State v. Hendricks

Decision Date20 February 2018
Docket NumberNo. 2015AP2429-CR,2015AP2429-CR
Citation379 Wis.2d 549,906 N.W.2d 666,2018 WI 15
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Shannon Olance HENDRICKS, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner, there were briefs filed by and an oral argument by Hannah Schieber Jurss, assistant state public defender.

For the plaintiff-respondent, there was a brief filed by and an oral argument by Warren D. Weinstein, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

REBECCA GRASSL BRADLEY, J.

¶1 Shannon Olance Hendricks seeks to withdraw the guilty plea he entered to one count of child enticement. He claims the circuit court's failure to tell him the legal definition of "sexual contact" at his plea hearing violated Wis. Stat. § 971.08's requirement that a pleading defendant must understand the nature of the charge.1 Because sexual contact is not an element of the crime of child enticement, and because the record shows Hendricks understood the nature of the charge to which he pled guilty, the plea colloquy comported with both § 971.08 and State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and Hendricks is not entitled to an evidentiary hearing. Accordingly, we affirm the court of appeals decision2 upholding the circuit court's order3 denying Hendricks' motion for plea withdrawal. Moreover, we decline the State's request to modify the Bangert requirements.

I. BACKGROUND

¶2 The criminal complaint charged Hendricks with one count of second-degree sexual assault of a child under the age of 16. The charges stemmed from Hendricks taking his girlfriend's 14-year-old niece to a park where he touched the victim's chest over her clothes, tried to touch her breasts under her clothes, rubbed her thighs, and touched her buttocks over her clothes while pressuring her to let him have sexual intercourse with her.4 In January 2012, on the second day of his trial for second-degree sexual assault, Hendricks decided to take the State's plea offer: Hendricks would plead guilty to the reduced charge of child enticement and the State would recommend a sentence concurrent to the prison sentence Hendricks was currently serving. With help from his lawyer, Hendricks filled out a guilty plea questionnaire and waiver of rights form. After he completed the form, the circuit court conducted a plea colloquy.

¶3 The circuit court began the colloquy by going over the plea questionnaire and waiver of rights form and personally confirming with Hendricks that: (1) he was admitting he committed child enticement, a felony; (2) he was 31 years old, completed high school, understands English, and understands the charge; (3) he was taking medication for anxiety and depression, but had not used any other drugs or alcohol in the last 24 hours; and (4) he understood the constitutional rights he was giving up by pleading guilty including the right to trial, the right to remain silent, the right to testify, the right to a jury trial, and the right to force the State to prove its case beyond a reasonable doubt.

¶4 Next, the circuit court asked Hendricks' lawyer if he had discussed the elements of the offense with his client and noted defense counsel had attached an element sheet to the plea questionnaire. Hendricks' lawyer answered: "Correct, Your Honor. We did go over the elements." Defense counsel told the court he was satisfied that Hendricks understood the elements. The circuit court then asked Hendricks again if he understood he was "pleading guilty and admitting to, as I said, child enticement, which is a felony," and Hendricks answered affirmatively. Next, the circuit court asked Hendricks if he was admitting that he:

... did entice a child, a person under the age of 18, to go into a vehicle, building or room or secluded place, in this case, given the facts in the complaint and given what's indicated on the element sheet, you're admitting that you did cause the victim in this case to go into a secluded area; you intended to have her go to that secluded area, and you understand and knew that the victim was under the age of 18; is that correct?

Hendricks answered, "Yes, Your Honor." After going through all the information related to sentencing, the required deportation warning, the effect pleading guilty would have on Hendricks' right to vote and possession of a firearm, and confirming he was pleading guilty of his "own free will" because he was in fact guilty, the circuit court recognized it had not mentioned any of the prohibited intents listed in the child enticement statute and the elements sheet attached to the plea questionnaire did not specify a prohibited intent.

