State v. Rushing
| Decision Date | 25 September 2007 |
| Docket Number | No. 2006AP3152-CR.,2006AP3152-CR. |
| Citation | 740 N.W.2d 894,2007 WI App 227 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Frederick W. RUSHING, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, Attorney General and James E. Freimuth, Assistant Attorney General.
Before WEDEMEYER, FINE and KESSLER, JJ.
Frederick W. Rushing pled guilty to first-degree sexual assault of a child. See WIS. STAT. § 948.02(1). He appeals the judgment of conviction and the circuit court's order denying his motion for postconviction relief. He contends that: (1) his plea colloquy was insufficient, see WIS. STAT. § 971.08 ()1; (2) once the circuit court sua sponte vacated his guilty plea before sentencing, it could not reconsider and reinstate that plea; and (3) the circuit court should have granted his subsequent presentencing motion to withdraw his guilty plea. We affirm.
¶ 2 The criminal complaint charged that in May of 2004, Rushing sexually assaulted his then five-year-old grandson by having the child rub baby shampoo on Rushing's penis until Rushing ejaculated. In October of 2004, the circuit court, the Honorable Karen E. Christenson presiding, held a plea-hearing at which Rushing was scheduled to plead guilty. When, in response to the circuit court's questions, Rushing said that he understood the "elements" of the crime "to a point," the circuit court told him that he could "have a trial and the State would then prove or attempt to prove that this happened." When asked whether he wanted more time to talk to his lawyer, Rushing replied that "he and I discussed it yesterday." Rushing's defense lawyer then interjected "[w]e did discuss it on other occasions," to which Rushing responded, "[y]es." Rushing's lawyer also reminded Rushing that they had gone over the jury instructions for the crime. Rushing agreed that they had, reiterating that he understood the elements. Rushing's lawyer then asked Rushing: "Do you understand the elements?" Rushing replied: "I understand the elements."
¶ 3 Despite Rushing's seeming unequivocal acknowledgement that he understood the elements of the crime, Rushing persisted in muddying the waters. Thus, when the circuit court further explained that before it could accept Rushing's guilty plea, it would have to be satisfied that Rushing understood "what the State would have to prove in order to prove that you committed this crime," Rushing replied that although he understood the crime's elements, there were "extenuating circumstances." The circuit court then asked flatly: Rushing replied: "I guess I'll have to go with yes, ma'am." When Rushing then said, "Well, I guess I'm going to have to plead guilty," the circuit court patiently explained: After some discussion with his lawyer, Rushing agreed to plead guilty, telling the circuit court: "I'm guilty, Your Honor."
¶ 4 The circuit court then established that Rushing had reviewed the guilty-plea-and-waiver-of-rights form with his lawyer, and had signed it, understanding it and the constitutional rights he was giving up by pleading guilty. See State v. Moederndorfer, 141 Wis.2d 823, 827, 416 N.W.2d 627, 629 (Ct.App.1987) (). The circuit court further explained:
Among the rights that you are giving up, sir, is your right to have a jury trial where 12 people listen to all of the evidence and they all have to agree that the State proved every element of this crime beyond a reasonable doubt before you can be found guilty.
Rushing replied that he understood. He also said that no one threatened him to get him to plead guilty. As required, the circuit court warned him that despite the State's recommendation that the circuit court impose and stay a bifurcated sentence of six years of initial confinement and six years of extended supervision, and place him on probation for ten years, he could be sentenced to the statutory maximum, which the circuit court had previously told Rushing was "sixty years in prison." Rushing said that he understood.
¶ 5 To establish a factual basis for Rushing's plea, the circuit court asked:
After telling Rushing of the other consequences of a guilty plea, and establishing that Rushing had adequate time to discuss the case with his lawyer and was satisfied with his lawyer's representation, the circuit court asked whether Rushing was "pleading guilty because you are guilty?"
Rushing's lawyer then talked to his client, and told the circuit court, "my client has just indicated to me that he's not guilty." The circuit court then said that it would "set this for trial." Rushing and his lawyer conferred again and the lawyer told the circuit court: The circuit court did:
In response to the circuit court's questions, Rushing's lawyer said that he was "satisfied that [Rushing] understands the elements and how his conduct meets them." The lawyer also attested that he had reviewed with Rushing any possible defenses Rushing might have, that he was satisfied that Rushing understood all of this, and that in his view Rushing's guilty plea was knowing and voluntary. The circuit court then accepted Rushing's plea:
THE COURT: All right. I approve the waiver, find that Mr. Rushing is entering his plea freely, voluntarily, intelligently, and with full understanding of the nature of the charge, the maximum possible penalties, and the rights given up by pleading guilty.
I accept your plea. There is a factual basis for this plea.
Based on your plea of guilty, I find you guilty of first degree sexual assault of a child as charged in the complaint, and I order a judgment of conviction.
The circuit court ordered a presentence-investigation report and set the case for sentencing.
¶ 6 On the sentencing date, the circuit court noted that Rushing denied his guilt to the presentence investigator, and sua sponte vacated the guilty plea, which, as we have seen, it had already accepted at the earlier hearing. The State did not object, and the case was set for trial.
¶ 7 Some six months later, the State asked the circuit court to reconsider its sua sponte vacatur of Rushing's guilty plea. Rushing, conceding "that the court followed improper procedure in initially withdrawing [sic — should be vacating] the plea," filed a motion seeking to withdraw his guilty plea. In July of 2005, the circuit court granted the State's motion to reconsider and vacated its sua sponte vacatur of Rushing's guilty plea. The case then was transferred to the Honorable Mel Flanagan pursuant to Milwaukee County's rule of judicial rotation.
¶ 8 In preparation for the hearing on Rushing's motion to withdraw his now-reinstated guilty plea, the State filed an affidavit by the assigned assistant district attorney in support of the State's contention that permitting Rushing to withdraw his guilty plea would substantially prejudice the State. In that affidavit, the prosecutor averred that she met with the victim on September 23, 2005, who was then seven years old. Contrary to his earlier statements accusing Rushing of having the boy rub shampoo on Rushing's penis, the child now said that Rushing "rubbed my thing with powder." The child also now denied that Rushing had ever had him touch Rushing: "He indicated that he never put lotion on [Rushing], and never touched [Rushing]'s penis."
¶ 9 In its decision denying Rushing's motion to withdraw his guilty plea, the circuit court determined that although it believed that Rushing had satisfied his burden of establishing a fair and just reason to withdraw his guilty plea, the State would be substantially prejudiced if that happened. The circuit court said that it watched the child's videotaped testimony, see WIS. STAT. RULE 908.08, which, as the circuit court recognized, would not relieve the child of having to appear in court for cross-examination. See RULE 908.08(5). The circuit court noted that the "videotape is reflective of a [sic] extremely difficult child," who "appeared to be very reluctant, very hard to interview, very hyperactive, very unwilling to engage in the facts and circumstances in an-any substantial way." The circuit court continued:
Although he did provide information [in the videotape], it was difficult for the interviewer to get any information from him.
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