State v. Zeise, No. 2008AP733-CR (Wis. App. 11/18/2008)

• Decision Date: 18 November 2008
• Docket Number: No. 2008AP733-CR.,2008AP733-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Thomas L. Zeise, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 1

State of Wisconsin, Plaintiff-Respondent, v. Thomas L. Zeise, Defendant-Appellant.

No. 2008AP733-CR.

Court of Appeals of Wisconsin, District III.

Opinion Filed: November 18, 2008.

APPEAL from a judgment and an order of the circuit court for Oconto County: MICHAEL T. JUDGE, Judge. Reversed and cause remanded with directions.

¶ 1 BRUNNER, J.¹

Thomas Zeise appeals a judgment of conviction for fourth-degree sexual assault and an order denying his postconviction motion. Zeise contends the circuit court erroneously denied his motion for plea withdrawal by concluding there was a sufficient factual basis for Zeise's Alford plea.² We agree and reverse and remand to allow Zeise to withdraw his plea.

BACKGROUND

¶ 2 Zeise was originally charged with second-degree sexual assault of a child under the age of sixteen, in violation of WIS. STAT. § 948.02(2). According to the criminal complaint, the victim, who was approximately thirteen and one-half years old at the time of the incident, told police Zeise "asked her if she wanted to have sex and she said yes." The victim told the investigating officer and testified at the preliminary hearing that she had sexual intercourse with Zeise.

¶ 3 As part of a global plea agreement including other pending cases, Zeise entered an Alford plea to a reduced misdemeanor charge of fourth-degree sexual assault under WIS. STAT. § 940.225(3m).³ The proposed plea agreement was set forth in an email sent to Zeise's counsel at 4:53 p.m. the evening before the plea hearing. The agreement, submitted as an exhibit, required that the "non-consent element would be stipulated to; namely, that a child under 16 cannot give legal consent to sexual contact." In addition, a copy of WIS JI—CRIMINAL 1219 was attached to the plea questionnaire. That instruction lists the two elements of § 940.225(3m) that the state must prove: (1) the defendant had sexual contact with the victim and (2) the victim did not consent to the sexual contact.

¶ 4 At the plea hearing, the prosecutor orally amended the Information, alleging Zeise had "sexual contact with [the victim] ... without the consent of that person, being a legal inability of that person to give legal consent due to her age contrary to Section 940.225(3m)...." The court then asked whether Zeise heard and understood the amended charge and Zeise replied affirmatively. After again stating he understood the charge, Zeise offered an Alford plea.

¶ 5 The court next discussed the nature and consequences of an Alford plea and Zeise and his counsel told the court Zeise understood. When asked whether there was a factual basis for the plea, the State noted the court had to find strong evidence of guilt. The State then asserted that strong evidence existed based on the complaint and all of the proceedings, including the victim's and Zeise's statements indicating they had sexual intercourse. Zeise and his counsel both agreed. The court found there was strong evidence of guilt.

¶ 6 The court next engaged Zeise in a colloquy concerning his understanding of the information addressed on the plea questionnaire. The following exchange took place:

Now by entering your Alford plea ... you are admitting that you committed the elements of the crimes. Do you understand that?

Yes.

....

Do you understand that you are admitting that you had sexual contact with the victim and that the victim did not consent to the sexual contact? Do you understand that?

Yes.

The State then intervened and stated it wished to stress that:

a child under the age of 16 cannot give a legal consent to contact or intercourse. Even from the State's standpoint in this case, this was consensual in fact, but illegal under law. So it's a legal inability of the child under 16 to consent to contact or intercourse that leads to the nonconsent element being satisfied. And I'd ask [defense counsel] to so stipulate with me so that's clear.

Defense counsel stipulated to the nonconsent element and then noted Zeise understood the elements but was not admitting to them. The State agreed Zeise did not have to admit to committing the crime, and the court moved on to the next charge, without comment on the matter. Ultimately, the court accepted Zeise's Alford plea.

¶ 7 After sentencing, Zeise moved to withdraw his Alford plea, contending it was not supported by a sufficient factual basis because the victim consented in fact.⁴ An evidentiary hearing was held regarding a different issue, although there was also some discussion of the factual basis argument. The court later denied Zeise's postconviction motion in a written decision.

