COURT OF APPEALS DECISION DATED AND RELEASED February 27, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
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Nos. 96-1739-CRNM
96-1740-CRNM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GERALD W. KNUDTSON,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Sauk County:
PATRICK TAGGART, Judge. Affirmed.
Before Dykman P.J.,
Deininger and Roggensack, JJ.
PER
CURIAM. Gerald Knudtson pled no contest to first-degree sexual
assault of a child, contrary to § 948.02(1), Stats., and one count of intentionally causing harm to a
child, § 948.03(2)(b), Stats. He received concurrent prison terms of
fifteen years and five years respectively.
The court granted forty-four days of credit on the sexual assault
sentence and forty-two days credit on the child abuse sentence. Knudtson appeals the judgments of
conviction.
Knudtson's appellate
counsel has filed a no merit report pursuant to Rule 809.32, Stats.,
and Anders v. California, 386 U.S. 738 (1967). Appellate counsel has identified and
analyzed two potential issues: (1) the
validity of Knudtson's pleas and (2) the validity of the sentences. Knudtson received a copy of the report and
has filed a response. In response,
Knudtson argues that he was overcharged, sentenced too severely, was poorly
represented and was not guilty. Upon
our independent review of the record, we address two additional issues: (1) whether the record reflects that
Knudtson accurately understood the nature of the elements of the offense of
first-degree sexual assault and (2) whether Knudtson was accurately apprised of
the potential maximum penalty for first-degree sexual assault.[1] We conclude that the record fails to reveal
arguable merit to these or any other potential issue that could be raised on
appeal. Therefore, we affirm the
judgments.
BACKGROUND
Knudtson was originally
charged with six counts of sexual assault, involving two minors, S.R.S., born
in October 1982, and K.M.S., born in March 1980, contrary to § 948.02(1), Stats.
The complaint states that during the summer, fall and winter of 1993,
Knudtson, who was age fifty-three at the time, touched S.R.S's breasts and vagina
on numerous occasions at his campground trailer and later at his motel room,
where he resided. Her friend, K.M.S.,
was with her. K.M.S. witnessed the
assaults, and was also assaulted. He
gave the children cigarettes and alcohol.
He attempted sexual intercourse with S.R.S., removing her pants and his
pants. He attempted to insert his penis
into her vagina. She believes he
ejaculated because she became wet on her legs.
He inserted his middle fingers in the vaginas of K.M.S. and S.R.S.
At the preliminary
hearing, the children testified to essentially the same facts set forth in the
complaint. On cross-examination,
defense counsel asked the children if they had asked to be touched. In response to the State's objection,
defense counsel explained that the relevancy of the question was to determine
whether the alleged touching was for sexual gratification or other reasons.
The children testified
that Knudtson told them not to tell anybody or he would get in trouble. S.R.S testified that when Knudtson took off
his pants, she saw his penis. She
testified that he had an erection and ejaculated on her. The trial court found probable cause and
bound Knudtson over for trial.
Because at the
preliminary hearing testimony was received that a third minor girl was also
sexually assaulted on two occasions, the information charged eight counts of
sexual assault. Later, on defense
motion, these two counts involving the third child were dismissed.
A second complaint was
filed, charging Knudtson with one count of intentionally causing bodily harm to
a minor, K.M.S., born in March 1980, contrary to § 948.03(2)(b), Stats., and bail-jumping, contrary to §
946.49(1)(b), Stats. This charge resulted when Knudtson, released
on bond on the sexual assault charges, saw K.M.S. on a public street, came up
behind her, placed his arm around her neck in a choke hold, and threw her to
the pavement, injuring her elbow. His
bond contained conditions that he not commit any crime and that he have no
contact of any kind with any person under the age of eighteen years. The charges contained in both complaints
were later consolidated.
ANALYSIS
1. Sexual assault charge
No arguable merit exists
to a challenge to Knudtson's no contest plea to the sexual assault charge. Knudtson entered a plea agreement providing
that he would plead no contest to one count of first-degree sexual assault and
the remaining five charges would be dismissed.
Two sexual assault counts would be read in at sentencing, however. Knudtson has the burden of showing by clear
and convincing evidence that withdrawal of the plea is necessary to correct a
manifest injustice. See State
v. Harrell, 182 Wis.2d 408, 414, 513 N.W.2d 676, 678 (Ct. App.
1994). A plea that is not knowingly,
voluntarily and intelligently entered creates a manifest injustice. See id.
In State v.
Bangert, 131 Wis.2d 246, 266-72, 389 N.W.2d 12, 22-25 (1986),
procedural safeguards are described that satisfy constitutional
requisites. These include a personal
colloquy between the trial court and the defendant, demonstrating an
understanding of the constitutional rights at issue, the nature of the charges
and the potential punishment if convicted.
Id.; § 971.08, Stats.
