Dillard, by counsel, moved to withdraw his plea. He 

contended that the benefit of dismissing the persistent repeater 

charge was "illusory," and caused his plea to be unknowing and 

unintelligent. He also claimed his trial counsel was 

ineffective in failing to alert him to the legal conclusion that 

he was not subject to a persistent repeater charge. He 

contended that refusing to permit him to withdraw his plea to 

armed robbery would result in manifest injustice. 

¶125 The circuit court held a Machner3 hearing, wherein it 

considered the testimony of Dillard and of trial counsel, as 

well as the submissions of Dillard and the State. Dillard 

testified that he was concerned about the potential for life in 

prison without the possibility of parole or extended 

 

3 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 

1979).
No. 2012AP2044-CR.pdr

6

supervision. He said that he discussed this with his attorney, 

as well as the district attorney's offer to recommend eight 

years confinement and his attorney's recommending five years 

confinement and 15 years extended supervision. He said that 

they also discussed the district attorney's agreement to dismiss 

the charge of false imprisonment and its repeater charge. 

Dillard asserted that he would not have pled, but would have 

gone to trial, if he had known that the State could not 

prosecute him on the persistent repeater charge. 

¶126 The court questioned Dillard further to assess his 

credibility regarding his assertion that he would not have pled, 

but would have gone to trial if he had known that he could not 

be prosecuted on the persistent repeater charge. The court did 

so by asking whether his motion to withdraw his plea was 

grounded in the sentence imposed. Dillard was asked:

Q. If I would have gave you the five years' initial 

confinement, would you have been satisfied with 

that sentence?

A. Of course.

Q. If I would have went along with what the State 

said, the eight years' initial confinement, would 

you have been satisfied with that?

A. Of course. That's better than a life without 

parole.

Q. Your dissatisfaction with my sentence was the 

fact that I gave you the——the maximum, correct?

A. Um——I guess. Yes, I guess so. 

¶127 Subsequent to the above colloquy with the court, in 

response to questions from postconviction counsel, Dillard said 
No. 2012AP2044-CR.pdr

7

that he understood that the judge could sentence him to 40 years 

imprisonment for the armed robbery charge when he made his plea.

¶128 Trial counsel was next to testify. She explained the 

preparation for trial and her representation of Dillard in the 

revocation proceeding where she had seen [T.L] testify as a very 

credible witness. She spoke of the State's offer and said:

I also advised him that, even if he felt there were 

some problems with the State's case——and he and I had 

acknowledged there may be——that he had to take into 

consideration that if he went to trial the jury would 

likely hear things that would be very devastating 

towards his case, like the fact that the victim had 

identified him on a sex offender database. I also 

reminded him that the victim had testified at a 

revocation hearing and that she testified in the 

proceedings rather credibly and that an administrative 

law judge had made a similar comment, and in light of 

all those circumstances, as well as his ability to 

argue for a lesser sentence, I thought he should give 

serious consideration to accepting the State's offer. 

Testimony at the plea withdrawal hearing showed that before 

Dillard pled, his trial attorney explained weaknesses in his 

case to him. Trial counsel said that T.L. identified Dillard as 

the perpetrator of the armed robbery at the revocation hearing 

and that she had testified very credibly. Therefore, earlier 

concerns about the strength of her identification were not

significant. Dillard's attorney also told him that at trial the 

jury would hear that T.L. had identified him from his picture on 

the sex offender registry, and that would be "devastating" to 

his case.

¶129 When trial counsel was asked whether Dillard ever 

indicated to her why he agreed to the State's offer, she said:
No. 2012AP2044-CR.pdr

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I believe it was the totality of the 

circumstances, the dismissal of Count 2, the dismissal 

of any repeater enhancer at all on Count 1, even just 

a simple repeater for having been convicted of prior 

felonies, the fact that the State had a motion filed 

that would introduce to the jury other acts that had 

very similar type of conduct that I believe would come 

in, which I told Mr. Dillard about, the fact again 

that we had seen the victim testify at a prelim[inary] 

and at a revocation hearing and she did not waiver in 

her identification of the defendant in the testimony. 

