State v. Andersen, 97-3157-CR
| Decision Date | 20 January 1999 |
| Docket Number | No. 97-3157-CR,97-3157-CR |
| Citation | 590 N.W.2d 281,224 Wis.2d 642 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Julian ANDERSEN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment and an order of the circuit court for Waukesha County: Lee S. Dreyfus, Jr., Judge.
Before SNYDER, P.J., BROWN and ANDERSON, JJ.
Julian Andersen has appealed from a judgment convicting him upon pleas of no contest of three counts of first-degree sexual assault of a child in violation of § 948.02(1), STATS. He was sentenced to three consecutive prison terms of thirty years each. He has also appealed from an order denying his motion for postconviction relief. He raises the following issues: (1) whether the trial court erroneously exercised its discretion by denying his presentence motion to withdraw his no contest pleas, (2) whether the trial court erroneously exercised its discretion in denying his postsentencing motion to withdraw his pleas, (3) whether counts four and five of the information were multiplicitous, and (4) whether he is entitled to resentencing.
We conclude that Andersen is entitled to be resentenced based upon the State's breach of the portion of the plea agreement related to sentencing. We therefore reverse the portion of the judgment sentencing him to ninety years in prison and the portion of the order denying postconviction relief from the sentence. We affirm the remainder of the judgment and order and remand the matter for resentencing.
We address Andersen's multiplicity claims first. Charges are multiplicitous if they are identical in law and fact. See State v. Davis, 171 Wis.2d 711, 716, 492 N.W.2d 174, 176 (Ct.App.1992). Because counts four and five of the information both charged Andersen with violations of § 948.02(1), STATS., those charges are the same in law. See Davis, 171 Wis.2d at 716, 492 N.W.2d at 176. However, whether they are the same in fact depends upon whether one count requires proof of an additional fact which the other does not. See id. Offenses are different in fact if they are either separated in time or are significantly different in nature or if each involves a separate volitional act. See id. at 717, 492 N.W.2d at 176. Separate volitional acts occur when there is sufficient time between the acts for the defendant to reflect upon his or her actions and recommit himself or herself to the criminal activity. See id. at 717-18, 492 N.W.2d at 176.
While the acts charged in this case may have occurred as part of the same episode as alleged by Andersen, they were also significantly different in nature. Count four alleged that Andersen had sexual contact with the victim by requiring her to touch his penis with her hand. Count five alleged that Andersen had sexual intercourse with the victim by requiring her to perform fellatio on him.
Sexual contact and sexual intercourse constitute separate means of violating § 948.02, STATS., a factor relevant to whether they are different in fact. See State v. Bergeron, 162 Wis.2d 521, 534-35, 470 N.W.2d 322, 327 (Ct.App.1991). Moreover, each of Andersen's acts involved different body parts of the victim and contacts which were different in nature and character. Each involved a separate volitional act by Andersen which, as related in the complaint, were separated by Andersen's act of requiring the victim to sit on him so he could fondle her. Each also resulted in a new and different humiliation of the victim and a new violation of her integrity. As such, they were different in fact for purposes of the multiplicity test. See id.; State v. Eisch, 96 Wis.2d 25, 36-37, 291 N.W.2d 800, 805-06 (1980).
Charges which are the same in law but different in fact may still be multiplicitous if the legislature intended that only a single count should be charged. See State v. Carol M.D., 198 Wis.2d 162, 173, 542 N.W.2d 476, 480 (Ct.App.1995). However, when charges satisfy the test of being different in law or fact, then this court must presume that the legislature intended to permit cumulative punishments. See id. In cases like this involving separate volitional sexual assaults, it is well settled that the legislature intended to permit separate punishments. See Bergeron, 162 Wis.2d at 535-36, 470 N.W.2d at 328. Andersen's multiplicity argument therefore fails.
We next address Andersen's motions to withdraw his no contest pleas. Andersen contends that he should have been permitted to withdraw his no contest pleas prior to sentencing because he consistently maintained his innocence to the three counts and pled no contest only because he was concerned about how a trial would affect the victim and his family. He also contends that he had a history of depression and that his mental state clouded his judgment.
