District III
July 30, 2013
To:
Hon. Mark J. McGinnis
Circuit Court Judge
Outagamie County Justice Center
320 S. Walnut St
Appleton, WI 54911
Lonnie Wolf
Clerk of Circuit Court
Outagamie County Courthouse
320 S. Walnut Street
Appleton, WI 54911
Andrew J. Maier
Outagamie County District Attorney’s Office
320 S. Walnut St. 1st Fl.
Appleton, WI 54911-5918
Carrie A. Schneider
District Attorney
320 S. Walnut St.
Appleton, WI 54911
Gregory M. Weber
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Richard J. Gravelle
833 1/2 W. Oklahoma Street
Appleton, WI 54914
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Richard J. Gravelle (L. C. #2010CM449) |
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Before Hoover, P.J.[1]
Richard Gravelle, pro se, appeals an order denying his Wis. Stat. § 974.06 motion for postconviction relief. Gravelle was convicted of fourth-degree sexual assault as a repeater. See Wis. Stat. § 940.225(3m).[2] In his § 974.06 motion, Gravelle sought, in part, to withdraw his plea because he alleged he did not understand the elements of the offense. Specifically, Gravelle alleged he did not understand the State would have to prove his sexual contact was for the purpose of sexual gratification or the victim’s humiliation. See Wis. Stat. § 940.225(5)(b). The circuit court found Gravelle understood the sexual contact element and denied Gravelle’s § 974.06 motion.
On appeal, Gravelle renews his argument that he is entitled to plea withdrawal. In response, the State concedes that, after reviewing the case law, it “is unable … to make a good faith argument that it met its burden of proving by clear and convincing evidence that Gravelle understood the sexual contact element of the offense.” The State “agrees that Gravelle is entitled to withdraw his plea[],” and it asks us to “vacate the judgment of conviction and reverse the order denying postconviction relief and remand for further proceedings.”
Based on the State’s concession, and because we cannot abandon our neutrality to develop arguments for the State, see State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992), we summarily reverse the order denying postconviction relief, vacate Gravelle’s judgment of conviction, and remand for further proceedings.
Therefore,
IT IS ORDERED that the court’s order denying postconviction relief is summarily reversed, the judgment of conviction is vacated, and the case is remanded for further proceedings.
Diane M. Fremgen
Clerk of Court of Appeals
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2) (2011-12). All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] Wisconsin Stat. § 940.225(3m) provides: “Fourth Degree Sexual Assault .... [W]hoever has sexual contact with a person without the consent of that person is guilty of a Class A misdemeanor.”