State v. Shannon Olance Hendricks

• Court: Wisconsin Supreme Court
• Decided: February 20, 2018
• Docket: 2015AP002429-CR
• Status: Published

Opinion

2018 WI 15

SUPREME COURT OF WISCONSIN CASE NO.: 2015AP2429-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Shannon Olance Hendricks, Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 373 Wis. 2d 309, 895 N.W.2d 104 (2017 – Unpublished)

OPINION FILED: February 20, 2018 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 2, 2017

SOURCE OF APPEAL: COURT: Circuit COUNTY: Milwaukee JUDGE: David L. Borowski and M. Joseph Donald

JUSTICES: CONCURRED: DISSENTED: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY, J. (opinion filed). NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs filed by and an oral argument by Hannah Schieber Jurss, assistant state public defender.

For the plaintiff-respondent, there was a brief filed by and an oral argument by Warren D. Weinstein, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general. 2018 WI 15 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP2429-CR (L.C. No. 2011CF4101)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. FEB 20, 2018 Shannon Olance Hendricks, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 REBECCA GRASSL BRADLEY, J. Shannon Olance Hendricks

seeks to withdraw the guilty plea he entered to one count of

child enticement. He claims the circuit court's failure to tell him the legal definition of "sexual contact" at his plea hearing

violated Wis. Stat. § 971.08's requirement that a pleading

defendant must understand the nature of the charge.1 Because

sexual contact is not an element of the crime of child

enticement, and because the record shows Hendricks understood

1 All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated. No. 2015AP2429-CR

the nature of the charge to which he pled guilty, the plea

colloquy comported with both § 971.08 and State v. Bangert, 131

Wis. 2d 246, 389 N.W.2d 12 (1986), and Hendricks is not entitled

to an evidentiary hearing. Accordingly, we affirm the court of

appeals decision2 upholding the circuit court's order3 denying

Hendricks' motion for plea withdrawal. Moreover, we decline the

State's request to modify the Bangert requirements.

I. BACKGROUND

¶2 The criminal complaint charged Hendricks with one

count of second-degree sexual assault of a child under the age

of 16. The charges stemmed from Hendricks taking his

girlfriend's 14-year-old niece to a park where he touched the

victim's chest over her clothes, tried to touch her breasts

under her clothes, rubbed her thighs, and touched her buttocks

over her clothes while pressuring her to let him have sexual

intercourse with her.4 In January 2012, on the second day of his

2 See State v. Hendricks, No. 2015AP2429-CR, unpublished slip op. (Wis. Ct. App. Dec. 15, 2016). 3 The Honorable M. Joseph Donald, Milwaukee County Circuit Court decided this postconviction motion; the Honorable David L. Borowski, Milwaukee County Circuit Court presided over the plea colloquy, subsequent hearings, sentencing, and the postconviction motions through the entry of the amended judgment of conviction. 4 The victim testified at the preliminary hearing (which Hendricks agreed to use as the factual basis for his plea) that as Hendricks touched these different parts of her body, he kept saying "please" and that "he hasn't had it [meaning sexual intercourse] in a while."

2 No. 2015AP2429-CR

trial for second-degree sexual assault, Hendricks decided to

take the State's plea offer: Hendricks would plead guilty to

the reduced charge of child enticement and the State would

recommend a sentence concurrent to the prison sentence Hendricks

was currently serving. With help from his lawyer, Hendricks

filled out a guilty plea questionnaire and waiver of rights

form. After he completed the form, the circuit court conducted

a plea colloquy.

¶3 The circuit court began the colloquy by going over the

plea questionnaire and waiver of rights form and personally

confirming with Hendricks that: (1) he was admitting he

committed child enticement, a felony; (2) he was 31 years old,

completed high school, understands English, and understands the

charge; (3) he was taking medication for anxiety and depression,

but had not used any other drugs or alcohol in the last 24

hours; and (4) he understood the constitutional rights he was

giving up by pleading guilty including the right to trial, the

right to remain silent, the right to testify, the right to a jury trial, and the right to force the State to prove its case

beyond a reasonable doubt.

¶4 Next, the circuit court asked Hendricks' lawyer if he

had discussed the elements of the offense with his client and

noted defense counsel had attached an element sheet to the plea

questionnaire. Hendricks' lawyer answered: "Correct, Your

Honor. We did go over the elements." Defense counsel told the

court he was satisfied that Hendricks understood the elements. The circuit court then asked Hendricks again if he understood he 3 No. 2015AP2429-CR

was "pleading guilty and admitting to, as I said, child

enticement, which is a felony," and Hendricks answered

affirmatively. Next, the circuit court asked Hendricks if he

was admitting that he:

. . . did entice a child, a person under the age of 18, to go into a vehicle, building or room or secluded place, in this case, given the facts in the complaint and given what's indicated on the element sheet, you're admitting that you did cause the victim in this case to go into a secluded area; you intended to have her go to that secluded area, and you understand and knew that the victim was under the age of 18; is that correct? Hendricks answered, "Yes, Your Honor." After going through all

the information related to sentencing, the required deportation

warning, the effect pleading guilty would have on Hendricks'

right to vote and possession of a firearm, and confirming he was

pleading guilty of his "own free will" because he was in fact

guilty, the circuit court recognized it had not mentioned any of

the prohibited intents listed in the child enticement statute

and the elements sheet attached to the plea questionnaire did

not specify a prohibited intent. ¶5 After a sidebar, the circuit court continued with the

plea colloquy:

[T]he plea under 948.07 needs to be entered to child enticement but under a specific subsection.

There are six subsections. Subsection (1) is the person, the defendant, enticing a child under 18 to go to a vehicle, room, building or secluded place for one of – and there are alternate purposes. Subsection (1) is having sexual contact or intercourse with a child; subsection (2) is for the purpose of prostitution; subsection (3) is exposing a sex organ; subsection (4)

4 No. 2015AP2429-CR

is making a recording of a child engaged in explicit conduct; subsection (5) is causing bodily or mental harm to the child; subsection (6) is giving or selling the child a controlled substance.

Obviously, in this case, according to the complaint and the information, and what I just discussed with the attorneys, what applies, correct me if I'm wrong is Subsection (1), the enticement was for the purpose of, at a minimum, sexual contact, correct counsel? Hendricks' lawyer answered, "Correct, Your Honor."

¶6 The circuit court then directly addressed Hendricks,

asking him if he understood "that's what you're admitting to;

you're admitting to child enticement? You were bringing this

child under 18 to, in this case, a secluded area for the purpose

of potentially having sexual contact with that child, and that's

indicated in the complaint, indicated in this case; is that

correct, sir?" Hendricks replied, "Yes, it is, Your Honor."

