State v. Bollig

Decision Date04 February 2000
Docket NumberNo. 98-2196-CR.,98-2196-CR.
Citation2000 WI 6,605 N.W.2d 199,232 Wis.2d 561
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. George R. BOLLIG, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there were briefs by Thomas E. Knothe and Collins, Quillin & Knothe, Ltd., LaCrosse, and oral argument by Thomas E. Knothe.

For the plaintiff-respondent the cause was argued by William C. Wolford, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. ANN WALSH BRADLEY, J.

The petitioner, George Bollig, seeks review of a published decision of the court of appeals affirming the circuit court's denial of his motion to withdraw his plea.1 Bollig contends that his no contest plea to attempted sexual assault was unknowingly made because the circuit court failed to inform him of the registration requirement for sex offenders and failed to advise him of one of the essential elements of the offense.

¶ 2. He further asserts that the circuit court erroneously exercised its discretion in concluding that the plea withdrawal would substantially prejudice the State and that the court of appeals erred in assigning to the defendant the burden of proving lack of substantial prejudice. Because we conclude that Bollig's plea was knowingly and intelligently made, that the circuit court did not place on Bollig the burden of proving lack of substantial prejudice, and that the circuit court properly exercised its discretion, we affirm the court of appeals.

¶ 3. For the purposes of this appeal, the facts are undisputed. George Bollig was initially charged in a criminal complaint with one count of having sexual contact with a person under the age of thirteen in violation of Wis. Stat. § 948.02(1) (1995-96).2 On the morning of the scheduled trial date, the State offered to amend the charge to attempted sexual contact with a child under the age of thirteen in violation of Wis. Stat. §§ 939.32(1) and 948.02(1). Bollig accepted the State's offer and signed a plea questionnaire and waiver of rights form.

¶ 4. The court then engaged in a colloquy with Bollig, informing him of the implications of his no contest plea. It outlined two elements of the offense: that Bollig attempted to have sexual contact with the victim and that the victim was under the age of thirteen. However, the court failed to inform Bollig of the third element: that his actions must have been committed for the purpose of sexual gratification.

¶ 5. The plea questionnaire listed all three elements of the offense. The court inquired whether Bollig had read and understood the questionnaire after having reviewed it with his attorney. In addition, the court asked Bollig's attorney whether he was satisfied that Bollig was entering his plea knowingly and voluntarily. All of these questions elicited affirmative responses. Bollig then entered a no contest plea, and the court scheduled a sentencing hearing. ¶ 6. At the time the plea was entered, Bollig was not informed that he would be required to register as a convicted sex offender under Wis. Stat. § 301.45. This statute requires sex offenders to register with the Department of Corrections and provide their name, address, physical description, place of employment or school, and the offenses for which they were convicted. Failure to register subjects the offender to both fine and imprisonment. Wis. Stat. § 301.45(6).

¶ 7. Prior to sentencing, Bollig filed a motion to withdraw his no contest plea on the basis that it was not entered knowingly, voluntarily, or intelligently. Bollig stated that he felt coerced on the day he made his plea, that he did not commit the crime with which he was charged, and that he had entered the plea agreement in order to spare the victim the trauma of testifying. The circuit court denied Bollig's motion to withdraw his plea and allowed his attorney to withdraw as counsel.

¶ 8. Upon the assignment of new counsel, Bollig filed another motion to withdraw his plea. The court deferred action on the motion as a result of his request to dismiss his new attorney. While awaiting the appointment of new counsel, Bollig filed a pro se motion, but the court took no action on that motion.

¶ 9. Bollig's fourth motion to withdraw his plea, this time through a new attorney, stated that at the time he entered his plea, he was not advised that he would be required to register as a convicted sex offender under Wis. Stat. § 301.45(1)(a), subjecting him to criminal charges if he did not comply with the requirement. Bollig argued that the registration requirement constituted punishment and that prior to accepting his plea, the court was required to advise him of this direct consequence of the plea. The court disagreed and denied Bollig's motion.

¶ 10. Bollig was then sentenced to ten years imprisonment on the charge. He subsequently appealed the denial of his fourth motion to withdraw his plea. The court of appeals affirmed the circuit court's decision to deny Bollig's motion. Although the court of appeals recognized that the circuit court had not properly informed Bollig of one of the essential elements of his offense, it concluded that the State had proven by clear and convincing evidence that Bollig was nevertheless aware of the nature of his offense.

