State v. Straszkowski

2008 WI 65, 750 N.W.2d 835, 310 Wis. 2d 259, 2008 Wisc. LEXIS 316

• Court: Wisconsin Supreme Court
• Decided: June 19, 2008
• Docket: 2006AP-64-CR
• Status: Published

Opinions

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. The defendant, David G. Straszkowski, seeks review of an unpublished court of appeals order¹ summarily affirming a judgment and order of the Circuit Court for Clark County, Jon M. Counsell, Judge. Based upon the defendant's plea of guilty, the circuit court convicted the defendant of second-degree sexual assault of a child contrary to Wis. Stat. § 948.02(2) (2003-04).² The circuit court denied the defendant's post-sentencing motion to withdraw his guilty plea.

¶ 2. The issue on review is whether the circuit court erred in denying the defendant's motion to withdraw his plea. The defendant argues that he is entitled to withdraw his plea on the ground that his plea was not entered knowingly, intelligently, and voluntarily.³ Specifically, the defendant contends that his plea was not knowing and intelligent because he was unaware that a charge dismissed but read in under a plea agreement is deemed admitted for purposes of sentencing the defendant on the charge to which the defendant pled guilty.⁴

¶ 3. We conclude that the record clearly demonstrates that neither the State, nor trial defense counsel, nor the circuit court referred to the read-in charges as admitted or deemed admitted for sentencing purposes or for any other purpose. Nowhere in the plea questionnaire, in the transcript of the plea hearing, or in the transcript of the sentencing hearing did the State, trial defense counsel, or the circuit court refer to the read-in charges as admitted or deemed admitted. Rather, the circuit court explicitly advised the defendant at sentencing (and repeated this explanation at the postcon-viction motion hearing) that it understood that the defendant was not admitting the read-in charge and that the circuit court would consider the read-in charge for purposes of sentencing the defendant on the charge to which the defendant pled guilty. Because the circuit court did not consider the read-in charge to be admitted for sentencing purposes, we conclude that the defendant has failed to show that his guilty plea was not entered knowingly, intelligently, and voluntarily when he asserts that he was unaware that his agreement to have a sexual assault charge read in was an admission of the read-in charge for purposes of sentencing.

¶ 4. The defendant further argues that under Wisconsin case law the circuit court arguably had an obligation to deem the read-in charge admitted by the defendant for sentencing purposes based on the defendant's agreement to have the charge read in, and that because the defendant was unaware of having made an admission to the read-in charge for sentencing purposes, he did not knowingly and intelligently plead guilty to the charged sexual assault. The defendant urges this court to impose an explicit duty on a circuit court to notify a defendant at the time the defendant enters a guilty plea that the defendant's agreement to read in a dismissed charge is deemed to be an admission of the read-in charge for purposes of sentencing.

¶ 5. Although the case law on read-in charges is neither consistent nor clear, a proper reading of the histoiy of Wisconsin's read-in procedure demonstrates that it is not a critical component of a read-in charge that the defendant admit guilt of the charge (or that the defendant's agreement to read in the charge be deemed an admission of guilt) for purposes of sentencing. In sum, no admission of guilt from a defendant for sentencing purposes is required (or should be deemed) for a read-in charge to be considered for sentencing purposes and to be dismissed. To avoid confusion, prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid (as they did in the instant case) the terminology "admit" or "deemed admitted" in referring to or explaining a defendant's agreement to read in a dismissed charge. A circuit court should advise a defendant that it may consider read-in charges when imposing sentence but that the maximum penalty of the charged offense will not be increased; that a circuit court may require a defendant to pay restitution on any read-in charges; and that the State is prohibited from future prosecution of the read-in charge.

¶ 6. Although we hold that no admission of guilt from a defendant is required for a read-in offense to be dismissed and considered for sentencing purposes, this decision does not bar a circuit court from accepting a defendant's admission of guilt of a read-in charge. This decision does not address what plea colloquy duties a circuit court might have with respect to such an admission, the issue the defendant raises.⁵ Our narrow holding is that an admission of guilt is not required by our read-in procedure and that the circuit court should avoid the terminology "admit" or "deemed admitted" in referring to or explaining a read-in charge for sentencing purposes except when a defendant does admit the read-in charge.

¶ 7. The present case does not involve an award for restitution. Nothing in this opinion should be construed as expanding or restricting the circumstances in which restitution may be imposed.

¶ 8. For the reasons set forth, we affirm the decision of the court of appeals affirming the circuit court's order denying the defendant's motion to withdraw his guilty plea.

I — f

¶ 9. We briefly summarize the facts relating to the defendant's plea agreement and sentencing hearing.

¶ 10. The State charged the defendant with two sexual assault offenses, one offense involving possession of drug paraphernalia, and two worthless check offenses.

¶ 11. The defendant stated on a completed "Plea Questionnaire/Waiver of Rights" form that he intended to plead guilty to one sexual assault charge, the single drug paraphernalia charge, and one worthless check charge. The completed Plea Questionnaire/Waiver of Rights form also stated that the defendant's plea agreement would be set forth in circuit court as follows: "Remaining charges and cases to be dismissed; PSI [presentence investigation] jointly requested, and parties will be free to argue."

¶ 12. On the completed Plea Questionnaire/ Waiver of Rights form, a check mark was placed next to a statement that explained read-in charges as follows: Charges that are read in as part of the plea agreement may be considered by the circuit court when imposing sentencing but will not increase the maximum penalty; the defendant may have to pay restitution on any charges read in; and the State may not prosecute the defendant for any read-in charges. The statement checked on the completed Plea Questionnaire/Waiver of Rights form was as follows:

I understand that if any charges are read-in as part of a plea agreement they have the following effects:

• Sentencing — although the judge may consider read-in charges when imposing sentence, the maximum penalty will not be increased.

• Restitution — I may be required to pay restitution on any read-in charges.

• Future prosecution — the State may not prosecute me for any read-in charges.

¶ 13. At the hearing on the defendant's guilty plea, the prosecuting attorney stated in open court that the two charges to which the defendant did not plead guilty would be "dismissed and read in." Defense counsel then filed the Plea Questionnaire/Waiver of Rights form⁶ and informed the circuit court of the defendant's guilty pleas to the charges of sexual assault, possession of drug paraphernalia, and issuance of a worthless check. Defense counsel stated that if the circuit court accepted the guilty pleas and found the defendant guilty of the three offenses, he understood that the State would move "to dismiss but [have the circuit court] consider for sentencing purposes" the remaining sexual assault and worthless check charges.

¶ 14. Immediately after defense counsel made this statement, the circuit court engaged the defendant in a colloquy to "ascertain" the "promises [that] were made in connection with the defendant's anticipated plea . . . . "⁷ and questioned the defendant regarding the completed Plea Questionnaire/Waiver of Rights form signed by the defendant. This colloquy began as follows after the statements of the prosecuting attorney and defense counsel describing the plea agreement and read-in charges:

THE COURT: Mr. Straszkowski, is that your understanding of what is happening here today?

DEFENDANT: Yes.

THE COURT: And your attorney has given me a plea questionnaire and waiver of rights form. Have you reviewed that form?

DEFENDANT: Yes.

THE COURT: And have you read through it?

DEFENDANT: Yes.

THE COURT: Do you believe you understand its contents?

DEFENDANT: Yes.

THE COURT: It appears that you signed it on the second page. Is that correct?

DEFENDANT: Yes.

THE COURT: You did that earlier today?

DEFENDANT: Yes.

THE COURT: Any questions about the form or the recommendations being made here today?

DEFENDANT: No.

THE COURT: And the form says you haven't had any alcohol, medications, or drugs in the last 24 hours. Is that correct?

DEFENDANT: Yes.

THE COURT: Anything else that would cause you to be confused or unclear as you are making these decisions today?

DEFENDANT: No.

THE COURT: Did you need any more time to discuss this with your lawyer?

DEFENDANT: No.

¶ 15. Later during the plea hearing, the defendant pled guilty to the three charges in accordance with the plea agreement. The circuit court convicted the defendant of the three charges to which the defendant pled guilty and stated that the remaining sexual offense charge and worthless check charge "are dismissed and read in for purposes of sentencing consideration and restitution if need be."⁸

¶ 16. At the sentencing hearing, defense counsel stated that the defendant maintained his innocence of the dismissed but read-in sexual assault charge. Defense counsel also asserted that he was confident he could have proven the defendant innocent of that charge had the matter gone to trial.

¶ 17. The circuit court acknowledged that "[t]here is some denials [sic] with regard to the read-in" and that "there seems to be some considerable dispute" over the charges pending in another county. The circuit court never considered the read-in charge or the charges in another county⁹ "admitted" but considered these charges during sentencing as an indication that the defendant was placing himself in questionable situations involving underage girls.

¶ 18. The circuit court explained that the read-in charge and the charges pending in the other county weighed in favor of confinement because the conduct underlying each charge was alleged to have occurred after the defendant had been made aware of the sexual offense charge to which the defendant had pled guilty. The circuit court concluded that the read-in charge demonstrated that even after he had been made aware of the initial sexual assault charge, the defendant "continued to place himself in a questionable situation where those types of allegations could be made."

¶ 19. The circuit court sentenced the defendant to five years' confinement and ten years' extended supervision on the sexual assault charge. The circuit court also sentenced the defendant on the drug paraphernalia and worthless check charges but provided that the defendant would serve his sentence on those charges concurrently with his sentence on the sexual assault charge. The presentence report recommended jail and probation. Restitution was not claimed or awarded on the sexual assault offense.

¶ 20. After sentencing, the defendant moved to withdraw his guilty pleas, arguing that he did not make those pleas knowingly and intelligently. In his motion, the defendant stated that when he entered his pleas, he "was not aware of what it meant for a charge to be read-in" in that he "was unaware that pursuant to case law, a read-in offense is deemed admitted by [the] defendant." The motion also stated that the defendant had consistently maintained that he was innocent of the dismissed sexual assault charge and that if he had known that the allegations underlying the charge were "going to be considered as true at the time of sentencing, [the defendant] would not have entered his pleas."

¶ 21. At the postconviction hearing on the defendant's motion to withdraw his plea, the defendant's trial counsel agreed that he had never informed the defendant that the read-in charges "would be deemed admitted for purposes of sentencing" or that "the [circuit] court would ... conclude [the defendant] committed" the alleged offense underlying the read-in charge.

¶ 22. The defendant's trial counsel testified that he and the defendant had "spent quite a bit of time talking about the effect not only of the read-in charge, but also the fact that he was facing unrelated conduct in another county." Counsel testified that he believed it doubtful that the defendant would have been convicted of the read-in sexual offense and that the defendant consistently denied the read-in charge. The defendant's trial counsel further testified that he had explained to the defendant that although the defendant would not be convicted or sentenced separately for the dismissed but read-in sexual assault charge, the circuit court "might consider that conduct when imposing sentence on the assault that he was pleading guilty to." Defense trial counsel also stated that he believed at the time and "still believe[s] today that [the defendant] understood that the judge, although he wasn't convicting him of the other assault, he would certainly consider that assault when trying to decide what [the defendant] required for punishment and what the public required for protection."

¶ 23. The defendant testified at the postconviction hearing that he did not understand that the circuit court would read in the dismissed sexual assault charge or that the circuit court could consider the charge for purposes of sentencing the defendant on the charge to which the defendant had pled guilty. The defendant acknowledged that he had discussed the significance of read-in charges with his trial counsel on at least two occasions. The defendant also acknowledged that he heard it stated at the plea hearing that the dismissed sexual assault charge would be considered for sentencing purposes. The defendant testified that upon hearing this statement he "thought they made a mistake," because his plea agreement said "nothing about [a] read-in." The defendant further testified that at the plea hearing he asked his trial counsel, "[W]hy are they saying read-in?" and that his counsel replied that they "would talk about it later."

¶ 24. Upon completion of the hearing on the defendant's plea withdrawal motion, the circuit court found the defendant's trial counsel's testimony to be credible and the defendant's testimony to be incredible. The circuit court found that the defendant had understood at the time of his guilty plea that the dismissed sexual assault charge would be read in and that it could be considered at sentencing.

¶ 25. The circuit court denied the defendant's motion to withdraw his guilty pleas. The circuit court explained that it had not looked to the read-in charge or the charges pending in the other county "as things that definitively happened," but rather that the circuit court was "looking at those matters as [the defendant] continually placing himself in a situation where he is associating with underage persons sufficiently that they know who he is and for some reason would make these types of allegations against him." The circuit court further asserted that it had looked at the read-in charge and the charges pending in the other county "in the same way."

¶ 26. The court of appeals summarily affirmed the circuit court's judgment of conviction and order denying the defendant's motion to withdraw his guilty plea. In so doing, the court of appeals applied its prior decision in State v. Lackershire, 2005 WI App 265, 288 Wis. 2d 609, 707 N.W.2d 891, in which the court of appeals held that "[bjecause read-ins do not increase the range of punishment, they are indirect consequences and their knowledge is not required for a defendant to enter a knowing, intelligent, or voluntary plea."¹⁰ Upon review of Lacker-shire, this court explicitly declared that it did "not adopt the court of appeals' determinations [in Lackershire, 288 Wis. 2d 609] that read-in charges are merely collateral consequences of a plea, and that therefore information about read-ins is not a prerequisite to entering a knowing and intelligent plea."¹¹ The Lackershire court declined "to engage in further analysis regarding the circuit court's obligation to explain the nature of read-in offenses in a case where the record demonstrates that the dismissed charges were not treated as read-ins at either the plea or sentencing."¹² This court's full discussion of the court of appeals' determinations in Lackershire is as follows:

We do not adopt the court of appeals' determinations that read-in charges are merely "collateral consequences" of a plea, and that therefore information about read-ins "is not a prerequisite to entering a knowing and intelligent plea." Lackershire, 288 Wis. 2d 609, ¶ 15, 707 N.W.2d 891 (citing State v. Byrge, 2000 WI 101, ¶ 61, 237 Wis. 2d 197, 614 N.W.2d 477). Those determinations appear to extend existing law. See Austin v. State, 49 Wis. 2d 727, 734, 183 N.W.2d 56 (1971) (stating that "[a] plea agreement should always be made a matter of record whether it involves a recommendation of sentencing, a reduced charge, a nolle prosequi of charges or read ins with an agreement of immunity."); Garski v. State, 75 Wis. 2d 62, 77, 248 N.W.2d 425 (1977) (providing that "[t]he defendant should be advised by the trial court, on the record, of the effect of the read-ins. ..."). We decline to engage in further analysis regarding the circuit court's obligation to explain the nature of read-in offenses in a case where the record demonstrates that the dismissed charges were not treated as read-ins at either the plea or sentencing.¹³

¶ 27. Before this court, the defendant does not dispute the circuit court's finding that the defendant understood at the time of his plea that the dismissed sexual assault charge would be read in and that the charge could be considered at sentencing. The defendant instead limits his argument to the claim that he did not understand that the read-in charge was to be deemed admitted for sentencing purposes.

HH HH

¶ 28. We turn first to the standard of review. Because the defendant seeks to withdraw his guilty plea after sentencing, he must show that a refusal to allow withdrawal of the plea would result in manifest injustice.¹⁴ Manifest injustice may be shown when the defendant's guilty plea was not made knowingly, intelligently, and voluntarily.¹⁵

¶ 29. Whether a plea was made knowingly, intelligently, and voluntarily is a question of constitutional fact.¹⁶ Upon review, this court upholds the circuit court's findings of evidentiary or historical facts unless those findings are clearly erroneous. This court determines the application of constitutional principles regarding a knowing, intelligent and voluntary plea to those evidentiary facts independently of the circuit court and court of appeals but benefiting from those courts' analyses.¹⁷

I — ¡ hH I — I

¶ 30. The defendant claims that he did not understand that by agreeing to have the sexual assault charge read in, he was admitting or would be deemed to have admitted the read-in charge for sentencing purposes.¹⁸ He asserts that his failure to understand that the read-in involved an admission for purposes of sentencing renders his guilty plea not knowing and not intelligent.

¶ 31. The defendant apparently contends that his plea was not entered knowingly and intelligently for the following reasons:

(A) The defendant was unaware that the circuit court would deem the sexual assault charge dismissed but read in under the defendant's plea agreement to be admitted by the defendant for sentencing purposes;

(B) The defendant did not admit guilt of the read-in charge but instead actively denied guilt of the read-in charge;

(C) The circuit court was required to advise the defendant that the read-in charge was to be deemed admitted for sentencing purposes;

(D) The circuit court was required under State v. Bangert, 131 Wis. 2d 246, 270-72, 389 N.W.2d 12, to ascertain whether the defendant understood that by admitting guilt of the read-in charge he was waiving several constitutional rights with respect to that charge; and

(E) Trial defense counsel failed to advise the defendant that when a charge is read in, the defendant is admitting guilt of the read-in charge for purposes of sentencing or is deemed to have admitted guilt for purposes of sentencing, and therefore under a NelsonIBentley¹⁹ analysis the defendant has demonstrated that his guilty plea was not entered knowingly and intelligently regardless of whether the court's plea colloquy was defective.

A

¶ 32. The defendant's argument that his plea was not entered knowingly and intelligently because he was unaware that the circuit court would deem the read-in sexual assault charge to be admitted for sentencing purposes is unconvincing. Nowhere did the circuit court conclude that the defendant admitted (or was deemed to have admitted) the sexual assault charge that was read in or that the defendant was guilty of the read-in sexual assault charge.

¶ 33. The circuit court never deemed the read-in sexual assault charge to be admitted. The record demonstrates that neither the State, nor trial defense counsel, nor the circuit court referred to the read-in charges as admitted or deemed admitted. Nowhere in the plea questionnaire, in the transcript of the plea hearing, or in the transcript of the sentencing hearing did the State, defense counsel or the circuit court refer to the read-in charges as admitted or deemed admitted.

¶ 34. The circuit court acknowledged that "[t]here is [sic] some denials with regard to the read-in" and that "there seems to be considerable dispute" over the charges pending in another county. The circuit court explicitly advised the defendant at sentencing (and repeated this explanation at the postconviction hearing) that it understood that the defendant was not admitting the read-in charge.

¶ 35. The circuit court treated the read-in charge properly, not as an admitted crime but as an offense that may properly be considered for sentencing purposes.

¶ 36. The circuit court treated the read-in charge in the same way as it treated the sexual assault charges pending against the defendant in another county and did not give the read-in charge more weight than it gave the pending charges in the other county. It is well established that "[a] sentencing court may consider uncharged and unproven offenses" whether or not the defendant consents to having the charge read in.²⁰

¶ 37. The circuit court's consideration of the read-in charge when sentencing the defendant did not flow only from the parties' agreement to read in the sexual assault charge for sentencing purposes. The circuit court treated the read-in in the same manner as it treated other pending charges or unproven offenses.

¶ 38. Under the circumstances of the present case, the circuit court was not required to advise the defendant that the read-in charge would be deemed admitted for purposes of sentencing. The circuit court concluded not that the defendant was guilty of the read-in charge, but rather that the read-in charge and the charges pending in the other county demonstrated that even after he had been made aware of the initial sexual assault charge against him, the defendant "continued to place himself in a questionable situation where those types of allegations could he made."²¹

¶ 39. Because the circuit court never treated the defendant as having admitted (or as having been deemed to have admitted) the read-in charge, the defendant's argument that his plea was not entered knowingly, intelligently, and voluntarily because he was unaware that the circuit court would deem the read-in sexual assault charge to be admitted for sentencing purposes is unconvincing.

B

¶ 40. The defendant is correct that he denied guilt of the read-in charge. Indeed, the circuit court acknowledged that the defendant actively denied guilt of the read-in charge and did not admit the read-in charge for any purpose. The circuit court never characterized the defendant as having admitted or as having been deemed to have admitted the read-in charge for any purpose. Under these circumstances, the defendant's assertion that he denied guilt of the read-in charge is not a persuasive argument that his guilty plea was not entered knowingly and intelligently.

C

¶ 41. The defendant appears to argue that the circuit court was required to advise him that the read-in charge was to be deemed admitted for sentencing purposes. Two cases are relevant to this argument: Garski v. State, 75 Wis. 2d 62, 77, 248 N.W.2d 425 (1977); and State v. Cleaves, 181 Wis. 2d 73, 510 N.W.2d 143 (Ct. App. 1993).

¶ 42. In Garski, the defendant argued that "the trial court never informed him that it could order restitution as a condition of probation on . . . dismissed [read-in] charges . . . ,"²² The Garski court nevertheless upheld the circuit court's order of restitution as a condition of probation on the dismissed read-in charges. The Garski court concluded that the trial court had to inform the defendant of the statutory penalties for the charged offenses but that Garski had no authority for his argument that the trial court must inform him that restitution could be a condition of probation for the read-in offenses prior to accepting a guilty plea ²³

¶ 43. The Garski court "cautioned," however, that "when the plea agreement contemplates the non-prosecution of uncharged offenses, the details of the plea agreement should be made a matter of record"²⁴ and that "[t]he defendant should be advised by the trial court, on the record, of the effect of the read-ins, including that the judge may take these offenses into consideration when sentencing."²⁵ The Garski court did not state whether this caution regarding how the trial court should advise a defendant about read-in charges was a recommendation of good practice or a requirement for a knowing, intelligent, and voluntary plea.²⁶ The Garski court also did not specifically require or caution a trial court to advise a defendant that a read-in involves or entails an admission of guilt to the read-in offense.

¶ 44. In Cleaves, another restitution case, the court of appeals "suggested]," but did not require, that trial courts "ask the defendant if there is an admission to the read-in charge for purposes of sentencing consideration."²⁷ The Cleaves court of appeals stated that it "believe[d] that this is the better practice."²⁸

¶ 45. Cleaves makes clear that a trial court is not required to advise a defendant that a read-in charge is to be deemed admitted for sentencing purposes. In light of Cleaves, the Garski court's ambiguous "caution" must be read as precatory, at least with respect to the circuit court's obligation to advise the defendant that a read-in charge is to be deemed admitted for sentencing purposes.

¶ 46. Moreover, as we stated previously, the circuit court in the present case never considered the dismissed read-in charge or the sexual assault charges in another county to have been "admitted" by the defendant or to have been deemed admitted for sentencing or for any other purpose. Even Garski's precatory caution and Cleaves's recommendation of better practice do not seem to apply to the present case, when the circuit court did not consider the dismissed read-in charge to have been admitted by the defendant or to have been deemed admitted.

¶ 47. We conclude that the circuit court was not required in the instant case under either Garski or Cleaves to advise the defendant that the read-in charge was to be deemed admitted for sentencing purposes.

D

¶ 48. The defendant asserts that because he is deemed to have admitted a read-in offense when a read-in charge is involved in a plea agreement, the circuit court should have treated the admission to a read-in charge as equivalent to a guilty plea to the read-in charge and should have engaged in a plea colloquy for the guilty plea under State v. Bangert, 131 Wis. 2d 246, 248 N.W.2d 425 (1977). The defendant further asserts that the circuit court did not engage in such a colloquy in the present case; that the defendant therefore established a prima facie violation of Bangert; and that the State did not rebut the defendant's prima facie case.²⁹

¶ 49. Under Bangert, a circuit court accepting a guilty plea is required to address the defendant personally and to engage in a colloquy on numerous subjects. Among other things, the court is required to establish the defendant's understanding of the nature of the crime, to ascertain whether a factual basis exists to support the guilty plea, and to inform the defendant of the constitutional rights that are waived by a plea and verify that the defendant understands he is giving up these rights.³⁰

¶ 50. The defendant argues that inasmuch as a read-in charge is deemed admitted for sentencing purposes, the circuit court was required to adhere to Bangert and to advise the defendant that he was waiving, in regard to the read-in charge, the Sixth Amendment right to a jury trial, the Sixth Amendment right to confront one's accusers, and the Fifth Amendment right against self-incrimination. '

¶ 51. We disagree with the defendant's Bangert argument in the present case. Because the circuit court did not view the read-in charge as either having been admitted by the defendant or as having been deemed to have been admitted by the defendant for sentencing or for any other purpose, the defendant has no basis to argue that the circuit court should have engaged in a full Bangert plea colloquy explaining the effect of an admission/guilty plea to the read-in charge.

¶ 52. Rather, at sentencing the circuit court assessed the defendant's character using all the available information, including the read-in sexual assault charge and the sexual assault charges in the other county. The sentencing court was not constrained in considering the read-in charge or the other charges by the Bangert rules of a plea colloquy or by the rules of evidence that govern evidence in the guilt phase of a criminal proceeding.³¹

E

¶ 53. Using a Nelson/Bentley analysis, the defendant argues that his guilty plea was not made knowingly and intelligently even assuming that the circuit court had no duty to inform him during the plea colloquy that the read-in sexual assault charge would be deemed admitted for sentencing purposes. The defendant relies on the fact that his trial counsel acknowledged at the postconviction hearing that he did not inform the defendant that the defendant would be deemed to have admitted the read-in sexual assault charge. The defendant argues that his lack of understanding regarding the "admission" aspect of the read-in procedure was vital to his ability to make a reasoned plea decision.

