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Statutory amendment altering elements did not invalidate plea

State v. Richard J. Scott, 2017 WI App 40; case activity (including briefs)

Richard Scott seeks to withdraw his pleas to one count of repeated sexual assault of the same child and one count of possessing child pornography. As to the sexual assault count, he was charged under the wrong statute–a prior version. As to the child pornography, he argues that the complaint lacked a factual basis for the plea. The court of appeals rejects both challenges.

The charging period for the repeated assault count straddled a change in the statute. Scott was charged with violating Wis. Stat. § 948.025(1)(b) (2005-06). However, that statute was amended by 2007 Wis. Act. 80 before the last charged assault. That act created Wis. Stat. § 948.025(1)(e) (2007-08).

The former statute punished having sexual contact or intercourse three or more times with a child. If the child was under age 13 for three or more assaults, the crime could be charged as a Class B felony; otherwise it could be charged as a Class C (though the child had to be under 16 in any case). Under the new statute, the scheme got a bit more complicated and the statutory numbering changed. Where as the (1)(b) in the complaint was the C felony under the 2005-06 statute cited (where fewer than 3 assaults were of a child under 13), the new (1)(b) is the B Felony–satisfied where 3 or more of the assaults are of certain types; one example being that they be assaults of a child under 12.

So the statute number in the complaint was misleading–it referred to the B Felony for three more serious assaults, though the agreement was that Scott was pleading to fewer than three such assaults, resulting in a C Felony. Scott argues that this means he pled to an “offense not known to law,” depriving the circuit court of jurisdiction. Failing that, he claims the plea colloquy was defective, for similar reasons.

The court of appeals is unpersuaded. Scott pled to three assaults involving a girl who turned six years old during the charging period. Thus, the elements of either the B or C felonies were met, and the state’s decision to charge the lower felony was within its discretion:

In short, the charging error simply made no difference. It was not as if the State charged Scott with only two sexual assaults and he had to commit a third in order to be guilty of the Class C felony of engaging in repeated acts of sexual assault. Scott does not argue that the allegations in the complaint were insufficient to support the charge of engaging in repeated sexual assault of the same child, that he was not put on notice of the charges against him, or that he was not able to mount an adequate defense. He does not argue that he was misled in any way. The technical charging error did not prejudice Scott. Since Scott was charged with a crime that existed at law, the court had subject matter jurisdiction.

Further, contrary to Scott’s contention, the circuit court’s plea colloquy was not defective. As we have discussed, WIS. STAT. §§ 948.025(1)(b) (2005-06) and 948.025(1)(e) (2007-08) both required three violations of either first- or second-degree sexual assault or some combination thereof. The circuit court asked Scott if “on at least three occasions [he] touched the child with some part of [his] body on the vagina for the purpose of [his] own sexual gratification,” and he answered that he did. Scott’s admission to three instances of sexual contact with a child less than thirteen years of age established three violations of sexual assault, whether first- or second-degree, and thus, his violation of the Class C felony of engaging in repeated acts of sexual assault. Scott expressed that he understood the charge, which belies his claim that he entered his guilty plea without knowledge of the charge.

(¶¶25-26 (citation omitted)).

As to the child pornography possession, Scott argues that the allegations in the complaint were insufficient to show that the images depicted children, and that he possessed them or knew they were on his computer. The court again disagrees:

In any event, all of Scott’s challenges clearly lack merit. The complaint alleged that Scott forced M.M. to view pornographic pictures of “naked girls” and “children” with adults and that the police found on “two computers” at Scott’s “home,” among other things, “numerous images of child pornography” including one of “a girl, clearly under age 18,” engaged in sexual contact with a male. During the plea colloquy, the circuit court read from portions of the complaint recounting in much more explicit detail than we have provided here these items that were found at Scott’s home. In response, Scott indicated that he understood and that he was pleading guilty.

(¶32).

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