Background
Terral Wallace was charged in Brown County with homicide by intoxicated use of a vehicle and multiple counts of injury by intoxicated use of a vehicle, stemming from a crash on Interstate 41 in which Wallace, while intoxicated, lost control of his vehicle, killing one passenger and injuring three others. Wallace ultimately entered a no-contest plea to one count of homicide by intoxicated use of a vehicle and two counts of injury by intoxicated use of a vehicle, with the State agreeing to dismiss and read in the remaining counts, including all repeater enhancers. The plea questionnaire and colloquy correctly identified the maximum 25-year imprisonment exposure on the homicide count but left blank the line designated for presumptive minimum penalties. The court never informed Wallace on the record of the five-year presumptive minimum term of initial confinement required by Wis. Stat. § 940.09(1c)(a).
At sentencing, both parties jointly recommended 10 years of initial confinement on the homicide count — double the five-year presumptive minimum — and the circuit court imposed exactly that term. Wallace subsequently moved to withdraw his plea, arguing it was not knowing, intelligent, and voluntary because the court had failed to advise him of the presumptive minimum. The circuit court found that Wallace had made a prima facie showing of a defective colloquy under State v. Bangert, 131 Wis. 2d 246 (1986), but denied the motion without an evidentiary hearing, concluding the defect was insubstantial under the circumstances.
Wallace appealed, arguing he was entitled to a Bangert evidentiary hearing and that State v. Mohr, 201 Wis. 2d 693 (Ct. App. 1996) — which involved a nearly identical omission of a presumptive minimum — compelled the grant of such a hearing. The State countered that binding precedent from State v. Cross, State v. Taylor, and State v. Johnson authorized denial of a hearing where the record showed the defect was insubstantial and the defendant was unaffected by it.
The Court’s Holding
The Wisconsin Court of Appeals (District III) affirmed the circuit court’s denial of Wallace’s postconviction motion without a Bangert evidentiary hearing. The court held that a circuit court’s failure to advise a defendant of a presumptive minimum sentence at a plea hearing is not automatically a per se Bangert violation requiring an evidentiary hearing. Drawing on State v. Finley, 2016 WI 63, the court reiterated that no evidentiary hearing is required where the record shows the defendant knew the potential punishment and received the sentence the circuit court described. Under State v. Johnson, 2012 WI App 21, a hearing is also unnecessary where the defendant was not affected by an insubstantial defect in the colloquy.
Applying those principles, the court found the omission insubstantial on this record. The five-year presumptive minimum appeared on the face of the criminal complaint, the information, and the amended information — all documents defense counsel confirmed reviewing with Wallace. More tellingly, neither Wallace nor his counsel ever contemplated a sentence near the presumptive minimum: Wallace told the PSI author he hoped for eight years, and both parties jointly recommended ten years of initial confinement on the homicide count. The presumptive minimum played no role in the sentencing discussion and was never mentioned by the parties or the court at that hearing. Wallace received the direct benefit of the plea agreement when the court dismissed and read in the remaining five counts and all repeater enhancers.
The court distinguished Mohr, where the defendant had been sentenced to the presumptive minimum while actually expecting probation — circumstances showing the omission was material. Here, Wallace never expected, asked for, or received anything close to the presumptive minimum, and the record would require the assumption that Wallace misrepresented his understanding of the complaint to find he was actually unaware of it.
Key Takeaways
- A circuit court’s failure to orally advise a defendant of a presumptive minimum sentence at a plea hearing is a cognizable colloquy defect but is not a per se Bangert violation — courts must assess whether the defect was insubstantial given the full record.
- Under Finley, no evidentiary hearing is required when the record shows the defendant knew the potential punishment and was given the sentence the court described; under Johnson, a hearing is also unnecessary when the defendant was demonstrably unaffected by the defect and received the benefit of the plea agreement.
- Courts may look beyond the four corners of the plea hearing — to complaints, informations, PSI reports, and sentencing recommendations — to determine whether a colloquy defect was insubstantial.
- Mohr is distinguishable and does not require a hearing in every case involving an omitted presumptive minimum; the key factor is whether the omission could realistically have affected the defendant’s plea decision.
Why It Matters
This decision reinforces that Wisconsin’s Bangert framework for plea withdrawal is not a purely mechanical checklist. Defense counsel and prosecutors should understand that a facially defective plea colloquy will not automatically open the door to an evidentiary hearing — and ultimately to plea withdrawal — if the broader record makes clear that the defendant was aware of the relevant sentencing parameter and was unaffected by its omission. The ruling protects the finality of convictions in cases where any gap between the colloquy and the statutory requirements had no practical consequence on the defendant’s decision-making.
At the same time, the decision draws a meaningful line: where a defendant actually receives a sentence at or near the omitted presumptive minimum — as occurred in Mohr — the omission is far more likely to be deemed substantial, entitling the defendant to a hearing. Practitioners handling OWI-homicide matters in Wisconsin should ensure plea colloquies affirmatively address the § 940.09(1c)(a) presumptive minimum on the record, as the safer practice regardless of what sentencing outcome is anticipated.