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COURT OF APPEALS DECISION DATED AND FILED October 12, 2006 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No. 2003CF2228 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of Wisconsin,
Plaintiff-Respondent, v. Milton Wayne Taylor,
Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Rock County: James P. Daley, Judge. Affirmed.
Before Lundsten, P.J., Deininger and Higginbotham, JJ.
¶1 PER CURIAM. Milton Taylor appeals a judgment of conviction and an order denying his postconviction motion. The dispositive issue is whether the State proved by clear and convincing evidence that Taylor understood the elements of the charge. We affirm.
¶2 Taylor pled guilty to one count of second-degree sexual assault of a child. The charge was based on an allegation of “sexual contact,” rather than sexual intercourse. See Wis. Stat. § 948.02(2) (2003-04).[1] Taylor filed a postconviction motion seeking to withdraw his plea. The ground was that the circuit court did not comply with duties mandated by statute and case law, in that the court failed to advise Taylor of the elements of the crime, including the definition of “sexual contact” that requires the conduct to have been for the purpose of the actor’s sexual gratification or to sexually degrade or humiliate the victim. See Wis. Stat. § 948.01(5)(a). Taylor further alleged that he was not otherwise aware of this definition. The court held an evidentiary hearing at which it heard testimony by Taylor’s trial counsel and Taylor. The court denied the motion.
¶3 On appeal, the parties first discuss whether the plea
colloquy failed to sufficiently address the elements of the offense, as
required by State v. Bangert, 131
Wis. 2d 246, 267, 389 N.W.2d 12 (1986).
We assume, without deciding, that the plea colloquy was inadequate on
that point. Because the colloquy was
inadequate, the burden shifted to the State to prove by clear and convincing
evidence that Taylor understood the elements of the charge, including the
definition of “sexual contact.” State
v. Nichelson, 220 Wis. 2d 214, 220-26, 582 N.W.2d 460 (Ct. App. 1998); State
v. Jipson, 2003 WI App 222, ¶9, 267 Wis. 2d 467, 671
N.W.2d 18 (stating the elements of the offense).
¶4 We
will not upset the circuit court’s findings of historical fact unless they are
clearly erroneous. State v.
Trochinski, 2002 WI 56, ¶16, 253 Wis. 2d 38, 644 N.W.2d 891. On
appeal, Taylor argues that, to the extent the circuit court found that Taylor’s
trial counsel informed him of the elements of the offense, that finding is
clearly erroneous because there is no evidence of what Taylor knew at the time
of the plea; there is no affirmative evidence that counsel told Taylor the elements,
other than counsel’s testimony that it was his usual practice to do that; and
counsel’s omission of the “purpose” element from the plea questionnaire
suggests that he also did not inform Taylor of that element at the time of the
plea hearing. The State responds that
the evidence supports the finding that counsel told Taylor the elements, and
that he understood them.
¶5 Although
we conclude that the State met its burden, we begin by clarifying those
portions of the State’s argument we do not rely on for that
conclusion. The State asserts that trial
counsel testified that when he was reviewing the evidence with Taylor, he
discussed the elements with Taylor.
While that is an accurate description of one question and answer, the
State fails to acknowledge that, in the very next answer, counsel clearly
backed away from that answer and said that he did not recall whether he
discussed the elements. That position is
consistent with the remainder of counsel’s testimony, during which he testified
several times that he did not remember whether he explained the elements to
Taylor.
¶6 The
State also asserts that trial counsel testified he believed he went over the
elements with Taylor. This overstates
the record. The actual question to
counsel, after he confirmed that it was his “usual practice” to explain what
sexual contact means before his clients enter pleas, was this: “And you would have done that with Mr.
Taylor?” Counsel replied: “That’s my belief.” There is a significant difference between
somebody testifying that he believes he did something, and testifying that he
believes he would have done something. The former is a statement of belief about
what actually happened in a specific instance, while the latter is an
assumption about what would have happened, if everything had been done
normally. In other words, the latter is
essentially another way of saying that an explanation of sexual contact is
counsel’s usual practice. That would be
consistent with, but not add to, counsel’s other testimony, expressed several
times in various verbal formulations, that it was his usual practice to provide
an explanation of the elements.
¶7 The
State also argues that the only reasonable reading of the complaint is that the
contact was for the purpose of sexual gratification. It relies as well on testimony by Taylor’s
trial counsel that counsel went over the complaint and the evidence with Taylor,
and that counsel informed Taylor that counsel thought the State could prove the
charge. We do not rely on these points
because none go to the question of whether counsel explained the legal elements
the State would have to prove, or whether Taylor understood them. Finally, the State also asserts that the
court “made the credibility determination that [trial counsel’s] memory was
better than Taylor’s.” Such a
determination has little relevance to the key question because counsel testified
several times that he did not remember whether he explained the elements to
Taylor.
¶8 The
evidence that does support a finding that the elements were explained to
Taylor, and that he understood them, is counsel’s testimony that it was his
usual practice to explain them, and that counsel would not have gone ahead with
the plea if he felt Taylor did not understand them. The fact that counsel did go ahead with the
plea suggests that counsel held a contemporaneous belief that Taylor understood
the elements. We are satisfied that this
evidence is sufficient to establish that it was not clearly erroneous for the
circuit court to find that the State proved Taylor’s understanding to a clear
and convincing degree.
By the Court.—Judgment and
order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.