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Plea-Withdrawal, Post-sentencing – Procedure – Pleading Requirements – Sexual Assault

State v. Monika S. Lackershire, 2005 WI App 265, reversed2007 WI 74
For Lackershire: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether Lackershire, an adult female convicted of sexual assault (intercourse) of a child, established a prima facie case for plea-withdrawal due to lack of adequate understanding of the elements.


¶8        Initially, we note that in a plea withdrawal motion like Lackershire’s, “the motion must include facts that allow the reviewing court to meaningfully assess the defendant’s claim.” State v. Allen , 2004 WI 106, ¶21, 274 Wis.  2d 568, 682 N.W.2d 433 (citation omitted). Here, Lackershire contends the plea procedure was defective because “the elements [of her crime] were never incorporated in the plea questionnaire, nor were they discussed or recited on the record at the time of the plea taking.” Second-degree sexual assault of a child has two elements: (1) sexual intercourse (2) with a person under sixteen years of age. Lackershire never alleges which element she misunderstood.

¶9        Lackershire argues “[s]he believed she had a defense to the charge because she was [allegedly] raped by the boy, thereby suggesting her misunderstanding that consent was somehow an issue in the case.” However, she cites no authority for her implicit proposition that the trial court must explain away everything that is not an element of the charged crime. [3]Moreover, the record reveals the court did explain the elements of the crime to Lackershire ….

¶10      “A circuit court is given discretion to tailor the colloquy to its style and to the facts of the particular case ….” Brandt, 226 Wis. 2d at 620. Here, the elements of the crime are set forth in plain, easily understood language in the statute. Thus, there is no need for a complicated plea colloquy when the statute is straightforward. The court asked if Lackershire understood it was alleged she had sexual intercourse with someone under sixteen years of age—encompassing both elements—and Lackershire answered affirmatively. In addition, Lackershire and her attorney acknowledged counsel had explained how evidence in the State’s possession related to both elements and would be sufficient to justify finding Lackershire guilty. In short, Lackershire has failed to establish a deficient plea colloquy and we need not examine factors or the record beyond that hearing.[4]

[3] Indeed, a valid plea generally results in waiver of all defenses. See State v. Aniton, 183 Wis.  2d 125, 129, 515 N.W.2d 302 (Ct. App. 1994). To the extent her attorney may not have informed her of this consequence, Lackershire has not raised an ineffective assistance of counsel argument.

[4] Lackershire’s attempted analogy to State v. Nichelson, 220 Wis.  2d 214, 582 N.W.2d 460 (Ct. App. 1998), is unavailing. In Nichelson, we concluded that the State failed to present any evidence the defendant’s plea was knowing, intelligent, and voluntary. Lackershire likewise complains that the State has presented no evidence about the nature of her plea.
There is one key difference. The record in Nichelson was absolutely silent regarding one element of the crime. Nichelson had been charged under Wis. Stat. § 948.02(1), first-degree sexual assault of a child under the age of thirteen. Unlike Lackershire, who engaged in intercourse with her victim, Nichelson allegedly engaged in sexual contact with his victim. Sexual contact, by definition, requires the touching to be intentional and for the purpose of defendant’s sexual arousal or gratification. Wis. Stat. § 948.01(5)(a). The colloquy failed to discuss this component, a deficiency exacerbated by Nichelson’s borderline mental retardation.

The supreme court subsequently reversed, albeit on the separate ground of inadequate factual basis, 2007 WI 74, ¶5 n. 4 (“Because we determine that the plea colloquy was inadequate as a result of the circuit court’s failure to make sufficient inquiry to satisfy the factual basis requirement, we do not address the argument regarding the elements of the offense.”). Thus, the court of appeals’ holding with respect to the elements arguably remains undisturbed. The following comments address the court of appeals’ holding.Though the opinion is silent on this point, Lackershire testified, indeed was the only witness, on this portion of her postconviction motion. But this background makes the court’s discussion on her failure to make a prima facie showing peculiar. This showing issupposed to be a mere pleading requirement: if the defendant raises a sufficient allegation in the motion, then the State must assume the burden of persuasion at an evidentiary hearing. We are left to guess at the implications of the holding in this case, but apparently the court treated Lackershire’s testimony as if it were part of her pleading requirement. This might seem a very picky point, but the potential for confusion is relatively large. Plea-withdrawal procedure is fairly well-settled. A motion to withdraw plea must be screened by the judge; if it passes muster, then the court hears evidence, and if the State fails to present any witnesses then it simply hasn’t met its burden of proof.

