State v. Shannon Olance Hendricks ( 2018 )

2018 WI 15
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2429-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Shannon Olance Hendricks,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 373 Wis. 2d 309, 895 N.W.2d 104
(2017 – Unpublished)
OPINION FILED: February 20, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 2, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: David L. Borowski and M. Joseph Donald
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY,
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by and an oral argument by Hannah Schieber Jurss,
assistant state public defender.
For the plaintiff-respondent, there was a brief filed by
and an oral argument by Warren D. Weinstein, assistant attorney
general, with whom on the brief was Brad D. Schimel, attorney
general.
2018 WI 15
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2429-CR
(L.C. No. 2011CF4101)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. FEB 20, 2018
Shannon Olance Hendricks, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. Shannon Olance Hendricks
seeks to withdraw the guilty plea he entered to one count of
child enticement. He claims the circuit court's failure to tell
him the legal definition of "sexual contact" at his plea hearing
violated Wis. Stat. § 971.08's requirement that a pleading
defendant must understand the nature of the charge.1 Because
sexual contact is not an element of the crime of child
enticement, and because the record shows Hendricks understood
1
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
No. 2015AP2429-CR
the nature of the charge to which he pled guilty, the plea
colloquy comported with both § 971.08 and State v. Bangert, 131
Wis. 2d 246, 389 N.W.2d 12 (1986), and Hendricks is not entitled
to an evidentiary hearing. Accordingly, we affirm the court of
appeals decision2 upholding the circuit court's order3 denying
Hendricks' motion for plea withdrawal. Moreover, we decline the
State's request to modify the Bangert requirements.
I. BACKGROUND
¶2 The criminal complaint charged Hendricks with one
count of second-degree sexual assault of a child under the age
of 16. The charges stemmed from Hendricks taking his
girlfriend's 14-year-old niece to a park where he touched the
victim's chest over her clothes, tried to touch her breasts
under her clothes, rubbed her thighs, and touched her buttocks
over her clothes while pressuring her to let him have sexual
intercourse with her.4 In January 2012, on the second day of his
2
See State v. Hendricks, No. 2015AP2429-CR, unpublished
slip op. (Wis. Ct. App. Dec. 15, 2016).
3
The Honorable M. Joseph Donald, Milwaukee County Circuit
Court decided this postconviction motion; the Honorable David L.
Borowski, Milwaukee County Circuit Court presided over the plea
colloquy, subsequent hearings, sentencing, and the
postconviction motions through the entry of the amended judgment
of conviction.
4
The victim testified at the preliminary hearing (which
Hendricks agreed to use as the factual basis for his plea) that
as Hendricks touched these different parts of her body, he kept
saying "please" and that "he hasn't had it [meaning sexual
intercourse] in a while."
2
No. 2015AP2429-CR
trial for second-degree sexual assault, Hendricks decided to
take the State's plea offer: Hendricks would plead guilty to
the reduced charge of child enticement and the State would
recommend a sentence concurrent to the prison sentence Hendricks
was currently serving. With help from his lawyer, Hendricks
filled out a guilty plea questionnaire and waiver of rights
form. After he completed the form, the circuit court conducted
a plea colloquy.
¶3 The circuit court began the colloquy by going over the
plea questionnaire and waiver of rights form and personally
confirming with Hendricks that: (1) he was admitting he
committed child enticement, a felony; (2) he was 31 years old,
completed high school, understands English, and understands the
charge; (3) he was taking medication for anxiety and depression,
but had not used any other drugs or alcohol in the last 24
hours; and (4) he understood the constitutional rights he was
giving up by pleading guilty including the right to trial, the
right to remain silent, the right to testify, the right to a
jury trial, and the right to force the State to prove its case
beyond a reasonable doubt.
¶4 Next, the circuit court asked Hendricks' lawyer if he
had discussed the elements of the offense with his client and
noted defense counsel had attached an element sheet to the plea
questionnaire. Hendricks' lawyer answered: "Correct, Your
Honor. We did go over the elements." Defense counsel told the
court he was satisfied that Hendricks understood the elements.
The circuit court then asked Hendricks again if he understood he
3
No. 2015AP2429-CR
was "pleading guilty and admitting to, as I said, child
enticement, which is a felony," and Hendricks answered
affirmatively. Next, the circuit court asked Hendricks if he
was admitting that he:
. . . did entice a child, a person under the age of
18, to go into a vehicle, building or room or secluded
place, in this case, given the facts in the complaint
and given what's indicated on the element sheet,
you're admitting that you did cause the victim in this
case to go into a secluded area; you intended to have
her go to that secluded area, and you understand and
knew that the victim was under the age of 18; is that
correct?
Hendricks answered, "Yes, Your Honor." After going through all
the information related to sentencing, the required deportation
warning, the effect pleading guilty would have on Hendricks'
right to vote and possession of a firearm, and confirming he was
pleading guilty of his "own free will" because he was in fact
guilty, the circuit court recognized it had not mentioned any of
the prohibited intents listed in the child enticement statute
and the elements sheet attached to the plea questionnaire did
not specify a prohibited intent.
¶5 After a sidebar, the circuit court continued with the
plea colloquy:
[T]he plea under 948.07 needs to be entered to child
enticement but under a specific subsection.
There are six subsections. Subsection (1) is the
person, the defendant, enticing a child under 18 to go
to a vehicle, room, building or secluded place for one
of – and there are alternate purposes. Subsection (1)
is having sexual contact or intercourse with a child;
subsection (2) is for the purpose of prostitution;
subsection (3) is exposing a sex organ; subsection (4)
4
No. 2015AP2429-CR
is making a recording of a child engaged in explicit
conduct; subsection (5) is causing bodily or mental
harm to the child; subsection (6) is giving or selling
the child a controlled substance.
Obviously, in this case, according to the
complaint and the information, and what I just
discussed with the attorneys, what applies, correct me
if I'm wrong is Subsection (1), the enticement was for
the purpose of, at a minimum, sexual contact, correct
counsel?
Hendricks' lawyer answered, "Correct, Your Honor."
¶6 The circuit court then directly addressed Hendricks,
asking him if he understood "that's what you're admitting to;
you're admitting to child enticement? You were bringing this
child under 18 to, in this case, a secluded area for the purpose
of potentially having sexual contact with that child, and that's
indicated in the complaint, indicated in this case; is that
correct, sir?" Hendricks replied, "Yes, it is, Your Honor."
The circuit court asked again if Hendricks was pleading guilty
because he was guilty and he replied "Yes, I am, Your Honor."
The circuit court then went through whether anyone threatened,
forced, or told Hendricks to plead guilty and Hendricks assured
the court no one had. Hendricks confirmed that his attorney had
gone over the guilty plea form with him, that Hendricks read the
form, "went over the case" with his lawyer, signed the form, and
"had enough time to review this matter" and discuss it with his
attorney.
