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COURT OF APPEALS DECISION DATED AND RELEASED August 3, 1995 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
94-1746-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
STERLING RACHWAL,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Monroe
County: MICHAEL J. MC ALPINE,
Judge. Reversed and cause remanded
with directions.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER
CURIAM. Sterling Rachwal appeals from a judgment convicting
him of mistreatment of and sexual gratification with an animal, and from a
postconviction order denying his motion to withdraw his pleas and for
resentencing. The issues are whether
Rachwal's conduct constitutes sexual gratification with an animal under
§ 944.17(2)(c), Stats., and
if not, whether he is restricted to withdrawing his plea to that crime, or
whether he is entitled to withdraw from the entire plea agreement. We conclude that Rachwal's conduct does not
constitute a crime under § 944.17(2)(c), as construed in Jones v.
State, 55 Wis.2d 742, 746-47, 200 N.W.2d 587, 590 (1972). Because the plea agreement encompassed seven
charges and he entered no contest pleas to three of those charges, we conclude
that fairness to the parties requires withdrawal of all the pleas entered
incident to this plea agreement.
Therefore, we reverse the judgment and order, and remand to allow
Rachwal to withdraw his three no contest pleas.
Rachwal was charged as a
repeater under § 939.62(1), Stats.,
with one felony and two misdemeanor counts of mistreatment of animals, three
misdemeanor counts of sexual gratification with an animal and one count of
burglary. These charges arose from
Rachwal's inserting one arm into a horse's anus and simultaneously masturbating
himself. He ultimately entered no
contest pleas to one felony and one misdemeanor count of mistreatment of an
animal, contrary to § 951.02, Stats.,
and one count of sexual gratification with an animal, contrary to
§ 944.17(2)(c), Stats.[1] The remaining charges were dismissed, but
read in at sentencing. The trial court
imposed consecutive sentences of eight, three and three years, totalling a
fourteen-year sentence, to be served consecutively to a prior revocation
sentence.
The principal issue is
whether Rachwal's conduct constitutes sexual gratification with an animal,
contrary to § 944.17(2)(c), Stats.,
which makes it a felony to commit "an act of sexual gratification
involving his or her sex organ and the sex organ, mouth or anus of an
animal." The precursor statute
made unlawful an "abnormal act ... entail[ing] the sex organ of one person
in the mouth or anus of another." Jones,
55 Wis.2d at 746, 200 N.W.2d at 590.
The Jones court construed the statute to mean that "[i]t
is clear that oral and anal intercourse is prohibited and nothing more." Id. at 747, 200 N.W.2d at 590
(emphasis added).
Rachwal moved to
withdraw his pleas, or for resentencing.
The trial court denied the motion, ruling that "the Defendant did
commit an act for his sexual gratification, that did involve his sex organ, and
did also involve the sex organ of an animal." Rachwal appeals.
Rachwal contends that
his act was not unlawful under Jones. The State contends that Rachwal's sex organ was involved, even though
it did not touch the horse's anus.
Section 944.17(2)(c), Stats. The State claims Jones is
factually distinguishable and involved constitutional challenges rather than
statutory construction of a bestiality statute.
Jones
"limits and defines" the precursor to § 944.17(2)(c), Stats., to prohibit oral and anal
intercourse—and nothing more. Jones,
55 Wis.2d at 746-47, 200 N.W.2d at 590.
Rachwal's conduct does not constitute sexual gratification under
§ 944.17(2)(c), as defined by Jones. Id. The distinctions between Jones and the instant case
are immaterial. Jones
binds us. See Livesey v.
Copps Corp., 90 Wis.2d 577, 581, 280 N.W.2d 339, 341 (Ct. App. 1979)
(court of appeals bound by prior decisions of supreme court). Consequently, we reverse and remand to allow
Rachwal to withdraw his no contest plea to sexual gratification with an animal.
The secondary issue is
whether we should direct the trial court also to allow Rachwal to withdraw his
pleas to mistreatment of an animal.
Rachwal contends that because the same plea agreement covered the
gratification conviction and the two mistreatment convictions, he is entitled
to withdraw all of his pleas. The State
disagrees, contending that Rachwal's pleas are separable.
We conclude that since
the plea agreement was a package-deal, fairness to both parties requires us to
allow Rachwal to withdraw his three no contest pleas. We will not speculate as to what the State would have offered, or
what Rachwal would have accepted, had there initially been only four charges
against him, rather than seven.
Therefore, we reverse the judgment and postconviction order and remand
to allow Rachwal to withdraw his three no contest pleas.
By the Court.—Judgment
and order reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.