All of those things[.]

Counsel explained that she told Dillard that other acts evidence 

would be admitted at trial because of the similar types of 

victimization that led to his two prior armed robbery 

convictions. She again explained that they had seen T.L. 

testify at two prior hearings and that T.L. was firm and 

convincing in her identification of Dillard as the perpetrator 

of the armed robbery.

¶130 When trial counsel was asked if she had known before 

his plea that Dillard was not subject to a persistent repeater 

charge in regard to armed robbery would she nevertheless have 

recommended that he accept the plea bargain, she said that she 

would have. She explained that he was facing 40 years on Count 

1 and ten years on Count 2 and there were "overwhelming negative 

facts" that she believed would come in at the trial. When the 

court asked, "Did Mr. Dillard ever say to you, 'I will take any 

deal whatsoever if you can get the persistent repeater 

dismissed?'" Trial counsel said, "No." 

¶131 Based on the information provided, including Dillard's 

testimony, the circuit court denied Dillard's motion, finding 

that he got the benefit of his plea bargain and concluding that 

Dillard suffered no prejudice. The court of appeals reversed. 
No. 2012AP2044-CR.pdr

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Relying on cases where a circuit court had erred4 in regard to 

the charge to which the defendant pled, the court of appeals 

extended the holdings of those cases to a charge that was 

dismissed. The court of appeals concluded that State v. Cross, 

2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64, controlled because 

the charging error "marred the plea negotiations" and was more 

substantial than the mistake in Cross. State v. Dillard, 2013 

WI App 108, ¶¶18-19, 350 Wis. 2d 331, 838 N.W.2d 112. The court 

of appeals also concluded that Dillard was provided ineffective 

assistance of counsel based on the same charging error. Id., 

¶20.

II. DISCUSSION

A. Standard of Review

¶132 Dillard claims that manifest injustice will result if 

his plea is not vacated because it was not entered knowingly and 

intelligently and because trial counsel was ineffective in not 

telling him that the State erroneously charged him as a 

persistent repeater with regard to armed robbery. Whether a 

plea has been entered knowingly and intelligently presents a 

question of constitutional fact that we review independently. 

 

4 The court of appeals relied on State v. Cross, 2010 WI 70, 

326 Wis. 2d 492, 786 N.W.2d 64 (wherein the circuit court gave 

Cross mistaken information about the crime to which he pled); 

State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992) 

(wherein the court erred by imposing a sentence to run 

consecutive to a juvenile disposition that Woods was then 

serving); State v. Brown, 2004 WI App 179, 276 Wis. 2d 559, 687 

N.W.2d 543 (wherein the court erred by stating that Brown's plea 

did not trigger sex offender registration or Wis. Stat. ch. 980 

commitment potential).
No. 2012AP2044-CR.pdr

10

Cross, 326 Wis. 2d 492, ¶14. Whether counsel was ineffective 

presents a mixed question of fact and law. State v. Johnson, 

153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). We will not 

reverse a circuit court's factual findings unless they are 

clearly erroneous. Id. However, we independently review 

whether counsel's performance was deficient and prejudicial. 

Id. at 128. 

B. Plea Withdrawal

¶133 Dillard claims that if he had known that the State 

could not prosecute him as a persistent repeater in regard to 

the armed robbery, he would not have pled, but would have gone 

to trial on the charges of armed robbery and false imprisonment 

as a repeater.5 

1. General principles

¶134 There is the potential that a plea may not have been 

entered knowingly, intelligently and voluntarily if the colloquy 

conducted by the circuit court was constitutionally 

insufficient. State v. Bangert, 131 Wis. 2d 246, 255, 389 

N.W.2d 12 (1986). A plea may be involuntary either because the 

defendant does not understand the charge to which he pleads or 

because he does not understand the constitutional rights 

accorded to him that he is waiving by pleading. Id. at 265-66.