¶ 54. The defendant's Nelson/Bentley argument rests primarily on the fallacy that the circuit court sentenced the defendant based on the defendant's conviction of two sexual offenses, the one to which he pled guilty and the one that was read in. The record shows that the circuit court did no such thing, as we have explained previously. The defendant's argument that he would have been better off setting the read-in charge for trial because he believed he would be acquitted makes little sense. The defendant in the instant case was able to deny guilt of the read-in offense and was able to have the read-in offense dismissed without the possibility of further prosecution. The circuit court viewed the read-in sexual assault charge in the same way as it viewed the sexual assault offenses charged in the other county.

¶ 55. The defendant has not carried his burden to prove that factors extrinsic to the plea colloquy rendered his guilty plea unknowing and not intelligent.³²

¶ 56. We have considered the defendant's arguments that he did not understand that by agreeing to have the sexual assault charge read in, he was admitting or would be deemed to have admitted the read-in charge for sentencing purposes. His assertion that his failure to understand that the read-in involved an admission for purposes of sentencing renders his guilty plea not knowing and not intelligent is not persuasive. We conclude that because the circuit court never considered the read-in charge admitted or deemed admitted for sentencing purposes on the charge to which the defendant pled guilty, the defendant has failed to show that his plea was not entered knowingly and intelligently.

IV

¶ 57. The defendant further argues that under Wisconsin case law the circuit court arguably had an obligation to consider the read-in charge as having been admitted by the defendant for sentencing purposes or having been deemed to have been admitted by the defendant for sentencing purposes, and that because the defendant was unaware of having made an admission to the read-in charge for sentencing purposes, he did not knowingly and intelligently plead guilty to the charged sexual assault. The defendant urges this court to impose an explicit duty on a circuit court to notify a defendant at the time the defendant enters a guilty plea that read-in charges are deemed admitted for purposes of sentencing.

¶ 58. Although the case law on read-in charges³³ is neither consistent nor clear, a proper reading of the history of -Wisconsin's read-in procedure demonstrates that it is not a critical component of a read-in charge that the defendant admit guilt to a read-in charge (or be deemed to have admitted guilt to the read-in charge) for purposes of sentencing. In sum, no admission of guilt from a defendant is required (or should be deemed) for a read-in charge to be considered for sentencing purposes and to be dismissed.

¶ 59. We begin our examination of the history of read-in charges in this state with this court's first extensive description of Wisconsin's read-in procedure in Austin v. State, 49 Wis. 2d 727, 183 N.W.2d 56 (1971).

¶ 60. In Austin, this court considered the validity of a plea agreement in which the district attorney agreed "not to prosecute uncharged offenses if the defendant would agree to a 'read in' of these uncharged offenses and to allow the court to take such offenses into consideration in sentencing him on the charged offense."³⁴ The court held the plea agreement valid.

¶ 61. Because "the so-called 'read in' of uncharged crimes for the purpose of sentencing on the crime charged [was] somewhat unique to Wisconsin," the Austin court prefaced its analysis with "a brief review" of Wisconsin's read-in procedure, along with an accompanying (and intertwined) discussion of "the problems involved in the consolidation of multiple offenses and the problems involved in the application of the recidivist statute."³⁵

¶ 62. Austin described the read-in procedure by referring to the defendant as admitting the uncharged offenses. The Austin court explained that "[u]nder our read-in procedure, the defendant does not plead to any charges and therefore is not sentenced on any of the read-in charges but such admitted uncharged offenses are considered in sentencing him on the charged offense."³⁶

¶ 63. The Austin opinion does not explicitly state that such admission is an actual admission made by the defendant or, as some cases would later hold, an admission that the court simply assumes to be made as a matter of law based on the defendant's agreement to read in the charge for consideration at sentencing. The facts of Austin indicate, however, that the read-in procedure described in that opinion involved the defendant's actual admission of guilt. In its brief in Austin, the State asserted that "defendant, represented by counsel, admitted his participation in an additional armed robbery occurring at a Clark Service Station in Milwaukee on the same date."

¶ 64. Furthermore, Austin identified Pulaski v. State, 23 Wis. 2d 138, 126 N.W.2d 625 (1964), as a read-in case, and Pulaski involved an actual admission of guilt to uncharged offenses considered at Pulaski's sentencing hearing. Austin stated that in Pulaski "this court was confronted with ... a read in by a Milwaukee circuit court of 21 offenses committed in Milwaukee county, where the defendant was charged and convicted on his plea of guilty to three charges of burglary .. . ,"³⁷ The defendant in Pulaski actually admitted guilt to the uncharged offenses considered at his sentencing hearing. Pulaski pled guilty to three burglaries but "with the consent of the defense counsel and upon the assurances of the district attorney no warrants would be issued, [the court] took testimony of other burglaries in which the defendant had participated. ... In all, testimony was taken on 24 burglaries admitted by the defen-dantC'³⁸

¶ 65. Finally, Austin compared and contrasted Wisconsin's read-in procedure to a procedure described in the American Law Institute Model Penal Code under which "the defendant may admit in open court the commission of other [uncharged] felonies and ask that they be taken into account" at sentencing for a charged offense.³⁹ The Austin court explained that the Model Penal Code procedure was similar to Wisconsin's read-in procedure in that "the sentence [for the charged offense] bars the prosecution of such admitted [but uncharged] crime" and different from the Model Penal Code procedure in that the Code procedure "works like the Wisconsin repeater statute," permitting the trial court to "extend the term of the ordinary maximum penalty for the crime charged by taking into account the other offenses."⁴⁰ The Austin court did not state whether Wisconsin's read-in procedure differed from (or was the same as) the Model Penal Code procedure in involving a defendant's actual admission of guilt to any uncharged crime read in for sentencing purposes.

¶ 66. In sum, Austin appears to describe a read-in procedure as involving the defendant's actual admission of guilt to the read-in charge. The court "cautioned" in Austin that "when the plea agreement contemplates the nonprosecution of uncharged offenses the details of the plea agreement should be made a matter of the record."⁴¹

¶ 67. Another early read-in case, State v. Gerard, 57 Wis. 2d 611, 205 N.W.2d 374 (1973), similarly describes the read-in procedure as involving the defendant's actual admission of guilt. Gerard agreed to have 20 uncharged offenses read into the record and to allow the circuit court to take such offenses into consideration in sentencing him on two charged crimes.⁴² The defendant made an actual admission, apparently to law enforcement officers, that he was guilty of these 20 uncharged crimes.⁴³ The court was made aware of the defendant's admission and inquired as to the validity of the admission when the court read in the uncharged offenses.⁴⁴ The Gerard court quoted an excerpt from the circuit court transcript reading in part as follows:

THE COURT: Have the defendant walk forward. Ronald Gerard, did you admit all those other said [read-in] offenses to the officers freely and voluntarily?

DEFENDANT: Yes.

THE COURT: Were any threats or any promises made by anyone, any police officer or by any law enforcement officer or by anyone involved in this case in any manner, shape or form to get you to admit those offenses?

THE DEFENDANT: No.

THE COURT: Why did you admit them?

THE DEFENDANT: Because I wanted to get everything off the books so I am not any more involved in anything.⁴⁵

¶ 68. Neither Austin nor Gerard stated that a defendant's admission is required under Wisconsin's read-in procedure. Although describing Wisconsin's read-in procedure as involving the defendant's admission of guilt, neither opinion addresses the question whether a circuit court would err in accepting a read-in agreement in the absence of the defendant's admission of guilt. In other words, Austin and Gerard do not address the question whether a defendant's admission of guilt is a necessary component of the Wisconsin read-in procedure.

¶ 69. In contrast to cases such as Austin and Gerard, some subsequent cases describe the defendant's admission of a read-in charge not as an actual admission of guilt but rather as an admission as a matter of law that the defendant makes simply by agreeing to read in a dismissed charge. The first of these cases is State v. Szarkowitz, 157 Wis. 2d 740, 460 N.W.2d 819 (Ct. App. 1990). Szarkowitz addressed read-in offenses in order to apply Wisconsin's restitution statute and interpreted Austin in the course of interpreting the statute.