¶7 The circuit court then addressed questions to
Hendricks' lawyer:
THE COURT: Counsel, you went over the agreement with
your client?
5
No. 2015AP2429-CR
[DEFENSE COUNSEL]: We did, Your Honor.
THE COURT: You're satisfied his plea today is free,
voluntary and intelligent?
[DEFENSE COUNSEL]: I am, Your Honor.
THE COURT: You saw your client sign and date the
questionnaire today?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: I've read the complaint. The parties are
stipulating to the facts in the complaint as a factual
basis to support the amended charge and the plea; is
that correct?
[PROSECUTOR]: Yes.
[DEFENSE COUNSEL]: Your Honor, we are agreeing to the
complaint. As far as what the contact was, we're
agreeing to what the victim testified to at the
preliminary hearing, which, you know, which would also
support the plea.
THE COURT: Well, it was certainly enough on this
case.
¶8 The circuit court then directly asked Hendricks if he
was "admitting to that," and he said "Yes, Your Honor." The
circuit court continued with Hendricks: "You're admitting to
the contact, again, with a child who was under 18, the victim,
with a date of birth of 9/19/1996, and you're admitting that it
was sexual contact, correct, sir?" Hendricks replied, "Yes,
Your Honor."
¶9 Based on the stipulation, the complaint, and "what's
been indicated in court by counsel and the defendant," the
circuit court found: (1) there was a factual basis "for the
charge of and plea to child enticement, which is a felony, under
948.07(1)"; and (2) "the defendant has freely, voluntarily and
6
No. 2015AP2429-CR
intelligently entered his plea; freely, voluntarily and
intelligently waived his rights in this matter." The circuit
court accepted the plea, ordered a pre-sentence investigation
report, and set a date for sentencing.
¶10 Before sentencing occurred, Hendricks filed a motion
seeking to withdraw his plea claiming he pled guilty because he
felt rushed and overwhelmed that the victim was going to testify
against him; he now claimed he was not guilty. This also led to
the withdrawal of his first attorney and the appointment of a
second State Public Defender. Hendricks testified at the plea
withdrawal hearing that the medication he was on made him "go
along" with his first attorney's suggestion that he take the
plea because his lawyer said if he did not plead guilty, he
would lose at trial and be sentenced to the maximum of 40 years.
He admitted that he read the criminal complaint and an "outline
of what the jurors would have to go by" to convict him. He also
testified he understood the charges against him:
Q Now, in terms of understanding the charges against
you and the content of it, your defense attorney
showed you the complaint, correct?
A The original complaint?
Q Correct.
A Yes. I saw it before.
Q And you guys went over the elements; what you're
pleading to prior to the entry of your plea, correct?
A Yes.
7
No. 2015AP2429-CR
Q And you also knew exactly what you were being
accused of because you've been through the revocation
hearing on October 26th of 2011, correct?
A Yes.
When the circuit court questioned why Hendricks admitted his
guilt during the plea colloquy and why he said his guilty plea
was of "his own free will," Hendricks explained he really did
not want to plead guilty but his lawyer said he would lose at
trial. He said he just answered yes to all of the circuit
court's questions because he thought his lawyer would not fight
for him if the case was tried.
¶11 Hendricks' first lawyer testified at the plea
withdrawal hearing that: (1) he "very thoroughly" discussed
with Hendricks the plea offer's amendment of the sexual assault
charge to child enticement; (2) he "was totally convinced that
[pleading guilty to the reduced charge] was a voluntary decision
that [Hendricks] was making"; (3) there was no indication that
Hendricks felt rushed; and (4) after going over the plea offer,
and the strengths and weaknesses, the decision of whether to
plead or go to trial was left to Hendricks.
¶12 At the end of the plea withdrawal hearing, the circuit
court indicated that Hendricks' request for plea withdrawal was
based on his hope that the victim would not show up to testify
against him at a trial. The circuit court believed the request
was based solely on Hendricks' "change of heart." It reviewed
the plea colloquy finding it to be extremely thorough.
Hendricks' lawyer agreed it was "a great colloquy" and suggested
8
No. 2015AP2429-CR
its only flaw was the failure to ask Hendricks if his
medications affected his ability to understand.
¶13 In January 2013, the circuit court denied the plea
withdrawal motion. It found: (1) the plea questionnaire and
plea colloquy were "very thorough"; (2) Hendricks answered
questions indicating he "was making this decision freely and
voluntarily"; (3) Hendricks did not indicate "any hesitancy,
whatsoever" at any time during the plea colloquy; (4) the
circuit court discussed and explained the elements of the
offense a couple times; (5) defense counsel "was satisfied that
the defendant's plea was free, voluntary and intelligent"; (6)
Hendricks had "plenty of time, more than adequate amount of time
to go over the plea questionnaire, discuss it with his
attorney"; (7) Hendricks' claim that his medication made him
just "go along" was not credible because he was currently on the
same medication but "fighting and fighting and fighting" to
withdraw his plea; (8) he is a high school graduate with
vocational training and some college; he does not have any
learning disabilities; and (9) Hendricks failed to present a
fair and just reason for plea withdrawal——his reason was nothing
more "than a complete and total change of heart."
¶14 In February 2013, over a year after Hendricks entered
his plea, he was sentenced in accordance with the agreed upon
recommendation. The circuit court sentenced him to three years
of initial confinement concurrent to the sentence he was then
serving, plus four years of extended supervision.
9
No. 2015AP2429-CR
¶15 After some postconviction motions not pertinent here,
an amended judgment of conviction was entered in September 2014.5
Initially, Hendricks' appellate counsel filed a no-merit appeal,
but then requested dismissal of the no-merit appeal and an
extension of time to file a new postconviction motion. The
court of appeals granted those motions. Hendricks then filed a
motion in the circuit court alleging a deficiency in his plea
colloquy——namely, the circuit court failed to explain the
meaning of "sexual contact" or to verify Hendricks understood
the meaning of that term. Hendricks argued Wis. Stat. § 971.08
requires the circuit court to ensure a defendant understands the
nature of the charge, which means a defendant must have an
awareness of the essential elements of the crime. Hendricks
contends the intent to have sexual contact is an essential
element of sexual enticement and therefore the circuit court's
failure to give him the legal definition of "sexual contact"
rendered his plea deficient. He wanted the circuit court to
hold an evidentiary hearing on the motion. The State conceded
at the circuit court level that an evidentiary hearing should be
held.
¶16 The circuit court summarily denied the motion,
reasoning:
5
These motions dealt with sentence modification issues,
ultimately resulting in a reduction of the initial confinement
portion of his sentence so that it matched the time left on the
sentence he was already serving.