¶5 After a sidebar, the circuit court continued with the plea colloquy:

[T]he plea under 948.07 needs to be entered to child enticement but under a specific subsection.
There are six subsections. Subsection (1) is the person, the defendant, enticing a child under 18 to go to a vehicle, room, building or secluded place for one of—and there are alternate purposes. Subsection (1) is having sexual contact or intercourse with a child; subsection (2) is for the purpose of prostitution; subsection (3) is exposing a sex organ; subsection (4) is making a recording of a child engaged in explicit conduct; subsection (5) is causing bodily or mental harm to the child; subsection (6) is giving or selling the child a controlled substance.
Obviously, in this case, according to the complaint and the information, and what I just discussed with the attorneys, what applies, correct me if I'm wrong is Subsection (1), the enticement was for the purpose of, at a minimum, sexual contact, correct counsel?

Hendricks' lawyer answered, "Correct, Your Honor."

¶6 The circuit court then directly addressed Hendricks, asking him if he understood "that's what you're admitting to; you're admitting to child enticement? You were bringing this child under 18 to, in this case, a secluded area for the purpose of potentially having sexual contact with that child, and that's indicated in the complaint, indicated in this case; is that correct, sir?" Hendricks replied, "Yes, it is, Your Honor." The circuit court asked again if Hendricks was pleading guilty because he was guilty and he replied "Yes, I am, Your Honor." The circuit court then went through whether anyone threatened, forced, or told Hendricks to plead guilty and Hendricks assured the court no one had. Hendricks confirmed that his attorney had gone over the guilty plea form with him, that Hendricks read the form, "went over the case" with his lawyer, signed the form, and "had enough time to review this matter" and discuss it with his attorney.

¶7 The circuit court then addressed questions to Hendricks' lawyer:

THE COURT: Counsel, you went over the agreement with your client?
[DEFENSE COUNSEL]: We did, Your Honor.
THE COURT: You're satisfied his plea today is free, voluntary and intelligent?
[DEFENSE COUNSEL]: I am, Your Honor.
THE COURT: You saw your client sign and date the questionnaire today?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: I've read the complaint. The parties are stipulating to the facts in the complaint as a factual basis to support the amended charge and the plea; is that correct?
[PROSECUTOR]: Yes.
[DEFENSE COUNSEL]: Your Honor, we are agreeing to the complaint. As far as what the contact was, we're agreeing to what the victim testified to at the preliminary hearing, which, you know, which would also support the plea.
THE COURT: Well, it was certainly enough on this case.

¶8 The circuit court then directly asked Hendricks if he was "admitting to that," and he said "Yes, Your Honor." The circuit court continued with Hendricks: "You're admitting to the contact, again, with a child who was under 18, the victim, with a date of birth of 9/19/1996, and you're admitting that it was sexual contact, correct, sir?" Hendricks replied, "Yes, Your Honor."

¶9 Based on the stipulation, the complaint, and "what's been indicated in court by counsel and the defendant," the circuit court found: (1) there was a factual basis "for the charge of and plea to child enticement, which is a felony, under 948.07(1)"; and (2) "the defendant has freely, voluntarily and intelligently entered his plea; freely, voluntarily and intelligently waived his rights in this matter." The circuit court accepted the plea, ordered a pre-sentence investigation report, and set a date for sentencing.

¶10 Before sentencing occurred, Hendricks filed a motion seeking to withdraw his plea claiming he pled guilty because he felt rushed and overwhelmed that the victim was going to testify against him; he now claimed he was not guilty. This also led to the withdrawal of his first attorney and the appointment of a second State Public Defender. Hendricks testified at the plea withdrawal hearing that the medication he was on made him "go along" with his first attorney's suggestion that he take the plea because his lawyer said if he did not plead guilty, he would lose at trial and be sentenced to the maximum of 40 years. He admitted that he read the criminal complaint and an "outline of what the jurors would have to go by" to convict him. He also testified he understood the charges against him:

Q Now, in terms of understanding the charges against you and the content of it, your defense attorney showed you the complaint, correct?
A The original complaint?
Q Correct.
A Yes. I saw it before.
Q And you guys went over the elements; what you're pleading to prior to the entry of your plea, correct?
A Yes.
Q And you also knew exactly what you were being accused of because you've been through the revocation hearing on October 26th of 2011, correct?
A Yes.

When the circuit court questioned why Hendricks admitted his guilt during the plea colloquy and why he said his guilty plea was of "his own free will," Hendricks explained he really did not want to plead guilty but his lawyer said he would lose at trial. He said he just...

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