COURT OF APPEALS
DATED AND FILED
July 15, 2010
A. John Voelker
Acting Clerk of Court of Appeals
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.
STATE OF WISCONSIN
IN COURT OF APPEALS
Kurt D. Neis,
¶1 DYKMAN, P.J. Kurt Neis appeals from his conviction following his guilty plea to disorderly conduct under Wis. Stat. § 947.01, with a domestic abuse surcharge under Wis. Stat. § 973.055(1). Neis argues that the circuit court erred in denying his motion to withdraw his guilty plea without an evidentiary hearing. He argues that the circuit court did not establish that he understood the nature of the charge and his potential punishment if convicted as mandated under Wis. Stat. § 971.08, because (1) the circuit court did not inform him that he would be subject to the federal firearm ban following domestic violence convictions, 18 USC §§ 921(a)(33)(A)(i) and (ii) and 922(g)(9), upon conviction; and (2) the court did not inform him that “domestic abuse,” as defined under § 968.075(1)(a), was an element of his conviction. We conclude that the record establishes that the circuit court properly informed Neis of all required information before accepting his guilty plea, and therefore Neis is not entitled to an evidentiary hearing or plea withdrawal. Accordingly, we affirm, but only because we are unable to write a principled opinion reversing.
¶2 In January 2009,
¶3 Neis subsequently moved to withdraw his guilty plea, arguing that it was not knowingly, intelligently, and voluntarily entered because the court did not inform him that he would be subject to the federal firearm ban upon conviction or that “domestic abuse” was an element of his conviction. The circuit court denied Neis’s motion to withdraw his plea without a hearing. Neis then filed a motion for reconsideration, arguing that he was charged with and convicted of domestic abuse under Wis. Stat. § 968.075(1)(a), and therefore the court was required to establish that Neis understood the definition of “domestic abuse” before accepting his guilty plea. The court determined that the judgment of conviction erroneously stated that Neis was sentenced under § 968.075(1)(a). It therefore ordered the judgment amended to state that Neis was subject to the domestic abuse surcharge pursuant to Wis. Stat. § 973.055(1). It declined to modify its decision in any other respect. Neis appeals.
Standard of Review
¶4 A circuit court’s decision to allow a defendant to withdraw a
guilty plea is within the court’s discretion, “subject to the erroneous exercise
of discretion standard on review.” State v. Thomas, 2000 WI 13, ¶13,
¶5 Neis argues that he is entitled to an evidentiary hearing on his motion to withdraw his plea because his motion alleges that the circuit court failed to comply with Wis. Stat. § 971.08 when it accepted his guilty plea without informing him that his conviction would subject him to the federal firearm ban or that one of the elements of his conviction was “domestic abuse.” We disagree.
¶6 If a motion to withdraw a plea makes a prima facie showing
that the circuit court did not comply with Wis.
Stat. § 971.08 and the defendant did not understand the information
that should have been provided, the defendant is entitled to an evidentiary
hearing at which the State bears the burden to establish the plea was
nonetheless knowing, intelligent, and voluntary. State v. Howell, 2007 WI 75, ¶¶27,
argues first that the circuit court did not comply with Wis. Stat. § 971.08 because it did not inform him that
his conviction would subject him to the federal firearm ban, and thus did not
inform him of the potential punishment he faced if convicted. See
§ 971.08(1)(a) (before accepting a guilty plea, the court must determine
the defendant understands “the potential punishment if convicted”). Neis concedes that we held in Kosina
that § 971.08 does not require a circuit court to inform a defendant that
a conviction will subject the defendant to the federal firearm ban. Neis argues, however, that Kosina is
distinguishable on its facts and that his rights under the Second Amendment to
the United States Constitution are significant enough to render his plea
involuntary absent knowledge that he would be subject to the federal firearm
ban on conviction. We conclude that we
are bound by Kosina’s holding that a circuit court need not inform a defendant
of the federal firearm ban before accepting a guilty plea, and that we have no
other basis to conclude that the circuit court did not comply with
§ 971.08. See
v. Cook, 208
226 Wis. 2d at 483-84, as here, Kosina argued that the circuit court erred in
denying his motion to withdraw his guilty plea because “he was not informed
that his conviction would result in a permanent prohibition of firearms
possession under 18 U.S.C.A. §§ 921 and 922.” Kosina argued that because he did not know
that he would be subject to the federal firearm ban due to his conviction, his
plea was not knowingly and voluntarily entered, and thus he was entitled to
withdraw his plea to correct a manifest injustice.
began by explaining that Wis. Stat. § 971.08(1)(a)
requires the circuit court to determine that a defendant understands the
potential punishment that may be imposed before accepting a guilty plea.
concluded first that the application of the federal firearm ban to Kosina was
not a direct consequence of his plea because the circuit court made no explicit
finding that Kosina’s disorderly conduct related to domestic violence, a
requirement for the federal firearm ban to apply.