10
No. 2015AP2429-CR
The cases the defendant and the State rely on all
involve sexual assault of a child. There is not a
single case which holds that the meaning of sexual
contact is an essential element of child enticement.
. . . .
[T]he defendant in this case was not convicted of
sexual assault of a child – he was convicted of child
enticement. These crimes are not the same. As
relevant to this case, the elements of child
enticement include causing, or attempting to cause, a
child to go into any vehicle, building, room, or
secluded place, with the intent to have sexual contact
with the child. Actual sexual contact is not a
required element. This is because the purpose of
section 948.07, Stats., is not to punish the
commission of the enumerated act, but succeeding in
getting a child to enter a place with intent to commit
such a crime. State v. Hanson, 182 Wis. 2d 481 (Ct.
App. 1994). On the other hand, the purpose of section
948.02, Stats., is to punish the sexual contact
itself. Consequently, when a defendant enters a
guilty or no contest plea to a crime of sexual assault
of a child, a crime which carries a far greater
penalty than child enticement, the court must
ascertain that the defendant understands the essential
elements of that offense, including the element of
sexual contact. But when a defendant enters a guilty
or no contest plea to child enticement for the purpose
of sexual contact, actual sexual contact is not a
required element, and therefore, a court is not
required to explain the meaning of sexual contact.
See State v. Trochinski, 253 Wis. 2d 38, 61 (2002) (a
valid plea requires only knowledge of the essential
elements of the offense, not knowledge of nuances and
descriptions of the elements).
The circuit court found both the plea colloquy and the plea
questionnaire established that Hendricks had the requisite
knowledge of the elements of child enticement; he "understood
the essential elements of this offense" when he pled guilty.
Thus, he failed to establish a defect in the plea colloquy, and
11
No. 2015AP2429-CR
no evidentiary hearing was required. The court of appeals
affirmed. We granted the petition for review.
II. STANDARD OF REVIEW
¶17 Whether a defendant is entitled to an evidentiary
hearing on his plea withdrawal motion under Bangert is a
question of law we review independently. See State v. Howell,
2007 WI 75, ¶30, 301 Wis. 2d 350, 734 N.W.2d 48. We review de
novo whether Hendricks (1) "has pointed to deficiencies in the
plea colloquy that establish a violation of Wis. Stat. § 971.08
or other mandatory duties at a plea hearing"; and (2)
sufficiently alleged that he did not know or understand
information that should have been provided at the plea hearing."
See State v. Brown, 2006 WI 100, ¶21, 293 Wis. 2d 594, 716
N.W.2d 906.
III. DISCUSSION
A. There is no deficiency in the plea colloquy.
¶18 Hendricks asserts intent to have "sexual contact" is
an essential element of child enticement and, therefore, the
circuit court's failure to define the term "sexual contact"
during the plea colloquy rendered it deficient under both Wis.
Stat. § 971.08 and Bangert.6 The State responds that because
"sexual contact" is not an essential element of child
enticement, the circuit court was not required to give Hendricks
6
See State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12
(1986).
12
No. 2015AP2429-CR
its legal definition, and therefore the plea colloquy complied
with § 971.08 and Bangert. The State is correct.
¶19 Wisconsin Stat. § 971.08(1) requires a court to do
four things before it "accepts a plea of guilty or no contest":
(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.
(c) Address the defendant personally and advise the
defendant as follows: "If you are not a citizen
of the United States of America, you are advised
that a plea of guilty or no contest for the
offense with which you are charged may result in
deportation, the exclusion from admission to this
country or the denial of naturalization, under
federal law."
(d) Inquire of the district attorney whether he or
she has complied with s. 971.095(2).
The issue here focuses solely on paragraph (a) and whether
Hendricks understood "the nature of the charge." "An
understanding of the nature of the charge must include an
awareness of the essential elements of the crime." Bangert, 131
Wis. 2d at 267. To ensure a defendant understands the nature of
the charge, a circuit court must employ "any one or a
combination of" three methods: (1) "summarize the elements of
the crime charged by reading from the appropriate jury
instructions . . . or from the applicable statute"; (2) ask
defense "counsel whether he explained the nature of the charge
to the defendant and request him to summarize the extent of the
13
No. 2015AP2429-CR
explanation, including a reiteration of the elements at the plea
hearing"; or (3) "expressly refer to the record or other
evidence of defendant's knowledge of the nature of the charge
established prior to the plea hearing." Id. at 267-68.
¶20 The record demonstrates the circuit court employed a
combination of the various methods. The circuit court
interacted directly with Hendricks and repeatedly summarized the
elements of child enticement. Every time, Hendricks responded
that he understood. The circuit court asked defense counsel if
he explained the nature of the crime and if he discussed the
elements with Hendricks.7 Defense counsel assured the circuit
court he had. Further, during the plea colloquy the circuit
court referred to the record demonstrating Hendricks' knowledge
of the nature of the charge, including the complaint, the guilty
plea waiver form, and the victim's testimony at the preliminary
hearing. There is no question the circuit court conducted an
extremely thorough and complete plea colloquy.
¶21 The child enticement statute, Wis. Stat. § 948.07
provides:
Whoever, with intent to commit any of the following
acts, causes or attempts to cause any child who has
not attained the age of 18 years to go into any
vehicle, building, room or secluded place is guilty of
a Class D felony:
7
Had this been the only method the circuit court chose, it
would have had to make defense counsel reiterate the elements.
This, however, was not the court's primary method; instead, it
was an additional check to ensure Hendricks' counsel discussed
the elements of the charge with him.
14
No. 2015AP2429-CR
(1) Having sexual contact or sexual intercourse with
the child in violation of s. 948.02, 948.085, or
948.095.
(2) Causing the child to engage in prostitution.
(3) Exposing genitals, pubic area, or intimate parts
to the child or causing the child to expose
genitals, pubic area, or intimate parts in
violation of s. 948.10.
(4) Recording the child engaging in sexually explicit
conduct.
(5) Causing bodily or mental harm to the child.
(6) Giving or selling to the child a controlled
substance or controlled substance analog in
violation of ch. 961.
There are three elements the State must prove in a child
enticement case:
(1) [T]hat the defendant caused or attempted to
cause a child to go into a vehicle,
building, room or secluded place;
(2) [T]hat the defendant did so with any one of
the six enumerated intents, generally
relating to sex and drug crimes; and
(3) [T]hat the victim had not attained the age
of 18.
State v. Derango, 2000 WI 89, ¶31, 236 Wis. 2d 721, 613 N.W.2d
833 (citing Wis. Stat. § 948.07). This court emphasized in
Derango that child enticement is "one offense with multiple
modes of commission." 236 Wis. 2d 721, ¶17. The crime is the
"act of enticement," "not the underlying intended sexual or
other misconduct." Id. Thus, an act of sexual contact is not
an element of child enticement. The crime of child enticement
prohibits "the act (or attempt) of enticement luring a child to
15
No. 2015AP2429-CR
a secluded place, away from the protections of the general
public" for some improper purpose. Id., ¶¶18, 21. Textually,
the act of enticement itself encompasses a bad intent.