¶ 70. In Szarkowitz, the court of appeals rejected Szarkowitz's argument that the circuit court erred in ordering restitution to victims of crimes that were read in as part of Szarkowitz's plea agreement.⁴⁶ In interpreting the restitution statute, the court of appeals concluded that the statute's provision that a circuit court may order the defendant to make restitution to "any victim of the crime" authorized the court to order restitution to "victims of any crimes to which the defendant admits as part of the read-in procedure as well as victims of the particular crime for which he is convicted."⁴⁷

¶ 71. In so holding, the court of appeals quoted, relied upon, and interpreted Austin's statement that " '[ujnder our read-in procedure, the defendant does not plead to any charges and therefore is not sentenced on any of the read-in charges but such admitted uncharged offenses are considered in sentencing him on the charged offense.' "⁴⁸ The court of appeals construed this statement in Austin to mean that "when a defendant agrees to crimes being read in at the time of sentencing, he makes an admission that he committed those crimes."⁴⁹

¶ 72. The Szarkowitz court of appeals did not explicitly state whether it was construing Austin to hold that "when a defendant agrees to crimes being read in at the time of sentencing, he makes [, as part of that procedure, an actual] admission that he committed those crimes" or whether it was instead construing Austin to hold that "when a defendant agrees to crimes being read in at the time of sentencing, he [is legally deemed to] make[] an admission that he committed those crimes [even in the absence of an actual admission]." Both interpretations of Szarkowitz are permitted by the text of that opinion.

¶ 73. The court of appeals adopted the latter interpretation of Szarkowitz in State v. Cleaves, 181 Wis. 2d 73, 510 N.W.2d 143 (Ct. App. 1993). In Cleaves (another case involving interpretation and application of Wisconsin's restitution statute), the defendant argued that his personal admission to a read-in offense was a condition precedent to the trial court's authority to order restitution for a victim of that read-in charge. The court of appeals explained that Cleaves never voiced any objection to the read-in charges. Relying on Szarkowitz and Austin, the court of appeals concluded that "[i]n the absence of any objection to ... crimes being read in, the court may assume that the defendant admits them for purposes of being considered at sentencing."⁵⁰ The court of appeals further concluded that because the defendant in Cleaves "did not object to the crimes being read in, he admitted them."⁵¹

¶ 74. Although holding that the circuit court "may" assume that the defendant admits of read-in charges for purposes of sentencing, the Cleaves court recommended that circuit courts instead expressly ask defendants whether there is an admission to the read-in charge for purposes of sentencing. The Cleaves majority declared that "[t]o clarify the record ... we suggest that trial courts in the future ask the defendant if there is an admission to the read-in charge for purposes of sentencing consideration. We believe that this is the better practice."⁵²

¶ 75. Writing in concurrence in Cleaves, Judge Nettesheim endorsed and elaborated upon the majority's suggestion "that the trial court expressly obtain an admission from the defendant to a read-in charge."⁵³ Judge Nettesheim explained that a read-in charge is usually accompanied by three conditions: (1) the defendant acknowledges responsibility for the uncharged or dismissed read-in charge; (2) the defendant agrees that the trial court may consider the read-in charge for purposes of sentencing on the charges for which a defendant is convicted; and (3) the defendant accepts responsibility for restitution relating to the read-in charge.

¶ 76. Judge Nettesheim suggested that a trial court engage in "a personal colloquy with the defendant under Bangert" to establish that the defendant understands these consequences of a read-in charge and to "additionally establish that the defendant understands and accepts all of these conditions, or any others which might apply." This procedure, according to Judge Nettesheim, "can minimize the number of postconviction motions and appeals challenging a trial court's use of a read-in charge. And, even where such motion or appeal is brought, the judicial resolution of the issue will often be facilitated."⁵⁴

¶ 77. The opinions in Cleaves merely recommended that the trial courts ask defendants in the future whether they are admitting the read-in charge for purposes of sentencing. Cleaves did not require the trial courts to do so. Cleaves also did not require circuit courts to assume that defendants have admitted guilt of read-in charges for purposes of sentencing, stating instead that courts "may" make such an assumption.

¶ 78. Standing in contrast to cases such as Austin, Gerard, Szarkowitz, or Cleaves, all of which describe the read-in procedure as involving either an actual or a deemed admission of guilt, are cases describing the read-in procedure without making reference either to the defendant's actual admission of guilt or to a rule that the circuit court may deem the defendant's agreement to read in the charge to an admission that the defendant committed the read-in offense.

¶ 79. Martinkoski v. State, 51 Wis. 2d 237, 186 N.W.2d 302 (1971), a case released in the same term as Austin, provides one such example. Martinkoski "stipulated to the reading-in of' a charge that the State agreed to dismiss without prejudice.⁵⁵ This court described Martinkoski as stipulating to the charge's "consideration in the imposition of a sentence in exchange for the agreement of the state not to prosecute that charge."⁵⁶ The Martinkoski opinion does not state that Martinko-ski admitted guilt of the read-in charge or that he was deemed as a matter of law to admit guilt of the charge. Indeed Martinkoski initially pled not guilty to the charge dismissed and read in.⁵⁷ Neither the briefs in Martinkoski nor the decision state that he admitted the read-in charge or that he was deemed to have admitted it as a matter of law.

¶ 80. In Embry v. State, 46 Wis. 2d 151, 174 N.W.2d 521 (1970), a case cited and quoted in Austin, the court distinguished a trial court's practice of considering other offenses for purposes of sentencing from the procedure of the state and the accused agreeing that the trial court may take uncharged offenses into consideration and that the prosecutor may not prosecute those offenses at a later time. The Embry court described the latter procedure (the read-in procedure) without referring to the defendant as admitting guilt or as the defendant's agreement to the read-in as constituting an admission of guilt as a matter of law. The Embry court instead stated, as the court did in Martinkoski, only that a read-in offense is one that may be considered at sentencing and that the State is barred from prosecuting in the future. The Embry opinion describes the read-in procedure as follows:

[The read-in procedure is] a practice in this state, especially in Milwaukee, of charging a multiple offender with two or more offenses for which the evidence is most conclusive and bringing the judge's attention to additional uncharged offenses prior to sentencing. Upon agreement between the state and the accused, the judge may take these offenses into consideration and the prosecution agrees not to prosecute. It is expected the uncharged crimes will influence the length of the sentence for the crime or crimes the defendant has been found guilty of or to which he has plead [sic] guilty. The advantage of this technique to the accused is that he can clean his slate of several uncharged crimes with the safety of only receiving at the most the maximum sentence on the one or two crimes of which he is convicted.⁵⁸

¶ 81. After the read-in procedure developed in the Wisconsin courts, the legislature inserted a definition of read-in crimes into the Wisconsin Statutes. In 1995, two years after the court of appeals mandated Cleaves (the latest of the decisions discussed above), a bill was introduced in the Wisconsin State Assembly that included a legislative definition of the phrase "read-in crime" for purposes of the criminal restitution statute. The bill, 1995 Assembly Bill 467, would have defined a "read-in crime" as a crime to which the defendant actually admits guilt. Section 3 of the bill provided in relevant part as follows:

973.20(lg) of the statutes is created to read:

973.20(lg) In this section:

(b) "Read-in crime" means any crime that is uncharged, that the defendant admits to having committed and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted.⁵⁹

¶ 82. In a memorandum addressed to the Assembly Judiciary Committee Assembly, the Wisconsin Department of Justice objected to this proposed definition of "read-in crime" on the ground that it "would appear to require that the defendant personally and specifically admit to the read-in offense in order for it to be considered at sentencing for restitution."⁶⁰ A transcription of the memorandum is attached as ah Appendix hereto. The Department of Justice argued that such a requirement "is inconsistent with the law on read-in offenses" and that under the court of appeals' decisions in Szarkowitz and Cleaves, restitution was proper so long as the defendant agreed to the read-ins. The Department of Justice memorandum supports a definition of "read-in charges" that allows dismissed read-in charges to be considered for restitution and that dispenses with the "admits" language so that a defendant's personal admission to the read-in charge is not required; the defendant need simply agree that the charge be read in.

¶ 83. The Department of Justice memorandum proposed the following definition of "read-in crime" in the restitution statute:

"Read-in crime" means any crime that is uncharged or which is dismissed as part of a plea agreement, that the defendant agrees to be considered by the court at sentencing and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted.

