State v. Demerath
| Citation | 921 N.W.2d 2 (Table),2018 WI App 62,384 Wis.2d 271 |
| Decision Date | 30 August 2018 |
| Docket Number | Appeal No. 2017AP1431-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Adam R. DEMERATH, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶ 1 Adam Demerath appeals a judgment of conviction, entered upon his no-contest pleas, for first-degree sexual assault and attempted burglary. He also appeals an order denying his motion for postconviction relief. Demerath argues his pleas were not knowingly, intelligently and voluntarily entered because the circuit court’s plea colloquy was deficient and because he did not actually know the elements of the offenses to which he was pleading. Specifically, he alleges the court failed to apprise him of the definition of "sexual contact" within Wisconsin’s sexual assault statute. Demerath also argues he was denied the effective assistance of counsel when he entered his pleas because his attorney failed to provide him with the definition of that phrase.
¶ 2 We reject both of Demerath’s arguments because he has failed to demonstrate a manifest injustice warranting plea withdrawal. Following a postconviction hearing at which both Demerath and his attorney testified, the circuit court found that Demerath had been told essentially what "sexual contact" meant—i.e., that the touching was done for the purpose of Demerath’s sexual gratification or to humiliate the victim. The court rejected the notion that Demerath was not aware of the definition of "sexual contact," and it also found "highly incredible" Demerath’s testimony that he had not touched the victim for his own gratification or to humiliate her.
¶ 3 Demerath does not directly challenge these factual findings on appeal. Accordingly, even assuming the plea colloquy was defective, we agree with the circuit court’s conclusion that the State met its burden of showing that Demerath’s pleas were nonetheless knowingly, intelligently and voluntarily entered. For the same reason, we reject Demerath’s assertion that he was prejudiced by his attorney’s alleged failure to provide him with the definition of "sexual contact," as well as Demerath’s assertion that he would not have pled no contest had he received that information. We affirm.
¶ 4 An Information charged Demerath with first-degree sexual assault by use of a dangerous weapon, burglary while becoming armed, attempted burglary, and strangulation/suffocation. The charges stemmed from two incidents that occurred three years apart on North Rankin Street in Appleton.
¶ 5 The first incident occurred in 2012. The victim awoke to an unidentified male in her residence. The perpetrator entered her bedroom, held a serrated knife to her throat, threatened her, choked her, and touched her pubic area and breast. The victim resisted by crossing her legs and holding them very tightly together, preventing the perpetrator from entering her vagina. When the victim told the perpetrator she had a son, the assailant threatened to kill the son, too. However, the perpetrator fled when he was discovered by the victim’s son.
¶ 6 The second incident occurred one evening in 2015. Police apprehended Demerath after he had used a ladder to reach the balcony of an apartment on North Rankin Street. Prior to being apprehended, Demerath appeared to have been using a credit card in an attempt to open a door to the apartment’s interior. The apartment belonged to a woman who told police she would occasionally sunbathe on the balcony. Police obtained a sample of Demerath’s DNA, which matched the DNA found on a cigar that was recovered from the 2012 crime scene.
¶ 7 Police interviewed Demerath after receiving the DNA results from the State Crime Lab. Demerath admitted that he was the perpetrator in the 2012 incident. Demerath told police that when he entered a room in the apartment and saw a woman sleeping, he took a knife from the kitchen, "rushed in," put the knife to her, and touched her breast. Demerath admitted that "in the back of his mind" he was hoping a specific girl lived in the apartment. Demerath stated it "excite[d]" him to steal something, although it is unclear from the criminal complaint whether he was speaking about the first or second incident.1 Demerath stated it gave him an "adrenalin[e] rush" knowing he was going to break in. The criminal complaint also alleged that Demerath had admitted to his wife in a recorded jail telephone call that he had "sexually assault[ed] a girl from three years ago."
¶ 8 Demerath entered into a plea agreement with the State. At the plea hearing, he entered no-contest pleas to the first-degree sexual assault and attempted burglary charges. The remaining counts were dismissed and read in at sentencing. Both Demerath and his attorney, Kevin Musolf, signed a Plea Questionnaire/Waiver of Rights form noting that the elements of the crimes to which he was pleading were "[e]xplained by [a]ttorney."
¶ 9 The circuit court conducted a plea colloquy with Demerath prior to accepting his pleas. At the inception of the plea colloquy, the court stated that if it was going to accept Demerath’s no-contest pleas, For each of the counts to which Demerath was pleading, the court identified the crime and its elements. The court also asked Demerath if he had reviewed with his attorney and understood the elements of each crime and the relevant jury instructions. Demerath responded in the affirmative to each of those questions.
¶ 10 The circuit court then asked Demerath a series of questions intended to ascertain whether his pleas were knowing, intelligent and voluntary. Demerath confirmed he was thirty-four years old and had an associate degree in criminal justice. Demerath also confirmed that he had read and signed the plea questionnaire. He responded affirmatively to the court’s question regarding whether he had "read through the entire criminal complaint and the [I]nformation, including all of the details of all four charges[.]" Demerath told the court he had no questions or confusion regarding the four charges.
¶ 11 The circuit court repeatedly asked Demerath whether he had an understanding of the charges against him. The following exchange illustrates the court’s efforts:
Later, the court reviewed the plea questionnaire with Demerath. The court specifically asked Demerath whether it was true that his attorney had explained the elements of each offense. Demerath answered in the affirmative.
¶ 12 The circuit court reassured Demerath that it would not inconvenience the court if he wanted to have a jury trial. The court reminded Demerath that, at trial, the jury would have to decide "whether the State can prove its four charges, each element of every charge, beyond a reasonable doubt." Demerath stated he understood. The court then discussed the constitutional rights implicated by Demerath’s decision to plead, including his right to confront witnesses against him, his right to present evidence, and his right not to testify. Demerath stated he understood those rights.
¶ 13 Demerath also stated that he had not been pressured or forced to enter his pleas and that he was doing so of his own free will. The court discussed the maximum penalties and sentencing possibilities, including probation and an imposed and stayed sentence. Finally, the court discussed with Demerath the consequences of his pleading to felony crimes, including possible deportation and the losses of his voting rights and his right to possess a firearm. Demerath also acknowledged he had reviewed the discovery materials available to him, and both Demerath and his attorney stipulated that the police reports and criminal complaint provided a sufficient factual basis for his pleas.
¶ 14 After receiving all of the above information, Demerath was twice asked whether he had any questions for the court. He responded in the negative both times. The court also provided Demerath with an opportunity to request a break to talk to his attorney. Demerath declined. Before accepting Demerath’s plea, the court provided one last opportunity for Demerath to change his mind about pleading no contest to the two felonies and have the matter set for trial. Demerath requested that the court accept his pleas. In response, the court stated:
Okay. I want to make sure whether it’s a month from now, two months from now, whenever we have sentencing, or six months from now, a year from now, five years from now, when you are on probation or in custody somewhere, that you don’t seek to withdraw your plea and say, well, the judge didn’t explain something to me or my attorney didn’t explain something to me. So in regard to the context of that topic, in your heart and in your mind as you sit here today has everything been thoroughly explained to you by your attorney, by the Court and anybody else related to this case?
Demerath responded affirmatively. The court then accepted his pleas, finding that Demerath understood his constitutional rights and the plea process, that there was a factual basis for his pleas, and that his pleas were entered knowingly, intelligently and voluntarily. The court stated that based on...
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