¶22 Relying on three sexual assault by sexual contact
cases, State v. Jipson, 2003 WI App 222, 267 Wis. 2d 467, 671
N.W.2d 18, State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460
(Ct. App. 1998), and State v. Bollig, 2000 WI 6, 232
Wis. 2d 561, 605 N.W.2d 199, Hendricks argues that sexual
contact is an essential element of child enticement and the term
should have been defined for him at the plea hearing. We
disagree. As the circuit court correctly noted in its order
denying Hendricks' postconviction motion, child enticement is a
different crime from child sexual assault. The elements are
different, the punishments are different, and "[t]here is not a
single case which holds that the meaning of sexual contact is an
essential element of child enticement." Because the State must
prove sexual contact itself in a child sexual assault case, it
makes sense that to understand the nature of the charge, a
defendant pleading to sexual assault based on sexual contact
must be told the specific statutory definition of sexual contact
in Wis. Stat. § 948.01(5).8 The crime of child enticement,
8
Wisconsin Stat § 948.01(5) defines "sexual contact" as
"any of the following":
(a) Any of the following types of intentional
touching, whether direct or through clothing, if that
intentional touching is either for the purpose of
sexually degrading or sexually humiliating the
(continued)
16
No. 2015AP2429-CR
however, does not require the State to prove a defendant
committed (or attempted to commit) an act of sexual contact;
rather, the State must prove the act of criminal enticement,
which presupposes bad intent. Obviously, a person could not be
charged with the crime of child enticement for luring her child
into their garage to surprise the child with a brand new
bicycle.
¶23 In addition, the courts in Jipson, Nichelson, and
Bollig specifically held that sexual contact is an essential
complainant or sexually arousing or gratifying the
defendant:
1. Intentional touching by the defendant or, upon the
defendant's instruction, by another person, by the use
of any body part or object, of the complainant's
intimate parts.
2. Intentional touching by the complainant, by the use
of any body part or object, of the defendant's
intimate parts or, if done upon the defendant's
instructions, the intimate parts of another person.
(b) Intentional penile ejaculation of ejaculate or
intentional emission of urine or feces by the
defendant or, upon the defendant's instruction, by
another person upon any part of the body clothed or
unclothed of the complainant if that ejaculation or
emission is either for the purpose of sexually
degrading or sexually humiliating the complainant or
for the purpose of sexually arousing or gratifying the
defendant.
(c) For the purpose of sexually degrading or
humiliating the complainant or sexually arousing or
gratifying the defendant, intentionally causing the
complainant to ejaculate or emit urine or feces on any
part of the defendant's body, whether clothed or
unclothed.
17
No. 2015AP2429-CR
element of the crimes of second-degree sexual assault of a
child, first-degree sexual assault of a child, and attempted
sexual contact with a child. None of these cases, however, say
sexual contact is an element of the crime of child enticement.
This distinction follows naturally from the differences in the
language of the statutes involved. The statutes at issue in
Jipson, Nichelson, and Bollig list "sexual contact" as a
specific element of the crime, whereas the child enticement
statute lists "sexual contact" as one of six alternative modes
of commission rather than as a specific element.9
¶24 Hendricks argues we cannot rely on Derango's
conclusion that sexual contact is not an element of child
enticement because Derango did not involve plea withdrawal, but
instead addressed jury unanimity. Hendricks insists Derango's
analysis and holding on the elements of child enticement must be
limited to unanimity cases. We disagree. Although Hendricks is
correct that this court in Derango analyzed the child enticement
statute in the context of jury unanimity, this in no way
influences our identification of the elements of child
9
State v. Jipson, 2003 WI App 222, 267 Wis. 2d 467, 671
N.W.2d 18, dealt with Wis. Stat. § 948.02(2), which states
"[w]hoever has sexual contact or sexual intercourse with a
person who has not attained the age of 16 years." (Emphasis
added.) State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460
(Ct. App. 1998), dealt with Wis. Stat. § 948.02(1)(1997-98),
which states "[w]hoever has sexual contact or sexual intercourse
with a person who has not attained the age of 13 years."
(Emphasis added.) State v. Bollig, 2000 WI 6, 232 Wis. 2d 561,
605 N.W.2d 199, also dealt with § 948.02(1).
18
No. 2015AP2429-CR
enticement. Sexual contact is either an element of child
enticement or it is not. It cannot be an element for one type
of case, but not in another. In Derango, this court examined
the plain language of the statute to determine that sexual
contact is not an element of the crime of child enticement. See
Derango, 236 Wis. 2d 721, ¶¶16-17. We held the statutory
language to be "straightforward"——"[t]he act of enticement is
the crime, not the underlying intended sexual or other
misconduct." Id., ¶17. We supported this interpretation with
additional cases interpreting the child enticement statute and
with the statute's legislative history. Id., ¶¶19-20. See,
e.g., id., ¶19, (citing State v. Hanson, 182 Wis. 2d 481, 487,
513 N.W.2d 700 (Ct. App. 1994)) ("The gravamen of the crime is
not the commission of an enumerated act, but succeeding in
getting a child to enter a place with intent to commit such a
crime." (emphasis added)). Our analysis remains sound and we
see no reason to overturn, abandon, or distinguish it.
¶25 Our conclusion is further supported by State v.
Steele, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595. Steele
was a plea withdrawal case, which relied upon a jury unanimity
case to ascertain the essential elements of armed burglary.
Id., ¶¶1, 8-9. Steele argued his plea colloquy was deficient
because the circuit court did not specifically identify which
"felony" supported the burglary charge; he claimed the specific
felony was an essential element and needed to be discussed.
Id., ¶¶1-3, 8. The circuit court identified the elements as:
(1) entering a dwelling; (2) intentionally; (3) without consent;
19
No. 2015AP2429-CR
(4) intending to commit a felony; (5) armed with a dangerous
weapon. Id., ¶3. In rejecting Steele's claim that the felony
had to be explained10 because it is an essential element, the
court of appeals relied on State v. Hammer, 216 Wis. 2d 214, 576
N.W.2d 285 (Ct. App. 1997). Hammer was a jury unanimity case,
which analyzed the statutory language of Wis. Stat. § 943.10,
the burglary statute, and concluded that what specific felony a
defendant intends to commit is not an essential element because
§ 943.10 "sets forth a 'single offense with multiple modes of
commission,' not multiple offenses defined by each possible
underlying felony." Steele, 241 Wis. 2d 269, ¶9 (quoting
Hammer, 216 Wis. 2d at 220).
