District II
January 16, 2013
To:
Hon. Chad G. Kerkman
Circuit Court Judge, Br. 8
912 56th St
Kenosha, WI 53140
Hon. Barbara A. Kluka
Circuit Court Judge
Kenosha County Courthouse
912 56th Street
Kenosha, WI 53140
Rebecca Matoska-Mentink
Clerk of Circuit Court
Kenosha County Courthouse
912 56th Street
Kenosha, WI 53140
Sarah K. Larson
Assistant Attorney General
P. O. Box 7857
Madison, WI 53707-7857
Faun M. Moses
Asst. State Public Defender
P. O. Box 7862
Madison, WI 53707-7892
Robert D. Zapf
District Attorney
Molinaro Bldg.
912 56th Street
Kenosha, WI 53140-3747
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Richard Garcia (L.C. # 2009CF1224) |
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Before Brown, C.J., Neubauer, P.J., and Gundrum, J.
Richard Garcia appeals from a
judgment of conviction and an order denying his motion for postconviction
relief. Garcia contends that the circuit
court erroneously denied his motion to withdraw his no contest plea. Based upon our review of the briefs and record, we conclude
at conference that this case is appropriate for summary disposition. See
Wis. Stat. Rule 809.21 (2009-10).[1] We affirm the judgment and order of the
circuit court.
Garcia was convicted following a no contest plea of
first-degree sexual assault of a child.
The charge stemmed from an allegation that Garcia had placed his penis
in the mouth of a young child.
During its plea colloquy, the circuit court indicated
to Garcia that, if he had a trial, the State would have to prove that he had
sexual contact with the victim and that the victim was under the age of
thirteen at the time of the alleged sexual contact. The court asked Garcia if he understood those
elements, and Garcia answered “yes.” However,
the court did not define sexual contact or tell Garcia that the State would
have to prove he had sexual contact for the purposes of sexual degradation,
humiliation, arousal, or gratification. See Wis.
Stat. § 948.01(5).
After sentencing, Garcia filed a motion to withdraw
his no contest plea, alleging that his plea was defective under Wis. Stat. § 971.08 and State
v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). In particular, Garcia alleged that his plea
was not knowingly, voluntarily, and intelligently entered because he did not
understand the meaning of the sexual contact element of the crime.
The circuit court held a hearing on Garcia’s
motion. At the hearing, Garcia’s trial
counsel, Douglas Henderson, testified that he went over the elements of the
sexual assault charge with Garcia. He
further testified that he believed Garcia understood all of the elements of the
charge at the time of his plea, including the definition of sexual contact. On cross-examination, Henderson acknowledged that
he did not specifically remember going over the definition of sexual contact with
Garcia. He also conceded that the
definition was not written on the plea form as he had recalled. Nevertheless, Henderson reiterated that he
would not have allowed Garcia to sign the plea form if he did not understand it.
Garcia also testified at the motion hearing. According to Garcia, Henderson never told him
the definition of sexual contact. Garcia
said that if he had to guess what sexual contact meant at the time of his plea
hearing, he would say “it would probably be—probably be an inappropriate touch…[b]ut
[he] really didn’t know back then what it meant.”
Ultimately, the circuit court denied Garcia’s motion,
concluding that the no contest plea was entered knowingly, voluntarily, and
intelligently. In doing so, the court found
that (1) Henderson went over the elements of the crime with Garcia; (2)
Garcia knew the nature of the allegation against him; and (3) Henderson thought
Garcia understood and otherwise would not have allowed him to enter the plea. The court also made a finding that Garcia’s
testimony was not credible. This appeal
follows.
When a defendant moves to withdraw a plea after
sentencing, he or she has the burden of establishing by clear and convincing
evidence that plea withdrawal is necessary to correct a manifest injustice. State
v. Thomas, 2000 WI 13,
¶16, 232 Wis. 2d 714, 605 N.W.2d 836.
One type of manifest injustice is a plea which is not knowingly,
voluntarily, or intelligently entered. State
v. Giebel, 198 Wis. 2d 207, 212, 541 N.W.2d 815 (Ct. App. 1995).
When a defendant alleges that he
or she should be allowed to withdraw a plea because the plea was not made
knowingly, voluntarily, or intelligently, this court is presented with a
question of constitutional fact. State v. Hoppe, 2009 WI 41, ¶61, 317
Wis. 2d 161, 765 N.W.2d 794. We
accept the circuit court’s findings of historical or evidentiary fact unless
they are clearly erroneous. Id. However, we independently determine whether
those facts demonstrate that the defendant’s plea was knowing, voluntary, and
intelligent. Id.
On appeal, Garcia contends that the circuit court erroneously denied his motion to withdraw his no contest plea. Specifically, he maintains that his plea colloquy was deficient and that the State failed to prove that he understood the definition of sexual contact. In support of his argument, Garcia cites State v. Jipson, 2003 WI App 222, 267 Wis. 2d 467, 671 N.W.2d 18 and State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998) for the proposition that he needed to be aware of the definition of sexual contact before he could validly plead to the offense charged.
We are not persuaded that Jipson, 267 Wis. 2d 467, and Nichelson, 220 Wis. 2d 214, are relevant to this appeal. In both of those cases, the definition of sexual contact was critical to the entry of the defendants’ pleas because their defense was that the alleged sexual contact was accidental rather than for sexual gratification. Jipson, 267 Wis. 2d 467, ¶12; Nichelson, 220 Wis. 2d at 220. Here, by contrast, Garcia does not assert that his sexual contact with the victim was accidental. Indeed, there can be no question that his sexual contact was intentional and done for sexual gratification because no other purpose can be inferred from the conduct.[2]
Accordingly, we conclude that
the State needed only to show that Garcia understood or had an awareness of the
essential elements of the crime to which he pled. See
State v. Trochinski, 2002 WI 56, ¶21, 253
Wis. 2d 38, 644 N.W.2d 891. Upon
review of the record, we are satisfied that the State met its burden of showing
this. As a result, we conclude that the
circuit court properly denied Garcia’s motion to withdraw his no contest plea.
Upon the foregoing reasons,
IT IS ORDERED that the judgment and order of the
circuit court are summarily affirmed, pursuant to Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals