State v. Lackershire
| Decision Date | 21 June 2007 |
| Docket Number | No. 2005AP1189-CR.,2005AP1189-CR. |
| Citation | 2007 WI 74,734 N.W.2d 23 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Monika S. LACKERSHIRE, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs and oral argument by Steven P. Weiss, assistant state public defender.
For the plaintiff-respondent the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
¶ 1
The petitioner, Monika Lackershire, seeks review of a published court of appeals decision affirming a judgment of conviction and an order denying her post conviction motion for plea withdrawal.1 Based on her guilty plea, she was convicted of one count of second-degree sexual assault of a child under Wis. Stat. § 948.02(2) (2003-04).2 Lackershire contends that she was the victim, rather than the perpetrator, of a sexual assault. She therefore seeks to withdraw her plea on the grounds that her plea colloquy was defective and her plea was not knowing, intelligent, and voluntary.
¶ 2 She argues that her plea colloquy was defective for two reasons. First, she asserts that the circuit court did not explain the nature of read-in charges. Second, she argues that the circuit court failed to satisfy the "factual basis" requirement under Wis. Stat. § 971.08(1)(b). As a consequence of the failure, she maintains that she did not realize that if she was the victim of rape, she could not have committed the offense charged. In addition to her claim that the plea colloquy was defective, Lackershire argues that she pleaded guilty because she feared that the stress of a trial would affect her pregnancy, and that her plea was therefore involuntary.
¶ 3 We determine that the court of appeals erred in concluding that the dismissed charges were read-in offenses. Because the record does not reflect that the dismissed charges were treated as read-ins, a read-in analysis is not warranted. Thus, whether Lackershire understood the nature of read-ins is not at issue.
¶ 4 We also determine that Lackershire's plea colloquy was inadequate. The factual basis relied upon by the court in accepting Lackershire's plea raised a substantial question as to whether she had committed sexual assault of a child or had herself been the victim of rape. This necessitated that the circuit court make further inquiry to establish a sufficient factual basis to support Lackershire's plea under Wis. Stat. § 971.08(1)(b).3
¶ 5 Finally, we determine that her fear about the effect of a trial on her pregnancy did not render her plea involuntary. Accordingly, we reverse the court of appeals and remand to the circuit court for a hearing on whether Lackershire's plea is knowing and intelligent.4
¶ 6 In November 2003, Lackershire was charged with one count of second-degree sexual assault of a child pursuant to Wis. Stat. § 948.02(2).5 The charge was based on an alleged act of intercourse with Stephen G., who was then 14, that took place in the evening around August 27, 2003, in the house where Stephen G. and Lackershire both resided. After the preliminary hearing in that case, Lackershire was charged with a second count of the same offense. That count was based on an alleged act of intercourse that took place in the shed adjacent to the house around the third week of August 2003 (prior to the incident alleged in the first count). In a separate case, Lackershire was charged with two counts of the same offense for alleged intercourse with Joseph C., who was also 14 at the time.
¶ 7 Lackershire is a mentally and physically challenged person. She suffers from learning and cognitive disorders, has a tenth-grade education, and has a history of psychological problems. She is legally blind, and lives on Social Security Disability and Supplemental Security Income payments.
¶ 8 The probable cause portion of the criminal complaint against Lackershire in the case involving Stephen G. consisted of an incident report by Jesse Van Alstine, chief of police for the Village of Pepin. In that report, Van Alstine describes talking to Matthew Tucke, Stephen G.'s older brother and Lackershire's boyfriend at the time. Tucke informed Van Alstine that Lackershire told him that Stephen G. had raped her.