DISCUSSION

¶ 8 "Withdrawal of a plea following sentencing is not allowed unless it is necessary to correct a manifest injustice." State v. Smith, 202 Wis. 2d 21, 25, 549 N.W.2d 232 (1996). One type of manifest injustice is the circuit court's failure to establish a sufficient factual basis that the defendant committed the offense. Id. "When the plea entered is an Alford plea, the factual basis is deemed sufficient only if there is strong proof of guilt that the defendant committed the crime...." Id. To determine whether there is strong proof of guilt, a trial court must assess "`the prosecutor's summary of the evidence the state would offer at trial....'" State v. Garcia, 192 Wis. 2d 845, 857-58, 532 N.W.2d 111 (1995) (quoting State v. Johnson, 105 Wis. 2d 657, 663, 314 N.W.2d 897 (Ct. App. 1981)).

¶ 9 "The requirement of a higher level of proof in Alford pleas is necessitated by the fact that the evidence has to be strong enough to overcome a defendant's `protestations' of innocence." Smith, 202 Wis. 2d at 27. Strong proof of guilt is less than proof beyond a reasonable doubt, but it is "clearly greater than what is needed to meet the factual basis requirement under a guilty plea." Id. The determination of the existence of a sufficient factual basis lies within the trial court's discretion and will not be overturned unless it is clearly erroneous. Id. at 25.

¶ 10 Another type of manifest injustice occurs when a defendant does not knowingly and understandingly enter an Alford plea. State v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906; Garcia, 192 Wis. 2d at 859-60, 864-65. A defendant is "entitled to withdraw his plea as a matter of constitutional right if he demonstrates that he did not understand the elements of the crimes to which he pled." Garcia, 192 Wis. 2d at 864.

¶ 11 The issue before us is whether a child under the age of sixteen is, as a matter of law, incompetent to give informed consent to sexual contact under WIS. STAT. § 940.225(3m). Zeise contends Smith is determinative of this case. There, the defendant entered an Alford plea to a reduced charge of child enticement under Wis. Stat. § 948.07(1). That provision relies on WIS. STAT. § 948.02(2), which applies to sexual contact or intercourse with a person under the age of sixteen. Our supreme court ruled there could not be strong proof of guilt because it was impossible to satisfy the age element since it was undisputed the victim was sixteen years old. Smith, 202 Wis. 2d at 28. Zeise asserts it was similarly impossible here to satisfy an element because the victim consented in fact.

¶ 12 The State asserts that no child under the age of sixteen can legally consent and also contends Zeise is bound by his counsel's stipulation on the matter. The State argues WIS. STAT. § 948.02(2) implicitly establishes our modern age of consent to be sixteen years of age. That strict-liability statute makes it a crime to have sexual contact or intercourse with any person under sixteen years of age, regardless of consent.⁵ State v. Fisher, 211 Wis. 2d 665, 565 N.W.2d 565 (Ct. App. 1997). However, § 948.02 does not explicitly address the issue of consent. Subsection 948.02(2) merely states: "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony."

¶ 13 Curiously, neither party addresses the specific language of WIS. STAT. § 940.225(3m), the statute at issue in this case. That section criminalizes "sexual contact with a person without the consent of that person[.]" Id. Subsection (4) then defines consent:

"Consent," as used in this section, means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. Consent is not an issue in alleged violations of sub. (2) (c), (cm), (d), (g), (h), and (i). The following persons are presumed incapable of consent but the presumption may be rebutted ...:

(b) A person suffering from a mental illness or defect which impairs capacity to appraise personal conduct.

(c) A person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

WIS. STAT. § 940.225(4) (emphasis added). Notably absent from WIS. STAT. § 940.225 is any reference to age of a victim.⁶ This absence is in contrast to the definition of "without consent" set forth in WIS. STAT. § 939.22(48), which would otherwise apply in absence of the more specific definition set forth above.⁷ The definition provided in § 939.22(48)(c) states there is no consent if consent was given because, among other reasons, the victim does not understand the nature of the thing to which the victim consents, by reason of youth. Yet, even that section does not set forth a presumption of nonconsent for minors nor reference particular ages.

¶ 14 As comment 4 to WIS JI—CRIMINAL 1200C observes regarding WIS. STAT. § 940.225(4), "competent to give informed consent" is not further defined in the statute. The instruction committee further notes:⁸

There is no indication whether the classes of persons described in § 940.225(4)(b) and (c) are those who are not "competent to give informed consent," or whether a different category of individuals is contemplated. The Committee took the view that a broader category was intended and...