State v. Straszkowski
| Decision Date | 19 June 2008 |
| Docket Number | No. 2006AP-64-CR.,2006AP-64-CR. |
| Citation | 750 N.W.2d 835,2008 WI 65 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. David G. STRASZKOWSKI, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by Philip J. Brehm, Janesville, and oral argument by Philip J. Brehm.
For the plaintiff-respondent the cause was argued by Eileen Pray, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
The defendant, David G. Straszkowski, seeks review of an unpublished court of appeals order1 summarily affirming a judgment and order of the Circuit Court for Clark County, Jon M. Counsell, Judge. Based upon the defendant's plea of guilty, the circuit court convicted the defendant of second-degree sexual assault of a child contrary to Wis. Stat. § 948.02(2) (2003-04).2 The circuit court denied the defendant's post-sentencing motion to withdraw his guilty plea.
¶ 2 The issue on review is whether the circuit court erred in denying the defendant's motion to withdraw his plea. The defendant argues that he is entitled to withdraw his plea on the ground that his plea was not entered knowingly, intelligently, and voluntarily.3 Specifically, the defendant contends that his plea was not knowing and intelligent because he was unaware that a charge dismissed but read in under a plea agreement is deemed admitted for purposes of sentencing the defendant on the charge to which the defendant pled guilty.4
¶ 3 We conclude that the record clearly demonstrates that neither the State, nor trial defense counsel, nor the circuit court referred to the read-in charges as admitted or deemed admitted for sentencing purposes or for any other purpose. Nowhere in the plea questionnaire, in the transcript of the plea hearing, or in the transcript of the sentencing hearing did the State, trial defense counsel, or the circuit court refer to the read-in charges as admitted or deemed admitted. Rather, the circuit court explicitly advised the defendant at sentencing (and repeated this explanation at the postconviction motion hearing) that it understood that the defendant was not admitting the read-in charge and that the circuit court would consider the read-in charge for purposes of sentencing the defendant on the charge to which the defendant pled guilty. Because the circuit court did not consider the read-in charge to be admitted for sentencing purposes, we conclude that the defendant has failed to show that his guilty plea was not entered knowingly, intelligently, and voluntarily when he asserts that he was unaware that his agreement to have a sexual assault charge read in was an admission of the read-in charge for purposes of sentencing.
¶ 4 The defendant further argues that under Wisconsin case law the circuit court arguably had an obligation to deem the read-in charge admitted by the defendant for sentencing purposes based on the defendant's agreement to have the charge read in, and that because the defendant was unaware of having made an admission to the read-in charge for sentencing purposes, he did not knowingly and intelligently plead guilty to the charged sexual assault. The defendant urges this court to impose an explicit duty on a circuit court to notify a defendant at the time the defendant enters a guilty plea that the defendant's agreement to read in a dismissed charge is deemed to be an admission of the read-in charge for purposes of sentencing.
¶ 5 Although the case law on read-in charges is neither consistent nor clear, a proper reading of the history of Wisconsin's read-in procedure demonstrates that it is not a critical component of a read-in charge that the defendant admit guilt of the charge (or that the defendant's agreement to read in the charge be deemed an admission of guilt) for purposes of sentencing. In sum, no admission of guilt from a defendant for sentencing purposes is required (or should be deemed) for a read-in charge to be considered for sentencing purposes and to be dismissed. To avoid confusion, prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid (as they did in the instant case) the terminology "admit" or "deemed admitted" in referring to or explaining a defendant's agreement to read in a dismissed charge. A circuit court should advise a defendant that it may consider read-in charges when imposing sentence but that the maximum penalty of the charged offense will not be increased; that a circuit court may require a defendant to pay restitution on any read-in charges; and that the State is prohibited from future prosecution of the read-in charge.
¶ 6 Although we hold that no admission of guilt from a defendant is required for a read-in offense to be dismissed and considered for sentencing purposes, this decision does not bar a circuit court from accepting a defendant's admission of guilt of a read-in charge. This decision does not address what plea colloquy duties a circuit court might have with respect to such an admission, the issue the defendant raises.5 Our narrow holding is that an admission of guilt is not required by our read-in procedure and that the circuit court should avoid the terminology "admit" or "deemed admitted" in referring to or explaining a read-in charge for sentencing purposes except when a defendant does admit the read-in charge.
¶ 7 The present case does not involve an award for restitution. Nothing in this opinion should be construed as expanding or restricting the circumstances in which restitution may be imposed.
¶ 8 For the reasons set forth, we affirm the decision of the court of appeals affirming the circuit court's order denying the defendant's motion to withdraw his guilty plea.
¶ 9 We briefly summarize the facts relating to the defendant's plea agreement and sentencing hearing.
¶ 10 The State charged the defendant with two sexual assault offenses, one offense involving possession of drug paraphernalia, and two worthless check offenses.
¶ 11 The defendant stated on a completed "Plea Questionnaire/Waiver of Rights" form that he intended to plead guilty to one sexual assault charge, the single drug paraphernalia charge, and one worthless check charge. The completed Plea Questionnaire/Waiver of Rights form also stated that the defendant's plea agreement would be set forth in circuit court as follows: "Remaining charges and cases to be dismissed; PSI [presentence investigation] jointly requested, and parties will be free to argue."
¶ 12 On the completed Plea Questionnaire/Waiver of Rights form, a check mark was placed next to a statement that explained read-in charges as follows: Charges that are read in as part of the plea agreement may be considered by the circuit court when imposing sentencing but will not increase the maximum penalty; the defendant may have to pay restitution on any charges read in; and the State may not prosecute the defendant for any read-in charges. The statement checked on the completed Plea Questionnaire/Waiver of Rights form was as follows:
I understand that if any charges are read-in as part of a plea agreement they have the following effects:
• Sentencing — although the judge may consider read-in charges when imposing sentence, the maximum penalty will not be increased.
• Restitution — I may be required to pay restitution on any read-in charges.
• Future prosecution — the State may not prosecute me for any read-in charges.
¶ 13 At the hearing on the defendant's guilty plea, the prosecuting attorney stated in open court that the two charges to which the defendant did not plead guilty would be "dismissed and read in." Defense counsel then filed the Plea Questionnaire/Waiver of Rights form6 and informed the circuit court of the defendant's guilty pleas to the charges of sexual assault, possession of drug paraphernalia, and issuance of a worthless check. Defense counsel stated that if the circuit court accepted the guilty pleas and found the defendant guilty of the three offenses, he understood that the State would move "to dismiss but [have the circuit court] consider for sentencing purposes" the remaining sexual assault and worthless check charges.
¶ 14 Immediately after defense counsel made this statement, the circuit court engaged the defendant in a colloquy to "ascertain" the "promises [that] were made in connection with the defendant's anticipated plea ...."7 and questioned the defendant regarding the completed Plea Questionnaire/Waiver of Rights form signed by the defendant. This colloquy began as follows after the statements of the prosecuting attorney and defense counsel describing the plea agreement and read-in charges:
¶ 15 Later during the plea hearing, the defendant pled guilty to the three charges in accordance with the plea agreement. The circuit court convicted the defendant of the three charges to which the defendant pled guilty and stated that the remaining sexual...
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