¶135 Furthermore, a plea may be withdrawn if the circuit 

court does not comply with Wis. Stat. § 971.08. Id. at 274. 

 

5 Dillard argues for plea withdrawal because resentencing 

would have put him in the same position he was with his plea, 

facing a 40-year maximum imprisonment for armed robbery. 
No. 2012AP2044-CR.pdr

11

"The initial burden rests with the defendant to make a prima 

facie showing that his plea was accepted without the trial 

court's conformance with sec. 971.08." Id. If the defendant 

makes such a showing and alleges that he did not know or 

understand the information that § 971.08 requires be provided to 

him at the plea hearing, "the burden will then shift to the 

state 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. 

¶136 The specific obligations that Wis. Stat. § 971.08 

places on the circuit court when a plea is forthcoming relevant 

to our inquiry herein are as follows: 

(1) Before the court accepts a plea of guilty or 

no contest, it shall do all of the following:

(a) 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. 

(b) Make such inquiry as satisfies it that the 

defendant in fact committed the crime charged.

¶137 Plea withdrawal based on a constitutionally inadequate 

colloquy or based on a statutorily insufficient colloquy 

requires error by the circuit court. Id. at 274-76. Circuit 

court error in informing the defendant is required in order for 

the burden to shift to the State once the defendant makes a 

prima facie showing of error and alleges that he did not know or 

understand the information the circuit court was required to 

provide. 
No. 2012AP2044-CR.pdr

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¶138 However, there are times when plea withdrawal after 

sentencing is permitted and the error does not lie with the 

circuit court, but rather is found elsewhere. In such cases, a 

defendant is entitled to withdraw a guilty or no contest plea 

upon his proving by clear and convincing evidence that a 

manifest injustice will result unless the plea is vacated. 

Bentley, 201 Wis. 2d at 311. Ineffective assistance of counsel 

is such an error. Id. 

¶139 In order to be entitled to withdraw a plea after 

sentencing based on ineffective assistance of counsel, the 

defendant bears the burden to prove by clear and convincing 

evidence "that counsel's performance was both deficient and 

prejudicial." Id. at 312 (citing Strickland v. Washington, 466 

U.S. 668, 687 (1984)). In order to satisfy the prejudice prong 

of the Strickland test, a defendant seeking to withdraw his or 

her plea must prove that but for counsel's errors, he would not 

have pleaded guilty and would have insisted on going to trial. 

See id. at 312. In order to meet his proof obligation, "[a] 

defendant must do more than merely allege that he would have 

pled differently; such an allegation must be supported by 

objective factual assertions." See id. at 313 (citing State v. 

Saunders, 196 Wis. 2d 45, 51, 538 N.W.2d 546 (Ct. App. 1995) 

(explaining that a defendant must provide evidence that is 

"factual-objective" rather than information that is "opinionsubjective," and a defendant's saying that he would have gone to 

trial if counsel had properly advised him is an opinion, not a 

fact)). 
No. 2012AP2044-CR.pdr

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¶140 Bentley contended that he would not have pled if 

"counsel correctly informed him about his minimum parole 

eligibility date." Id. at 316. In evaluating Bentley's 

assertion, we explained that Bentley's allegation, without more, 

was not sufficient to grant his motion to withdraw his plea. 

Id. 

¶141 We cited Santos v. Kolb, 880 F.2d 941 (7th Cir. 1989), 

abrogated on other grounds by Padilla v. Kentucky, 599 U.S. 356 

(2010), with approval. Bentley, 201 Wis. 2d at 314. Santos

held that a "specific explanation of why the defendant alleges 

he would have gone to trial is required." Id. (quoting Santos, 

493 U.S. at 943). The First Circuit, the Tenth Circuit and the 

D.C. Circuit are in accord with the Seventh Circuit in this 

regard. United States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 

1995), rev'd on other grounds, 520 U.S. 751 (1997) (concluding 

that a defendant's self-serving statement that if his counsel 

had given him complete advice, he would not have pled guilty is 

not sufficient to prove prejudice); United States v. Gordon, 4 

F.3d 1567, 1571 (10th Cir. 1993) (mere allegation that but for 

counsel's inaccurate information regarding sentencing, he would 

have gone to trial held to be insufficient to establish 

prejudice); United States v. Horne, 987 F.2d 833, 836 (D.C. Cir. 

