                                                                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,
                                                                        FILED
      v.
                                                                   NOV 26, 2014
Myron C. Dillard,
                                                                      Diane M. Fremgen
            Defendant-Appellant.                                   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



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.


                                            2
                                                            No.     2012AP2044-CR



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
                                        3
                                                                     No.    2012AP2044-CR



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
                                               4
                                                                            No.     2012AP2044-CR



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.


                                                5
                                                                         No.        2012AP2044-CR



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.
                                                 6
                                                                      No.    2012AP2044-CR



      ¶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).


                                              7
                                                                     No.    2012AP2044-CR



       ¶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
                                           8
                                                                          No.    2012AP2044-CR



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.


                                             9
                                                                           No.    2012AP2044-CR



       ¶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.


                                                10
                                                  No.    2012AP2044-CR



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).


                                 11
                                                            No.    2012AP2044-CR



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.").


                                       12
                                                   No.   2012AP2044-CR



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.


                                  13
                                                                   No.      2012AP2044-CR



       ¶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.
                                         14
                                                                   No.    2012AP2044-CR



     ¶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


                                          15
                                                                      No.    2012AP2044-CR



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
                                           16
                                                                        No.    2012AP2044-CR



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.


                                            17
                                                             No.    2012AP2044-CR



     ¶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."


                                     18
                                                                             No.    2012AP2044-CR



      ¶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
                                                 19
                                                                     No.    2012AP2044-CR



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 no-

contest 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)).


                                          20
                                                                            No.       2012AP2044-CR



       ¶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 no-

contest 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)
                                               21
                                                                No.   2012AP2044-CR



     ¶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.


                                       22
                                                                         No.     2012AP2044-CR



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.


                                               23
                                                                  No.      2012AP2044-CR



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


                                          24
                                                                        No.   2012AP2044-CR



       ¶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




                                               25
                                                                 No.    2012AP2044-CR



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.


                                          26
                                                                        No.     2012AP2044-CR



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.


                                            27
                                                                 No.    2012AP2044-CR



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.").


                                            28
                                                                      No.       2012AP2044-CR



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.


                                           29
                                                                   No.   2012AP2044-CR



     ¶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.


                                         30
                                                                     No.    2012AP2044-CR



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).


                                               31
                                                                      No.       2012AP2044-CR



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)
                                             32
                                                             No.    2012AP2044-CR



       ¶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.


                                      33
                                                                  No.        2012AP2044-CR



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 no-

contest 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.


                                         34
                                                                          No.      2012AP2044-CR



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.


                                              35
                                                                    No.    2012AP2044-CR.pdr


    ¶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

                                               1
                                                                      No.     2012AP2044-CR.pdr


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.


                                                 2
                                                                 No.   2012AP2044-CR.pdr


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.


                                           3
                                                              No.    2012AP2044-CR.pdr


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
                              4
                                                              No.   2012AP2044-CR.pdr

       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).


                                            5
                                                                    No.   2012AP2044-CR.pdr


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


                                              6
                                                         No.    2012AP2044-CR.pdr


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:



                                       7
                                                                   No.   2012AP2044-CR.pdr

            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.
                                            8
                                                              No.   2012AP2044-CR.pdr


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).


                                        9
                                                                      No.   2012AP2044-CR.pdr


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.


                                              10
                                                                    No.    2012AP2044-CR.pdr


"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.

                                            11
                                                                  No.   2012AP2044-CR.pdr


       ¶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 "opinion-

subjective," and a defendant's saying that he would have gone to

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

                                            12
                                                                    No.    2012AP2044-CR.pdr


       ¶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

                                              13
                                                            No.   2012AP2044-CR.pdr


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.


                                         14
                                                           No.    2012AP2044-CR.pdr


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.



                                      15
                                                                   No.    2012AP2044-CR.pdr


       ¶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

                                              16
                                                                 No.   2012AP2044-CR.pdr


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

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

the case then before the court was Cross' ten-year-old great-

granddaughter.         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

                                             18
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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    opinion-
subjective, information that will prove by clear and convincing

                                              19
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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.


                                              20
                                                            No.   2012AP2044-CR.pdr

    [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

                                     21
                                                                 No.    2012AP2044-CR.pdr


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




                                            22
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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.


                                 23
                                                    No.   2012AP2044-CR.pdr


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.


                                 24
                                                                        No.   2012AP2044-CR.pdr


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         factual-

objective 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.

                                                 25
                                                                   No.    2012AP2044-CR.pdr


                                    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.




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