The circuit court asked again if Hendricks was pleading guilty

because he was guilty and he replied "Yes, I am, Your Honor."

The circuit court then went through whether anyone threatened,

forced, or told Hendricks to plead guilty and Hendricks assured

the court no one had. Hendricks confirmed that his attorney had

gone over the guilty plea form with him, that Hendricks read the

form, "went over the case" with his lawyer, signed the form, and

"had enough time to review this matter" and discuss it with his

attorney.

¶7 The circuit court then addressed questions to

Hendricks' lawyer:

THE COURT: Counsel, you went over the agreement with your client?

5 No. 2015AP2429-CR

[DEFENSE COUNSEL]: We did, Your Honor.

THE COURT: You're satisfied his plea today is free, voluntary and intelligent?

[DEFENSE COUNSEL]: I am, Your Honor.

THE COURT: You saw your client sign and date the questionnaire today?

[DEFENSE COUNSEL]: Yes, Your Honor.

THE COURT: I've read the complaint. The parties are stipulating to the facts in the complaint as a factual basis to support the amended charge and the plea; is that correct?

[PROSECUTOR]: Yes.

[DEFENSE COUNSEL]: Your Honor, we are agreeing to the complaint. As far as what the contact was, we're agreeing to what the victim testified to at the preliminary hearing, which, you know, which would also support the plea.

THE COURT: Well, it was certainly enough on this case. ¶8 The circuit court then directly asked Hendricks if he

was "admitting to that," and he said "Yes, Your Honor." The

circuit court continued with Hendricks: "You're admitting to the contact, again, with a child who was under 18, the victim,

with a date of birth of 9/19/1996, and you're admitting that it

was sexual contact, correct, sir?" Hendricks replied, "Yes,

Your Honor."

¶9 Based on the stipulation, the complaint, and "what's

been indicated in court by counsel and the defendant," the

circuit court found: (1) there was a factual basis "for the

charge of and plea to child enticement, which is a felony, under 948.07(1)"; and (2) "the defendant has freely, voluntarily and

6 No. 2015AP2429-CR

intelligently entered his plea; freely, voluntarily and

intelligently waived his rights in this matter." The circuit

court accepted the plea, ordered a pre-sentence investigation

report, and set a date for sentencing.

¶10 Before sentencing occurred, Hendricks filed a motion

seeking to withdraw his plea claiming he pled guilty because he

felt rushed and overwhelmed that the victim was going to testify

against him; he now claimed he was not guilty. This also led to

the withdrawal of his first attorney and the appointment of a

second State Public Defender. Hendricks testified at the plea

withdrawal hearing that the medication he was on made him "go

along" with his first attorney's suggestion that he take the

plea because his lawyer said if he did not plead guilty, he

would lose at trial and be sentenced to the maximum of 40 years.

He admitted that he read the criminal complaint and an "outline

of what the jurors would have to go by" to convict him. He also

testified he understood the charges against him:

Q Now, in terms of understanding the charges against you and the content of it, your defense attorney showed you the complaint, correct?

A The original complaint?

Q Correct.

A Yes. I saw it before.

Q And you guys went over the elements; what you're pleading to prior to the entry of your plea, correct?

A Yes.

7 No. 2015AP2429-CR

Q And you also knew exactly what you were being accused of because you've been through the revocation hearing on October 26th of 2011, correct?

A Yes. When the circuit court questioned why Hendricks admitted his

guilt during the plea colloquy and why he said his guilty plea

was of "his own free will," Hendricks explained he really did

not want to plead guilty but his lawyer said he would lose at

trial. He said he just answered yes to all of the circuit

court's questions because he thought his lawyer would not fight

for him if the case was tried.

¶11 Hendricks' first lawyer testified at the plea

withdrawal hearing that: (1) he "very thoroughly" discussed

with Hendricks the plea offer's amendment of the sexual assault

charge to child enticement; (2) he "was totally convinced that

[pleading guilty to the reduced charge] was a voluntary decision

that [Hendricks] was making"; (3) there was no indication that

Hendricks felt rushed; and (4) after going over the plea offer,

and the strengths and weaknesses, the decision of whether to

plead or go to trial was left to Hendricks.

¶12 At the end of the plea withdrawal hearing, the circuit

court indicated that Hendricks' request for plea withdrawal was

based on his hope that the victim would not show up to testify

against him at a trial. The circuit court believed the request

was based solely on Hendricks' "change of heart." It reviewed

the plea colloquy finding it to be extremely thorough.

Hendricks' lawyer agreed it was "a great colloquy" and suggested

8 No. 2015AP2429-CR

its only flaw was the failure to ask Hendricks if his

medications affected his ability to understand.

¶13 In January 2013, the circuit court denied the plea

withdrawal motion. It found: (1) the plea questionnaire and

plea colloquy were "very thorough"; (2) Hendricks answered

questions indicating he "was making this decision freely and

voluntarily"; (3) Hendricks did not indicate "any hesitancy,

whatsoever" at any time during the plea colloquy; (4) the

circuit court discussed and explained the elements of the

offense a couple times; (5) defense counsel "was satisfied that

the defendant's plea was free, voluntary and intelligent"; (6)

Hendricks had "plenty of time, more than adequate amount of time

to go over the plea questionnaire, discuss it with his

attorney"; (7) Hendricks' claim that his medication made him

just "go along" was not credible because he was currently on the

same medication but "fighting and fighting and fighting" to

withdraw his plea; (8) he is a high school graduate with

vocational training and some college; he does not have any learning disabilities; and (9) Hendricks failed to present a

fair and just reason for plea withdrawal——his reason was nothing

more "than a complete and total change of heart."

¶14 In February 2013, over a year after Hendricks entered

his plea, he was sentenced in accordance with the agreed upon

recommendation. The circuit court sentenced him to three years

of initial confinement concurrent to the sentence he was then

serving, plus four years of extended supervision.

9 No. 2015AP2429-CR

¶15 After some postconviction motions not pertinent here,

an amended judgment of conviction was entered in September 2014.5

Initially, Hendricks' appellate counsel filed a no-merit appeal,

but then requested dismissal of the no-merit appeal and an

extension of time to file a new postconviction motion. The

court of appeals granted those motions. Hendricks then filed a

motion in the circuit court alleging a deficiency in his plea

colloquy——namely, the circuit court failed to explain the

meaning of "sexual contact" or to verify Hendricks understood

the meaning of that term. Hendricks argued Wis. Stat. § 971.08

requires the circuit court to ensure a defendant understands the

nature of the charge, which means a defendant must have an

awareness of the essential elements of the crime. Hendricks

contends the intent to have sexual contact is an essential

element of sexual enticement and therefore the circuit court's

failure to give him the legal definition of "sexual contact"

rendered his plea deficient. He wanted the circuit court to

hold an evidentiary hearing on the motion. The State conceded at the circuit court level that an evidentiary hearing should be

held.