1993), cert. denied, 510 U.S. 852 (1993) (explaining that a bare 

allegation that he would have gone to trial is insufficient to 

withdraw plea). 

¶142 In addition, federal courts look to whether a 

defendant has made a viable claim of innocence of the crime of 
No. 2012AP2044-CR.pdr

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conviction. United States v. West, 392 F.3d 450, 456 (D.C. Cir. 

2004). This amounts to affirmatively advancing an objectively 

reasonable argument that the defendant is innocent of the crime 

to which he pled. United States v. Cray, 47 F.3d 1203, 1209 

(D.C. Cir. 1995).6 

2. Dillard's plea withdrawal motion

¶143 Dillard does not identify a circuit court error that 

would result in a Bangert-type analysis. That is, he does not 

contend that the circuit court's colloquy was either 

constitutionally insufficient or failed to satisfy the 

requirements established in Wis. Stat. § 971.08.7 Rather, he 

objects to a charging error that the district attorney made and 

that his attorney did not recognize and explain to him before he 

pled no contest. Accordingly, Bentley, not Bangert, provides 

the analytic framework by which we evaluate Dillard's motion for 

plea withdrawal. In a Bentley proceeding, the defendant has the 

burden of proof throughout the proceedings; it never shifts to 

the State, as it may in a Bangert proceeding. State v. Burton, 

2013 WI 61, ¶7, 349 Wis. 2d 1, 832 N.W.2d 611. 

¶144 State v. Denk, 2008 WI 130, 315 Wis. 2d 5, 758 N.W.2d 

775, is important when analyzing a claim that a defendant's plea 

 

6 Dillard could not meet this federal requirement because he 

admitted he committed the armed robbery of which he was 

convicted.

7 The majority opinion erroneously states, "the [circuit]

court . . . advised the defendant that he was facing a mandatory 

sentence of life in prison without the possibility of extended 

supervision." Majority op., ¶34. The circuit court never 

advised the defendant what would occur if he did not plead.
No. 2012AP2044-CR.pdr

15

was not knowing, intelligent and voluntary because there was a 

charging error of which defendant was unaware. Denk was charged 

with felony possession of methamphetamine; felony possession of 

THC with intent to deliver; misdemeanor possession of marijuana; 

misdemeanor possession of drug paraphernalia; and felony intent 

to convert methamphetamine, contrary to Wis. Stat. § 961.575(3). 

Id., ¶¶17, 19. Denk focuses on the last felony charge.

¶145 In that case, the district attorney and Denk entered 

into a plea agreement wherein Denk agreed to plead to felony 

possession of methamphetamine. In exchange, the district 

attorney agreed to dismiss all other charges, including felony 

intent to convert methamphetamine, and to recommend that Denk 

serve six months in the county jail as a condition of probation. 

Id., ¶21. The district attorney and Denk did as they agreed. 

After determining that Denk was satisfied with his attorney's 

services and that Denk's plea was knowing and voluntary, the 

court accepted Denk's no contest plea and placed Denk on 

probation, with five months in the county jail as a condition of 

probation. Id., ¶22. 

¶146 Several months later, Denk moved to withdraw his plea, 

asserting that there was no factual basis for charging him with 

felony possession of methamphetamine paraphernalia under Wis. 

