State v. Calvin Scott, Jr. ( 2024 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 30, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP1618-CR Cir. Ct. No. 2019CF3854
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
CALVIN SCOTT, JR.,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before White, C.J., Donald, P.J., and Geenen, J.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1618-CR
¶1 PER CURIAM. Calvin Scott, Jr. appeals from his judgment of
conviction, entered upon a guilty plea, for second-degree sexual assault of a child,
and from the order denying his motion for postconviction relief. Scott argues that
the circuit court erred when it adopted the State’s proposed findings of fact
without making independent legal or factual findings in its denial of his motion for
plea withdrawal after an evidentiary hearing. Upon review, we affirm.
BACKGROUND
¶2 In August 2019, the State charged Scott with one count of second-
degree sexual assault of a child under sixteen years of age and one count of
repeated sexual assault of a child. The complaint alleged that from approximately
February through August 2019, Scott repeatedly sexually assaulted his
stepdaughter while her mother was asleep or at work.
¶3 On January 21, 2020, Scott elected to resolve the charges with a
plea. The circuit court conducted the colloquy as follows:
THE COURT: So the defendant’s entering a plea of guilty
to the second-degree sexual assault that carries up to 40
years and/or a $100,000 fine?
[TRIAL COUNSEL:] Yes.
THE COURT: And you understand, sir, if you’re not a
citizen of the United States, your plea could result in
deportation, exclusion or denial of naturalization?
THE DEFENDANT: Yes.
THE COURT: Is the second count being dismissed and
read-in, or what?
[THE PROSECUTOR:] Correct.
THE COURT: Okay. You are going to be waiving those
constitutional rights that are contained in the form that
you’ve signed. Your rights to a trial by jury. And all
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No. 2022AP1618-CR
twelve jurors must agree unanimously as to a verdict. That
means they must all agree as to the elements of the offense
beyond a reasonable doubt that you had sexual intercourse
with the victim of the offense that was under the age of 16
at the time of the alleged intercourse. Do you understand
that?
THE DEFENDANT: Yes.
THE COURT: You understand you’re going to have to
register as a sex offender?
THE DEFENDANT: Yes.
THE COURT: You also understand the [c]ourt’s not
bound by any negotiations or plea bargains?
THE DEFENDANT: Yes.
THE COURT: And you’re going to be waiving any
possible defenses that you may have to the offense charged
in the criminal complaint. Do you understand that also?
THE DEFENDANT: Yes.
THE COURT: You’re waiving your right to challenge the
sufficiency of the criminal complaint, waiving your right to
challenge the constitutionality of any police actions, such
as any stop, arrest, search and seizure, or any statement that
may have been made by yourself.
THE DEFENDANT: Yes.
THE COURT: Are you under some type of medication or
treatment for mental illness?
THE DEFENDANT: No.
THE COURT: You’re not. So you’re not taking any drugs
or anything of that nature?
THE DEFENDANT: Just what they give me downstairs.
THE COURT: Okay.
THE DEFENDANT: Medication, yes. I’m taking stuff
for—for—I’m having bad things I went through. I’m on
pretty high doses of stuff.
THE COURT: That doesn’t interfere with your ability to
understand what we’re doing here today, does it?
3
No. 2022AP1618-CR
THE DEFENDANT: I understand.
THE COURT: You understand everything?
THE DEFENDANT: Yes.
THE COURT: Okay. Is there anything that you do not
understand by pleading guilty to the offense?
THE DEFENDANT: No.
THE COURT: And counsel, you’re satisfied the
defendant’s intelligently, voluntarily and knowingly
waiving those constitutional rights?
[TRIAL COUNSEL:] Yes.
THE COURT: What’s your plea, sir, to the charge of
second-degree sexual assault of a child?
THE DEFENDANT: Guilty.
THE COURT: On that plea, then, the [c]ourt will make a
finding of guilt. And the [c]ourt will use the criminal
complaint as a factual basis for the plea and waive any
other testimony. No objections?
[THE PROSECUTOR:] No objection.
¶4 Ten days later, the circuit court sentenced Scott on the count of
second-degree sexual assault of a child. The court imposed a sentence of twenty
years of imprisonment, bifurcated as twelve years of initial confinement and eight
years of extended supervision.
¶5 Scott filed a WIS. STAT. RULE 809.30 (2021-22)1 postconviction
motion in September 2021. He requested an evidentiary hearing on his claim that
it would be a manifest injustice not to allow him to withdraw his plea. He argued
that the circuit court’s plea colloquy with him was constitutionally deficient and
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
4
No. 2022AP1618-CR
that the court failed to fulfill its duties under WIS. STAT. § 971.08. He asserted
that the court failed to verify six issues: (1) that he understood the terms of the
plea agreement; (2) that he was capable of entering a knowing and intelligent plea;
(3) that he understood the crime to which he was pleading; (4) whether there were
any threats or promises made to induce his plea; (5) that he understood the
constitutional rights he was waiving; and (6) that he understood the significance of
a read-in charge. Finally, he argued that he was entitled to plea withdrawal
because of ineffective assistance of counsel.
¶6 The circuit court held an evidentiary hearing in July 2022.2 The
State began by calling trial counsel, who explained that he met in person with
Scott and they each reviewed the plea questionnaire form. Trial counsel reviewed
exhibit one, the plea questionnaire/waiver of rights form and the addendum,
identified his own signature on the form, and confirmed that it was the same form
he reviewed with Scott. Trial counsel affirmed that the plea agreement stated “If
defendant takes full responsibility in this matter by pleading guilty to Count [one],
the State will dismiss and read-in Count [two].”