¶16 The circuit court summarily denied the motion,

reasoning:

5 These motions dealt with sentence modification issues, ultimately resulting in a reduction of the initial confinement portion of his sentence so that it matched the time left on the sentence he was already serving.

10 No. 2015AP2429-CR

The cases the defendant and the State rely on all involve sexual assault of a child. There is not a single case which holds that the meaning of sexual contact is an essential element of child enticement.

. . . .

[T]he defendant in this case was not convicted of sexual assault of a child – he was convicted of child enticement. These crimes are not the same. As relevant to this case, the elements of child enticement include causing, or attempting to cause, a child to go into any vehicle, building, room, or secluded place, with the intent to have sexual contact with the child. Actual sexual contact is not a required element. This is because the purpose of section 948.07, Stats., is not to punish the commission of the enumerated act, but succeeding in getting a child to enter a place with intent to commit such a crime. State v. Hanson, 182 Wis. 2d 481 (Ct. App. 1994). On the other hand, the purpose of section 948.02, Stats., is to punish the sexual contact itself. Consequently, when a defendant enters a guilty or no contest plea to a crime of sexual assault of a child, a crime which carries a far greater penalty than child enticement, the court must ascertain that the defendant understands the essential elements of that offense, including the element of sexual contact. But when a defendant enters a guilty or no contest plea to child enticement for the purpose of sexual contact, actual sexual contact is not a required element, and therefore, a court is not required to explain the meaning of sexual contact. See State v. Trochinski, 253 Wis. 2d 38, 61 (2002) (a valid plea requires only knowledge of the essential elements of the offense, not knowledge of nuances and descriptions of the elements). The circuit court found both the plea colloquy and the plea

questionnaire established that Hendricks had the requisite

knowledge of the elements of child enticement; he "understood

the essential elements of this offense" when he pled guilty.

Thus, he failed to establish a defect in the plea colloquy, and

11 No. 2015AP2429-CR

no evidentiary hearing was required. The court of appeals

affirmed. We granted the petition for review.

II. STANDARD OF REVIEW

¶17 Whether a defendant is entitled to an evidentiary

hearing on his plea withdrawal motion under Bangert is a

question of law we review independently. See State v. Howell,

2007 WI 75, ¶30, 301 Wis. 2d 350, 734 N.W.2d 48. We review de

novo whether Hendricks (1) "has pointed to deficiencies in the

plea colloquy that establish a violation of Wis. Stat. § 971.08

or other mandatory duties at a plea hearing"; and (2)

sufficiently alleged that he did not know or understand

information that should have been provided at the plea hearing."

See State v. Brown, 2006 WI 100, ¶21, 293 Wis. 2d 594, 716

N.W.2d 906.

III. DISCUSSION

A. There is no deficiency in the plea colloquy.

¶18 Hendricks asserts intent to have "sexual contact" is

an essential element of child enticement and, therefore, the circuit court's failure to define the term "sexual contact"

during the plea colloquy rendered it deficient under both Wis.

Stat. § 971.08 and Bangert.6 The State responds that because

"sexual contact" is not an essential element of child

enticement, the circuit court was not required to give Hendricks

6 See State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).

12 No. 2015AP2429-CR

its legal definition, and therefore the plea colloquy complied

with § 971.08 and Bangert. The State is correct.

¶19 Wisconsin Stat. § 971.08(1) requires a court to do

four things before it "accepts a plea of guilty or no contest":

(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.

(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.

(c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."

(d) Inquire of the district attorney whether he or she has complied with s. 971.095(2). The issue here focuses solely on paragraph (a) and whether

Hendricks understood "the nature of the charge." "An

understanding of the nature of the charge must include an awareness of the essential elements of the crime." Bangert, 131

Wis. 2d at 267. To ensure a defendant understands the nature of

the charge, a circuit court must employ "any one or a

combination of" three methods: (1) "summarize the elements of

the crime charged by reading from the appropriate jury

instructions . . . or from the applicable statute"; (2) ask

defense "counsel whether he explained the nature of the charge to the defendant and request him to summarize the extent of the

13 No. 2015AP2429-CR

explanation, including a reiteration of the elements at the plea

hearing"; or (3) "expressly refer to the record or other

evidence of defendant's knowledge of the nature of the charge

established prior to the plea hearing." Id. at 267-68.

¶20 The record demonstrates the circuit court employed a

combination of the various methods. The circuit court

interacted directly with Hendricks and repeatedly summarized the

elements of child enticement. Every time, Hendricks responded

that he understood. The circuit court asked defense counsel if

he explained the nature of the crime and if he discussed the

elements with Hendricks.7 Defense counsel assured the circuit

court he had. Further, during the plea colloquy the circuit

court referred to the record demonstrating Hendricks' knowledge

of the nature of the charge, including the complaint, the guilty

plea waiver form, and the victim's testimony at the preliminary

hearing. There is no question the circuit court conducted an

extremely thorough and complete plea colloquy.

¶21 The child enticement statute, Wis. Stat. § 948.07 provides:

Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class D felony:

7 Had this been the only method the circuit court chose, it would have had to make defense counsel reiterate the elements. This, however, was not the court's primary method; instead, it was an additional check to ensure Hendricks' counsel discussed the elements of the charge with him.

14 No. 2015AP2429-CR

(1) Having sexual contact or sexual intercourse with the child in violation of s. 948.02, 948.085, or 948.095.

(2) Causing the child to engage in prostitution.

(3) Exposing genitals, pubic area, or intimate parts to the child or causing the child to expose genitals, pubic area, or intimate parts in violation of s. 948.10.

(4) Recording the child engaging in sexually explicit conduct.

(5) Causing bodily or mental harm to the child.

(6) Giving or selling to the child a controlled substance or controlled substance analog in violation of ch. 961. There are three elements the State must prove in a child

enticement case:

(1) [T]hat the defendant caused or attempted to cause a child to go into a vehicle, building, room or secluded place;

(2) [T]hat the defendant did so with any one of the six enumerated intents, generally relating to sex and drug crimes; and

(3) [T]hat the victim had not attained the age of 18. State v. Derango, 2000 WI 89, ¶31, 236 Wis. 2d 721, 613 N.W.2d

833 (citing Wis. Stat. § 948.07). This court emphasized in

Derango that child enticement is "one offense with multiple

modes of commission." 236 Wis. 2d 721, ¶17. The crime is the

"act of enticement," "not the underlying intended sexual or

other misconduct." Id. Thus, an act of sexual contact is not

an element of child enticement. The crime of child enticement prohibits "the act (or attempt) of enticement luring a child to

15 No. 2015AP2429-CR

a secluded place, away from the protections of the general

public" for some improper purpose. Id., ¶¶18, 21. Textually,

the act of enticement itself encompasses a bad intent.