Stat. § 961.573(3). Id., ¶23. He contended that because he 

could not have been convicted of the charge, the district 

attorney's offer to drop the charge was "an illusory benefit" 

that rendered his plea unknowing and involuntary. Id.
No. 2012AP2044-CR.pdr

16

¶147 We affirmed the denial of Denk's motion to withdraw 

his plea. Id., ¶78. We explained that State v. Brown, 2004 WI 

App 179, 276 Wis. 2d 559, 687 N.W.2d 543 and State v. Riekkoff, 

112 Wis. 2d 119, 332 N.W.2d 744 (1983), the cases on which Denk 

relied, involved problems with the charge to which the defendant 

actually pled, while Denk's allegations involved a charge to 

which he did not plead. Denk, 315 Wis. 2d 5, ¶75. We also 

explained that "[u]nlike the cases upon which Denk relies, this 

was not a plea based on an illusory promise, but rather it was a 

plea where the promise was realized." Id., ¶78. Stated 

otherwise, Denk received the benefits of his bargain with the 

district attorney because the district attorney honored the plea 

bargain. Id. 

¶148 Mistakes in charging may be caused by insufficient 

facts known at the time the complaint or information is filed or 

the need to do further legal research. They probably occur with 

some frequency, as the records presented to us often show 

charges that have been dismissed on cases that have gone to 

trial. Denk establishes that a mistakenly charged crime that is 

dismissed does not form part of the conviction and is not 

subject to the same scrutiny as the crime of conviction. For 

example, although the circuit court must establish the factual 

basis for the crimes to which a defendant pleads, the court has 

no such obligation in regard to crimes charged but later 

dismissed. 

¶149 Surely the majority opinion can't be suggesting that 

the circuit court is obligated to inform a defendant about facts 
No. 2012AP2044-CR.pdr

17

that the State would have had to prove for dismissed charges, as 

well as facts the State would be required to prove for charges 

to which a defendant pleads. This would be an extraordinary 

burden to place on circuit courts. However, Dillard, who is 

dissatisfied with the results of his plea bargain, is attempting 

to make the circuit court somehow responsible for the bargain he 

made, but now seeks to avoid. 

¶150 Cross also is helpful when considering mistaken 

information, although it is not as "on point" as is Denk because 

Cross involved a claimed circuit court error in giving Cross 

mistaken information about the crime to which he pled. 

Therefore, Cross applied a Bangert analysis, not the Bentley

analysis that is applicable here. Cross, 326 Wis. 2d 492, ¶4. 

¶151 Subject to a plea bargain, Cross pled guilty to 

second-degree sexual assault, which has a maximum imprisonment 

of 30 years, with 20 years incarceration and 10 years extended 

supervision. However, at the plea hearing, "counsel for Cross 

informed the circuit court that second degree sexual assault was 

a Class C felony and that the maximum total sentence was 40 

years," with the potential of 25 years incarceration and 15 

years extended supervision. Id., ¶8. The district attorney 

recommended only 24 months of initial confinement. Id., ¶7. At 

the plea hearing, the circuit court repeated the potential for 

the same maximum punishments defense counsel had incorrectly set 

out. Id., ¶8. 

¶152 At sentencing, the court reviewed numerous victim 

impact statements that explained that Cross had molested or 
No. 2012AP2044-CR.pdr

18

sexually assaulted many family members. Id., ¶9. The victim in 

the case then before the court was Cross' ten-year-old greatgranddaughter. Id., ¶6. After explaining that the court did 

not want to give Cross another opportunity to molest other 

family members, the court sentenced Cross to the maximum that it 

believed was available, i.e., 25 years incarceration and 15 

years of extended supervision. Id., ¶10. 

¶153 Cross moved for postconviction relief, requesting plea 

withdrawal and resentencing. Id., ¶11. Cross argued that 

because he was incorrectly advised of the penalties prior to his 

plea, his plea was not knowing and intelligent. Id. The 

circuit court denied Cross' motion to withdraw his plea, but did 

vacate the sentence and ordered resentencing. Id., ¶12. Cross 

was again sentenced to the maximum for the crime of conviction, 

20 years confinement and ten years extended supervision. Id.

¶154 We affirmed the denial of Cross' motion to withdraw 

his plea after concluding that the circuit court's statements on 

the range of punishments to which Cross was subjected by 

pleading was not "substantially higher[] than that authorized by 

law." Id., ¶30. We concluded that Cross had not made a prima 

facie case entitling him to shift the burden to the State to 

prove that his plea was knowing and intelligent. Id. 

