State v. Bollig

• Decision Date: 28 January 1999
• Docket Number: No. 98-2196-CR,98-2196-CR
• Citation: 593 N.W.2d 67,224 Wis.2d 621
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. George R. BOLLIG, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 67

593 N.W.2d 67

224 Wis.2d 621

STATE of Wisconsin, Plaintiff-Respondent, v.George R. BOLLIG, Defendant-Appellant. ^dNo. 98-2196-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 4, 1998.

Opinion Released Jan. 28, 1999.

Opinion Filed Jan. 28, 1999.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas E. Knothe of Collins, Quillin Knothe, Ltd., of La Crosse.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and William C. Wolford, assistant attorney general.

Before DYKMAN, P.J., EICH and VERGERONT, JJ.

DYKMAN, P.J.

George Bollig appeals from a judgment convicting him of attempted sexual contact with a child, contrary to §§ 939.32(1)and948.02(1), STATS, and from an order denying his request to withdraw his no contest plea.Bollig contends that he should have been permitted to withdraw his plea because it was not knowingly, voluntarily and intelligently entered.We disagree and affirm.

BACKGROUND

Bollig was initially charged with having sexual contact with a person under the age of thirteen, contrary to § 948.02(1), STATS., and a trial was scheduled for May 7, 1997.On the morning the trial was scheduled to begin, the court heard various pre-trial motions.After the trial court ruled on the motions, the State offered to charge Bollig with attempted sexual contact with a child under the age of thirteen, contrary to §§ 939.32(1)and948.02(1), STATS., if he agreed to enter a plea of no contest.Bollig accepted the State's offer and signed a plea questionnaire and waiver of rights form.After a brief colloquy, the trial court accepted Bollig's plea and scheduled a sentencing hearing.It also ordered a presentence investigation report.

Prior to sentencing, Bollig's attorney, Ronald Benavides, filed a motion to withdraw his client's no contest plea, asserting that it was not knowingly, voluntarily and intelligently entered.The motion stated that Bollig felt coerced on the day that he entered his plea that he did not do the crime, and that he entered into the plea agreement so as to spare the child victim the trauma of having to testify.The trial court held a hearing and gave Bollig an opportunity to explain why he wanted to withdraw his plea.The trial court ultimately denied the motion and allowed Benavides to withdraw as counsel.

On August 19, 1997, the court appointed Attorney Todd Bennett to represent Bollig.Attorney Bennett filed another motion to withdraw Bollig's plea, but the trial court did not consider that motion because Bollig requested that the court release Bennett as his attorney.The trial court ordered a continuance until the public defender could decide whether to appoint another attorney to represent Bollig.

On October 17, 1997, Bollig filed a pro se motion to withdraw his no contest plea, but the court took no action on that motion.On October 22, 1997, the trial court appointed Attorney Thomas Croke to represent Bollig.On December 15, 1997, Attorney Croke filed a motion to withdraw his client's no contest plea because the trial court did not advise Bollig at the plea colloquy that as a result of his conviction: (1)he might be determined in the future to be a sexual predator under ch. 980, STATS.; and (2)he would be required to register as a convicted sex offender under § 301.45(1)(a), STATS., and if he failed to do so, he could be fined and/or imprisoned under § 301.45(6).

On December 18, 1997, the trial court held a hearing on this motion.After reviewing the evidence, the trial court denied the motion and sentenced Bollig to ten years in prison for attempted sexual contact with a child under the age of thirteen.Bollig now appeals.

DISCUSSION

1.Essential Elements

Bollig contends that he should be permitted to withdraw his no contest plea because it was not knowingly, voluntarily and intelligently entered.The trial court is required to undertake a personal colloquy with the defendant at the plea hearing to assure that the defendant's plea is knowingly, voluntarily and intelligently made.See§ 971.08(1), STATS.A plea of no contest that does not conform to this standard violates fundamental due process, and may be withdrawn as a matter of right.SeeState v. Van Camp, 213 Wis.2d 131, 140, 569 N.W.2d 577, 582(1997).On appellate review, the issue of whether the plea was knowingly, voluntarily and intelligently entered is question of constitutional fact, which we review de novo.Seeid.

Under the procedure established by the supreme court in State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12(1986), we employ a two-part process to determine whether a defendant knowingly, voluntarily and intelligently entered a plea of no contest.We must first determine: (1) whether the defendant has made a prima facia showing that his plea was accepted without the trial court's conformance with § 971.08, STATS., ¹ and the other mandatory duties imposed by the supreme court; and (2) whether the defendant properly alleged that he or she did not know or understand the information that should have been provided at the plea hearing.Seeid. at 274, 389 N.W.2d at 26.If the defendant satisfies this requirement, the burden then shifts to the State to show by clear and convincing evidence that the defendant's plea was knowingly, voluntarily and intelligently entered, despite the inadequacy of the record at the time the plea was accepted.Seeid.

Bollig argues that the trial court did not comply with § 971.08(1)(a), STATS., because it did not inform him during the plea colloquy that the State had the burden of proving beyond a reasonable doubt that he attempted to engage in sexual contact with the victim for the purpose of sexually arousing or gratifying himself.²A plea is not voluntary if the defendant did not understand the essential elements of the charged offense at the time the plea was entered.SeeBangert, 131 Wis.2d at 267, 389 N.W.2d at 23.The essential elements of attempted sexual contact with a child under the age of thirteen are: (1)the defendant had sexual contact with the victim; (2) for the purpose of sexually arousing or gratifying the defendant or sexually degrading or humiliating the victim; and (3) the victim had not attained the age of thirteen years at the time of the alleged sexual contact.SeeWIS JI--CRIMINAL § 2103.

The following is the portion of the colloquy in which the trial court instructed Bollig on the essential elements of the underlying crime:

Court: All right.You understand also, sir, that the law is that the State of Wisconsin is required to prove your guilt beyond a reasonable doubt, you understand that?

Bollig: Yes I do.

Court: And that means the state would have to prove all of the elements of the offense beyond a reasonable doubt, I want to briefly outline the elements of the offense to you, elements of the offense of first degree sexual [assault] of a child are 2, first, that you had sexual contact, you would have had sexual contact with the child, secondly, that the child had not attained the age of 13 years at the time of the alleged contact, the allegation of the case that you did not actually commit the offense, but that you attempted to do so, so first the state would have to prove beyond a reasonable doubt that you intended to commit the crime of first degree sexual assault as outlined for you, secondly, that you did acts which demonstrated unequivocally under all circumstances that you intended to, would have committed the crime of sexual assault of a child, [except] for intervention of another person or some other factor.Now, sir, do you understand the elements of the offense of attempted sexual assault under age 13?

Bollig: Yes.

We conclude that the trial court's statement on essential elements did not comply with § 971.08(1)(a), STATS., because it did not instruct Bollig that his purpose or motive was an essential element of the crime.Bollig also alleges that he did not understand the rights he was waiving because the trial court failed to notify him of this essential element.Therefore, we are satisfied that he has made the requisite prima facie showing.

Once the defendant has made this initial showing, the burden shifts to the State to show by clear and convincing evidence that the plea was knowingly, voluntarily and intelligently entered, despite the inadequacy of the record at the time the plea was accepted.SeeBangert, 131 Wis.2d at 274, 389 N.W.2d at 26.The State may utilize any evidence which substantiates that the plea was knowingly and voluntarily made.Seeid.In short, the State bears the burden of establishing that Bollig knew and understood that in order to convict him, the State needed to prove that he engaged in sexual contact with the minor for his own sexual gratification or arousal.

To meet its burden, the State begins by pointing out that Bollig signed a plea questionnaire and waiver of rights form in this case.We have held that plea questionnaires in and of themselves are competent evidence of a knowing and voluntary plea.SeeState v. Moederndorfer, 141 Wis.2d 823, 827-29, 416 N.W.2d 627, 629-30(Ct.App.1987).Paragraph seven of this particular form states that if the case went to trial, the State would have to prove that Bollig attempted to engage in sexual contact with the child for the purpose of sexual gratification or arousal.Bollig's signature at the end of the plea questionnaire and waiver form establishes that he was aware that his sexual arousal or gratification was an element of the underlying charge.

We reject Bollig's assertion that his signature was coerced, and that he was confused when he entered into the plea.Our conclusion is based on the fact that he told the trial court upon entering the plea that he had enough time to review the plea questionnaire with his attorney, that there was nothing about it he did not understand, that was unclear to him or that needed...