¶22 Relying on three sexual assault by sexual contact

cases, State v. Jipson, 2003 WI App 222, 267 Wis. 2d 467, 671

N.W.2d 18, State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460

(Ct. App. 1998), and State v. Bollig, 2000 WI 6, 232

Wis. 2d 561, 605 N.W.2d 199, Hendricks argues that sexual

contact is an essential element of child enticement and the term

should have been defined for him at the plea hearing. We

disagree. As the circuit court correctly noted in its order

denying Hendricks' postconviction motion, child enticement is a

different crime from child sexual assault. The elements are

different, the punishments are different, and "[t]here is not a

single case which holds that the meaning of sexual contact is an

essential element of child enticement." Because the State must

prove sexual contact itself in a child sexual assault case, it

makes sense that to understand the nature of the charge, a defendant pleading to sexual assault based on sexual contact

must be told the specific statutory definition of sexual contact

in Wis. Stat. § 948.01(5).8 The crime of child enticement,

8 Wisconsin Stat § 948.01(5) defines "sexual contact" as "any of the following":

(a) Any of the following types of intentional touching, whether direct or through clothing, if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the (continued) 16 No. 2015AP2429-CR

however, does not require the State to prove a defendant

committed (or attempted to commit) an act of sexual contact;

rather, the State must prove the act of criminal enticement,

which presupposes bad intent. Obviously, a person could not be

charged with the crime of child enticement for luring her child

into their garage to surprise the child with a brand new

bicycle.

¶23 In addition, the courts in Jipson, Nichelson, and

Bollig specifically held that sexual contact is an essential

complainant or sexually arousing or gratifying the defendant:

1. Intentional touching by the defendant or, upon the defendant's instruction, by another person, by the use of any body part or object, of the complainant's intimate parts.

2. Intentional touching by the complainant, by the use of any body part or object, of the defendant's intimate parts or, if done upon the defendant's instructions, the intimate parts of another person.

(b) Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant or, upon the defendant's instruction, by another person upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.

(c) For the purpose of sexually degrading or humiliating the complainant or sexually arousing or gratifying the defendant, intentionally causing the complainant to ejaculate or emit urine or feces on any part of the defendant's body, whether clothed or unclothed.

17 No. 2015AP2429-CR

element of the crimes of second-degree sexual assault of a

child, first-degree sexual assault of a child, and attempted

sexual contact with a child. None of these cases, however, say

sexual contact is an element of the crime of child enticement.

This distinction follows naturally from the differences in the

language of the statutes involved. The statutes at issue in

Jipson, Nichelson, and Bollig list "sexual contact" as a

specific element of the crime, whereas the child enticement

statute lists "sexual contact" as one of six alternative modes

of commission rather than as a specific element.9

¶24 Hendricks argues we cannot rely on Derango's

conclusion that sexual contact is not an element of child

enticement because Derango did not involve plea withdrawal, but

instead addressed jury unanimity. Hendricks insists Derango's

analysis and holding on the elements of child enticement must be

limited to unanimity cases. We disagree. Although Hendricks is

correct that this court in Derango analyzed the child enticement

statute in the context of jury unanimity, this in no way influences our identification of the elements of child

9 State v. Jipson, 2003 WI App 222, 267 Wis. 2d 467, 671 N.W.2d 18, dealt with Wis. Stat. § 948.02(2), which states "[w]hoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years." (Emphasis added.) State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998), dealt with Wis. Stat. § 948.02(1)(1997-98), which states "[w]hoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years." (Emphasis added.) State v. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, also dealt with § 948.02(1).

18 No. 2015AP2429-CR

enticement. Sexual contact is either an element of child

enticement or it is not. It cannot be an element for one type

of case, but not in another. In Derango, this court examined

the plain language of the statute to determine that sexual

contact is not an element of the crime of child enticement. See

Derango, 236 Wis. 2d 721, ¶¶16-17. We held the statutory

language to be "straightforward"——"[t]he act of enticement is

the crime, not the underlying intended sexual or other

misconduct." Id., ¶17. We supported this interpretation with

additional cases interpreting the child enticement statute and

with the statute's legislative history. Id., ¶¶19-20. See,

e.g., id., ¶19, (citing State v. Hanson, 182 Wis. 2d 481, 487,

513 N.W.2d 700 (Ct. App. 1994)) ("The gravamen of the crime is

not the commission of an enumerated act, but succeeding in

getting a child to enter a place with intent to commit such a

crime." (emphasis added)). Our analysis remains sound and we

see no reason to overturn, abandon, or distinguish it.

¶25 Our conclusion is further supported by State v. Steele, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595. Steele

was a plea withdrawal case, which relied upon a jury unanimity

case to ascertain the essential elements of armed burglary.

Id., ¶¶1, 8-9. Steele argued his plea colloquy was deficient

because the circuit court did not specifically identify which

"felony" supported the burglary charge; he claimed the specific

felony was an essential element and needed to be discussed.

Id., ¶¶1-3, 8. The circuit court identified the elements as: (1) entering a dwelling; (2) intentionally; (3) without consent; 19 No. 2015AP2429-CR

(4) intending to commit a felony; (5) armed with a dangerous

weapon. Id., ¶3. In rejecting Steele's claim that the felony

had to be explained10 because it is an essential element, the

court of appeals relied on State v. Hammer, 216 Wis. 2d 214, 576

N.W.2d 285 (Ct. App. 1997). Hammer was a jury unanimity case,

which analyzed the statutory language of Wis. Stat. § 943.10,

the burglary statute, and concluded that what specific felony a

defendant intends to commit is not an essential element because

§ 943.10 "sets forth a 'single offense with multiple modes of

commission,' not multiple offenses defined by each possible

underlying felony." Steele, 241 Wis. 2d 269, ¶9 (quoting

Hammer, 216 Wis. 2d at 220).

