COURT OF APPEALS DECISION DATED AND FILED June 8, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT II |
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State of Plaintiff-Respondent, v. Matthew G. Scott, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
¶1 PER CURIAM. Matthew Scott appeals from a judgment convicting him of second-degree sexual assault of a child and from an order denying his postconviction motion seeking to withdraw his guilty plea. We conclude that the circuit court should have held an evidentiary hearing on Scott’s motion to withdraw his plea. Therefore, we reverse the order denying Scott’s postconviction motion and remand for an evidentiary hearing. We affirm the judgment of conviction because plea withdrawal must be determined in a postconviction evidentiary hearing.
¶2 We review whether the circuit court erroneously denied
Scott’s postconviction motion without an evidentiary hearing. A defendant is entitled to an evidentiary
hearing if the defendant’s postconviction motion makes a prima facie showing,
based on the transcript of the plea hearing and the defendant’s allegations,
that the colloquy was deficient and the defendant did not know or understand
information that should have been provided at the plea hearing. State v. Hoppe, 2009 WI 41, ¶44
n.26, 317 Wis. 2d 161, 765 N.W.2d 794; State v. Brown, 2006 WI 100, ¶2, 293
Wis. 2d 594, 716 N.W.2d 906. We
independently determine the sufficiency of the plea colloquy and the necessity
of an evidentiary hearing. Hoppe,
317
¶3 During the plea colloquy, the circuit court must “[e]stablish
the defendant’s understanding of the nature of the crime with which he is
charged.” Id., ¶18. To understand the nature of the charge, the
defendant must be aware of all of the crime’s essential elements. State v. Jipson, 2003 WI App 222,
¶9, 267
¶4 We agree with Scott that the circuit court erroneously denied his postconviction motion without an evidentiary hearing. Scott’s postconviction motion alleged a deficiency in the plea colloquy that was apparent from the transcript and he further alleged that he did not understand information the circuit court was bound to provide to him under Hoppe.[2] See Brown, 293 Wis. 2d 594, ¶5. We therefore reverse and remand for an evidentiary hearing on Scott’s plea withdrawal motion. See id., ¶6.
¶5 The transcript of the plea colloquy reveals the
following. The circuit court confirmed
that Scott signed a plea questionnaire and waiver of rights form. While the court mentioned the other elements
of second-degree sexual assault that would have to be established at trial, the
court did not confirm Scott’s understanding of the purpose of the sexual
contact as required by Jipson and Hoppe. The court confirmed that Scott reviewed the
elements “attached to your plea form for the offense,” and that Scott and his
counsel discussed the elements.
Unfortunately, the definition of sexual contact was not included in the
attached jury instructions for second-degree sexual assault of a child,
¶6 Scott’s postconviction motion alleged that the plea colloquy was defective because he was not advised of the sexual contact element and he did not understand that element when he pled guilty. Scott alleged that he would not have pled guilty had he known that the State had to prove beyond a reasonable doubt that he intentionally touched the victim with the purpose of becoming sexually aroused or gratified or to sexually degrade or humiliate the victim. For these reasons, Scott moved to withdraw his guilty plea.[3]
¶7 In denying Scott’s plea withdrawal motion without an
evidentiary hearing, the circuit court relied upon that portion of the plea
colloquy in which the court asked Scott about his discussion with counsel about
the meaning of sexual contact but did not elicit the substance of that
discussion. The court’s reliance was
misplaced. If trial counsel must
“summarize the extent of the explanation, including a reiteration of the
elements, at the plea hearing,” Brown, 293
¶8 The circuit court also relied upon that portion of the plea colloquy in which the court clarified that Scott had touched the victim intentionally. Although the court clarified that Scott intentionally touched the victim, the clarification did not take place within the context of Scott’s knowledge of the purpose of the sexual contact. Scott’s initial response that he mistakenly touched the victim suggests that Scott lacked the necessary knowledge and understanding about an element of the crime at the time he pled guilty.
¶9 The State argues that Scott misrepresented the plea colloquy in his postconviction motion. To support its claim that Scott was advised of the sexual contact element, the State relies upon the circuit court’s reference to the second-degree sexual assault jury instructions. As discussed above, the jury instructions did not include a definition of sexual contact.
¶10 The plea colloquy does not establish that Scott knew that the
State had to prove the purpose of the sexual contact as an element of the
crime. See Jipson, 267 Wis. 2d 467, ¶16.
Scott made the necessary allegations to obtain an evidentiary hearing on
his plea withdrawal motion. The circuit
court erroneously denied Scott’s postconviction plea withdrawal motion without
a hearing. We reverse the postconviction
order and remand for an evidentiary hearing on the postconviction motion. We affirm the judgment of conviction.
By the Court.—Judgment affirmed; order reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[2] The State conceded in response to the motion that an evidentiary hearing would be required.
[3] Scott’s
motion is governed by the standards for a post-sentencing request to withdraw a
plea. See State v. Brown, 2006 WI 100, ¶18, 293