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COURT OF APPEALS DECISION DATED AND RELEASED December 17, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2271-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT N. PENDLETON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Sawyer County: NORMAN L. YACKEL and FREDERICK A. HENDERSON, Judges. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Robert N. Pendleton
appeals a judgment of conviction following his plea of no contest to one count
of second-degree sexual assault of a child and an order denying his motion to
withdraw his plea. Pendleton contends
that the trial court failed to advise him that sexual intercourse was an
element of the offense to which he pled no contest and that the court should
not have accepted his no contest plea when it was accompanied by protestations
of innocence. Because this court
concludes that the record adequately disclosed Pendleton's understanding that
sexual intercourse was an element of the offense to which he pled no contest
and that there was an adequate factual basis to support the court's acceptance
of the plea notwithstanding Pendleton's version of the events that gave rise to
the charge, the judgment of conviction is affirmed.
The facts giving rise to
this appeal arise as a result of a negotiated plea where the State agreed to
dismiss one count alleging sexual contact with a person under the age of
thirteen in return for Pendleton's agreement to enter a plea to one count of
second-degree sexual assault involving sexual intercourse with a person under
the age of sixteen. Pendleton entered a
plea of no contest to count two of the information alleging sexual intercourse
with a person under the age of sixteen, and in accordance with the terms of the
plea bargain, the State moved to dismiss count one charging sexual contact with
a person under the age of thirteen. A
joint sentencing recommendation was offered to the court providing an imposed
but stayed sentence of four years and the imposition of a ten-year term of
probation with one year to be served in the county jail as a condition of
probation.
During the initial plea
colloquy Pendleton made statements indicating that he did not actually have
sexual intercourse with the victim and offered his version of events that
indicated that the victim was the sexual aggressor and a willing participant in
the encounter. Because Pendleton denied
sexual intercourse, the court recessed and suggested that Pendleton confer with
his attorney during the recess in regard to his plea decision. Following adjournment, defense counsel
assured the court that they had discussed in great detail the allegations
contained in the criminal complaint.
Although Pendleton did not agree with all of the facts set forth in the
complaint, placing the responsibility for initiating this sexual contact on
Pendleton, he did agree there were sufficient facts that the State could prove
justifying a finding of guilty.
Pendleton personally
affirmed his counsel's statement to the court and affirmatively acknowledged
his understanding that based upon his plea he would have a record of conviction
for sexual intercourse with someone under the age of sixteen. The court accepted the plea, entered a
finding of guilt based upon information contained in the complaint and
statements made by Pendleton and his counsel and proceeded immediately to
sentencing without the benefit of a presentence investigation. The court accepted the joint recommendations
of Pendleton and the State and imposed the proposed sentence.
Sometime following the
sentencing hearing Pendleton, represented by different appointed counsel, filed
a motion to withdraw his plea based on his contention that he did not
understand he was charged with sexual intercourse with a child at the time of
the plea and that there were insufficient facts to support the finding of
guilty, particularly in light of his "protestations of innocence."
The original trial judge
recused himself from hearing the claims of ineffective assistance of counsel
also made in Pendelton's motion to withdraw his plea. The matter was assigned to a second judge who denied the motion
to withdraw the plea upon finding that "the record is replete with
evidence ... that [defendant] at times material to this plea, understood the
first element of sexual intercourse."
Postconviction motions
to withdraw a plea of guilty or no contest are addressed to the trial court's
discretion. State v. Clement,
153 Wis.2d 287, 292, 450 N.W.2d 789, 790 (Ct. App. 1989). When a motion to withdraw a plea is made
following a finding of guilt and the imposition of sentence, the plea is
permitted to be withdrawn "only when necessary to correct a manifest
injustice." Id. The burden is on the defendant to prove the
basis for withdrawing his plea by clear and convincing evidence. State v. Rock, 92 Wis.2d 554,
559, 285 N.W.2d 739, 742 (1979).
In this case, Pendleton
alleges that he should be permitted to withdraw his plea because he did not
understand at the plea hearing that one of the elements of the offense to which
he was entering a plea involved sexual intercourse with a person under the age
of sixteen. A plea of no contest must be
knowingly, voluntarily and intelligently made.