¶26 From Derango, Steele, and Hammer, we discern a

governing principle. The modes of commission following "intends

to commit" language within statutes do not constitute an element

of a crime. Of course, a statute's mode of commission must

10 The court of appeals in State v. Steele, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595, additionally held that the circuit court's "failure to specify the underlying felony was not a defect in the plea proceedings." Id., ¶10. While the particular mode of commission in a child enticement case need not be legally defined because it is not an element of the offense, it does need to be identified during the plea colloquy to ensure a factual basis exists for the plea. In the context of a burglary, Wis. Stat. § 943.10 does not specify the particular felonies the defendant must have intended to commit; therefore, as the court in Hammer noted, "it does not matter which felony formed the basis of that intent." State v. Hammer, 216 Wis. 2d 214, 220, 576 N.W.2d 285 (Ct. App. 1997). The child enticement statute, in contrast, specifies six separate intended acts, at least one of which must be identified during the plea colloquy.

20 No. 2015AP2429-CR

still be disclosed and acknowledged at a plea hearing in order

to ensure a factual basis for the plea. For burglary, the

circuit court must advise a defendant that one of the elements

is the "intent to commit a felony." It would be insufficient

for the circuit court to simply say "intent to commit."

Likewise, for child enticement, a circuit court cannot simply

say to a pleading defendant that he must have enticed a child to

a secluded place "with intent." That would be absurd. A

circuit court must identify at least one of the prohibited modes

of committing child enticement to ensure there exists a factual

basis for accepting a plea.11 And, Wisconsin Stat. § 971.08(1)

requires a court, prior to accepting a plea, to "determine that

the plea is made voluntarily with understanding of the nature of

the charge." Before accepting Hendricks' plea, the circuit

court accomplished both of these requirements.

¶27 The circuit court here recognized the mode of

commission was initially missing and took the proper steps to

correct the omission. As a result, the circuit court actually read all six of the prohibited intents listed in the statute

during the plea colloquy and then specifically asked Hendricks

11 The dissent's fabricated Bokononism example is not one of the modes of commission in the child enticement statute. See dissent, ¶51. Our decision in this case is based on the actual law in place and the extensive record recounted in part I of this opinion. The record establishes that Hendricks failed to demonstrate any plea defect. The dissent's insistence that a plea deficiency exists does not make it so——no matter how many times the dissent says it.

21 No. 2015AP2429-CR

if he was admitting to the prohibited intent of sexual contact.

Hendricks repeatedly answered affirmatively, expressing no

confusion at any point regarding the meaning of sexual contact

or otherwise. In fact, as detailed more fully below, Hendricks

conceded the victim's testimony at the preliminary hearing

accurately recounted his actions, thereby establishing his

understanding of the nature of the charge, including his

intention to engage in sexual contact with the victim.

Hendricks fails to establish any deficiency in his plea

colloquy.12

B. The record shows Hendricks knew the nature of the charge.

¶28 We further hold Hendricks failed to sufficiently

allege he did not know or understand information that should

have been provided at the plea hearing. We already rejected his

claim that he should have been given the legal definition of

sexual contact. We also reject his contention he did not

understand the meaning of this term because the record belies

Hendricks' claim. ¶29 The entire record is fair game in assessing whether

Hendricks understood the circuit court's repeated questions as

to whether he committed the crime of child enticement. See

Bollig, 232 Wis. 2d 561, ¶53. The record before us is

substantial and to some extent unusual because we not only have

12 Hendricks turns to party-to-a-crime cases to support his position. Because Hendricks was not charged as party to a crime, we decline to analyze the unique nature of plea colloquies involving party-to-a-crime charges.

22 No. 2015AP2429-CR

the plea colloquy to consider, we also have Hendricks' own

testimony from his pre-sentence plea withdrawal hearing. At

that hearing, Hendricks admitted to knowing the charges to which

he pled because he was present at a revocation hearing where the

charges were read; he admitted his attorney went over the

elements of the charge; and he admitted that he saw and read the

original complaint. The original complaint, as material,

states:

 The defendant "did have sexual contact" with the victim, who "had not attained the age of 16 years."

 "The victim has known the defendant for a long period of time and thinks of him as an uncle."

 "The defendant walked with the victim to . . . the victim's grandmother's house. The defendant learned that his girlfriend, the victim's aunt, was coming to the location so he suggested that he wanted to leave the area and that the victim should go with him. The victim went with the defendant to Pulaski Park."

 "Once they were in the park, the victim was seated on the top of a picnic table and the defendant sat on the seat portion of the table. The defendant positioned himself between the victim's legs."

 "[T]he defendant started to touch her legs. The victim told him to stop. The defendant picked up the victim's legs and held them until they were level with his shoulders. The defendant then stated to the victim, 'Can I kiss there?' The victim understood this to mean her vagina because that is where he seemed to be looking when he said this. The defendant stated, 'Please, I haven't had it in a while.'"

 "The defendant continued to rub the victim's legs and tried to touch her vagina over her shorts. The

23 No. 2015AP2429-CR

victim pushed her knees together to stop the defendant and told the defendant, 'No.'"

 "The victim pushed the defendant's hand away from her vagina and repeatedly told [him] to stop. The defendant then reached around the victim and grabbed her buttock over her clothing."

 "The defendant then kissed the victim's upper arms and chest area."

 "The defendant rubbed and squeezed the victim's breasts over her clothing and kept saying, 'Please, please, please,' into her ear. The defendant placed his hand inside the victim's shirt and moved his hand onto her breast but was not able to fully grab her breast before she pushed his hand away. The defendant then attempted to unhook her bra and expose her breasts." ¶30 Also, Hendricks was present when the victim testified

at the preliminary hearing, and he conceded the victim's

testimony accurately recounted his actions. The victim

testified that Hendricks placed his hands on her inner thighs,

her chest and her buttocks while begging her to "please" let him

have sexual intercourse with her because he had not "had it in a

while." This case goes beyond showing Hendricks acted to entice

the child victim to a secluded place with the intent to have

sexual contact. Hendricks' claim that he did not understand the

nature of the charge is belied by the record before us. Even

Hendricks' lawyer at the pre-sentence plea withdrawal hearing

admitted the circuit court conducted a "great colloquy."

Hendricks failed to show any Bangert violation, as the record

conclusively establishes Hendricks' graphic understanding of the

nature of the crime to which he pled guilty. C. State's request to modify Bangert

24 No. 2015AP2429-CR

¶31 The State requests this court modify Bangert to

conform Wisconsin plea practice to what the United States

Supreme Court held is constitutionally-mandated. Specifically,

the second Bangert method requires the circuit court to first

ask defense counsel if he explained the nature of the charge to

the defendant and then request counsel to "summarize the extent

of the explanation, including a reiteration of the elements, at

the plea hearing." 131 Wis. 2d at 268. In asking us to

eliminate the latter requirement, the State cites Bradshaw v.