¶11 We conclude that Kosina is controlling, and therefore Neis is not entitled to an evidentiary hearing on his motion to withdraw his plea. Under Kosina, the circuit court need not inform a defendant of the application of the federal firearm ban to comply with Wis. Stat. § 971.08. We need not address Neis’s argument that his case is distinguishable from Kosina because here the circuit court made an explicit finding that his conviction was for disorderly conduct related to domestic violence; regardless, it remains that the federal firearm ban arises under federal law, which we explained in Kosina was an independent basis for our conclusion that it was a collateral consequence. Because the effect of the federal firearm ban is a collateral consequence of Neis’s plea, the circuit court did not err under § 971.08 in failing to inform Neis of that consequence.
also asserts that his right to bear arms under the Second Amendment to the
United States Constitution is a significant right, and the court should not
have accepted his guilty plea without ensuring that he understood that he was
losing that right. Neis argues that the
legislature requires courts to inform defendants that if they are undocumented
immigrants, they may be subject to deportation on conviction, and that the
Second Amendment rights of
argument, however, must be addressed to the legislature or the supreme court;
we cannot read new requirements into Wis.
Stat. § 971.08 that are not there based on our assessment of the
importance of those rights. Moreover, to
the extent Neis argues that a court must inform a defendant of the loss of
significant constitutional rights following a conviction under the Due Process
Clause of the Fourteenth Amendment to the United States Constitution, we
disagree. We have explained that due
process does not require a court to inform a defendant of the collateral
consequences of a guilty plea, even if those consequences are the loss of
constitutional rights. See,
e.g., State v. Madison, 120
¶14 Next, Neis argues that the circuit court erred in failing to inform him that “domestic abuse” was an element of his conviction. The problem with Neis’s argument, however, is that Neis was convicted of disorderly conduct under Wis. Stat. § 947.01, which does not contain an element of “domestic abuse.” The elements of disorderly conduct under § 947.01 are that the defendant has “engage[d] in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance.” Neis does not argue that he was not informed of the elements under the statute. He argues, however, that because the criminal complaint and conviction originally listed Wis. Stat. § 968.075(1)(a), which defines “domestic abuse” as including “[i]ntentional infliction of physical pain” against a spouse, the court was required to explain this definition to him. We disagree.
¶15 While Wis. Stat. § 968.075(1)(a) appears in the court documents, the statute, entitled “Domestic abuse incidents; arrest and prosecution,” plainly governs law enforcement procedures in domestic abuse cases. It does not create criminal liability for the domestic abuse perpetrator. Neis was charged with and convicted of disorderly conduct under Wis. Stat. § 947.01, as explained above. He was then subject to the domestic abuse surcharge under Wis. Stat. § 973.055(1), which provides that if a court imposes a sentence for specified crimes, including disorderly conduct, and the offense “involved an act by the adult person against his or her spouse or former spouse, against an adult with whom the adult person resides or formerly resided or against an adult with whom the adult person has created a child,” the court is required to impose a “domestic abuse surcharge.” The court engaged Neis in a colloquy, establishing that Neis understood the elements of disorderly conduct and that he was charged with disorderly conduct based on an act against a person with whom he either resided or had a child. Nothing more was required. Accordingly, we affirm.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 In State v. Brown, 2006 WI 100, ¶35, 293 Wis. 2d 594, 716 N.W.2d 906, the supreme court established additional duties for the circuit court before accepting a guilty plea. We discuss only the circuit court duties pertinent to this case.
 We ordered supplemental briefing on the issue of whether Article I, Section 25 of the Wisconsin Constitution requires a circuit court to inform a defendant that a conviction will subject a defendant to the federal firearm ban. After reviewing the parties’ briefs, we conclude that there is no reason to address this issue separately. We address Neis’s Second Amendment constitutional arguments below.
distinction between direct and collateral consequences as determinative of the
constitutional validity of a plea seems to be problematic. “The Constitution sets forth the standard
that a guilty or no contest plea must be affirmatively shown to be knowing,
voluntary, and intelligent.” State
v. Bangert, 131
 Neis argues that the circuit court did not cure its defect by amending the judgment of conviction. However, the circuit court amended the judgment of conviction to accurately reflect Neis’s conviction and sentence. We perceive no error with this procedure.