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Recusal – Waiver; Guilty Plea – Factual Basis – Sexual Intercourse with Child

State v. Roger D. Godwin, No. 2009AP2999-CR, District 4, 8/5/10

court of appeals decision (1-judge, not for publication); pro se

Recusal – Waiver

¶10      Godwin argues that Judge VanDeHey should have recused himself from the case because one of the judge’s colleagues, Judge Curry, and other courthouse staff were Godwin’s victims in the bomb threat case. The State argues that the judge was not required to recuse under WIS. STAT. § 757.19(2), and, regardless, Godwin waived his right to allege a potential conflict.

¶11      We agree with the State that Godwin waived his right to raise this objection at the plea and sentencing hearing. To the extent Judge VanDeHey may have had a conflict requiring recusal under WIS. STAT. § 757.19(2), he made a full and complete disclosure on the record of the potential conflict as required by § 757.19(3) and offered to recuse himself from the case. In response, Godwin affirmatively stated that he wanted Judge VanDeHey to stay on the case, and that he was waiving any potential conflict. Moreover, Godwin indicated that he had been taking his medication at the time of the plea hearing, and he does not now argue that his bipolar disorder affected the knowingness and voluntariness of his waiver. Accordingly, we conclude that Godwin explicitly waived any potential conflict consistent with § 757.19(3).

Guilty Plea – Factual Basis – Sexual Intercourse with Child

¶16      The record also supports the court’s determination that there was a sufficient factual basis to prove the offenses charged. The elements of the offense of sexual intercourse with a child under WIS. STAT. § 948.09 are as follows: (1) the defendant had sexual intercourse with the victim; (2) the victim had not attained the age of eighteen at the time of the alleged offense; and (3) the victim was not the defendant’s spouse at the time of the alleged offense.  See WIS JI—CRIMINAL 2138. The criminal complaint stated that S.S. alleged that she and Godwin engaged in sexual intercourse, that S.S. had attained the age of sixteen at the time of the alleged offense, and that S.S. was not Godwin’s spouse. The criminal complaint also states that Godwin admitted to engaging in sexual intercourse with S.S.  Based on these factual allegations, the circuit court’s determination that a sufficient factual basis existed to prove the offenses charged was not clearly erroneous.

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