State v. Gomolla

411 Wis. 2d 239

State of Wisconsin, Plaintiff-Respondent,

v.Kasey Ann Gomolla, Defendant-Appellant.^†

Court of Appeals

No. 2022AP199–CR. Submitted on briefs September 5, 2023.—Decided February 6, 2024.

2024 WI App 13

(Also reported in 4 N.W.3d 610.)

APPEAL from a judgment and an order of the circuit court for Brown County: JOHN P. ZAKOWSKI, Judge. Judgment amended and, as amended, affirmed; order affirmed.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Megan Sanders-Drazen of Wisconsin Defense Initiative, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joshua L. Kaul, attorney general, and Kieran M. O'Day, assistant attorney general.

Before Stark, P.J., Hruz and Gill, JJ.

¶ 1. STARK, P.J. Kasey Ann Gomolla appeals from a judgment, entered upon her no-contest plea, convicting her of conspiracy to deliver methamphetamine (more than fifty grams)¹ and from the circuit court's order denying her postconviction motion for plea withdrawal. As part of the plea agreement in this case, the State agreed to remove a second or subsequent offense enhancer from the charged crime, which reduced Gomolla's potential punishment from forty-six years to forty years.² However, defense counsel over- looked that fact in preparing Gomolla’s plea questionnaire and in discussions with Gomolla prior to entry of her plea, and Gomolla was incorrectly informed by counsel that she was subject to a potential punishment of forty-six years. During the plea colloquy, the court did not correct the error, as it failed to address the potential punishment at all beyond confirming that Gomolla had reviewed the plea questionnaire that overstated Gomolla's potential punishment by six years.

¶ 2. Gomolla argues before this court that she is entitled to withdraw her no-contest plea because the circuit court failed to advise her of the maximum statutory penalty she faced during the plea colloquy, which constitutes a plea colloquy defect. She further claims that because defense counsel misinformed her of the potential punishment, she was unaware of the true penalty she faced; therefore, her plea was not knowing, intelligent, and voluntary.

¶ 3. We assume, without deciding, that the circuit court's plea colloquy was defective because the court failed to establish that Gomolla understood her potential punishment, which the court is required to ascertain under Wisconsin law. See Wis. Stat. § 971.08; State v. Bangert, 131 Wis. 2d 246, 262, 389 N.W.2d 12 (1986).

¶ 4. We conclude, however, that despite the defective plea colloquy, the State presented clear and convincing evidence that Gomolla nevertheless understood the potential punishment she faced if convicted. While Gomolla was informed that she faced a higher maximum statutory penalty than authorized by law, pursuant to our supreme court's decision in State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64, "a defendant can be said to understand the range of punishments as required by [Wis. Stat.] § 971.08 and Bangert when the maximum sentence communicated to the defendant is higher, but not substantially higher, than the actual allowable sentence." See Cross, 326 Wis. 2d 492, ¶ 38. Although it was counsel who provided the incorrect information to Gomolla, rather than the circuit court as in Cross, the forty-six-year sentence communicated to Gomolla was higher, but not substantially higher, than the forty-year maximum statutory penalty she actually faced.

¶ 5. We therefore conclude that Gomolla understood the potential punishment, as required by Wis. Stat. § 971.08 and Bangert, and that her plea was knowing, intelligent, and voluntary. Accordingly, Gomolla is not entitled to withdraw her plea, and we affirm.

BACKGROUND

¶ 6. According to the State, Gomolla was a coconspirator in an expansive drug trafficking scheme. Gomolla observes that the "details regarding her role in the trafficking scheme remain elusive,"³ but what is relevant for this appeal is that Gomolla was charged with two drug crimes: conspiracy to deliver methamphetamine (more than fifty grams) and soliciting the delivery of THC (between 1,000 grams and 2,500 grams), both charges as a second and subsequent offense.

¶ 7. Gomolla and the State reached an agreement wherein Gomolla would plead no contest to conspiracy to deliver more than fifty grams of methamphetamine—a Class C felony—while the soliciting delivery of between 1,000 grams and 2,500 grams of THC charge would be dismissed and read in. The State also agreed to dismiss the second and subsequent offense enhancer. Without the enhancer, Gomolla faced a forty-year maximum statutory penalty, while her exposure was forty-six years with the enhancer. See Wis. Stat. §§ 939.50(3)(c), 961.48(1)(a). The State's offer included a joint recommendation of seven years' initial confinement followed by ten years' extended supervision, but if Gomolla wished to argue, then the State agreed to cap its recommendation at eight years' initial confinement followed by eight years' extended supervision.

