Overstating Possible Punishment and the (In)voluntary Nature of the Plea

In a post here discussing application of post-release supervision periods to multiple sentences Jamie raised the question of whether over-advising a defendant as to the maximum possible sentence associated with pending charges can undercut the knowing, voluntary and intelligent nature of a plea. Let’s recap the issue. Suppose a defendant is contemplating pleading guilty to two Class C felony reportable sexual assault charges committed after December 1, 2011. The highest possible minimum for each offense is 182 months. The corresponding maximum is 279 months. Built into this maximum is a 60-month period of post-release supervision. Suppose that when advising the defendant as to the maximum possible sentence, accounting for consecutive sentences, the trial judge doubles 279, getting a maximum of 558 months. The judge so advises the defendant and the defendant pleads guilty and is sentenced. As Jamie’s post clarifies, the judge’s advisement overstated the total maximum sentence that could be imposed for the consecutive sentences. If the sentences run consecutively, only one post-release supervision period is imposed. Because our defendant has two offenses, one 60-month post-release period must be subtracted from the maximum. This means that the maximum sentence is 558 minus 60 months, or 498 months. Assume now that the defendant files a motion for appropriate relief (MAR). He alleges that his plea was not knowing, voluntary, and intelligent because the judge overstated the maximum possible sentence and his lawyer never corrected the error. He further alleges that had he known the correct maximum, he would not have pleaded [...]