State v. Bangert, 131 Wis.2d 246, 268-69, 389 N.W.2d 12,
24 (1986). A knowing and voluntary plea
involves an understanding of the elements of the offense to which a plea is
offered. Id.
We will assume for the
purposes of this appeal that the failure to understand an element of the
offense is sufficient to establish a manifest injustice entitling Pendleton to
withdraw his plea. Nonetheless, we
conclude the trial court correctly found the record sufficient to establish
that Pendleton was fully aware that sexual intercourse was an element of the
offense to which he pled. Not only did
the criminal complaint clearly allege sexual intercourse, the trial court
advised Pendleton during the hearing that sexual intercourse was an element of
the offense charged. Additionally,
Pendleton's attorney reported that he had exhaustively reviewed with Pendleton
the elements of the offense, including the element of sexual intercourse that
was alleged in the complaint. Pendleton
affirmed his attorney's statement to the court. Moreover, Pendleton specifically acknowledged that he would have
a record that reflected sexual intercourse with a child under sixteen years old
as a result of this plea. This is
sufficient to establish conclusively that Pendleton was aware of this element
of the charged offense at the plea hearing.
Pendleton contends that
because some of these statements were made after he offered his plea, they are
irrelevant to his understanding of the nature of the plea at the time the plea
was offered. We find no merit to such a
contention. First, the information was
given to Pendleton during the entire plea colloquy and before a finding of
guilt was made. More importantly, the
trial court declared a recess to give Pendleton a full and complete opportunity
to review this matter with his attorney before the plea was accepted. After the conference, both Pendleton and his
attorney acknowledged that they had fully reviewed the criminal complaint and
were well aware of the allegations contained therein. The suggestion that Pendleton was not aware of the nature of the
offense alleged in the face of such a record is disingenuous. We therefore conclude that the record is
sufficient to establish Pendleton's knowledge of the elements of the offense
charged and the trial court properly denied his motion to withdraw the plea of
no contest entered by Pendleton.
Pendleton next asserts
that there is insufficient evidence to support a finding of guilt based upon
what he characterizes as his protestations of innocence. We need not consider whether Pendleton was
offering a proper Alford[1]
plea because we conclude there is sufficient evidence to support a finding of
guilt, even if the plea could be characterized as an Alford
plea.
An Alford
plea permits a plea of guilty by a defendant without an admission that he
committed the offense to which he is pleading.
The acceptance of an Alford plea is the acknowledgment
that the state has sufficient evidence to obtain a finding of a guilt
notwithstanding his claim of innocence.
See State v. Garcia, 192 Wis.2d 845, 858-59, 532
N.W.2d 111, 116 (1995). By permitting a
defendant to enter a plea while claiming innocence, the court is permitting the
defendant to engage in a plea agreement resolving a matter without the
necessity of the delay and expense connected with a trial and permitting the
exercise of a plea made for the defendant's strategic reasons, e.g., limiting
sentence exposure. When an Alford
plea is offered the State must offer strong proof of guilt in support of a
finding of guilty. Garcia,
192 Wis.2d at 859-60, 532 N.W.2d at 116-17.
In this case,
Pendleton's statement as to the nature of the offense charged amounts more to
charging the victim with being the instigator and sexual aggressor in their
sexual contact. Because of the victim's
age, the circumstances in which the sexual acts occurred do not represent a
defense to the offense charged. The
information before the trial court, including the statements made in the
criminal complaint, the defense counsel's acknowledgment that the State
possessed sufficient evidence to obtain a finding of guilty and Pendleton's
acknowledgment of the acts committed, albeit in circumstances different from
those the victim alleged, are sufficient to sustain the finding of guilt. We find no merit in the contention that
there is insufficient evidence to support a finding of guilt if Pendleton's
plea is accepted as an Alford plea.
Furthermore, we are not
persuaded that Pendleton's statements are tantamount to protestations of
innocence but merely a different version of circumstances which nonetheless
demonstrate he committed a second-degree sexual assault on a person under the
age of sixteen years. The judgment of
conviction and order denying the motion to withdraw the plea are accordingly
affirmed.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.