¶26 From Derango, Steele, and Hammer, we discern a
governing principle. The modes of commission following "intends
to commit" language within statutes do not constitute an element
of a crime. Of course, a statute's mode of commission must
10
The court of appeals in State v. Steele, 2001 WI App 34,
241 Wis. 2d 269, 625 N.W.2d 595, additionally held that the
circuit court's "failure to specify the underlying felony was
not a defect in the plea proceedings." Id., ¶10. While the
particular mode of commission in a child enticement case need
not be legally defined because it is not an element of the
offense, it does need to be identified during the plea colloquy
to ensure a factual basis exists for the plea. In the context
of a burglary, Wis. Stat. § 943.10 does not specify the
particular felonies the defendant must have intended to commit;
therefore, as the court in Hammer noted, "it does not matter
which felony formed the basis of that intent." State v. Hammer,
216 Wis. 2d 214, 220, 576 N.W.2d 285 (Ct. App. 1997). The child
enticement statute, in contrast, specifies six separate intended
acts, at least one of which must be identified during the plea
colloquy.
20
No. 2015AP2429-CR
still be disclosed and acknowledged at a plea hearing in order
to ensure a factual basis for the plea. For burglary, the
circuit court must advise a defendant that one of the elements
is the "intent to commit a felony." It would be insufficient
for the circuit court to simply say "intent to commit."
Likewise, for child enticement, a circuit court cannot simply
say to a pleading defendant that he must have enticed a child to
a secluded place "with intent." That would be absurd. A
circuit court must identify at least one of the prohibited modes
of committing child enticement to ensure there exists a factual
basis for accepting a plea.11 And, Wisconsin Stat. § 971.08(1)
requires a court, prior to accepting a plea, to "determine that
the plea is made voluntarily with understanding of the nature of
the charge." Before accepting Hendricks' plea, the circuit
court accomplished both of these requirements.
¶27 The circuit court here recognized the mode of
commission was initially missing and took the proper steps to
correct the omission. As a result, the circuit court actually
read all six of the prohibited intents listed in the statute
during the plea colloquy and then specifically asked Hendricks
11
The dissent's fabricated Bokononism example is not one of
the modes of commission in the child enticement statute. See
dissent, ¶51. Our decision in this case is based on the actual
law in place and the extensive record recounted in part I of
this opinion. The record establishes that Hendricks failed to
demonstrate any plea defect. The dissent's insistence that a
plea deficiency exists does not make it so——no matter how many
times the dissent says it.
21
No. 2015AP2429-CR
if he was admitting to the prohibited intent of sexual contact.
Hendricks repeatedly answered affirmatively, expressing no
confusion at any point regarding the meaning of sexual contact
or otherwise. In fact, as detailed more fully below, Hendricks
conceded the victim's testimony at the preliminary hearing
accurately recounted his actions, thereby establishing his
understanding of the nature of the charge, including his
intention to engage in sexual contact with the victim.
Hendricks fails to establish any deficiency in his plea
colloquy.12
B. The record shows Hendricks knew the nature of the charge.
¶28 We further hold Hendricks failed to sufficiently
allege he did not know or understand information that should
have been provided at the plea hearing. We already rejected his
claim that he should have been given the legal definition of
sexual contact. We also reject his contention he did not
understand the meaning of this term because the record belies
Hendricks' claim.
¶29 The entire record is fair game in assessing whether
Hendricks understood the circuit court's repeated questions as
to whether he committed the crime of child enticement. See
Bollig, 232 Wis. 2d 561, ¶53. The record before us is
substantial and to some extent unusual because we not only have
12
Hendricks turns to party-to-a-crime cases to support his
position. Because Hendricks was not charged as party to a
crime, we decline to analyze the unique nature of plea
colloquies involving party-to-a-crime charges.
22
No. 2015AP2429-CR
the plea colloquy to consider, we also have Hendricks' own
testimony from his pre-sentence plea withdrawal hearing. At
that hearing, Hendricks admitted to knowing the charges to which
he pled because he was present at a revocation hearing where the
charges were read; he admitted his attorney went over the
elements of the charge; and he admitted that he saw and read the
original complaint. The original complaint, as material,
states:
 The defendant "did have sexual contact" with the
victim, who "had not attained the age of 16 years."
 "The victim has known the defendant for a long
period of time and thinks of him as an uncle."
 "The defendant walked with the victim to . . . the
victim's grandmother's house. The defendant learned
that his girlfriend, the victim's aunt, was coming
to the location so he suggested that he wanted to
leave the area and that the victim should go with
him. The victim went with the defendant to Pulaski
Park."
 "Once they were in the park, the victim was seated
on the top of a picnic table and the defendant sat
on the seat portion of the table. The defendant
positioned himself between the victim's legs."
 "[T]he defendant started to touch her legs. The
victim told him to stop. The defendant picked up
the victim's legs and held them until they were
level with his shoulders. The defendant then stated
to the victim, 'Can I kiss there?' The victim
understood this to mean her vagina because that is
where he seemed to be looking when he said this.
The defendant stated, 'Please, I haven't had it in a
while.'"
 "The defendant continued to rub the victim's legs
and tried to touch her vagina over her shorts. The
23
No. 2015AP2429-CR
victim pushed her knees together to stop the
defendant and told the defendant, 'No.'"
 "The victim pushed the defendant's hand away from
her vagina and repeatedly told [him] to stop. The
defendant then reached around the victim and grabbed
her buttock over her clothing."
 "The defendant then kissed the victim's upper arms
and chest area."
 "The defendant rubbed and squeezed the victim's
breasts over her clothing and kept saying, 'Please,
please, please,' into her ear. The defendant placed
his hand inside the victim's shirt and moved his
hand onto her breast but was not able to fully grab
her breast before she pushed his hand away. The
defendant then attempted to unhook her bra and
expose her breasts."
¶30 Also, Hendricks was present when the victim testified
at the preliminary hearing, and he conceded the victim's
testimony accurately recounted his actions. The victim
testified that Hendricks placed his hands on her inner thighs,
her chest and her buttocks while begging her to "please" let him
have sexual intercourse with her because he had not "had it in a
while." This case goes beyond showing Hendricks acted to entice
the child victim to a secluded place with the intent to have
sexual contact. Hendricks' claim that he did not understand the
nature of the charge is belied by the record before us. Even
Hendricks' lawyer at the pre-sentence plea withdrawal hearing
admitted the circuit court conducted a "great colloquy."
Hendricks failed to show any Bangert violation, as the record
conclusively establishes Hendricks' graphic understanding of the
nature of the crime to which he pled guilty.