None of this might merit attention, except that the court’s importation of Allen into its discussion of the prima facie showing is flat wrong and holds the potential for pernicious impact. Allen is an ineffective-assistance case, something handled much differently than challenges to guilty pleas. Allen says that mere conclusory allegations generally aren’t enough for an IAC hearing, which makes sense given that the allegations are necessarily extrajudicial. But plea-withdrawal focuses on the sufficiency of the record, whether the guilty plea court adequately complied with § 971.08 and Bangert. Thus, as the court put it, in State v. John A. Jipson, 2003 WI App 222, ¶7, “First, the defendant must show the trial court accepted the defendant’s guilty plea without conforming to Wis. Stat. § 971.08 or other mandatory procedures. Second, the defendant must merely allege he or she did not know or understand the information that should have been provided at the plea hearing.” Must merely allege: surely a conclusory allegation will do. Same effect, more detailed discussion, State v. Corey J. Hampton, 2004 WI 107, ¶51-65. This point was, if anything, made equally explicitly by the court of appeals’ decision inHampton2002 WI App 293, ¶21 (“We agree with Hampton’s description of the differing burdens and conclude that the burden-shifting scheme imposed by Bangert is inconsistent with the State’s proposal that we apply Bentley.”)

To the extent, then, that the court of appeals is now suggesting that Allen regulates Bangert-type motions, it is flatly wrong. If this decision is cited in support of an Allen-type showing in a Bangert context, counsel must reacquaint the court with controlling, contrary authority.

The next point is a bit pickier, but possibly recurrent nonetheless. Assume that, as is apparently the case here, the trial court does undertake to hear evidence on the motion: can the reviewing court subsequently say that the defendant had not, after all, made out the prima facie showing needed for a hearing? In other contexts, most prominently Batsonobjections, the answer would be, No: Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality) (where prosecutor defends against Batson claim on merits, “the preliminary issue of whether the defendant had made a prima facie showing becomes moot”); State v. King, 215 Wis. 2d 295, 303, 572 N.W.2d 530 (1997) (adopting this rule). In other words, in Lackershire’s instance, the court should have analyzed the evidence in terms of whether the State met its burden of proving a knowing, intelligent plea, instead of a stilted, inapt analysis of the defendant’s mooted burden. Whether the correct analysis would have made a difference in the outcome can’t be ascertained, because the court’s discussion is too truncated. And in any event, from start to finish the court mishandled the issue.

And just what was the issue, on the merits? That’s not entirely clear. The two offense elements are intercourse, with someone under 16. Lackershire asserted in support of her motion that she had been “raped by the boy.” Is that a defense to the charge? You’d think so, though the court doesn’t exactly say, but instead, in a terse footnoted aside, merely notes that a plea waives all defenses. (Talk about conclusory.) The implication is that “rape” is an affirmative defense. It is no doubt true that a guilty plea court need not cover affirmative defenses in its colloquy, and if that is all that the court means to hold here, then there is little to disagree with. But the nettlesome point is whether “rape” indeed establishes an affirmative defense to sexual assault; or whether instead it negates an element. If the latter, then it would have to be a non-explicit element, some form of intent. And if that’s true, then it’s hard to see how the colloquy on the two elements, which most certainly did not address the negation of intentional conduct, was adequate on these particular facts. The guilty plea defendant must “possess[] an understanding of ‘the law in relation to the facts,’” Nash v. Israel, 707 F.3d 298, 302 (7th Cir. 1983), quotingMcCarthy v. United States, 394 U.S. 459, 466 (1969). Not clear, in other words, just how rigorously the court applied that principle here.


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