(Emphasis in original.)

¶ 84. The Assembly Judiciary Committee evidently found the Department of Justice memorandum to be persuasive and incorporated the Department's proposed language nearly verbatim into Assembly Amendment l.⁶¹ The Amendment provided that a read-in crime is a crime "that the defendant agrees to be considered by the court at the time of sentencing."⁶²

¶ 85. The language of Assembly Amendment 1 is the language ultimately enacted as the statutory definition of "read-in crime" in the restitution statute. The statutory definition of "read-in crime," enacted by the legislature in 1995 Wisconsin Act 141 and now set forth in Wis. Stat. § 973.20(lg)(b), makes no reference to any sort of admission, whether actual or deemed. Wisconsin Stat. § 973.20(lg)(b) defines "read-in crime" as a crime "that the defendant agrees to be considered by the court at the time of sentencing." The statutory definition of "read-in" crime for purposes of restitution is as follows:

"Read-in crime" means any crime that is uncharged or that is dismissed as part of a plea agreement, that the defendant agrees to be considered by the court at the time of sentencing and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted.

¶ 86. Although not requiring that a defendant admit guilt to a read-in charge (or be deemed to have admitted guilt to the read-in charge) for purposes of sentencing, the statutory definition of "read-in crime" does not bar a circuit court from accepting a plea agreement involving the defendant's admission of guilt of a read-in charge.

¶ 87. The statutory "read-in crime" definition appears in the criminal restitution statute, Wis. Stat. § 973.20, and is additionally incorporated by reference into the statute governing victim statements to be made before sentencing (§ 972.14(3)) and the statute governing sentencing restrictions on contact with victims of, or co-actors in, crimes (§ 972.049). These statutes, like § 973.20(lg)(b) defining "read-in crime," do not at any point refer to a "read-in crime" as a crime that the defendant admits or that the defendant is deemed to have admitted as a matter of law.

¶ 88. Subsequent to Cleaves and to the legislature's enactment of a statutory definition for "read-in crime," this court has not necessarily been consistent in describing read-in offenses.

¶ 89. For example, in State v. Floyd, 2000 WI 14, ¶ 25, 232 Wis. 2d 767, 606 N.W.2d 155, we cited Cleaves in support of the position that "[r]ead-ins constitute admissions by the defendant to those charges" (emphasis added). In State v. Martel, 2003 WI 70, ¶ 26, 262 Wis. 2d 483, 664 N.W.2d 69, we appear to have described read-ins as involving an actual admission, stating that Szarkowitz held for purposes of the restitution statute that read-in charges applied to crimes "admitted, dismissed, and read-in at sentencing for the crime of conviction" (emphasis added). Similarly, in State v. Lackershire, 2007 WI 74, ¶ 27 n.7, 734 N.W.2d 23, we cited Austin and stated that "[w]hen charges are read in during sentencing, the defendant admits to having committed the underlying crimes... " (emphasis added).

¶ 90. In Robinson v. West Allis, 2000 WI 126, ¶ 42, 239 Wis. 2d 595, 619 N.W.2d 692, the court stated that "[r]ead-in charges have historically served a limited function" and that although they have a preclusive effect of barring a State from future prosecution of the read-in charges, read-in charges "are not otherwise treated as adjudications of guilt."⁶³ The Robinson court further stated that "[consideration of read-in charges during sentencing is not tantamount to actual litigation of the underlying issues. The sentencing court performs no adjudication of the read-in charges .... "⁶⁴

¶ 91. In sum, the case law and the restitution statute suggest three different descriptions of the read-in procedure: (1) Austin's and Gerard's description of a procedure involving (though not necessarily requiring) the defendant's actual admission to the read-in charge for sentencing purposes; (2) the Cleaves (and perhaps Szarkowitz) rule that "[i]n the absence of any objections to ... crimes being read in, the court may assume that the defendant admits them for purposes of being considered at sentencing";⁶⁵ and (3) the statutory definition (and the description in cases such as Embry and Martinkoski) making no reference to an admission of the read-in crimes but describing only the effect of a read-in crime, namely that the read-in charge may be considered at sentencing and that the State is barred from future prosecution on the read-in charge. The State asserts, and our research appears to confirm, that Wisconsin would stand alone among the states should this court conclude that a defendant must admit guilt or be deemed to admit guilt for purposes of sentencing when he agrees to a read-in charge.

¶ 92. In reading Austin, the subsequent cases, and the criminal restitution statute defining a read-in charge, we conclude that Wisconsin's read-in procedure does not require a defendant to admit guilt of a read-in charge for purposes of sentencing and does not require a circuit court to deem the defendant to admit as a matter of law to the read-in crime for purposes of sentencing. A circuit court should not deem a defendant's agreement to have a charge read in for consideration at sentencing and dismissed on the merits to be an admission of guilt of the read-in charge for purposes of sentencing.

¶ 93. Except when a defendant does in fact admit guilt of a read-in charge, stating that a defendant "admits guilt" of a read-in charge for purposes of sentencing is more likely to confuse than to guide the decisions made by a defendant or a sentencing court. It is a better practice for prosecuting and defense counsel and circuit courts to omit any reference to a defendant admitting a read-in crime, except when the defendant does admit guilt, and simply to recognize that a defendant's agreement to read in a charge affects sentencing in the following manner: a circuit court may consider the read-in charge when imposing sentence but the maximum penalty of the charged offense will not be increased;⁶⁶ a circuit court may require a defendant to pay restitution on the read-in charges;⁶⁷ and a read-in has a preclusive effect in that the State is prohibited from future prosecution of the read-in charge.⁶⁸

¶ 94. To avoid any confusion, prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid (as they did in the instant case) the terminology "admit" or "deemed admitted" in referring to or explaining a defendant's agreement to read in charges.

¶ 95. We withdraw language in the case law that may be read as intimating that when a charge is read in a defendant must admit or is deemed to admit the read-in charge for sentencing purposes.

‡ ‡ $

¶ 96. We conclude that the record clearly demonstrates that neither the State, nor trial defense counsel, nor the circuit court referred to the read-in charges as admitted or deemed admitted for sentencing purposes or for any other purpose. Nowhere in the plea questionnaire, in the transcript of the plea hearing, or in the transcript of the sentencing hearing did the State, trial defense counsel, or the circuit court refer to the read-in charges as admitted or deemed admitted. Rather, the circuit court explicitly advised the defendant at sentencing (and repeated this explanation at the postcon-viction motion hearing) that it understood that the defendant was not admitting the read-in charge and that the circuit court would consider the read-in charge for purposes of sentencing the defendant on the charge to which the defendant pled guilty. Because the circuit court did not consider the read-in charge to have been admitted for sentencing purposes, we conclude that the defendant has failed to show that his guilty plea was not entered knowingly, intelligently, and voluntarily when he asserts that he was unaware that his agreement to have a sexual assault charge read in was an admission of the read-in charge for purposes of sentencing.

¶ 97. Although the case law on read-in charges is neither consistent nor clear, a proper reading of the history of Wisconsin's read-in procedure demonstrates that it is not a critical component of a read-in charge that the defendant admit guilt to a read-in charge (or that the defendant's agreement to read in the charge be deemed an admission of guilt) for purposes of sentencing. In sum, no admission of guilt from a defendant for sentencing purposes is required (or should be deemed) for a read-in charge to be considered for sentencing purposes and to be dismissed. To avoid confusion, prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid (as they did in the instant case) the terminology "admit" or "deemed admitted" in referring to or explaining a defendant's agreement to read in charges. A circuit court should advise a defendant that it may consider read-in charges when imposing sentence but that the maximum penalty of the charged offense will not be increased; that a circuit court may require a defendant to pay restitution on any read-in charges; and that the State is prohibited from future prosecution of the read-in charge.

¶ 98. For the reasons set forth, we affirm the decision of the court of appeals affirming the circuit court's order denying the defendant's motion to withdraw his guilty plea.

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

COREESPOMDENCE/MEMORMIDDM

DEPARTMENT OF JUSTICE

Date: August 11, 1995

To: Assembly Judiciary Committee

From: Andy Cohn Executive Assistant

Subject: AB 467

The following is the text of a memo drafted by our criminal litigation attorneys listing departmental concerns. Thank you for your attention to this matter:

AB 467 is an attempt to codify the decision in State v. Szarkowitz, 157 Wis. 2d 740 (Ct. App. 1990), which held that a court could order restitution for road-in offenses.