C. State's request to modify Bangert
24
No. 2015AP2429-CR
¶31 The State requests this court modify Bangert to
conform Wisconsin plea practice to what the United States
Supreme Court held is constitutionally-mandated. Specifically,
the second Bangert method requires the circuit court to first
ask defense counsel if he explained the nature of the charge to
the defendant and then request counsel to "summarize the extent
of the explanation, including a reiteration of the elements, at
the plea hearing." 131 Wis. 2d at 268. In asking us to
eliminate the latter requirement, the State cites Bradshaw v.
Stumpf, 545 U.S. 175 (2005), which held a plea colloquy
sufficient where competent defense counsel simply assures the
circuit court "the defendant has been properly informed of the
nature and elements of the charge to which he is pleading
guilty." Id. at 183. In other words, defense counsel would not
need to "summarize the extent of the explanation" or reiterate
the elements on the record, as Bangert requires. It would be
enough for defense counsel to simply advise the circuit court
that counsel had the requisite conversation with the defendant.
¶32 We reject the State's request to change Bangert.
Bangert set forth three reasonable methods of satisfying Wis.
Stat. § 971.08's statutory requirement ensuring a pleading
defendant understands the nature of the charge, which includes
an awareness of the elements of the crime. Each of the three
methods adequately protects the rights of a defendant who elects
to plead guilty or no contest. Scaling back Bangert's second
method in favor of a general assurance from defense counsel
would inevitably lead to motions where defendants claim the
25
No. 2015AP2429-CR
conversation with defense counsel never occurred. Bangert's
current method puts the conversation between defense counsel and
the defendant on the record contemporaneously with taking the
plea. Bangert's methods have worked well for over 30 years and
we are not convinced a modification of Bangert is necessary or
prudent. In addition, the State forfeited the right to request
a change to Bangert by failing to raise this issue in a cross-
petition for review or in its response to Hendricks' petition
for review. See State v. Smith, 2016 WI 23, ¶41, 367
Wis. 2d 483, 878 N.W.2d 135.
IV. CONCLUSION
¶33 We hold sexual contact is not an element of the crime
of child enticement. Rather, the six enumerated prohibited
intents are modes of commission. At least one mode of
commission must be referenced during a plea colloquy, but the
terms comprising each mode need not be specifically defined.
This is because the crime of child enticement does not require
proof of the actual, physical action contemplated by the mode of
commission, only that the defendant acted to entice a child
while intending to do one of the prohibited acts. The act of
enticement is the crime, not the underlying intended sexual or
other misconduct. Hendricks failed to establish any deficiency
in this plea colloquy, which comported with both Wis. Stat.
§ 971.08 and Bangert. Wisconsin Stat. § 971.08(1) requires a
court, prior to accepting a plea, to "determine that the plea is
made voluntarily with understanding of the nature of the
charge." The record establishes Hendricks fully understood he
26
No. 2015AP2429-CR
enticed the child victim to a secluded place with the intent of
having sexual contact. His claimed incomprehension contradicts
the record. Finally, we reject the State's invitation to alter
Bangert's required procedures. The Bangert framework is
designed to ensure a defendant understands the nature of a
charge in order to protect a defendant's rights when entering a
plea. Accordingly, we affirm the court of appeals decision
upholding the circuit court's order denying Hendricks' motion
for plea withdrawal.
By the Court.—The decision of the court of appeals is
affirmed.
27
No. 2015AP2429-CR.ssa
¶34 SHIRLEY S. ABRAHAMSON, J. (dissenting). The
majority's conclusion in the instant case that a circuit court
need not verify that a defendant understands the specific mode
of commission of the crime to which he is pleading guilty
creates serious due process concerns.
¶35 As Hendricks aptly queried in his brief: "How can a
defendant knowingly and intelligently plead guilty to causing a
child to go into a secluded place with intent to do 'X' if he
need not understand what 'X' is?"1 How indeed?
¶36 The majority fails to articulate a satisfactory answer
to this question. Instead, the majority looks to the law
governing jury unanimity. It holds that the modes of commission
within the child enticement statute are not elements as to which
a defendant is entitled to jury unanimity and concludes that as
a consequence, the circuit court was not required to verify that
Hendricks understood what constituted "sexual contact" under the
law before accepting his guilty plea.
¶37 I conclude that it is inconsistent with due process
for a circuit court to accept a defendant's guilty plea to a
charge that requires proof of an intended underlying act without
verifying that the defendant understands what the underlying
intended act is. Accordingly, I dissent.
I
¶38 I begin by setting forth two settled legal principles
that guide my analysis in the instant case.
1
Brief and Appendix of Defendant-Appellant-Petitioner at
17.
1
No. 2015AP2429-CR.ssa
¶39 First, proof of an intended underlying act is an
element2 of some crimes, even though there may be several
alternative qualifying acts. The individual jurors need not
agree as to which particular intended underlying act was proven,
so long as they agree that at least one qualifying intended
underlying act was proven beyond a reasonable doubt.3
¶40 For example, in order to convict a defendant of child
enticement, the jury must unanimously agree that the defendant
caused a child to go to a secluded place with intent to commit
at least one of six statutorily listed acts. If an individual
juror does not believe that the State proved intent to commit
any of the six qualifying acts, the defendant cannot be
convicted. However, if the individual jurors agree that the
State proved intent to commit at least one of the six qualifying
acts, the defendant can be convicted even though the jurors
disagree about which particular intended underlying act was
proved. See State v. Derango, 2000 WI 89, ¶¶13-25, 236
2
In State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12
(1986), and other cases, the court sometimes uses the undefined
phrase "essential element."
3
See, e.g., State v. Derango, 2000 WI 89, ¶25, 236
Wis. 2d 721, 613 N.W.2d 833 (defendant not entitled to jury
unanimity at trial as to the underlying mode of committing child
enticement); State v. Hammer 216 Wis. 2d 214, 220, 576
N.W.2d 285 (Ct. App. 1997) (defendant not entitled to jury
unanimity as to intended underlying felony in a burglary charge
because burglary——entering a building with intent to commit a
felony——is a single offense with multiple modes of commission
based upon the intended underlying felony).
2
No. 2015AP2429-CR.ssa
Wis. 2d 721, 613 N.W.2d 833; see also State v. Hammer, 216
Wis. 2d 214, 218-22, 576 N.W.2d 285 (Ct. App. 1997).
¶41 Second, Wis. Stat. § 971.08 and State v. Bangert, 131
Wis. 2d 246, 389 N.W.2d 12 (1986), address the plea colloquy.
The statute requires a circuit court to "[a]ddress the defendant
personally and determine that the plea is made voluntarily with
understanding of the nature of the charge" before accepting the
defendant's guilty plea. Wis. Stat. § 971.08(1)(a). As
interpreted by Bangert, § 971.08 makes it "mandatory upon the
trial judge to determine a defendant's understanding of the
nature of the charge . . . ." Bangert, 131 Wis. 2d at 267.