Stumpf, 545 U.S. 175 (2005), which held a plea colloquy

sufficient where competent defense counsel simply assures the

circuit court "the defendant has been properly informed of the

nature and elements of the charge to which he is pleading

guilty." Id. at 183. In other words, defense counsel would not

need to "summarize the extent of the explanation" or reiterate

the elements on the record, as Bangert requires. It would be

enough for defense counsel to simply advise the circuit court

that counsel had the requisite conversation with the defendant. ¶32 We reject the State's request to change Bangert.

Bangert set forth three reasonable methods of satisfying Wis.

Stat. § 971.08's statutory requirement ensuring a pleading

defendant understands the nature of the charge, which includes

an awareness of the elements of the crime. Each of the three

methods adequately protects the rights of a defendant who elects

to plead guilty or no contest. Scaling back Bangert's second

method in favor of a general assurance from defense counsel would inevitably lead to motions where defendants claim the 25 No. 2015AP2429-CR

conversation with defense counsel never occurred. Bangert's

current method puts the conversation between defense counsel and

the defendant on the record contemporaneously with taking the

plea. Bangert's methods have worked well for over 30 years and

we are not convinced a modification of Bangert is necessary or

prudent. In addition, the State forfeited the right to request

a change to Bangert by failing to raise this issue in a cross-

petition for review or in its response to Hendricks' petition

for review. See State v. Smith, 2016 WI 23, ¶41, 367

Wis. 2d 483, 878 N.W.2d 135.

IV. CONCLUSION

¶33 We hold sexual contact is not an element of the crime

of child enticement. Rather, the six enumerated prohibited

intents are modes of commission. At least one mode of

commission must be referenced during a plea colloquy, but the

terms comprising each mode need not be specifically defined.

This is because the crime of child enticement does not require

proof of the actual, physical action contemplated by the mode of commission, only that the defendant acted to entice a child

while intending to do one of the prohibited acts. The act of

enticement is the crime, not the underlying intended sexual or

other misconduct. Hendricks failed to establish any deficiency

in this plea colloquy, which comported with both Wis. Stat.

§ 971.08 and Bangert. Wisconsin Stat. § 971.08(1) requires a

court, prior to accepting a plea, to "determine that the plea is

made voluntarily with understanding of the nature of the charge." The record establishes Hendricks fully understood he 26 No. 2015AP2429-CR

enticed the child victim to a secluded place with the intent of

having sexual contact. His claimed incomprehension contradicts

the record. Finally, we reject the State's invitation to alter

Bangert's required procedures. The Bangert framework is

designed to ensure a defendant understands the nature of a

charge in order to protect a defendant's rights when entering a

plea. Accordingly, we affirm the court of appeals decision

upholding the circuit court's order denying Hendricks' motion

for plea withdrawal.

By the Court.—The decision of the court of appeals is

affirmed.

27 No. 2015AP2429-CR.ssa

¶34 SHIRLEY S. ABRAHAMSON, J. (dissenting). The

majority's conclusion in the instant case that a circuit court

need not verify that a defendant understands the specific mode

of commission of the crime to which he is pleading guilty

creates serious due process concerns.

¶35 As Hendricks aptly queried in his brief: "How can a

defendant knowingly and intelligently plead guilty to causing a

child to go into a secluded place with intent to do 'X' if he

need not understand what 'X' is?"1 How indeed?

¶36 The majority fails to articulate a satisfactory answer

to this question. Instead, the majority looks to the law

governing jury unanimity. It holds that the modes of commission

within the child enticement statute are not elements as to which

a defendant is entitled to jury unanimity and concludes that as

a consequence, the circuit court was not required to verify that

Hendricks understood what constituted "sexual contact" under the

law before accepting his guilty plea.

¶37 I conclude that it is inconsistent with due process for a circuit court to accept a defendant's guilty plea to a

charge that requires proof of an intended underlying act without

verifying that the defendant understands what the underlying

intended act is. Accordingly, I dissent.

I

¶38 I begin by setting forth two settled legal principles

that guide my analysis in the instant case.

1 Brief and Appendix of Defendant-Appellant-Petitioner at 17.

1 No. 2015AP2429-CR.ssa

¶39 First, proof of an intended underlying act is an

element2 of some crimes, even though there may be several

alternative qualifying acts. The individual jurors need not

agree as to which particular intended underlying act was proven,

so long as they agree that at least one qualifying intended

underlying act was proven beyond a reasonable doubt.3

¶40 For example, in order to convict a defendant of child

enticement, the jury must unanimously agree that the defendant

caused a child to go to a secluded place with intent to commit

at least one of six statutorily listed acts. If an individual

juror does not believe that the State proved intent to commit

any of the six qualifying acts, the defendant cannot be

convicted. However, if the individual jurors agree that the

State proved intent to commit at least one of the six qualifying

acts, the defendant can be convicted even though the jurors

disagree about which particular intended underlying act was

proved. See State v. Derango, 2000 WI 89, ¶¶13-25, 236

2 In State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and other cases, the court sometimes uses the undefined phrase "essential element." 3 See, e.g., State v. Derango, 2000 WI 89, ¶25, 236 Wis. 2d 721, 613 N.W.2d 833 (defendant not entitled to jury unanimity at trial as to the underlying mode of committing child enticement); State v. Hammer 216 Wis. 2d 214, 220, 576 N.W.2d 285 (Ct. App. 1997) (defendant not entitled to jury unanimity as to intended underlying felony in a burglary charge because burglary——entering a building with intent to commit a felony——is a single offense with multiple modes of commission based upon the intended underlying felony).

2 No. 2015AP2429-CR.ssa

Wis. 2d 721, 613 N.W.2d 833; see also State v. Hammer, 216

Wis. 2d 214, 218-22, 576 N.W.2d 285 (Ct. App. 1997).

¶41 Second, Wis. Stat. § 971.08 and State v. Bangert, 131

Wis. 2d 246, 389 N.W.2d 12 (1986), address the plea colloquy.

The statute requires a circuit court to "[a]ddress the defendant

personally and determine that the plea is made voluntarily with

understanding of the nature of the charge" before accepting the

defendant's guilty plea. Wis. Stat. § 971.08(1)(a). As

interpreted by Bangert, § 971.08 makes it "mandatory upon the

trial judge to determine a defendant's understanding of the

nature of the charge . . . ." Bangert, 131 Wis. 2d at 267.

¶42 The Bangert court declared that the circuit court must

(1) either inform the defendant of the nature of the charge or

ascertain that the defendant "possesses accurate information

about the nature of the charge[,]" and then (2) "ascertain the

defendant's understanding of the nature of the charge . . . ."

