State v. Trochinski, No. 00-2545-CR.

• Court: United States State Supreme Court of Wisconsin
• Citation: 644 N.W.2d 891,2002 WI 56,253 Wis.2d 38
• Decision Date: 30 May 2002
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John T. TROCHINSKI, Jr., Defendant-Appellant-Petitioner.
• Docket Number: No. 00-2545-CR.

253 Wis.2d 38
2002 WI 56
644 N.W.2d 891

STATE of Wisconsin, Plaintiff-Respondent,
v.
John T. TROCHINSKI, Jr., Defendant-Appellant-Petitioner

No. 00-2545-CR.

Supreme Court of Wisconsin.

Oral argument February 6, 2002.

Decided May 30, 2002.

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For the defendant-appellant-petitioner there were briefs and oral argument by James L. Fullin, assistant state public defender

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For the plaintiff-respondent the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the brief was James E. Doyle, attorney general

¶ 1. N. PATRICK CROOKS, J.

John T. Trochinski, Jr. (Trochinski) seeks review of an unpublished court of appeals' decision affirming the circuit court's decision rejecting Trochinski's argument that Wis. Stat. § 948.11(2)(a) (1997-98)¹ is unconstitutional, and rejecting Trochinski's postconviction motion seeking to withdraw his no contest plea. Based on allegations that Trochinski gave nude pictures of himself to a fifteen-year-old girl and a seventeen-year-old girl, Trochinski was originally charged in Waushara County Circuit Court with two counts of exposing minors to harmful materials, contrary to § 948.11(2). Trochinski challenged the constitutionality of § 948.11(2), but the circuit court denied the motion. Pursuant to a plea agreement, Trochinski then entered a no contest plea to one count of exposing a minor to harmful materials in violation of § 948.11(2). After sentencing, Trochinski filed a postconviction motion seeking to withdraw his plea, alleging that at the time he entered his plea he did not understand the definition of an element of the offense—"harmful to children." The circuit court denied Trochinski's motion and the court of appeals subsequently

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affirmed. The court of appeals also rejected Trochinski's constitutional challenge to § 948.11(2)

¶ 2. Trochinski is now before this court with the same arguments. Trochinski contends that he should be able to withdraw his no contest plea because he did not understand the meaning of "harmful to children" under Wis. Stat. § 948.11(2). He further argues that neither the written plea questionnaire nor the plea colloquy establish that he understood the elements of the offense to which he was pleading. Lastly, Trochinski renews his constitutional argument, claiming that § 948.11(2) is facially unconstitutional because it imposes strict liability for constitutionally protected expression.

¶ 3. We reject both of Trochinski's arguments and affirm the court of appeals' decision. First, we conclude that Trochinski has failed to establish a prima facie case that his plea was involuntary. Based on the standard set forth in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), we conclude that the signed plea questionnaire and waiver of rights form, together with the plea colloquy, establish that Trochinski knew and understood the elements of the offense to which he was pleading.

¶ 4. We similarly reject Trochinski's constitutional challenge to Wis. Stat. § 948.11(2). Based on this court's previous decisions, we conclude that the scope of conduct criminalized in § 948.11(2) anticipates face-to-face contact between the defendant and the child. Accordingly, because this personal interaction allows the defendant reasonably to ascertain the victim's age, the State can impose on the defendant the risk that the victim is a child.

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I

¶ 5. The facts, as stated in the probable cause portion of the complaint and relied on by the circuit court, are not in dispute. On December 18, 1998, John T. Trochinski, Jr. entered the Amoco station in Poy-Sippi, Wisconsin, and had a conversation with Jill L., an employee of the gas station. At this time, Jill was seventeen years, three months old. During their conversation, Trochinski gave Jill an envelope containing a set of ten nude photos of himself, with his penis exposed. In addition, Trochinski gave her a copy of a letter from Playgirl, indicating that the nude photos of Trochinski would be published in the magazine,² and a personal letter that he wrote to Jill "inviting her to review the photographs."

¶ 6. In the two-page personal letter, which the circuit court relied on at sentencing, Trochinski wrote, among other things,

If you decide to keep these photos then please keep them in a safe place out of reach of children—If you decide not to keep them then just wait `til you see me again okay—In all honesty I do hope you'll keep them `cause they mean alot to me and as long as you keep these photos I'll make sure I get you a copy of the professional ones which I am waiting on getting back[.]

. . .