¶42 The Bangert court declared that the circuit court must
(1) either inform the defendant of the nature of the charge or
ascertain that the defendant "possesses accurate information
about the nature of the charge[,]" and then (2) "ascertain the
defendant's understanding of the nature of the charge . . . ."
Bangert, 131 Wis. 2d at 267. "Nature of the charge" is not
defined in the statute, but Bangert stated that "[a]n
understanding of the nature of the charge must include an
awareness of the essential elements of the crime." Bangert, 131
Wis. 2d at 267. Compliance with Wis. Stat. § 971.08(1) helps
ensure that a defendant's plea is knowing, intelligent, and
voluntary and satisfies due process. State v. Brown, 2006 WI
100, ¶23, 293 Wis. 2d 594, 716 N.W.2d 906; State v. Finley, 2015
WI App 79, ¶17, 365 Wis. 2d 275, 872 N.W.2d 344.
¶43 Thus, in order to accept a guilty plea, the circuit
court must verify that the defendant is aware of the elements of
3
No. 2015AP2429-CR.ssa
the crime. With regard to crimes with alternative modes of
commission, the defendant is advised at the plea hearing of the
mode of commission to which he is pleading guilty even though,
if the defendant does not plead guilty and the case goes to
trial, a jury need not be unanimous on the mode of commission in
order to return a guilty verdict.
II
¶44 The majority opinion is flawed. The majority
essentially adopts the reasoning of the court of appeals
decision in State v. Steele, 2001 WI App 34, 241 Wis. 2d 269,
625 N.W.2d 595. Majority op., ¶25-26. In Steele, the court of
appeals relied on jury unanimity law in determining the elements
of burglary in order to decide whether the circuit court
properly discharged its obligations under Wis. Stat. § 971.08
and Bangert. The court of appeals held in Steele that because
the particular underlying felony to which the defendant pleaded
was not an element that required jury unanimity, the circuit
court did not err in failing to specify the particular
underlying felony during the plea colloquy. Steele, 241
Wis. 2d 269, ¶¶7-10.
¶45 The majority adopts the reasoning enunciated in
Steele, although the court of appeals has raised doubts about
the validity of its own Steele decision and has suggested that
this court should overturn Steele. I agree with the court of
appeals that Steele is not good law and should be overturned.
The court of appeals challenged the reasoning in Steele for
improperly relying on jury unanimity law for purposes of
4
No. 2015AP2429-CR.ssa
evaluating the adequacy of a plea colloquy. State v. Hendricks,
No. 2015AP2429-CR, unpublished slip op., ¶¶28-30 (Wis. Ct. App.
Dec. 15, 2016).
¶46 Nevertheless, the majority adopts the reasoning of
Steele, as follows:
We hold sexual contact is not an element of the crime
of child enticement. Rather, the six enumerated
prohibited intents are modes of commission. At least
one mode of commission must be referenced during a
plea colloquy, but the terms comprising each mode need
not be specifically defined. This is because the
crime of child enticement does not require proof of
the actual, physical action contemplated by the mode
of commission, only that the defendant acted to entice
a child while intending to do one of the prohibited
acts. The act of enticement is the crime, not the
underlying intended sexual or other misconduct.
Majority op., ¶33 (emphasis in majority).4
¶47 The general rule derived from the majority opinion is
that a circuit court is not required to verify in the plea
colloquy that a defendant understands the meaning of any
particular qualifying intended underlying acts of the charged
4
The majority borrows language directly from the court's
decision in Derango. Derango, 236 Wis. 2d 721, ¶17 ("The act of
enticement is the crime, not the underlying intended sexual or
other misconduct."). I conclude this statement in Derango needs
clarification.
The crime of child enticement is actually a combination of
enticing a child and having the intent to commit statutorily
proscribed conduct. Causing a child to go into a secluded place
without the requisite intent is not a violation of Wis. Stat.
§ 948.07. A defendant must cause a child to go into a secluded
place with intent to commit statutorily proscribed conduct in
order to be convicted of child enticement. Wis. Stat. § 948.07.
Thus, the act of enticement with the necessary intent is the
crime.
5
No. 2015AP2429-CR.ssa
crime because no one particular qualifying intended underlying
act constitutes an element of the crime charged.
¶48 The majority's conclusion has at least two significant
flaws. First, the majority's conclusion leads to an irrational
result. Suppose, for example, that child enticement had only
one mode of commission——namely, a person is guilty of child
enticement if he or she causes a child to enter a secluded place
with intent to have sexual contact. According to the majority,
the circuit court would be required to verify the defendant's
understanding of child enticement and sexual contact. However,
once five additional alternative modes of commission are
introduced into the statute, according to the majority, the
circuit court is no longer required to verify that Hendricks
understands any of the possible modes of commission because he
is not entitled to jury unanimity as to any particular mode of
commission of the crime. What is the logic in this reasoning?
¶49 Second, the majority's conclusion fails to explain
adequately how a defendant can knowingly and intelligently plead
guilty to a charge that requires proof of intent to do "X" if
the defendant does not understand what "X" is.
¶50 Of course, the "X" in the instant case happens to be
"sexual contact," a term with which adults are generally
familiar even though the term has a distinct statutory
definition. See Wis. Stat. § 948.01(5). I posit that the due
process problem left unaddressed by the majority is more obvious
if the reader replaces "sexual contact" with a term with which
the reader is unfamiliar.
6
No. 2015AP2429-CR.ssa
¶51 Suppose that there was a seventh mode of committing
child enticement: causing a child to go into a secluded place
with the intent to convert the child to Bokononism. Unless the
defendant happens to be a reader of Vonnegut, he or she is not
likely to know what Bokononism is.5 Can a defendant really be
said to knowingly and intelligently plead guilty to causing a
child to go into a secluded place with intent to convert the
child to Bokononism if he or she does not know what Bokononism
is? The majority apparently sees no problem with the circuit
court's accepting a guilty plea from a defendant under these
circumstances. I do. My hypothesizing an entirely unfamiliar
mode of committing an offense highlights the absurdity of the
majority's reasoning.
III
¶52 Unlike the majority, I conclude that in order to
satisfy due process, a circuit court may not accept a guilty
plea from a defendant charged with a crime that requires proof
of an intended underlying act unless the court verifies that the
defendant understands what the intended underlying act is.
¶53 The circuit court need not explain every mode of
commission of the crime before accepting a defendant's guilty
5
Bokononism is an artificial religion practiced by the
inhabitants of the fictional Caribbean island of San Lorenzo in
Kurt Vonnegut's novel Cat's Cradle.
