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Defendant pleading to “sexual contact” enticement need not understand “sexual contact”

State v. Shannon Olance Hendricks, 2015AP2429-CR, 12/15/2016, District 1/4 (not recommended for publication), petition for review granted 5/15/17, affirmed, 2018 WI 15 ; case activity (including briefs)

A defendant pleading to a sexual assault involving sexual contact (as opposed to sexual intercourse) is required to understand the meaning of “sexual contact.” If he or she does not, he or she is entitled to plea withdrawal. State v. Jipson, 2003 WI App 222, ¶9, 267 Wis. 2d 467, 671 N.W.2d 18. Here, the court of appeals holds that a defendant pleading to child enticement with a purpose to engage in a sexual assault by “sexual contact” need not understand the meaning of this phrase.

As the court readily admits, this makes no sense. But it feels compelled to the result by binding case law. Briefly, in State v. Steele, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595, the court considered whether a defendant pleading to burglary–which is unauthorized entry with intent to commit a felony–need be informed which felony he or she is alleged to have intended. The Steele court looked to State v. Hammer, 216 Wis. 2d 214, 576 N.W.2d 285 (Ct. App. 1997), which held that jurors need not be unanimous as to which of multiple possible felonies the defendant planned. This was because, in the court’s view, different felonies were not distinct “elements” of burglary, but rather multiple “modes of commission” or alternative ways of proving a single element.

Steele, with essentially no analysis, treated Hammers conclusion on jury unanimity as dispositive in the Bangert context as well: if different felonies are not different “elements” of burglary, then a pleading defendant need not understand what felony underlies his or her conviction. Steele, 241 Wis. 2d 269, ¶9.

The court now looks on Steele with regret:

Like Hendricks, we fail to understand why it makes sense to look only to jury unanimity law to decide what is a necessary inquiry for plea colloquy purposes. Jury unanimity cases address whether juries must agree on a single means of committing a crime. Plea colloquy law addresses what defendants must understand in order to enter a knowing plea. Generally speaking, the latter involves an inquiry into a defendant’s understanding of what the State needs to do in order to prove a crime beyond a reasonable doubt. Thus, it does not seem to logically follow that, just because jurors need not agree on alternative means of the commission of a crime, a defendant does not need to understand the alternative or alternatives the state must prove in order to enter a knowing plea. To put a finer point on it, the holding in Steele permits a defendant to enter a supposedly “knowing” plea to burglary without the defendant needing to understand which felony (or alternative felonies) the State alleges the defendant intended, much less understand the elements of the underlying felony (or alternative felonies). How can that be?

(¶30).

How indeed? But it can be, and it is, and it shall remain so (for now) because the court of course cannot overrule or modify its own cases. And just as Hammer declared that jurors need not agree which felony a burglar intended, State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, said a jury need not agree which of the six prohibited “acts” an accused child enticer intended. (The possibilities are sexual assault, prostitution, exposure of genitals, recording sexually explicit conduct, harming the child, or delivering drugs.) So, applying Steele’s illogical syllogism to Derango, a defendant can plead to child enticement without knowing which “act” he or she supposedly intended to perform.

As Hendricks points out, this result is even more troubling than Steele’s conclusion regarding burglary. At least the burglary defendant must be told that he or she is admitting to intending to commit a felony. Under the reasoning endorsed here, though, it would be perfectly legitimate for a court to tell a child-enticement defendant that the crime is causing a child to go into a room “with intent to commit any of the following acts” … end of discussion. The court notes that’s not what happened here, but that’s what its analysis means.

So, again, end result: a plea to assault by “sexual contact” requires understanding what “sexual contact” means, but a plea to a crime requiring intent to commit that very same assault does not. This decision is not recommended for publication despite its extension of the problematic Steele into a new (and still more problematic) context; perhaps this is an indication the court of appeals does not anticipate having the final word on the case.

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