¶155 Dillard artfully attempts to place the burden on the 

State to show that his plea was knowing and intelligent. 

However, under a Bentley analysis, which is the analysis that is 

applicable here, the burden of proof never shifts to the State. 

Burton, 349 Wis. 2d 1, ¶7. Therefore, it is Dillard who must 
No. 2012AP2044-CR.pdr

19

prove by clear and convincing evidence that manifest injustice 

will result unless his plea is vacated because he did not plead 

knowingly and intelligently. Bentley, 201 Wis. 2d at 311. 

Requiring the defendant to shoulder the burden of proof on 

whether his plea was knowing and intelligent is consistent with 

Bentley's and Strickland's directive that with regard to an 

ineffective assistance of counsel claim, the defendant bears the 

burden to prove both deficient performance and prejudice. Id.

at 312; Strickland, 466 U.S. at 687. 

¶156 I conclude that our opinion in Denk controls Dillard's 

plea withdrawal motion because Denk is grounded in a charging 

error where there is no subsequent circuit court error. As in 

Denk, the circuit court here fully complied with its 

constitutional and statutory obligations during its plea 

colloquy with Dillard. That conclusion is affirmed by Dillard, 

who before us has never contended that the circuit court did not 

fully inform him of the potential punishments for armed robbery, 

the crime to which he pled; the constitutional rights he was 

relinquishing by his plea; or pointed to any error of any type 

in the plea colloquy. 

¶157 After its thorough colloquy, the circuit court 

concluded that Dillard pled to armed robbery "freely, 

voluntarily, and intelligently." In order to overturn this 

conclusion, Dillard must prove by clear and convincing evidence 

that he did not "freely, voluntarily, and intelligently" plead. 

To do so he must provide factual-objective, not opinionsubjective, information that will prove by clear and convincing 
No. 2012AP2044-CR.pdr

20

evidence that he did not knowingly and intelligently plead to 

armed robbery. Saunders, 196 Wis. 2d at 51. 

¶158 At the hearing on Dillard's motion to withdraw his 

plea, Dillard said that he would have gone to trial on the 

charges of armed robbery and false imprisonment as a repeater if 

he had known that the State could not prosecute him as a 

persistent repeater on the armed robbery charge.8 That is an 

"opinion-subjective" statement, not a "factual-objective" 

statement.9 Bentley, 201 Wis. 2d at 313 (concluding that a 

"defendant must do more than merely allege that he would have 

pled differently; such an allegation must be supported by 

objective factual assertions."); accord Sanders, 196 Wis. 2d at 

51.

¶159 Dillard also said that he believed that the State had 

some problems with his identification and that bore on why he 

would have gone to trial. This is factual-objective 

information. However, his trial attorney testified that she 

advised him that their earlier concerns about the victim's 

identification of him were no longer strong after seeing the 

victim testify at two hearings. She said:

 

8 Dillard said this same thing in a number of different 

ways, but each amounts to the same opinion-subjective narration 

about what he would have done if he had known the State could 

not prosecute him as a persistent repeater. 

9 The majority opinion repeatedly uses Dillard's assertion 

as though repeating it will change it from an insufficient 

opinion-subjective statement into requisite factual-objective 

proof, e.g., majority op., ¶¶44-47. 
No. 2012AP2044-CR.pdr

21

[H]e had to take into consideration that if he went to 

trial the jury would likely hear things that would be 

very devastating towards his case, like the fact that 

the victim had identified him on a sex offender 

database. I also reminded him that the victim had 

testified at a revocation hearing and that she 

testified in the proceedings rather credibly and that 

an administrative law judge had made a similar 

comment.

¶160 Therefore, before he pled, counsel explained to 

Dillard that T.L. had testified very credibly when she 

identified him as the perpetrator of the armed robbery at the 

revocation hearing. Accordingly, earlier concerns about the 

strength of her identification of him were not significant. 