The record shows that
the plea procedures were adequate. At
his plea hearing on the sexual assault charge, Knudtson stated that he was
fifty-four years old, never received treatment for mental or emotional problems,
and was not under the influence of any intoxicant. Knudtson completed the plea questionnaire with the assistance of
defense counsel. The trial court
personally addressed Knudtson. It
advised him of the rights he would be giving up by entering a no contest
plea. The trial court determined his
plea was voluntary. It relied upon the
criminal complaint and preliminary hearing as a factual basis for the plea. Knudtson stated that he was satisfied with
the legal representation he received.
Any argument that
Knudtson did not understand the nature of the charge would be frivolous within
the meaning of Anders. At
the plea hearing, the trial court described the crime as "sexual
contact" with a victim less than thirteen years of age. An essential element of the charge of sexual
contact of a minor is that the contact must be for the purpose of sexual
arousal or gratification, or to degrade the victim. See State v. Nye, 100 Wis.2d 398, 404, 302 N.W.2d
83, 86 (Ct. App. 1981), aff'd, 105 Wis.2d 63, 312 N.W.2d 826 (1981); see
also § 948.01(5), Stats. The trial court and the information
described the offense as simply as "sexual contact" under § 948.02(1), omitting the definition of
sexual contact found in § 948.01(5) that contains the "for the purpose of
sexual gratification" element.
Also, the plea questionnaire describes the offense as "sexual
contact-14 years old."
Nonetheless, the trial
court described the offense as one involving a thirteen-year-old and the
complaint charging Knudtson with violating § 948.02(1), Stats., alleged the offense occurred in the fall and winter
of 1993, and that the victim, S.R.S., was born in October 1982. Also, in the complaint, S.R.S. reportedly
stated that Knudtson ejaculated during an incident of sexual contact. During the preliminary examination, defense
counsel asked questions designed to demonstrate whether the purpose of the
contact was for sexual gratification.
At the plea hearing, in response to the trial court's question, defense
counsel answered affirmatively that his client understood the nature of the
charge, including the elements of the offense.
Although defense counsel later stated that he did not go over the elements
specifically, Knudtson had stated that he thoroughly discussed the matter with
defense counsel and was satisfied with his representation.
Knudtson, in his
response, did not suggest that he did not understand the nature of the
offense. The record makes no suggestion
of incompetency or mental deficiency.
Knudtson's general statement in his supplemental response that he had no
idea what the court was asking does not allege that he was unaware of the
nature of the charge. Without such
assertion, Knudtson does not meet one of the two threshold requirements for
challenging a plea as unknowing or involuntary. See State v. Giebel, 198 Wis.2d 207, 216,
541 N.W.2d 815, 818-19 (Ct. App. 1995).
We conclude that the record reveals no arguable merit to a challenge to
the validity of Knudtson's plea.
Next, the record
discloses that Knudtson was initially misinformed as to the penalty. His plea questionnaire indicated a prison
sentence of ten years and a $10,000 fine.
On the record, the trial court corrected the plea questionnaire on the
record to reflect a twenty year potential sentence and Knudtson initialed the
correction. Later, however, the trial
court indicated that the maximum penalty was twenty years in prison and a
$10,000 fine. This statement was
erroneous because there is no fine for a Class B felony. However, because the erroneous statement
overstated the penalty by including a fine, no prejudice results. Knudtson does not claim that the
misinformation regarding the fine in any way affected his decision to plead no
contest. Without such an assertion, he
has not met the criteria to withdraw a plea as involuntary or unknowing. See Giebel, 198 Wis.2d
at 216, 541 N.W.2d at 819.
Next, we conclude the
record reveals no arguable basis to challenge the sentence. The court
considered the appropriate factors including the gravity of the offenses,
Knudtson's character and rehabilitative needs, and protection of the public. See
State v. Echols, 175 Wis.2d 653, 682, 499 N.W.2d 631, 640, cert.
denied, 510 U.S. 889 (1993). These
are proper factors and the sentence is in within the statutory maximum.
2. Child
abuse charge
The
record reveals that Knudtson entered a negotiated no contest plea to the charge
of child abuse. In exchange for the
plea, the felony bond violation was dismissed and both parties jointly
recommended a five year prison sentence, concurrent with the sentence on the
sexual assault charge. The plea
procedure complied with the requirements set forth in Bangert. The record discloses no arguable basis to
challenge the sentence. See State
v. Scherreicks, 153 Wis.2d 510, 518, 451 N.W.2d 759, 762 (1989).
The
potential issues raised in Knudtson's responses lack arguable merit. A valid plea generally waives all
nonjurisdictional defects and defenses.
See Bangert, 131 Wis.2d at 293, 389 N.W.2d at
34. The record reveals no basis to
challenge the effectiveness of defense counsel because it lacks evidentiary
support to make such an argument. See
State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908-09 (Ct.
App. 1979).
Because the record
reveals no other potential appellate issues, further proceedings would lack
arguable merit. Attorney Steven Phillips is therefore relieved of further
representation of Knudtson in this matter.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] We ordered supplemental briefing on these two issues and appellate counsel responded with a supplemental brief. Knudtson responded to the brief, alleging ineffective assistance of counsel and challenging the plea procedure because he had no idea what the court was saying and was only responding according to counsel's directions.