Bangert, 131 Wis. 2d at 267. "Nature of the charge" is not

defined in the statute, but Bangert stated that "[a]n understanding of the nature of the charge must include an

awareness of the essential elements of the crime." Bangert, 131

Wis. 2d at 267. Compliance with Wis. Stat. § 971.08(1) helps

ensure that a defendant's plea is knowing, intelligent, and

voluntary and satisfies due process. State v. Brown, 2006 WI

100, ¶23, 293 Wis. 2d 594, 716 N.W.2d 906; State v. Finley, 2015

WI App 79, ¶17, 365 Wis. 2d 275, 872 N.W.2d 344.

¶43 Thus, in order to accept a guilty plea, the circuit court must verify that the defendant is aware of the elements of

3 No. 2015AP2429-CR.ssa

the crime. With regard to crimes with alternative modes of

commission, the defendant is advised at the plea hearing of the

mode of commission to which he is pleading guilty even though,

if the defendant does not plead guilty and the case goes to

trial, a jury need not be unanimous on the mode of commission in

order to return a guilty verdict.

II

¶44 The majority opinion is flawed. The majority

essentially adopts the reasoning of the court of appeals

decision in State v. Steele, 2001 WI App 34, 241 Wis. 2d 269,

625 N.W.2d 595. Majority op., ¶25-26. In Steele, the court of

appeals relied on jury unanimity law in determining the elements

of burglary in order to decide whether the circuit court

properly discharged its obligations under Wis. Stat. § 971.08

and Bangert. The court of appeals held in Steele that because

the particular underlying felony to which the defendant pleaded

was not an element that required jury unanimity, the circuit

court did not err in failing to specify the particular underlying felony during the plea colloquy. Steele, 241

Wis. 2d 269, ¶¶7-10.

¶45 The majority adopts the reasoning enunciated in

Steele, although the court of appeals has raised doubts about

the validity of its own Steele decision and has suggested that

this court should overturn Steele. I agree with the court of

appeals that Steele is not good law and should be overturned.

The court of appeals challenged the reasoning in Steele for improperly relying on jury unanimity law for purposes of

4 No. 2015AP2429-CR.ssa

evaluating the adequacy of a plea colloquy. State v. Hendricks,

No. 2015AP2429-CR, unpublished slip op., ¶¶28-30 (Wis. Ct. App.

Dec. 15, 2016).

¶46 Nevertheless, the majority adopts the reasoning of

Steele, as follows:

We hold sexual contact is not an element of the crime of child enticement. Rather, the six enumerated prohibited intents are modes of commission. At least one mode of commission must be referenced during a plea colloquy, but the terms comprising each mode need not be specifically defined. This is because the crime of child enticement does not require proof of the actual, physical action contemplated by the mode of commission, only that the defendant acted to entice a child while intending to do one of the prohibited acts. The act of enticement is the crime, not the underlying intended sexual or other misconduct. Majority op., ¶33 (emphasis in majority).4

¶47 The general rule derived from the majority opinion is

that a circuit court is not required to verify in the plea

colloquy that a defendant understands the meaning of any

particular qualifying intended underlying acts of the charged

4 The majority borrows language directly from the court's decision in Derango. Derango, 236 Wis. 2d 721, ¶17 ("The act of enticement is the crime, not the underlying intended sexual or other misconduct."). I conclude this statement in Derango needs clarification.

The crime of child enticement is actually a combination of enticing a child and having the intent to commit statutorily proscribed conduct. Causing a child to go into a secluded place without the requisite intent is not a violation of Wis. Stat. § 948.07. A defendant must cause a child to go into a secluded place with intent to commit statutorily proscribed conduct in order to be convicted of child enticement. Wis. Stat. § 948.07. Thus, the act of enticement with the necessary intent is the crime.

5 No. 2015AP2429-CR.ssa

crime because no one particular qualifying intended underlying

act constitutes an element of the crime charged.

¶48 The majority's conclusion has at least two significant

flaws. First, the majority's conclusion leads to an irrational

result. Suppose, for example, that child enticement had only

one mode of commission——namely, a person is guilty of child

enticement if he or she causes a child to enter a secluded place

with intent to have sexual contact. According to the majority,

the circuit court would be required to verify the defendant's

understanding of child enticement and sexual contact. However,

once five additional alternative modes of commission are

introduced into the statute, according to the majority, the

circuit court is no longer required to verify that Hendricks

understands any of the possible modes of commission because he

is not entitled to jury unanimity as to any particular mode of

commission of the crime. What is the logic in this reasoning?

¶49 Second, the majority's conclusion fails to explain

adequately how a defendant can knowingly and intelligently plead guilty to a charge that requires proof of intent to do "X" if

the defendant does not understand what "X" is.

¶50 Of course, the "X" in the instant case happens to be

"sexual contact," a term with which adults are generally

familiar even though the term has a distinct statutory

definition. See Wis. Stat. § 948.01(5). I posit that the due

process problem left unaddressed by the majority is more obvious

if the reader replaces "sexual contact" with a term with which the reader is unfamiliar.

6 No. 2015AP2429-CR.ssa

¶51 Suppose that there was a seventh mode of committing

child enticement: causing a child to go into a secluded place

with the intent to convert the child to Bokononism. Unless the

defendant happens to be a reader of Vonnegut, he or she is not

likely to know what Bokononism is.5 Can a defendant really be

said to knowingly and intelligently plead guilty to causing a

child to go into a secluded place with intent to convert the

child to Bokononism if he or she does not know what Bokononism

is? The majority apparently sees no problem with the circuit

court's accepting a guilty plea from a defendant under these

circumstances. I do. My hypothesizing an entirely unfamiliar

mode of committing an offense highlights the absurdity of the

majority's reasoning.

III

¶52 Unlike the majority, I conclude that in order to

satisfy due process, a circuit court may not accept a guilty

plea from a defendant charged with a crime that requires proof

of an intended underlying act unless the court verifies that the defendant understands what the intended underlying act is.

¶53 The circuit court need not explain every mode of

commission of the crime before accepting a defendant's guilty

5 Bokononism is an artificial religion practiced by the inhabitants of the fictional Caribbean island of San Lorenzo in Kurt Vonnegut's novel Cat's Cradle.

7 No. 2015AP2429-CR.ssa

plea.6 Rather, the circuit court is required to verify the

defendant's understanding of the mode(s) of commission to which

the defendant is pleading guilty and for which an adequate

factual basis exists. Such a rule is workable in practice and

ensures that a defendant's plea is knowing, intelligent, and

voluntary and therefore in compliance with the requirements of

due process. Brown, 293 Wis. 2d 594, ¶23; Finley, 365

Wis. 2d 275, ¶17.