7
No. 2015AP2429-CR.ssa
plea.6 Rather, the circuit court is required to verify the
defendant's understanding of the mode(s) of commission to which
the defendant is pleading guilty and for which an adequate
factual basis exists. Such a rule is workable in practice and
ensures that a defendant's plea is knowing, intelligent, and
voluntary and therefore in compliance with the requirements of
due process. Brown, 293 Wis. 2d 594, ¶23; Finley, 365
Wis. 2d 275, ¶17.
IV
¶54 In addition to holding that Hendricks failed to
establish any deficiency in his plea colloquy, the majority also
concludes that Hendricks is not entitled to a hearing because
"the record conclusively establishes Hendricks' graphic
understanding" of the meaning of sexual contact. Majority op.,
¶30. Essentially, the majority reasons that Hendricks is not
entitled to a hearing to determine if he understood the meaning
of "sexual contact" because it is obvious that he understood the
6
An argument could be made that the circuit court actually
does need to verify that the defendant understands every
possible mode of commission. After all, were the defendant to
stand trial, the State could convict him by convincing the jury
that the defendant intended at least one of the six statutorily
proscribed acts, and the jury need not agree which one of those
intended underlying acts was proved. Thus, the argument goes,
the defendant should understand all qualifying intended
underlying acts that could be relied upon by individual jurors
to return a guilty verdict.
While this approach might prove workable with regard to a
plea of guilty to child enticement, which has six possible modes
of commission, it will be unworkable with regard to a plea of
guilty to burglary, which has many more modes of commission.
8
No. 2015AP2429-CR.ssa
meaning of "sexual contact." Such reasoning is incompatible
with due process.
¶55 In Bangert, the court established that when a
defendant shows "a prima facie violation of Section 971.08(1)(a)
or other mandatory duties, and alleges that he in fact did not
know or understand the information which should have been
provided 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." Bangert, 131 Wis. 2d at 274. Subsequent
cases have made clear that if the defendant's motion
"establishes a prima facie violation of Wis. Stat. § 971.08 or
other court-mandated duties and makes the requisite allegations,
the court must hold a postconviction evidentiary
hearing . . . ." Brown, 293 Wis. 2d 594, ¶40 (emphasis added).
¶56 In State v. Hampton, 2004 WI 107, ¶72, 274
Wis. 2d 379, 683 N.W.2d 14, the court explained the defendant's
right to an evidentiary hearing when the circuit court errs at
the plea hearing and the defendant alleges that he or she did
not understand the information that should have been provided:
The State has offered several arguments as to why the
defendant in fact understood that the court was not
bound by the plea agreement. This case, however, is
not really about Corey Hampton's understanding at the
time of his plea. It is about the circumstances under
which a defendant is entitled to an evidentiary
hearing when the court errs at a plea hearing. We
hold that Hampton is entitled to an evidentiary
hearing on his motion. At the hearing the State will
have the opportunity to prove that Hampton was aware
9
No. 2015AP2429-CR.ssa
in fact that the court was not bound by the terms of
the plea agreement.
Hampton, 274 Wis. 2d 379, ¶72.
¶57 The court reiterated this point in State v. Howell,
2007 WI 75, ¶70, 301 Wis. 2d 350, 734 N.W.2d 48:
In a Bangert motion, a circuit court and a reviewing
court examine only whether "a defendant is entitled to
an evidentiary hearing when the court errs at a plea
hearing." The State cannot circumvent a defendant's
right to an evidentiary hearing under Bangert by
arguing that based on the record as a whole the
defendant, despite the defective plea colloquy,
entered a constitutionally sound plea.
Howell, 301 Wis. 2d 350, ¶70 (footnote omitted).7
¶58 Are Brown, Howell, and Hampton now overruled? The
majority flatly refuses to follow these cases. How are the
bench and bar to reconcile Brown, Howell, and Hampton with ¶¶28-
30 of the majority opinion?
¶59 The majority's reasoning that Hendricks is not
entitled to an evidentiary hearing to determine whether he
understood the meaning of "sexual contact" because it is obvious
that he understood the meaning of "sexual contact" makes a
mockery of these prior cases and due process. The majority's
7
The Howell court has characterized the requirements of a
Bangert motion as "relatively relaxed," explaining that the
court "require[s] less from the allegations in a Bangert motion
because the circuit court bears the responsibility of preventing
failures in the plea colloquy." State v. Howell, 2007 WI 75,
¶28, 301 Wis. 2d 350, 734 N.W.2d 48.
For this court's review of a defendant's motion to withdraw
a guilty plea after sentencing, see State v. Reyes Fuerte, 2017
WI 104, 378 Wis. 2d 504, 904 N.W.2d 773; State v. Negrete, 2012
WI 92, ¶¶16, 17, 19, 343 Wis. 2d 1, 819 N.W.2d 749.
10
No. 2015AP2429-CR.ssa
reasoning is akin to "[d]ispensing with confrontation because
testimony is obviously reliable" or "dispensing with jury trial
because a defendant is obviously guilty." Crawford v.
Washington, 541 U.S. 36, 63 (2004).
V
¶60 A major failing of the majority's reasoning and
conclusion is that the majority rests on jury unanimity cases
that are not applicable in the context of determining the
adequacy of a plea colloquy.8 Relying on jury unanimity law for
guidance in the instant case results in the absurd proposition
that a defendant can knowingly and intelligently plead guilty to
a crime that involves an intended underlying act without knowing
the meaning of the intended underlying act.
¶61 The majority's ruling is inconsistent with due
process. I would hold that in order to satisfy due process, a
circuit court may not accept a guilty plea from a defendant
charged with a crime that requires proof of an intended
underlying act unless the circuit court verifies that the
defendant understands the intended underlying act. The circuit
court must verify that the defendant understands the specific
mode(s) of commission of the crime to which he or she is
pleading guilty.
8
Indeed, the court of appeals has correctly challenged the
reasoning in its earlier Steele decision for improperly relying
on jury unanimity law for purposes of evaluating the adequacy of
a plea colloquy. State v. Hendricks, No. 2015AP2429-CR,
unpublished slip op., ¶¶28-30 (Wis. Ct. App. Dec. 15, 2016).
11
No. 2015AP2429-CR.ssa
¶62 Accordingly, I would overrule State v. Steele, 2001 WI
App 34, 241 Wis. 2d 269, 625 N.W.2d 595, as the court of appeals
suggests, State v. Hendricks, No. 2015AP2429-CR, unpublished
slip op., ¶¶28-30 (Wis. Ct. App. Dec. 15, 2016), and remand the
instant case to the circuit court with instructions to hold an
evidentiary hearing at which the State bears the burden of
proving that Hendricks' plea was knowing, intelligent, and
voluntary despite the deficiency in the plea colloquy.
¶63 For the foregoing reasons, I dissent.
¶64 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissenting opinion.
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No. 2015AP2429-CR.ssa
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