Counsel also told Dillard that at trial the jury would hear that 

T.L. had identified him from his picture on the sex offender 

registry, a "devastating" fact to place before the jury.

¶161 Trial counsel was asked whether Dillard indicated to 

her why he agreed to the district attorney's offer, she said:

I believe it was the totality of the circumstances, 

the dismissal of Count 2, the dismissal of any 

repeater enhancer at all on Count 1, even just a 

simple repeater for having been convicted of prior 

felonies, the fact that the State had a motion filed 

that would introduce to the jury other acts that had 

very similar type of conduct that I believe would come 

in, which I told Mr. Dillard about, the fact again 

that we had seen the victim testify at a prelim[inary] 

and at a revocation hearing and she did not waiver in 

her identification of the defendant in the testimony. 

All of those things[.]

Before he pled, Dillard knew that other acts evidence would be 

admitted at trial because of the similar types of victimization 

that led to his two prior armed robbery convictions. Dillard's 

trial attorney again explained that they had seen T.L. testify 

at two prior hearings and that T.L. was firm and convincing in 
No. 2012AP2044-CR.pdr

22

her identification of Dillard as the perpetrator of the armed 

robbery.

¶162 The only factual-objective information Dillard 

provided in support of his motion to withdraw his plea was a 

concern about the strength of the victim's identification. At 

the hearing on Dillard's motion to withdraw his plea, trial 

counsel said that prior to his plea, she told Dillard that 

earlier concerns about the victim's identification of him were 

not significant after seeing T.L. testify at the preliminary 

hearing and the revocation hearing. There, T.L. was a credible 

witness who "did not waiver in her identification of [him]." 

¶163 Trial counsel's testimony was sufficient to offset any 

benefit Dillard could receive from his sole, factual-objective 

statement that focused on the strength of T.L.'s identification 

of him as the perpetrator. The circuit court concluded that he 

did not meet his burden of proof by clear and convincing 

evidence. I agree with the circuit court and conclude that 

Dillard did not provide sufficient factual-objective information 

to meet his burden to prove by clear and convincing evidence 

that his plea to armed robbery was not knowing, intelligent and 

voluntary.

¶164 In addition, at the hearing on plea withdrawal, the 

circuit court assessed the credibility of Dillard's statement 

that if he had known that the State could not prosecute him as a 

persistent repeater, he would have gone to trial on the charges 
No. 2012AP2044-CR.pdr

23

of armed robbery and false imprisonment as a repeater.10 In 

making its assessment, the court asked:

Q. If I would have gave you the five years' initial 

confinement, would you have been satisfied with 

that sentence?

A. Of course.

Q. If I would have went along with what the State 

said, the eight years' initial confinement, would 

you have been satisfied with that?

A. Of course. That's better than a life without 

parole.

Q. Your dissatisfaction with my sentence was the 

fact that I gave you the——the maximum, correct?

A. Um——I guess. Yes, I guess so. 

¶165 Although not explicitly stated, the circuit court 

found that Dillard's assertion that he would have gone to trial 

but for the charging error was not credible. As the court 

explained: 

[T]he only reason we're here on appeal is because I 

did not go along with [counsel or the district 

attorney's] recommendations and I gave him the maximum 

sentence which he knew he could have received from me. 

This is all a matter, in my opinion, from listening to 

him, now that he's got the sentence he doesn't like it 

and now he wants to appeal it and find a way to do so. 

 

10 The majority opinion attempts to characterize the circuit 

court's questioning of Dillard as irrelevant to the validity of 

Dillard's plea. "The defendant's subsequent satisfaction or 

dissatisfaction with his sentence has no bearing on whether his 

initial decision to enter a plea was knowing, intelligent, and 

voluntary." Majority op., ¶67. The majority opinion should 

consider why the circuit court would have asked such questions. 

Clearly, the circuit court was trying to assess the credibility 

of Dillard's representations to the court. 
No. 2012AP2044-CR.pdr

24

Credibility determinations are for the circuit court. We will 

not set them aside unless they are clearly erroneous. See State 

v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695. 

