State v. James Lee Johnson, 2012 WI App 21 (recommended for publication); for Johnson: Melinda A. Swartz, SPD, Milwaukee Appellate; case activity
The guilty plea colloquy was defective, in that it failed to advise Johnson that the trial court wasn’t obliged to follow the terms of the plea bargain (here: to dismiss and read-in a count), contrary to State v. Hampton, 2004 WI 107, ¶32, 274 Wis. 2d 379, 683 N.W.2d 14. Nonetheless, Johnson isn’t entitled to relief:
¶12 The only defect at issue in this appeal is whether a Bangert/Hampton violation occurred when the circuit court did not inform Johnson that it was not bound by the plea agreement. The State concedes that the circuit court erred; however, given that the circuit court accepted the plea agreement, Johnson has not demonstrated that withdrawal of his plea “is necessary to correct a manifest injustice.” See Cross, 326 Wis. 2d 492, ¶42. “A manifest injustice occurs when there has been ‘a serious flaw in the fundamental integrity of the plea.’” Id.(citation omitted). Johnson was not affected by the defect in his plea colloquy; in fact, he received the benefit of the plea agreement. The criminal complaint charged Johnson with two counts of second-degree sexual assault of a child. Each charge carried a maximum prison sentence of forty years. See Wis. Stat. §§ 948.02(2), 939.50(3)(c). In accepting the State’s recommendation and dismissing the second count, the circuit court reduced Johnson’s potential prison time by forty years. Johnson, therefore, was not subject to a manifest injustice as the circuit court’s failure to inform him that it was not bound by the plea agreement was an “insubstantial defect[].” See Cross, 326 Wis. 2d 492, ¶32.
¶13 In applying the rationale from Cross, therefore, we follow the supreme court’s reasoning that “requiring an evidentiary hearing for every small deviation from the circuit court’s duties during a plea colloquy is simply not necessary for the protection of a defendant’s constitutional rights.” Id., ¶32. “The Bangert requirements exist as a framework to ensure that a defendant knowingly, voluntarily, and intelligently enters his plea. We do not embrace a formalistic application of the Bangert requirements that would result in the abjuring of a defendant’s representations in open court for insubstantial defects.” Cross, 326 Wis. 2d 492, ¶32. Because the circuit court accepted the plea bargain, Johnson cannot demonstrate a violation of his constitutional rights.
The court separately, but relatedly, determines that the error is harmless:
¶14 We also conclude that Cross implicitly allows for us to hold the error at issue harmless. See id., 326 Wis. 2d 492, ¶36 (In discussing an insubstantial error during a plea colloquy, the supreme court stated “[b]y clear implication, the failure of the defendant to know and understand the precise maximum is subject to a harmless error test. It is not a per se violation of the defendant’s due process rights.”). The test for harmless error is “whether there is a reasonable possibility that the error contributed” to the outcome. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). “The standard for evaluating harmless error is the same whether the error is constitutional, statutory, or otherwise. An error is harmless if it does not affect the defendant’s substantial rights.” State v. Sherman, 2008 WI App 57, ¶8, 310 Wis. 2d 248, 750 N.W.2d 500 (citation omitted); see also Wis. Stat. § 805.18(2).[4] Clearly the error did not contribute to the outcome of Johnson’s plea hearing, nor were his substantial rights affected. Johnson’s situation is not one in which the circuit court failed to inform him that it was not bound by the plea agreement and then imposed a larger sentence than what was recommended as part of the plea agreement. Johnson received exactly what he bargained for when the second count was dismissed. Further, Johnson does not claim that he would not have pled guilty, or admitted in open court to sexually assaulting his daughter, had the court expressly informed him that it did not have to dismiss the second count. Johnson, therefore, has not demonstrated that this plea was not entered into knowingly, voluntarily or intelligently.
¶15 Like the supreme court in Cross, we also conclude that Johnson’s admission at the plea hearing that he had sexual contact with S.J. on at least two occasions “should not be thrown aside.” See id., 326 Wis. 2d 492, ¶43. Johnson entered a favorable plea agreement in which the second count of second-degree sexual assault of a child was dismissed, thereby reducing his potential prison exposure by forty years. The circuit court’s error was harmless.
The court of appeals distinguished conflicting, unpublished precedent regarding this issue at ¶10 n. 3 of its decision.