While there is no problem with the general purpose of the statute there are some technical problems with the language used regarding the definition of read-in offenses.

The proposed statutory definition is:

[A]ny crime that is uncharged, that the defendant admits to having committed and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted.

First, as "read-in crime" is defined as any crime that is "uncharged" it creates confusion in light of the normal practice of dismissing charged offenses and reading them in for purposes of sentencing. The existing language would appear to exclude such offenses from being considered for restitution, or at least allow the argument to be raised on appeal. Thus, a change in the language would be necessary to accurately reflect the traditional read-in procedure.

Second, the statute also defines read-in crime as any crime that the defendant "admits to having committed." This language would appear to require that the defendant personally and specifically admit to the read-in offense in order for it to be considered at sentencing for restitution.

However, this is inconsistent with the law on read-in offenses. As stated in Szarkowitz, "When a defendant agrees to the crimes being read in at sentencing, he makes an admission that he committed those crimes." Szarkowitz. 157 Wis. 2d at 753. The question is only whether the defendant agreed to the crimes being read-in. szarkowitz, 157 Wis. 2d at 753. Thus, where a defendant

Matt Frank August 11, 1995 Page 2

agrees to the read-in offenses he is presumed to have admitted the charges.

The issue of whether a personal admission is required was raised in State v. Cleaves, 181 Wis. 2d 73 (Ct. App. 1993). In that case the defendant argued that restitution on the read-in offenses was improper as he did not personally admit to the offenses. Cleaves, 181 Wis. 2d at 77. The court rejected this argument and held that restitution was proper as the defendant had agreed to the read-ins. Cleaves, 1B1 wis. 2d at 80. However, the court also stated in a footnote that "we suggest that trial courts in the future ask the defendant if there is an admission to the read-in charge for purposes of sentencing consideration. We believe that this is the better practice.'' Cleaves, 181 Wis. 2d at 80, n.l. A similar challenge can be expected to the proposed new statute.

My concern is that if prosecutors and courts do not always ask a defendant to admit the read-in charges, even if restitution is not sought, then a special effort will have to be made when restitution is sought to seek this personal admission. This dual practice may result in some needless confusion. On the other hand, if a personal admission is desirable then the statute does not present a problem. However, as the colloquy suggested in Cleaves is not required this still may result in confusion as a personal admission, would only be required in restitution, cases. It is only where a standard practice exists, such as requiring a personal admission to all read-in offenses, that any possible confusion is eliminated.

Some proposed language to deal with the perceived problems is as follows:

"Read-in crime" means any crime that is uncharged or which is dismissed as part of a plea agreement, that the defendant agrees to be considered by the court at sentencing and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted.

DOJ should support the proposed bill with the suggested changes. First, allowing for dismissed read-in charges to be considered for restitution. Second, to change the "admits" language to reflect that a personal admission is not required, as opposed to simply agreeing that the charges be read-in.

1 State v. Straszkowski, No. 2006AP64-CR, unpublished slip op. (Wis. Ct. App. Sept. 12, 2006).

2 All further references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.

3 "When a guilty plea is not knowing, intelligent, and voluntary, a defendant is entitled to withdraw the plea as a matter of right because such a plea violates fundamental due process." State v. Brown, 2006 WI 100, ¶ 19, 293 Wis. 2d 594, 716 N.W.2d 906 (citation and internal quotation marks omitted).

4 In the present case, the defendant does not assert that the plea was entered into involuntarily.

5 The concurrence concludes that a defendant's agreement to read in a charge for consideration at sentencing may be deemed an admission of guilt of the read-in charge for sentencing purposes. Concurring op., ¶ 1. The concurrence also seems to conclude that the circuit court has no plea colloquy duties with respect to the defendant's deemed admission of guilt, although the concurrence opines that the "best practice" is for the circuit court to inform the defendant about the admission. Id., ¶ 15.

6 The form is Form CR-227 adopted by the Judicial Conference pursuant to Wis. Stat. §§ 971.025 and 758.18(1).

7 "During the course of a plea hearing, the [circuit] court must address the defendant personally and... (2) Ascertain whether any promises... were made in connection with the defendant's anticipated plea...." Brown, 293 Wis. 2d 594, ¶ 35 (citing State v. Bangert, 131 Wis. 2d 246, 262, 389 N.W.2d 12 (1986)).

WIS JI — Criminal SM-32, which has been cited repeatedly with approval by this court and which this court has urged circuit courts to follow, states: "If there is a plea agreement, put it on the record and establish the defendant's understanding of the agreement."

8 Although both the dismissed sexual assault charge and the dismissed worthless check charge were read in for sentencing purposes, the defendant did not challenge the circuit court's read-in of the dismissed worthless check charge. There is no evidence in the record that the circuit court considered the dismissed worthless check charge when sentencing the defendant.

Before this court, the defendant similarly limits his challenge to the circuit court's read-in of the dismissed sexual assault charge.

9 The record indicates that each of these charges was later dismissed.

10 State v. Lackershire, 2005 WI App 265, ¶ 15, 288 Wis. 2d 609, 707 N.W.2d 891 (footnote omitted).

11 State v. Lackershire, 2007 WI 74, ¶ 28 n.8, 301 Wis. 2d 418, 734 N.W.2d 23 (citation and internal quotation marks omitted).

12 Id

13 Id.

14 State v. Thomas, 2000 WI 13, ¶ 16, 232 Wis. 2d 714, 605 N.W.2d 836.

15 Brown, 293 Wis. 2d 594, ¶ 18.

16 Lackershire, 301 Wis. 2d 418, ¶ 24.

¹⁷

18 We accept the defendant's assertion that he did not understand his agreement to have the sexual assault charge read in and considered for sentencing purposes to be an admission that he was guilty of the read-in charge. Trial defense counsel acknowledged at the postconviction hearing that he did not explain the read-in agreement to the defendant as constituting an admission of guilt and further acknowledged that the defendant consistently denied that he was guilty of the read-in charge. The record also shows that the defendant never made any statement, or agreed to any statement, suggesting that the read-in charge was an offense that the defendant had actually committed. Furthermore, at the sentencing hearing the defendant stated, through his counsel, that he was innocent of the read-in charge.

19 State v. Howell, 2007 WI 75, ¶ 2, 301 Wis. 2d 350, 734 N.W.2d 48; State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996); Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972).

20 State v. Leitner, 2002 WI 77, ¶ 45, 253 Wis. 2d 449, 646 N.W.2d 341.

See also State v. McQuay, 154 Wis. 2d 116, 126, 452 N.W.2d 377 (1990) ("Evidence of unproven offenses involving the defendant may be considered by the court for" the purpose of "determining the character of the defendant and the need for his incarceration and rehabilitation."); Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 559 (1980) ("[T]he trial court in imposing sentence for one crime can consider other unproven offenses, since those other offenses are evidence of a pattern of behavior which is an index of the defendant's character, a critical factor in sentencing.") (citations omitted).

21 At the hearing on the defendant's motion to withdraw his plea, the circuit court again explained that it had not looked to the read-in charge or the charges pending in another county "as things that definitively happened," but that the court was rather "looking at those matters as [the defendant] continually placing himself in a situation where he is associating with underage persons sufficiently that they know who he is and for some reason would make these types of allegations against him."

The defendant also argues that although the circuit court acknowledged that the defendant denied guilt of the read-in charge, the court identified this denial as a factor weighing in favor of more severe punishment. The defendant appears to suggest a relationship between the circuit court's acknowledgment that "[t]here is some denials [sic] with regard to the read-in" and the court's immediately preceding discussion of the defendant's "blame-shifting issues."

The record does not bear out the defendant's claim. The transcript is clear that the circuit court did not adduce the defendant's protestation of innocence in regard to the read-in charge as an instance of blame-shifting. In discussing the defendant's blame-shifting issues, the court cited the presen-tence investigation, which criticized the defendant for attempting to shift moral blame and responsibility to the victim of the sexual assault to which the defendant pled guilty. The circuit court's discussion of blame-shifting very clearly regarded the defendant's failure to accept moral responsibility for the conduct that resulted in the defendant's conviction, not the defendant's failure to admit guilt to charges of which the defendant was not convicted.