¶ 8. Gomolla completed a Plea Questionnaire/ Waiver of Rights form. The plea questionnaire correctly stated that she was pleading to the methamphetamine charge, but the form incorrectly included the second and subsequent offense enhancer as well as the forty-six-year potential maximum statutory penalty. Gomolla initialed each section of the plea questionnaire and signed it.

¶ 9. At the plea hearing, the circuit court confirmed with Gomolla that she reviewed the plea questionnaire with defense counsel and that Gomolla understood the form. The court noted that "all of the penalties … have been attached" to the plea questionnaire and asked if Gomolla "had enough time to go over this plea form." It also confirmed that Gomolla understood that the court was not required to abide by any sentencing recommendation and could sentence her to the maximum statutory penalty. However, apart from this discussion, the court did not further address the potential punishment on the record.

¶ 10. After the plea colloquy, the circuit court announced that it would accept Gomolla's plea to conspiracy to deliver more than fifty grams of methamphetamine with the second and subsequent offense enhancer. At that point, the State interjected, stating, "[I]t's the State's understanding that the repeater was going to be dismissed." Defense counsel agreed, and the court dismissed the enhancer. The court did not, however, correct the maximum statutory penalty on the record. Later, the court sentenced Gomolla to twelve years' initial confinement followed by fifteen years' extended supervision.

¶ 11. Gomolla then filed a postconviction motion to withdraw her plea, seeking either resentencing on the ground of ineffective assistance of counsel or plea withdrawal based on the circuit court's failure to advise her of the maximum statutory penalty she faced before accepting her plea, which Gomolla claimed she did not otherwise know or understand.⁴ The court held an evidentiary hearing on Gomolla's motion, which served as both a Machner⁵ hearing and, as relevant here, a Bangert hearing. Both defense counsel and Gomolla testified.

¶ 12. The circuit court then issued a written decision denying Gomolla's postconviction motion for resentencing or plea withdrawal. As relevant to the Bangert claim, the court concluded:

[T]here was a satisfactory plea colloquy to establish that the defendant's plea was knowingly, intelligently and voluntarily made. However, if one would find that the plea colloquy was defective, the court believes the State clearly demonstrated at the motion hearing by clear and convincing evidence that the defendant understood her rights and that her plea was knowingly, intelligently, and voluntarily made.

In reaching this conclusion, the court acknowledged defense counsel's error regarding the maximum statutory penalty communicated to Gomolla. However, the court relied on our supreme court's decision in Cross for the proposition that an incorrectly communicated sentence does not constitute a Bangert violation "where the sentence communicated to the defendant is higher, but not substantially higher, than that authorized by law." See Cross, 326 Wis. 2d 492, ¶ 40. Gomolla appeals.

DISCUSSION

[1–3]

¶ 13. After sentencing, "a plea will not be disturbed unless the defendant establishes by clear and convincing evidence that failure to withdraw the guilty or no contest plea will result in a manifest injustice." State v. Taylor, 2013 WI 34, ¶ 48, 347 Wis. 2d 30, 829 N.W.2d 482. A defendant may demonstrate a manifest injustice by showing that he or she did not knowingly, intelligently, and voluntarily enter his or her plea. State v. Brown, 2006 WI 100, ¶ 18, 293 Wis. 2d 594, 716 N.W.2d 906. "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.'" State v. Dillard, 2014 WI 123, ¶ 37, 358 Wis. 2d 543, 859 N.W.2d 44 (citation omitted).

¶ 14. In Wisconsin, "[t]he duties established in Wis. Stat. § 971.08, in Bangert, and in subsequent cases are designed to ensure that a defendant's plea is knowing, intelligent, and voluntary." Brown, 293 Wis. 2d 594, ¶ 23 (footnote omitted). Section 971.08, for example, "sets forth mandatory requirements that must be met before the circuit court may accept a defendant's guilty or no contest plea," State v. Pegeese, 2019 WI 60, ¶ 22, 387 Wis. 2d 119, 928 N.W.2d 590, including that courts must "[a]ddress 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," § 971.08(1)(a). "Although [§] 971.08 is not a constitutional imperative, the procedure of the statute nevertheless is designed to assist the [circuit] court in making the constitutionally required determination that a defendant's plea is voluntary." Bangert, 131 Wis. 2d at...