A trial court order denying a motion to withdraw a no contest plea will be sustained by this court unless the trial court erroneously exercised its discretion. See State v. Garcia, 192 Wis.2d 845, 861, 532 N.W.2d 111, 117 (1995). Prior to sentencing the trial court should freely allow a defendant to withdraw his or her plea provided a fair and just reason exists for withdrawal and the State has not been substantially prejudiced by reliance on the plea. See id. However, "freely" does not mean automatically, and the defendant must show some adequate reason for the change of heart other than a desire to have a trial. See id. at 861-62, 532 N.W.2d at 117. The defendant has the burden of proving a fair and just reason by a preponderance of the evidence. See id. at 862, 532 N.W.2d at 117.
Andersen argues that the trial court confused the standard to be applied to a presentence motion to withdraw a plea with the postsentencing standard which requires the showing of a manifest injustice. See State v. Harrell, 182 Wis.2d 408, 414, 513 N.W.2d 676, 678 (Ct.App.1994). While it is true that the trial court cited some postsentencing plea withdrawal cases and language in denying Andersen's presentence motion, it also pointed out that it was required to give great consideration to the presentence request to withdraw the pleas, even though withdrawal was not automatic. In addition, it correctly and at length set forth the standard applicable to a presentence motion when it granted an adjournment of sentencing to permit Andersen to pursue the presentence motion. We are therefore not persuaded that the trial court misunderstood the standard.
In any event, it is clear from a review of Andersen's arguments and the trial court's response to them that the denial of relief was proper. While an assertion of innocence is an important factor in assessing a presentence motion, it is not dispositive. See State v. Shanks, 152 Wis.2d 284, 290, 448 N.W.2d 264, 266 (Ct.App.1989). Here, the trial court noted that statements by Andersen could be viewed simply as a minimization of his contact with the victim rather than as consistent and clear claims of innocence. Based upon its review of Andersen's responses during the plea colloquy, the Request to Enter Plea and Waiver of Rights form executed by him, and his prior experience with the legal system, the trial court also concluded that Andersen understood the meaning and effect of his no contest pleas, despite his subsequent assertions that his emotional state interfered with his judgment.
Whether the motion to withdraw was brought quickly or delayed after entry of the plea is also relevant. See id. In this case, Andersen did not raise the issue of withdrawal of his pleas until after he reviewed the presentence report, which recommended "a maximum" prison term. The trial court concluded that Andersen rethought the issue of his plea in light of this knowledge, but that his change of mind did not justify permitting him to withdraw his pleas. The trial court thus believed that the impetus for Andersen's motion was not the reasons asserted by him, but rather his concern that he would be subjected to a lengthy period of incarceration. Because the trial court's determinations were reasonable based upon the record, no fair and just reason for withdrawal existed and it properly denied the motion. See State v. Canedy, 161 Wis.2d 565, 585-86, 469 N.W.2d 163, 171-72 (1991).
We also uphold the trial court's denial of Andersen's postsentencing motion to withdraw his pleas. A court may accept a plea withdrawal following sentencing only if it is necessary to correct a manifest injustice. See State v. Rock, 92 Wis.2d 554, 558-59, 285 N.W.2d 739, 741-42 (1979). Andersen contends that a manifest injustice occurred because the trial court failed to establish a sufficient factual basis for his pleas at the time they were entered and because the State breached the plea agreement regarding sentencing.
In accepting a no contest plea, the trial court must ascertain that a factual basis exists to support it. See State v. Bangert, 131 Wis.2d 246, 262, 389 N.W.2d 12, 21 (1986). This requires a showing that the conduct which the defendant admits constitutes the offense charged. See White v. State, 85 Wis.2d 485, 488, 271 N.W.2d 97, 98 (1978). However, when as here the plea is entered "pursuant to a plea bargain, the court need not go to the same length to determine whether the facts would sustain the charge as it would where there is no negotiated plea." See Broadie v. State, 68 Wis.2d 420, 423-24, 228 N.W.2d 687, 689 (1975).
The State relied upon both the criminal complaint and a taped interview of the victim to establish a factual basis when Andersen entered his no contest pleas. While Andersen objected to the use of the taped interview, he consented to the use of the criminal complaint and information both at the hearing and in the Request to Enter Plea and Waiver of Rights form executed by him in conjunction with entering his pleas. The...
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