22 Garski v. State, 75 Wis. 2d 62, 75, 248 N.W.2d 425 (1977).

23 Id. at 76.

24 Id. at 77 (citing Austin v. State, 49 Wis. 2d 727, 183 N.W.2d 56 (1971)).

25 Garski, 75 Wis. 2d at 77.

26 Id. at 73-74. Garski's caution was based on a similar caution in Austin v. State, 49 Wis. 2d 727, 734, 183 N.W.2d 56 (1971), which we discuss later. Garski declared that in the absence of a statute allowing for restitution when a sentence of imprisonment is imposed, a trial court could not order restitution for the three offenses for which the trial court imposed a sentence of imprisonment but could, in imposing probation for the fourth charged offense, order restitution for a read-in offense as a condition of probation.

27 Cleaves, 181 Wis. 2d at 80 n.1, 510 N.W.2d 143 (Ct. App. 1993).

²⁸

29 Whether alleged deficiencies in the plea colloquy establish a violation of the circuit court's mandatory duties at a plea hearing is a question of law that we review independently of the circuit court and court of appeals but benefiting from those courts' analyses. Brown, 293 Wis. 2d 594, ¶ 21.

30 Brown, 293 Wis. 2d 594, ¶ 35 (citations omitted).

31 Leitner, 253 Wis. 2d 449, ¶ 45 ("In Wisconsin, sentencing courts are obliged to acquire the full knowledge of the character and behavior pattern of the convicted defendant before imposing sentence.") (quotation marks and citation omitted); State v. Arredondo, 2004 WI App 7, ¶ 53, 269 Wis. 2d 369, 674 N.W.2d 647 (explaining that there is a "well-recognized distinction between the fact-finder's function at the guilt stage, where the fact-finder must determine whether the government has proved a defendant's guilt beyond a reasonable doubt, and the sentencing judge's role, which is to assess the defendant's character using all available information, unconstrained by the rules of evidence that govern the guilt-phase of a criminal proceeding.") (citation omitted); Wis. Stat. § (Rule) 911.01(4)(c) (providing that the rules of evidence are inapplicable to sentencing proceedings).

32 In a Nelson/Bentley argument, a defendant's challenge to a guilty plea is based not on the inadequacies of the plea colloquy, but instead on factors extrinsic to the plea colloquy. At a non-Bangert postconviction hearing, the defendant has the burden to prove by clear and convincing evidence that his or her plea was not entered knowingly, intelligently, and voluntarily. Hampton, 274 Wis. 2d 379, ¶¶ 62-63.

33 We use the term "read-in charge" interchangeably with the terms "read-in offense" and "read-in crime." Our decisions traditionally have referred both to "read-in charges" and "read-in offenses" without drawing a distinction between these two terms. See Lackershire, 2007 WI 74, 301 Wis. 2d 418, 734 N.W.2d 23; State v. Martel, 2003 WI 70, 262 Wis. 2d 483, 664 N.W.2d 69; Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d 595, 619 N.W.2d 692; State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155; In Interest of R.W.S., 162 Wis. 2d 862, 471 N.W.2d 16 (1991); Austin v. State, 49 Wis. 2d 727, 183 N.W.2d 56. Some decisions also use the term "read-in crime" without ■ distinguishing this term from "read-in charge" or "read-in offense." See Robinson, 239 Wis. 2d 595; Floyd, 232 Wis. 2d 767.

The defendant's read-in agreement in the present case was phrased as an agreement to read in a "charge." The defendant's Plea Questionnaire/Waiver of Rights form (Form CR-227, the standard form used in Wisconsin) refers to "read-in charges." At the plea hearing, defense counsel and the circuit court each used the term "charge" when discussing the read-in.

The legislature has chosen to employ the term "read-in crime." See Wis. Stat. § 973.20(lg)(b). We do not interpret the legislature's use of the term "read-in crime" as a rejection of this court's case law using the terms "read-in charge"' and "read-in offense" interchangeably with each other and with the legislature's term "read-in crime."

34 Austin v. State, 49 Wis. 2d 727, 729, 183 N.W.2d 56 (1971).

³⁵

36 Id. at 732 (emphasis added).

37 Id. at 730.

38 Pulaski v. State, 23 Wis. 2d 138, 139-40, 126 N.W.2d 625 (1964) (emphasis added).

Pulaski's brief stated that the court demanded that Pulaski provide "full and open disclosure" involving the uncharged offenses in order to avoid facing "the maximum sentence in each case consecutively." The State's brief in Pulaski further asserted that Pulaski had "admitted his involvement" in the uncharged burglaries to the police.

39 Austin, 49 Wis. 2d at 733 (emphasis added).

According to the Austin court, the Model Penal Code provided as follows:

When the defendant has asked that other crimes admitted in open court he taken into account when he is sentenced and the Court has not rejected such request, the sentence shall bar the prosecution or conviction of the defendant in this state for any such admitted crime.

Austin, 49 Wis. 2d at 732 n.2 (quoting Model Penal Code, § 7.05(4)) (emphasis added).

Model Penal Code § 7.03(4) (1985) provides that a court may sentence a convicted felon to an extended term of imprisonment if it finds that the defendant "is a multiple offender whose criminality was so extensive that a sentence of imprisonment for an extended term is warranted." Section 7.03(4) additionally provides that the court may not make such a finding unless certain conditions obtain, including the condition that "the defendant admits in open court the commission of one or more felonies and asks that they be taken into account when he is sentenced."

Model Penal Code § 7.04(4) (1985) establishes a similar procedure for convicted misdemeanants.

40 Austin, 49 Wis. 2d at 733.

41 Id. at 734.

42 State v. Gerard, 57 Wis. 2d 611, 614, 205 N.W.2d 374 (1973).

43 Id. at 620.

⁴⁴

⁴⁵

46 State v. Szarkowitz, 157 Wis. 2d 740, 743, 460 N.W.2d 819 (Ct. App. 1990).

47 Id. at 746, 754.

48 Id. at 753 (quoting Austin, 49 Wis. 2d at 732) (emphasis in Szarkowitz).

49 Szarkowitz, 157 Wis. 2d at 753.

50 Cleaves, 181 Wis. 2d at 80 (emphasis added).

51 Id. at 79 (emphasis added).

52 Id. at 80 n.l.

53 Id. at 80 (Nettesheim, J., concurring).

54 Id. at 80-81 (Nettesheim, J., concurring).

55 Martinkoski v. State, 51 Wis. 2d 237, 248, 186 N.W.2d 302 (1971).

56 Martinkoski, 51 Wis. 2d at 248.

57 See the State's brief in Martinkoski at App. 101-02.

58 Embry v. State, 46 Wis. 2d 151, 157-58, 174 N.W.2d 521 (1970).

59 1995 A.B. 467, § 3, LRB-0353/1 (emphasis added).

The Legislative Reference Bureau analysis appearing on the bill's first page further stated that "[r]ead-in crimes are crimes that are not charged, but they are crimes that the defendant admits to and that the court considers when sentencing the defendant."

The analysis also states that the bill was intended to codify the court of appeals' holding in Szarkowitz that courts may require a convicted criminal defendant to pay restitution to the victim of a read-in crime. Analysis by the Legislative Reference Bureau, 1995 A.B. 467, LRB-0353/1.

60 See Correspondence/Memorandum: Department of Justice, Aug. 11, 1995, in Bill Drafting File 1995 Wis. Act 141 (available at Wis. Legislative Reference Bureau, 1 East Main St., Madison, Wis.).

61 Assembly Amendment 1 was offered by the Assembly Judiciary Committee.

62 Assembly Amendment 1 to 1995 A.B. 467.

63 The Robinson court quoted Austin, 49 Wis. 2d at 732: "Read-in offenses are not prior convictions and cannot be used under sec. 973.12, the repeater statute." Robinson v. West Allis, 2000 WI 126, ¶ 42, 239 Wis. 2d 595, 619 N.W.2d 692.

64 Robinson, 239 Wis. 2d 595, ¶ 43.

65 Cleaves, 181 Wis. 2d at 80.

66 Austin, 49 Wis. 2d at 732 (cited with approval in Robinson, 239 Wis. 2d 595 ¶ 42).

67 Wis. Stat. § 973.20(lg) &(lr) (cited in Robinson, 239 Wis. 2d 595, ¶ 42).

68 State v. Floyd, 2000 WI 14, ¶ 25, 232 Wis. 2d 767, 606 N.W.2d 155 (cited with approval in Robinson, 239 Wis. 2d 595 ¶ 42).