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SCOW to decide whether plea colloquy must address mode of commission of charged crime

State v. Shannon Olance Hendricks, 2015AP2429-CR, petition for review granted 5/15/17; review of an unpublished court of appeals decision; case activity (including briefs)

Issue (composed by On Point)

Do Wisconsin Statute § 971.08(1) and State v. Bangert require that a defendant entering a guilty plea to a crime with alternative modes of commission understand what the state needs to prove to meet its burden of proof on the mode (or modes) of commission the state has alleged?

This case will require the supreme court to resolve a conflict between two conflicting lines of court of appeals cases dealing with plea colloquies. On one hand, a defendant pleading to a crime with a “sexual contact” element is supposed to understand the meaning of “sexual contact”—in particular, that the contact was for purposes of sexual degradation, humiliation, arousal, or gratification. State v. Jipson, 2003 WI App 222, 267 Wis. 2d 467, 671 N.W.2d 18. On the other hand, when a defendant is pleading to burglary, which is committed by unauthorized entry with intent to commit a felony, the defendant doesn’t have to be informed of which felony he alleged to have intended, much less the elements of that felony. State v. Steele, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595.

Jipson based its conclusion on the basic rule that a defendant entering a plea has to understand the nature of the charge, while Steele, with scant analysis, looked instead at the law governing jury unanimity for offenses with multiple modes of commission. As we explained in our prior post on this case, the court of appeals now sees that the analysis in Steele is “problematic,” and goes so far as to say “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.” (Court of Appeals slip op., ¶¶18, 30).

Alas, the court of appeals is powerless to overrule itself, Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997), so it concluded it had to apply Steele to Hendricks’s claim that his plea is invalid because he didn’t understand all the elements of the offense. Hendricks was charged with child enticement under § 948.07, which can be committed by enticing a child with intent to commit one of six alternative acts: to engage in sexual assault, prostitution, exposure of genitals, recording sexually explicit conduct, harming the child, or delivering drugs. Hendricks was alleged to have enticed the child with intent to commit sexual assault by engaging in sexual contact, but during his guilty plea colloquy the court didn’t explain the meaning of sexual contact or ask Hendricks if he understood what it meant. A jury doesn’t have to agree which of the six acts a defendant intended to convict for enticement, State v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, so under Steele the plea colloquy didn’t need to explain the relevant mode, either.

As Hendricks points out, if  Steele is right and jury unanimity case law controls what a court must explain to ensure that a defendant’s plea was knowingly entered, then a circuit court could simply explain the nature of the enticement charge by saying it requires that he caused the child to go to a secluded place with “intent to commit any of the following acts,” and then list them all without saying anything more. But can a defendant knowingly and intelligently plead guilty to child enticement with intent to have sexual contact if he doesn’t understand what “sexual contact” means? The supreme court will answer that question and tell us whether Steele or Jipson prevails.

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