IV

¶54 In addition to holding that Hendricks failed to

establish any deficiency in his plea colloquy, the majority also

concludes that Hendricks is not entitled to a hearing because

"the record conclusively establishes Hendricks' graphic

understanding" of the meaning of sexual contact. Majority op.,

¶30. Essentially, the majority reasons that Hendricks is not

entitled to a hearing to determine if he understood the meaning

of "sexual contact" because it is obvious that he understood the

6 An argument could be made that the circuit court actually does need to verify that the defendant understands every possible mode of commission. After all, were the defendant to stand trial, the State could convict him by convincing the jury that the defendant intended at least one of the six statutorily proscribed acts, and the jury need not agree which one of those intended underlying acts was proved. Thus, the argument goes, the defendant should understand all qualifying intended underlying acts that could be relied upon by individual jurors to return a guilty verdict.

While this approach might prove workable with regard to a plea of guilty to child enticement, which has six possible modes of commission, it will be unworkable with regard to a plea of guilty to burglary, which has many more modes of commission.

8 No. 2015AP2429-CR.ssa

meaning of "sexual contact." Such reasoning is incompatible

with due process.

¶55 In Bangert, the court established that when a

defendant shows "a prima facie violation of Section 971.08(1)(a)

or other mandatory duties, and alleges that he in fact did not

know or understand the information which should have been

provided at the plea hearing, the burden will then shift to the

state to show by clear and convincing evidence that the

defendant's plea was knowingly, voluntarily, and intelligently

entered, despite the inadequacy of the record at the time of the

plea's acceptance." Bangert, 131 Wis. 2d at 274. Subsequent

cases have made clear that if the defendant's motion

"establishes a prima facie violation of Wis. Stat. § 971.08 or

other court-mandated duties and makes the requisite allegations,

the court must hold a postconviction evidentiary

hearing . . . ." Brown, 293 Wis. 2d 594, ¶40 (emphasis added).

¶56 In State v. Hampton, 2004 WI 107, ¶72, 274

Wis. 2d 379, 683 N.W.2d 14, the court explained the defendant's right to an evidentiary hearing when the circuit court errs at

the plea hearing and the defendant alleges that he or she did

not understand the information that should have been provided:

The State has offered several arguments as to why the defendant in fact understood that the court was not bound by the plea agreement. This case, however, is not really about Corey Hampton's understanding at the time of his plea. It is about the circumstances under which a defendant is entitled to an evidentiary hearing when the court errs at a plea hearing. We hold that Hampton is entitled to an evidentiary hearing on his motion. At the hearing the State will have the opportunity to prove that Hampton was aware

9 No. 2015AP2429-CR.ssa

in fact that the court was not bound by the terms of the plea agreement. Hampton, 274 Wis. 2d 379, ¶72.

¶57 The court reiterated this point in State v. Howell,

2007 WI 75, ¶70, 301 Wis. 2d 350, 734 N.W.2d 48:

In a Bangert motion, a circuit court and a reviewing court examine only whether "a defendant is entitled to an evidentiary hearing when the court errs at a plea hearing." The State cannot circumvent a defendant's right to an evidentiary hearing under Bangert by arguing that based on the record as a whole the defendant, despite the defective plea colloquy, entered a constitutionally sound plea. Howell, 301 Wis. 2d 350, ¶70 (footnote omitted).7

¶58 Are Brown, Howell, and Hampton now overruled? The

majority flatly refuses to follow these cases. How are the

bench and bar to reconcile Brown, Howell, and Hampton with ¶¶28-

30 of the majority opinion?

¶59 The majority's reasoning that Hendricks is not

entitled to an evidentiary hearing to determine whether he

understood the meaning of "sexual contact" because it is obvious

that he understood the meaning of "sexual contact" makes a mockery of these prior cases and due process. The majority's

7 The Howell court has characterized the requirements of a Bangert motion as "relatively relaxed," explaining that the court "require[s] less from the allegations in a Bangert motion because the circuit court bears the responsibility of preventing failures in the plea colloquy." State v. Howell, 2007 WI 75, ¶28, 301 Wis. 2d 350, 734 N.W.2d 48.

For this court's review of a defendant's motion to withdraw a guilty plea after sentencing, see State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504, 904 N.W.2d 773; State v. Negrete, 2012 WI 92, ¶¶16, 17, 19, 343 Wis. 2d 1, 819 N.W.2d 749.

10 No. 2015AP2429-CR.ssa

reasoning is akin to "[d]ispensing with confrontation because

testimony is obviously reliable" or "dispensing with jury trial

because a defendant is obviously guilty." Crawford v.

Washington, 541 U.S. 36, 63 (2004).

V

¶60 A major failing of the majority's reasoning and

conclusion is that the majority rests on jury unanimity cases

that are not applicable in the context of determining the

adequacy of a plea colloquy.8 Relying on jury unanimity law for

guidance in the instant case results in the absurd proposition

that a defendant can knowingly and intelligently plead guilty to

a crime that involves an intended underlying act without knowing

the meaning of the intended underlying act.

¶61 The majority's ruling is inconsistent with due

process. I would hold that in order to satisfy due process, a

circuit court may not accept a guilty plea from a defendant

charged with a crime that requires proof of an intended

underlying act unless the circuit court verifies that the defendant understands the intended underlying act. The circuit

court must verify that the defendant understands the specific

mode(s) of commission of the crime to which he or she is

pleading guilty.

8 Indeed, the court of appeals has correctly challenged the reasoning in its earlier Steele decision for improperly relying on jury unanimity law for purposes of evaluating the adequacy of a plea colloquy. State v. Hendricks, No. 2015AP2429-CR, unpublished slip op., ¶¶28-30 (Wis. Ct. App. Dec. 15, 2016).

11 No. 2015AP2429-CR.ssa

¶62 Accordingly, I would overrule State v. Steele, 2001 WI

App 34, 241 Wis. 2d 269, 625 N.W.2d 595, as the court of appeals

suggests, State v. Hendricks, No. 2015AP2429-CR, unpublished

slip op., ¶¶28-30 (Wis. Ct. App. Dec. 15, 2016), and remand the

instant case to the circuit court with instructions to hold an

evidentiary hearing at which the State bears the burden of

proving that Hendricks' plea was knowing, intelligent, and

voluntary despite the deficiency in the plea colloquy.

¶63 For the foregoing reasons, I dissent.

¶64 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissenting opinion.

12 No. 2015AP2429-CR.ssa