The circuit court described why it did not believe Dillard; its 

credibility determination is not clearly erroneous. 

¶166 The circuit court also concluded that Dillard did not 

prove that he was denied effective assistance of counsel because 

the mistaken belief of counsel was not prejudicial to Dillard. 

The court explained:

I believe that the other acts' evidence of the almost 

identical type crime taking place with a sexual 

assault and that evidence coming in on this case would 

have been devastating to any type of defense in this 

case, and that's, in my opinion, the reason why he 

reached this agreement because, as counsel indicates 

in her letter and here in testimony, there are a lot 

of negatives and she still would have recommended, 

even if the persistent repeater would automatically be 

dismissed, that she would have recommended [the plea 

that was offered] to him. 

¶167 A defendant is prejudiced by ineffective assistance of 

counsel when factual-objective information submitted to the 

circuit court proves that "there is a reasonable probability 

that, but for the counsel's errors, he would not have pleaded 

guilty and would have insisted on going to trial." Bentley, 201 

Wis. 2d at 312-13 (citation omitted). 

¶168 I agree with the circuit court: Dillard received the 

benefit of his bargain and suffered no prejudice.11 Dillard's 

 

11 The State conceded that trial counsel's performance was 

deficient, so I do not address whether Dillard met his burden of 

proof on that component of his ineffective assistance claim. 
No. 2012AP2044-CR.pdr

25

plea bargain was with the district attorney, not with the 

circuit court, who told Dillard that the court was not bound by 

any plea agreement. The district attorney fully performed, 

giving Dillard the benefit of his plea bargain. Furthermore, 

Dillard failed to prove that his plea was not knowing and 

intelligent because he did not provide sufficient factualobjective evidence to overcome other evidence presented at the 

plea withdrawal hearing. Stated otherwise, he did not prove by 

clear and convincing evidence that but for trial counsel's 

error, he would not have pled to armed robbery. 

¶169 The prejudice analysis for Dillard's ineffective 

assistance claim is based on the same contention, i.e., that his 

plea was not knowing and intelligent. Therefore, the same 

analysis as I applied above, in which I concluded that Dillard 

failed to prove by clear and convincing evidence that his plea 

was not knowing and intelligent, controls the prejudice prong of 

his ineffective assistance claim. This is so because Dillard's 

ineffective assistance claim and his claim that his plea was not 

knowing and intelligent are based on the same lack of knowledge 

that the State could not prosecute him as a persistent repeater. 

¶170 Therefore, Dillard failed to prove manifest injustice 

by clear and convincing evidence based on prejudice that arises 

from deficient performance, just as he failed to prove that his 

plea was not knowing and intelligent. The arguments are, in 

this case, two sides of the same coin. Accordingly, I would 

reverse the court of appeals and affirm the decision of the 

circuit court. 
No. 2012AP2044-CR.pdr

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III. CONCLUSION

¶171 Dillard was convicted of armed robbery based on his 

plea of no contest. He received the maximum permissible 

sentence for armed robbery. He moved to withdraw his plea, 

asserting that manifest injustice will result if his plea is not 

vacated. Dillard asserts his plea was not entered knowingly and 

intelligently because his counsel did not tell him that the 

State could not prosecute him as a persistent repeater for armed 

robbery. He claims ineffective assistance of counsel based on 

the same assertion. 

¶172 In order to withdraw his plea subsequent to 

sentencing, Dillard bears the burden to prove manifest injustice 

by clear and convincing evidence. Bentley, 201 Wis. 2d at 311. 

Dillard failed to shoulder that burden because he submitted 

insufficient factual-objective information at the plea 

withdrawal hearing. Furthermore, the circuit court found that 

Dillard's testimony was not credible. Accordingly, I would 

reverse the court of appeals; affirm the circuit court; and I 

respectfully dissent from the majority opinion. 

¶173 I am authorized to state that Justices DAVID T. 

PROSSER and ANNETTE KINGSLAND ZIEGLER join in this dissent.
No. 2012AP2044-CR.pdr

1