COURT OF APPEALS
DATED AND FILED
February 8, 2011
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
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
State of Wisconsin,
Arthur J. Anderson,
from a judgment and an order of the circuit court for Forest County: THOMAS
G. GROVER, Judge. Affirmed.
¶1 BRUNNER, J. Arthur
Anderson appeals a judgment of conviction for criminal damage to property and
an order denying postconviction relief. Anderson asserts he should
be permitted to withdraw his guilty plea because it lacked a factual
basis. We affirm.
¶2 Heidi Smith lent her car to Anderson with the understanding that he would
return it the following morning. When Anderson failed to return
the vehicle, Smith reported the vehicle stolen.
A couple days later, police found the vehicle abandoned and rolled over
in a ditch. Police determined that the
vehicle had hit a deer. The vehicle was
was charged with operating a motor vehicle without owner’s consent and two
counts of bail jumping. Pursuant to a
plea agreement, the State amended the operating a motor vehicle without owner’s
consent charge to criminal damage to property and moved to dismiss one of the
bail jumping charges. Anderson pled guilty. The circuit court, after reviewing the
elements of criminal damage to property and bail jumping with Anderson and finding a factual basis in the
criminal complaint, accepted his pleas.
¶4 After sentencing, Anderson
filed a postconviction motion, asserting there was no factual basis upon which
the circuit court could find he intentionally damaged property. The court denied Anderson’s motion.
¶5 In order to withdraw a guilty plea after sentencing, Anderson must establish a
manifest injustice. See State v. Smith, 202 Wis. 2d 21, 25, 549 N.W.2d 232 (1996). Manifest injustice occurs if the trial court
fails “to establish a sufficient factual basis that the defendant committed the
offense to which he or she pleads.” Id. However, when a guilty plea is entered pursuant
to a plea agreement, the circuit court is not required to go “to the same
length to determine whether the facts would sustain the charge as it would
where there is no negotiated plea.” Broadie
v. State, 68 Wis.
2d 420, 423-24, 228 N.W.2d 687 (1975). On
a motion to withdraw, the court may look at the totality of the circumstances,
including the plea hearing, the sentencing hearing, and statements made by the
defendant’s counsel, to determine whether a defendant has agreed to the factual
basis underlying the guilty plea. State
v. Thomas, 2000 WI 13, ¶18, 232 Wis. 2d
714, 605 N.W.2d 836. “The determination
of the existence of a sufficient factual basis lies within the discretion of
the trial court and will not be overturned unless it is clearly
erroneous.” Smith, 202 Wis. 2d at 25.
¶6 To be found guilty of criminal damage to property, the State
must prove beyond a reasonable doubt that:
1. The defendant caused damage to physical
property. 2. The defendant intentionally
caused the damage. 3. The property
belonged to another person.
4. The defendant caused the damage without the consent of
[the owner]. 5. The defendant knew
the property belonged to another person and knew that the other person did not
consent to the damage.
Wis JI—Criminal 1400 (2002); see also Wis. Stat. § 943.01. Anderson
asserts that there was no factual basis to support a determination he
intentionally damaged the vehicle.
Specifically, he contends the police report, which was incorporated into
the criminal complaint, refers to his vehicle as having been in an
accident. Anderson argues an accident is not
¶7 However, the record supports the circuit court’s
determination that Anderson
intentionally damaged the property. During
the plea colloquy, the circuit court explained to Anderson that an element of criminal damage
to property is that the damage was intentional and not accidental. The court stated: “[T]he District Attorney
would have to prove beyond a reasonable doubt that … you did intentionally, on
purpose, not by accident, cause damage to somebody’s property.” The court asked Anderson
if he understood the charge and Anderson
indicated he did. Anderson then pled guilty. Here, the intent element was shown through Anderson’s voluntary
guilty plea. See N.N. v. Moraine Mut. Ins. Co., 153 Wis. 2d 84, 97, 450
N.W.2d 445 (1990) (holding intent to act is shown by a voluntary plea of guilty);
see also Thomas, 232 Wis. 2d 714, ¶¶18, 20-21 (noting a court may look
at statements made during the plea hearing to establish a factual basis). We conclude the record provides an adequate
factual basis to support Anderson’s
conviction for criminal damage to property.
By the Court.—Judgment and order
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4.