State v. Scott

• Decision Date: 17 May 2017
• Docket Number: Appeal No. 2016AP1411-CR
• Citation: 899 N.W.2d 728,376 Wis.2d 430,2017 WI App 40
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Richard J. SCOTT, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

376 Wis.2d 430

899 N.W.2d 728

2017 WI App 40

STATE of Wisconsin, Plaintiff-Respondent,

v.Richard J. SCOTT, Defendant-Appellant.

Appeal No. 2016AP1411-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: April 12, 2017

Opinion Filed: May 17, 2017

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeffrey W. Jensen of Law Offices of Jeffrey W. Jensen, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gregory M. Weber, assistant attorney general, and Brad D. Schimel, attorney general.

Before Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

NEUBAUER, C.J.

¶1Richard J. Scott appeals from a judgment entered upon his plea of guilty to engaging in repeated acts of sexual assault of the same child and possession of child pornography.Scott further appeals from an order denying his motion seeking plea withdrawal pursuant to WIS. STAT. RULE 809.30(2015-16).¹Scott contends that he is entitled to withdraw his plea because he was charged with a version of engaging in repeated acts of sexual assault of the same child that no longer existed at law and there was no factual basis for his plea to possession of child pornography.We disagree but modify the judgment to reflect that Scott pleaded guilty to WIS. STAT . § 948.025(1)(e)(2007-08).

Factual and Procedural Background

¶2 In March 2015, an information was filed charging Scott with six counts of repeated sexual assault of two girls over several years, with four counts charged as Class B felonies and two counts charged as Class C felonies, and nine counts of possession of child pornography.As relevant, count four alleged that between August 1, 2007, and August 31, 2008, he committed "repeated sexual assaults" of the same child, M.M., then five and six years old, "where fewer than three of the assaults were violations of [ WIS. STAT . §] 948.02(1)... contrary to [ WIS. STAT . §§]948.025(1)(b), 939.50(3)(c)... a Class C felony," which exposed Scott to forty years of imprisonment and a $100,000 fine.The complaint alleged that Scott first touched M.M. on the vagina when she was in kindergarten and that he touched her at least three times during that year.

¶3 The complaint, as it related to the charges of possession of child pornography, explicitly described the types of pornographic material he possessed and showed to the two girls.

¶4 Scott decided to enter a plea of guilty to count four and one count of possession of child pornography, as alleged in count seven, in exchange for a sentencing recommendation from the State of seven to nine years of initial confinement.The State would dismiss the remaining counts.During the colloquy, the circuit court confirmed the child's date of birth and asked if between August 1, 2007, and August 31, 2008, he touched M.M.'s vagina on at least three occasions.The court asked Scott to confirm that "on at least three occasions you touched the child with some part of your body on the vagina for the purpose of your own sexual gratification.Do you understand this charge against you?"Scott answered in the affirmative and stated that he was pleading guilty.

¶5 Regarding count seven, the court directed Scott to page four of the criminal complaint, which described the pornography Scott possessed.Scott indicated that he understood that charge and was pleading guilty.No objections were raised to the plea, and the court accepted Scott's plea.

¶6 A year after Scott was sentenced, he moved for plea withdrawal pursuant to WIS. STAT. RULE 809.30, arguing that his plea to count four was not a crime that existed at law and that the court lacked competence to accept a guilty plea to a crime not properly alleged.Scott contended that he was charged with engaging in repeated acts of sexual assault of the same child under WIS. STAT . § 948.025(1)(2005-06), which was repealed and recreated effective March 27, 2008, during the time when Scott engaged in the prohibited conduct.He contended that under the appropriate 2007-08 statute, there was no crime with the same elements as the 2005-06 statute under which he was charged.

¶7 As to count seven, Scott argued that there was no factual basis to support the allegation of knowing possession of an image that contained child pornography.The allegation that the image was on Scott's computer was inadequate to permit the inference that Scott knew he possessed the image.For example, there was no allegation in the complaint that only Scott had access to that computer.

¶8The circuit court denied Scott's motion.

Engaging in Repeated Acts of Sexual Assault of the Same Child

¶9 Scott contends that he was not charged with "a crime known to law" and, thus, "the circuit court lacked subject matter jurisdiction to accept his guilty plea."Even if the circuit court did have subject matter jurisdiction, Scott continues, during the plea colloquy the court described the elements from the 2007-08 law, not the 2005-06 version under which he was charged, leaving Scott without an understanding of the nature of the charge to which he pled guilty.Finally, Scott claims that the facts the court mentioned during the plea—that Scott touched M.M. on the vagina on at least three occasions—took the case"wholly out of the purview of ... [ WIS. STAT .]§ 948.025(1)(b)(2005-06)" because that statute required "fewer than 3 ... violations of [ WIS. STAT . §] 948.02(1)"—first-degree sexual assault—and he admitted that he committed three first-degree sexual assault violations.

