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Defendant can’t withdraw plea based on claim he wasn’t informed of the domestic abuse modifier, but there was no basis to assess the domestic abuse surcharge

State v. Ryan P. O’Boyle, 2013AP1004-CR, District 1, 2/4/14; court of appeals decision (1-judge; ineligible for publication); case activity

O’Boyle’ claimed his lawyer was ineffective for failing to move to strike the references in the complaint to “domestic abuse” because that isn’t a separate, stand-alone charge. He also claimed counsel failed to explain that the disorderly conduct count to which O’Boyle entered a plea was charged as an act of domestic abuse under § 968.075(1)(a). (¶1, 7, 13, 15). As to the first claim, the complaint didn’t charge “domestic abuse” as a separate charge, so there was no basis for filing a motion to strike the non-existent charge. (¶14). As to the second claim, the record refutes it. Even if O’Boyle’s lawyer didn’t explain the domestic abuse modifier, the complaint clearly refers to the modifier and O’Boyle was informed of the modifier on the record at both the initial appearance and the plea hearing. (¶¶16-17).

The court holds, however, that the domestic abuse surcharge under § 973.055 shouldn’t have been levied against O’Boyle because there was no factual basis for it. The court concludes that “[a]lthough not specifically mentioned, implicit in Wis. Stat. § 973.055 is that the complained of conduct must fall within the definition of domestic abuse found in Wis. Stat. § 968.07[5](1)(a)1.—4.” (¶24). While O’Boyle and the victim had a child together, thus satisfying the threshold part of the definition of “domestic abuse” in § 968.075(1)(a)(intro.), his conduct isn’t covered by § 968.075(1)(a)1., 2., 3., or 4. Nor does O’Boyle’s conduct meet the criterion in § 973.055(1)(a)2. because his acts weren’t “against” an adult person with whom he resided or had a child in common: “O’Boyle was intoxicated and attempting to enter the house where he resided. None of his actions were directed at K.E. or N.E., nor was he hostile or violent.” (25). Thus, O’Boyle’s actions did not qualify as domestic abuse, and the reference to domestic abuse should be removed from the judgment and the surcharge vacated.

UPDATE: On re-reading, a significant flaw appears in the court’s analysis of whether O’Boyle’s conduct is covered by the domestic abuse surcharge statute, § 973.055. As noted above, the court says that “[a]lthough not specifically mentioned, implicit in Wis. Stat. § 973.055 is that the complained of conduct must fall within the definition of domestic abuse found in Wis. Stat. § 968.07[5](1)(a)1.—4.” (¶24). Why is it “implicit” that a definition found in a different statute applies to § 973.055? Sure, both statutes deal with “domestic abuse”; but § 973.055 itself explains: a) what offenses it applies to (see the laundry list of statutes in § 973.055(1)(a)1.); and b) the relevant conduct—namely, an act by the defendant “against” a spouse, former spouse, co-habitant, etc., as set out in § 973.055(1)(a)2. In fact, the court itself addresses—as it should—whether O’Boyle’s conduct falls under § 973.055(1)(a)2. (¶25). So the court’s reference to and reliance on the definition in § 968.075(1)(a) has no basis in the text of § 973.055 and is wholly unnecessary. (NB: The definition in § 968.075(1)(a) does apply when the state alleges a defendant is subject to the enhancer under § 939.621(2) because he or she is a “domestic abuse repeater” as defined under § 939.621(1)(a).)

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