COURT OF APPEALS DECISION DATED AND FILED |
NOTICE |
October 21, 1997 |
This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports. |
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin |
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, Stats. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT I |
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State
of Wisconsin, Plaintiff-Respondent, v. Martin
Foral, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Milwaukee County: richard j. sankovitz, Judge. Affirmed and cause remanded with directions.
FINE,
J. Martin Foral appeals
from a judgment entered on a “no contest” plea, and from the trial court's
denial of his motion to withdraw that plea. Convicted of fourth-degree sexual
assault, see § 940.225(3m),
Stats., and placed on probation, Foral claims that his plea was not
entered knowingly because he was not informed that his probation agent would
seek to require him, as a condition of probation, to cooperate with the
sexual-offender-registration program. See
§§ 973.048 & 301.45, Stats. We affirm the judgment and the trial
court's order denying Foral's motion to withdraw his plea, but remand this case
to the trial court for the entry of an order under § 973.09(3)(a), Stats.
Foral's only complaint
on appeal is that as a condition of probation he is being required to
“cooperate with Sex Offender Registration with the Dept. of Justice prior to
discharge, and with Milwaukee and other local police authorities as directed”
by Foral's probation agent. He claims
that neither the trial court nor his attorney told him that he would be subject
to this condition if he accepted conviction via a “no contest” (or any
other) plea. Thus, he seeks to withdraw
his plea, asserting “manifest injustice.”
See State v. Damaske, ___ Wis.2d ___, ___, 567
N.W.2d 905, 915 (Ct. App. 1997) (“After sentencing, a defendant who seeks to
withdraw a guilty or no contest plea carries the heavy burden of establishing,
by clear and convincing evidence, that the trial court should permit the
defendant to withdraw the plea to correct a ‘manifest injustice.’”) (quoted
source omitted).
Putting aside the
question of whether compliance with the requirements of §§ 973.048 & 301.45, Stats., is a direct or collateral
consequence of a conviction, see State v. Myers, 199
Wis.2d 391, 394, 544 N.W.2d 609, 610 (Ct. App. 1996), which we do not decide, see
Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938)
(only dispositive issue need be addressed), Foral was not subject to sex
offender registration, as the parties agree. The attempt by Foral's probation
agent to subject Foral to that registration was thus unlawful. Accordingly, we remand this case to the
trial court for entry of an order pursuant to § 973.09(3)(a), Stats. (“Prior to the expiration of
any probation period, the court, for cause and by order, may extend probation
for a stated period or modify the terms and conditions thereof.”), specifying
that Foral is not subject to the requirements of §§ 973.048 & 301.45. See State v. Kluck, 210
Wis.2d 1, 9, 563 N.W.2d 468, 471 (1997) (trial court has power to modify terms
of probation).
The sole ground upon
which Foral sought to withdraw his plea was his probation agent's attempt to
subject him to §§ 973.048 & 301.45,
Stats. That condition, unlawful
under the circumstances of this case, will be removed by the trial court. Accordingly, Foral has not demonstrated any
reason—no less “manifest injustice”—to withdraw his plea. The judgment and the trial court's order
denying Foral's motion to withdraw his plea is, accordingly, affirmed.
By the Court.—Judgment and order affirmed, cause remanded
with directions.
This opinion will not be published. See Rule 809.23(1)(b)4, Stats.