¶10 WISCONSIN STAT . § 971.26 provides that "[n]o indictment, information, complaint or warrant shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of any defect or imperfection in matters of form which do not prejudice the defendant.""The purpose of a charging document is to inform the defendant of the actshe allegedly committed and to allow him to understand the offense charged so that he can prepare a defense."State v. Flakes , 140 Wis.2d 411, 419, 410 N.W.2d 614(Ct. App.1987).In determining whether a defendant suffered prejudice, a key factor "is whether the defendant had notice of the nature and cause of the accusations against him."Id.Thus, for example, if the charging document verbally describes the offense but refers to the wrong statute, the defendant nevertheless knows the charge and is not prejudiced and the error does not require reversal.Wagner v. State , 60 Wis.2d 722, 728-29, 211 N.W.2d 449(1973).

¶11 However, "[a] complaint which charges no offense," in other words, charges a nonexistent crime, "is jurisdictionally defective and void."Mack v. State , 93 Wis.2d 287, 295, 286 N.W.2d 563(1980)(citation omitted).The "defect cannot be waived by a guilty plea, the court does not have jurisdiction."Id.(citation omitted)."A complaint that charges an offense not known to law is one that omits an essential element of the crime charged as defined by statute or case law."State v. Schroeder , 224 Wis.2d 706, 714, 593 N.W.2d 76(Ct. App.1999).

¶12 The question of whether a circuit court has subject matter jurisdiction is a legal one, which, on appeal, is reviewed independently of the circuit court.State v. Webster , 196 Wis.2d 308, 316, 538 N.W.2d 810(Ct. App.1995).

¶13We reject each iteration of Scott's attempted plea withdrawal argument, which fails to address the fact that the earlier and later version of the Class C felony offense of engaging in repeated acts of sexual assault of the same child criminalized the same conduct as it pertains to Scott.As explained below, reference to the prior statute was a technical charging error and Scott has not shown that he was prejudiced by the error.Because Scott was charged with a crime known to law, the court had subject matter jurisdiction.The circuit court's plea colloquy was not defective.

¶14 Under the 2005-06 law, a person was guilty of the Class C felony of "[e]ngaging in repeated acts of sexual assault of the same child" when he committed "3 or more violations under [ WIS. STAT . §] 948.02(1)[first-degree sexual assault] or (2)[second-degree sexual assault] within a specified period of time involving the same child ... if fewer than 3 of the violations were violations of [§] 948.02(1)."WIS. STAT . § 948.025(1)(b)(2005-06).

¶15 WISCONSIN STAT . § 948.02(1)(b)(2005-06) provided that a person was guilty of first-degree sexual assault if he had "sexual contact or sexual intercourse with a person who has not attained the age of 13 years."(Emphasis added.)Section 948.02(2)(2005-06) provided that a person was guilty of second-degree sexual assault if he had "sexual contact or sexual intercourse with a person who had not attained the age of 16 years."(Emphasis added.)

¶16 Under the 2007-08 law, a person was guilty of the Class C felony of "[e]ngaging in repeated acts of sexual assault of the same child" when he committed "3 or more violations under [ WIS. STAT . §] 948.02(1)[first-degree sexual assault] or (2)[second-degree sexual assault] within a specified period of time involving the same child ... if at least 3 of the violations were violations of [§] 948.02(1) or (2) ."WIS. STAT . § 948.025(1)(e)(2007-08)(emphasis added).

¶17 The definition of first-degree sexual assault was changed with the 2007-08 law, but for our purposes, it included "sexual contact with a person who has not attained the age of 13 years."WIS. STAT . § 948.02(1)(e)(2007-08)(emphasis added).Second-degree sexual assault was defined as "sexual contact or sexual intercourse with a person who has not attained the age of 16 years."Sec. 948.02(2)(2007-08)(emphasis added).

¶18The State concedes that Scott was mistakenly charged under the 2005-06 law.The charging document alleged in count four that Scott engaged in repeated sexual assaults of the same child between August 1, 2007, and August 31, 2008.However, during that time period, WIS. STAT . § 948.025(1)(2005-06) was repealed and recreated.2007 Wis. Act 80, § 13.The...