¶ 11. In addition, the court of appeals concluded that because registration under Wis. Stat. § 301.45 did not constitute punishment, the circuit court was not required to advise Bollig of the requirement. Finally, the court determined that even if Bollig's lack of knowledge regarding the registration requirement presented a "fair and just" reason for plea withdrawal, he failed to demonstrate an absence of substantial prejudice to the State. Thus, the court of appeals concluded that the circuit court properly denied the motion for plea withdrawal.

¶ 12. Bollig presently raises four issues on review. First, he contends that the circuit court's failure to inform him of the registration requirement rendered his plea unknowing and unintelligent. Next, he submits that the State bears the burden of proving substantial prejudice once a defendant has presented a fair and just reason for plea withdrawal. Bollig further submits that the court erroneously exercised its discretion in concluding that the plea withdrawal would substantially prejudice the State. Finally, Bollig contests the determination that he was aware of the nature of his offense notwithstanding the circuit court's failure to discuss one of the essential elements of the offense during the plea colloquy.

[1, 2]

¶ 13. On appellate review, the issue of whether a plea was knowingly and intelligently entered presents a question of constitutional fact. State v. Van Camp, 213 Wis. 2d 131, 140, 569 N.W.2d 577 (1997). We will not upset the circuit court's findings of historical or evidentiary facts unless they are clearly erroneous. Id. We review constitutional issues independently of the determinations rendered by the circuit court and the court of appeals. State v. Harvey, 139 Wis. 2d 353, 382, 407 N.W.2d 235 (1987).

[3, 4]

¶ 14. We must also determine whether the circuit court properly denied Bollig's motion to withdraw his plea. A circuit court's discretion to allow a plea withdrawal prior to sentencing will be sustained unless the court erroneously exercised its discretion. State v. Garcia, 192 Wis. 2d 845, 861, 532 N.W.2d 111 (1995). The remaining burden of proof issue presents a question of law that we review independently of the opinions of the circuit court and court of appeals. Ranes v. American Family Mut. Ins. Co., 219 Wis. 2d 49, 54, 60, 580 N.W.2d 197 (1998).

I.

[5]

¶ 15. First we address whether the circuit court's failure to inform Bollig of his requirement to register as a sex offender under Wis. Stat. § 301.45(1)(a) rendered his plea unknowing and unintelligent. It is well established that a guilty or no contest plea must be knowingly, voluntarily, and intelligently entered. Boykin v. Alabama, 395 U.S. 238, 242 (1969); State v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986). Bollig's plea must be withdrawn as a matter of right if the circuit court was required to inform him of the registration requirement and failed to do so. Van Camp, 213 Wis. 2d at 139.

[6, 7]

¶ 16. Courts are constitutionally required to notify defendants of the "direct consequences" of their pleas. Brady v. United States, 397 U.S. 742, 755 (1970); State v. James, 176 Wis. 2d 230, 238, 500 N.W.2d 345 (Ct. App. 1993). A direct consequence represents one that has a definite, immediate, and largely automatic effect on the range of defendant's punishment. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 636, 579 N.W.2d 698 (1998). In contrast, defendants do not have a due process right to be informed of the collateral consequences of their pleas. Id.; State v. Santos, 136 Wis. 2d 528, 531, 401 N.W.2d 856 (Ct. App. 1987). Wisconsin Stat. § 971.08 represents the statutory codification of the constitutional mandate that a plea be knowing, voluntary, and intelligent and requires that a defendant be aware before entering a plea of the potential punishment upon conviction. In essence, we must determine whether the registration requirement constitutes punishment.

¶ 17. Whether sex offender registration is punishment, and hence a direct consequence of a plea, represents an issue of first impression in this state. However, a number of other states have tackled this issue, some in the context of pleas and others in the context of ex post facto and double jeopardy analyses.

¶ 18. Of the states that have addressed whether registration of sex offenders is punishment, all but one have answered in the negative.3 Despite variations in the classification of sex offenders, extent of public notification, exemption opportunities, period of mandatory registration, and the crimes to which registration is applicable, ...

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