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SCOW: Plea colloquy need not address mode of commission of charged crime

State v. Shannon Olance Hendricks, 2018 WI 15, 2/20/18, affirming an unpublished court of appeals opinion, case activity (including briefs)

Can a defendant knowingly and intelligently plead guilty to a charge that requires proof of intent to do “X” if the defendant does not know what “X” is? The majority answers “yes.” Justice Abrahamson (joined by A.W. Bradley) answers “no.” Kurt Vonnegut fans will Shirley enjoy the dissent. 🙂 

When conducting a plea colloquy, a circuit court must address the defendant personally and determine that the plea is made voluntarily with an understanding of the nature of the charge. See  State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) and §971.08.  Bangert holds that understanding the nature of the charge means understanding the elements of the crime.

In this case, Hendricks pled guilty to enticing a child to a secluded place to commit 1 of 6 crimes (a.k.a the mode of commission). See State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833. During the plea colloquy, the circuit court asked Hendricks if he was admitting to “child enticement.” It did not specify enticement to commit “sexual contact.” After a side bar, the court told Hendricks he would be pleading to enticement for purposes of “sexual contact” but it didn’t explain the meaning of “sexual contact.”

As predicted in our post on the petition grant, this case resolves a conflict between 2 lines of plea colloquy cases. One line suggests that when a defendant pleads to a crime involving “sexual contact” he has to understand the meaning of “sexual contact.” See State v. Jipson, 2003 WI App 222, 267 Wis. 2d 467, 671 N.W.2d 18. The other line, derived from juror unanimity cases, holds that when a defendant pleads to burglary, which is an unauthorized entry with intent to commit a felony, the defendant does not have to be informed of which felony he intended to commit or the elements of that felony. See State v. Steele, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595. The court of appeals has itself criticized Steele. Id. at  ¶¶1830.  But the majority opinion embraces it.

¶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 enticed the child victim to a secluded place with the intent of having sexual contact.

The majority thus also denied Hendricks a hearing on his motion for plea withdrawal. Opinion ¶¶28-30.

Justice Abrahamson would hold that it violates due process for a circuit court to accept a plea to a charge that requires proof of an intended underlying act without verifying that the defendant understands what the underlying intended act is. Dissent ¶37.  First, she notes that the majority opinion leads to an absurd result. If child enticement only had one mode of commission, the circuit court would be required to confirm the defendant’s understanding of it. But under the majority’s reasoning when the crime has 6 modes of commission, courts may skip that step. “What is the logic of this reasoning?” she asks.

Second, borrowing from Hendrick’s brief, she asks 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 know what “X” is?  Here’s where she invokes Kurt Vonnegut.

¶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.

¶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. 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.

Abrahamson also impugns the majority’s decision to deny Hendricks’ a hearing.  In her view, Hendricks showed a prima facie violation of Bangert and §971.08(1)(a). He was thus entitled to a hearing under State v. Brown, 2006 WI 100, ¶23, 293 Wis. 2d 594, 716 N.W.2d 906; State v. Hampton, 2004 WI 107, ¶72, 274 Wis. 2d 379, 683 N.W.2d 14; and State v. Howell, 2007 WI 75, ¶70, 301 Wis. 2d 350, 734 N.W.2d 48.  Abrahamson asks:

¶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?

Sounds like there will be more litigation on this issue.

{ 1 comment… add one }
  • Robert R. Henak February 22, 2018, 4:12 pm

    I assume there will be a cert. petition on this. There certainly should be. I doubt very much that even our current rightwing SCOTUS would find the majority’s “logic” in this case to be persuasive.

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