Well, I guess I'll close for now in the hopes that you will keep these photos. If at all possible would you please write back and let me know what you think of these photos and also let me know if you would like a copy of the professional photos as well!

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The letter also included Trochinski's address and phone number, with the note, "Call Anytime."

¶ 7. Trochinski was subsequently charged with two counts of exposing minors to harmful materials, contrary to Wis. Stat. § 948.11(2)(a). One count involved seventeen-year-old Jill L., and the other count involved a fifteen-year-old girl.³ Trochinski filed a pretrial motion to dismiss the charges, alleging that under State v. Zarnke, 224 Wis. 2d 116, 589 N.W.2d 370 (1999), § 948.11(2) is unconstitutional. The circuit court held a hearing on the motion on June 7, 1999,⁴ and at the conclusion of the hearing the court denied Trochinski's motion.

¶ 8. On June 9, 1999, an information charged Trochinski with the same two counts of exposing minors to harmful materials, as alleged in the complaint, but also charged Trochinski as a repeat offender under Wis. Stat. § 939.62(2)⁵. Trochinski entered a not guilty plea to both counts.

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¶ 9. On November 15, 1999, pursuant to a plea agreement with the State, Trochinski entered a no contest plea to one count of exposing a minor to harmful materials, contrary to Wis. Stat. § 948.11(2). The terms of the plea agreement were as follows: (1) Trochinski would plead guilty to Count 2 of the information (relating to Jill L.) and the State would dismiss Count 1 (relating to the fifteen-year-old girl) but have it read into the record for purposes of sentencing; and (2) Trochinski would be free to argue for whatever sentence he deemed appropriate, including probation, and the State would recommend a six-year prison sentence for Count 2, as enhanced by the repeater allegation. By entering into the plea agreement, Trochinski reduced his total incarceration exposure from sixteen to eight years.

¶ 10. At the plea hearing, Trochinski and his attorney submitted a signed plea questionnaire and waiver of rights form. On the plea form, Trochinski indicated, by signing his initials, that he understood the plea agreement and the constitutional rights he was waiving by entering into the plea agreement. The form also indicated that Trochinski knew the elements of the offense to which he was pleading no contest. The form listed the elements of Wis. Stat. § 948.11(2)(a) as follows:

(1) You exhibited harmful material to a child. (2) You had knowledge of the nature of the material. (3) The child had not attained the age of 18 at the time of the alleged offense. (4) That you were previously convicted of a felony during the 5-year period preceding this offense excluding the time you were incarcerated.

253 Wis.2d 47

On the plea form, Trochinski also indicated that he was giving up his right to present any defense to the charge, and that he was satisfied with the legal advice and assistance he received from his attorney.

¶ 11. After receiving the written plea questionnaire and waiver form, Judge Lewis R. Murach engaged Trochinski in a personal plea colloquy on the record.⁶ In response to questions from the court, Trochinski indicated

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that he understood all of the matters on the form, including the elements of the offense, that the information communicated by the form was truthful, and that

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he understood the various rights he was waiving. The court relied on the facts alleged in the complaint as the factual basis for the plea,⁷ and then stated that it was satisfied that Trochinski understood his rights and that he was acting knowingly, intelligently and voluntarily. Finally, the court accepted Trochinski's no contest plea and entered a judgment of conviction for the crime of exposing a child to harmful materials.

¶ 12. After accepting Trochinski's plea, the circuit court immediately proceeded to sentencing. The court heard testimony, and then sentenced Trochinski to six years in prison.

¶ 13. Trochinski subsequently filed a postconviction motion seeking to withdraw his no contest plea on grounds that he did not understand the "harmful to

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children" element of Wis. Stat. § 948.11(2)(a). Trochinski also renewed his facial constitutional challenge to the statute. On September 6, 2000, the court held a postconviction hearing. During the hearing, Trochinski testified that he understood the elements of the offense, but did not understand what was going to have to be proven to be convicted.⁸ He further testified about several discussions with his trial attorney, including the

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fact that there would be jury instructions if the case were taken to trial.⁹ On cross examination, Trochinski admitted that at the time he pled no contest he had knowledge of the nature of the material, that it was harmful, and that the photos are totally inappropriate for children.¹⁰ After hearing arguments by counsel, the court concluded that Trochinski had not met his burden of proving a prima facie case that his plea was not

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knowing, intelligent, and voluntary. The court also rejected Trochinski's constitutional challenge, and accordingly, denied his postconviction motion.

¶ 14. Trochinski appealed both the judgment of conviction and the

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