¶ 9 When Van Alstine interviewed Lackershire about the incident, she maintained that Stephen G. had raped her. The incident report relates Lackershire's version of the incident as follows:
She stated that she also believed that the incident was around August 27, 2003 as Matthew and his mother had left. . . and that she and [Stephen G.] were in the living room together. . . . She stated that [Stephen's brother and father were asleep]. She stated that continuously that night [Stephen G.] had asked her to have sex with him and she continuously told him no that she would not do this because she loved his brother, Matthew, and would not do that to him. Also, that she could get into trouble if she had sex with him because of his age. She stated that during this time period, [Stephen G.] walked over to her, pulled the blanket that she had covered herself up with, pulled her shorts down and stuck his penis in her. She stated that due to embarrassment, she placed her face into the pillow and said and did nothing, other than that she had said no several times.
¶ 10 Van Alstine also interviewed Stephen G. about Lackershire's accusation. He stated they had consensual intercourse. The incident report relates Stephen G.'s version of the incident as:
[Stephen G.] stated that on the night in question, which he believed was August 27, 2003, that after his father and brother ... had gone to sleep, and his mother and brother, Matthew [had left], that he asked Monika to have sex with him. He stated that he asked her approximately three to four times and that each time she said no. After the third or fourth time Monika went and laid down on the couch on her stomach. At which time [Stephen G.] asked her one more time if she would have sex with him. At this time Monika gave him a look that he felt showed that she was interested and she said ["]what do you think.["] At this time he walked over toward her. . . . at which time they engaged in sexual intercourse.
[Stephen G.] stated that at no time after she said ["]what do you think["] did she say no or protest or in any way try to stop [him] from having sex with her.
¶ 11 At the preliminary hearing in the case, Stephen G. testified about having intercourse with Lackershire in his home. He confirms that he was the one to initiate intercourse:
¶ 12 Lackershire negotiated a plea with the State. She agreed to plead guilty to one count of second-degree sexual assault of a child for the incident involving Stephen G. that occurred in the living room of his home. The State agreed to dismiss the second count in Stephen G.'s case and both counts in the case involving Joseph C. The plea questionnaire that Lackershire completed stated only that the non-charged offenses were to be dismissed, and made no mention of read-ins.
¶ 13 At the plea hearing,6 the district attorney told the court that the State believed it appropriate to dismiss those counts, and that there was "ample opportunity for punishment, penalty, and rehabilitation, given a conviction on one. . . ." Throughout the plea hearing, the court referred to the non-charged offenses as being dismissed. For example, the court established that Lackershire was pleading guilty in part because the State agreed to dismiss other charges:
The Court: I presume and believe that one of the reasons that you're entering the plea to this first count is that, by the plea, the State is agreeing to dismiss several other counts that are pending in this court.
Is that true?
Lackershire: Yes.
The court also confirmed with Lackershire's attorney that the charges would be dismissed, stating that "It's my assumption that she is accepting this plea agreement partially on the basis that the other charges that are pending would be dismissed." Nowhere in the plea hearing do the parties or the court indicate that the dismissed charges would be read in at sentencing.
¶ 14 Regarding the offense charged, Lackershire's attorney told the court he had "gone over the elements with my client." The court had the following exchange with Lackershire, in which it described the offense charged as consisting of sexual intercourse with a child under 16 years old:
The Court: The Information in this case—and referring specifically to the first count in the Information of 03-CF-32 [involving Stephen G.]—alleges that, in August of 2003—that would have been last August—in this county, you had sexual intercourse with a child under the age of sixteen years.
Do you understand that?
Lackershire: Yes.
The Court: Is that true?
Lackershire: Yes.
The Court: Do you understand it's alleged that this is a violation of Section 948.02 of the Wisconsin Statutes?
Lackershire: Yes.
¶ 15 The court established that the factual basis for Lackershire's plea was the criminal complaint and testimony at the preliminary examination. However, at no point did the court question Lackershire about her contention that Stephen G. had raped her on the occasion of the offense charged. Neither did the court establish that Lackershire understood that if Stephen G. had raped her, she could not be guilty of sexual assault. The court accepted Lackershire's plea, and ordered a presentence investigation (PSI).
¶ 16 The circuit court sentenced Lackershire to three years initial confinement and six years...
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