¶7 Trial counsel testified that he considered the plea a “good deal” to
limit Scott’s prison exposure, from eighty years to forty years. Trial counsel
explained to Scott that the State’s offer of a recommendation of “substantial prison
time” did not mean probation, and that trial counsel could not give a specific
number of years the judge might choose. However, in his opinion, it “sometimes
2
In response, the State argued that Scott failed to make a prima facie case for his claims
based on his capability of entering a knowing and intelligent plea, his understanding of the nature
of the charges, and the significance of the read-in charge. However, the State conceded that he
sufficiently alleged his remaining claims to be entitled to an evidentiary hearing. The record does
not make clear whether the circuit court limited Scott’s claims during the evidentiary hearing. .
5
No. 2022AP1618-CR
mean[t] double digits on a case where there’s a 40-year maximum.” Trial counsel
explained that whatever was recommended, the circuit court still could do what it
wanted. Trial counsel also explained that a “read-in” count means “you can’t be
sentenced for it, you can’t be charged with it in the future, so it’s gone forever, but
the judge can consider the conduct when he makes his sentence.”
¶8 Trial counsel testified that he reviewed discovery in the case and that
the DNA reports showed Scott’s DNA was found on the victim’s vagina and
cervix. Trial counsel stated that Scott also looked at the evidence and that the
DNA results motivated his plea.
¶9 Trial counsel reviewed exhibit two, a letter from the prosecutor to
Scott’s original attorney outlining the proposed plea agreement. 3 Trial counsel
testified about his understanding of prior plea negotiations: Scott’s original
attorney asked the prosecutor to amend the charge to third-degree “with the
understanding that the State could ask for [the maximum], which would have been
five [years of initial confinement] and five [years of extended supervision].” Trial
counsel stated that he believed Scott’s reference to “five years” comes from that
negotiation. The State refused to amend the charge. Scott asked trial counsel to
ask again; trial counsel did so and the State continued to refuse. Scott pled to the
original offer from the State.
3
Scott’s original attorney represented him during the preliminary hearing in September
2019, during which the court commissioner affirmed that Scott reviewed the preliminary hearing
questionnaire and waiver form with his attorney. However, Scott’s attorney moved to withdraw
in November for conflict of interest after Scott filed an Office of Lawyer Regulation (OLR)
complaint against her. Scott’s original attorney was not called as a witness at the evidentiary
hearing. Scott’s trial counsel was appointed later in September 2019.
6
No. 2022AP1618-CR
¶10 Trial counsel testified that he reviewed exhibit three, the jury
instructions, with Scott; he “went through the jury instructions for this offense,
went through the facts of the case, put the form in front of [Scott]. He read
through it. He signed it.” He explained that the jury instruction for second-degree
sexual assault can be based on sexual contact or intercourse and that contact was
crossed out because the theory of the case was intercourse.
¶11 Trial counsel stated that he was “satisfied that we went through the
process of filling out … the plea form” and that they reviewed the forms for about
forty-five minutes. Trial counsel testified that he preferred to explain what the
terms on the forms meant, not to just restate terms like you have a “right to a
trial.” Trial counsel testified that Scott reviewed the plea documents thoroughly
because he was “anxious about this plea and what was going to happen.” Trial
counsel testified that Scott did not seem impaired or affected by medication. He
believed that Scott was able to effectively communicate with him and understood
what was happening.
¶12 During cross-examination, trial counsel testified that he wrote in
“depression” after checking “no” next to the question of whether Scott had a
diagnosis of a mental illness. He believed he filled out the question about
“alcohol, medication, or drug” use as Scott instructed, checking no. He did not do
any independent investigation into Scott’s mental health or medical treatment.
Trial counsel stated that he was not a medical professional, he was not an expert in
whether someone is impaired, and he was not an expert on whether mental health
would interfere with understanding or comprehension.
¶13 Scott then testified, stating that when he met with trial counsel, he
explained that his original counsel had gotten him a deal for five years, and that he
7
No. 2022AP1618-CR
signed paperwork to that effect. He stated he gave this paperwork to trial counsel.
Scott stated that he assumed the first deal was the plea agreement trial counsel was
going to pursue and that they did not have any other discussions about it. Scott
stated that trial counsel stated that they would leave the probation time up to the
State. He testified that he believed the deal was “[f]ive years and leave it up to the
[S]tate for probation.”
¶14 Scott testified that trial counsel did not review the plea agreement,
the plea questionnaire, or the waiver of rights forms with him. He stated that trial
counsel said this was “the best you can get” because “if you go to trial, you will
lose.” Scott stated that he did not read anything, just discussed the documents
with trial counsel. He said he looked over a document and said he did not
understand the terms, and trial counsel responded, “Well, we understand what is
going on. Just sign right here.” He stated that trial counsel did not go over the
jury instructions, or explain the elements the State would need to prove to a jury.
He testified that they talked and then he signed the paperwork that trial counsel
gave him without reading it.
¶15 Scott testified that trial counsel did not discuss his constitutional
rights or mental health. He stated that when trial counsel met with him, he said
Scott looked tired, and Scott explained he was tired from new medication. Upon
questioning from postconviction counsel, Scott recalled that during the plea
hearing, he said he was on “pretty high doses” of medications.
¶16 During the redirect examination, the prosecutor showed Scott
exhibits one and two. Scott conceded that the description of the plea agreement
and his signature looked “right.” He agreed that neither document referenced five
years in prison.
8
No. 2022AP1618-CR
¶17 The prosecutor also asked Scott that if they reviewed the plea
hearing transcript, would it show that trial counsel stated the plea agreement on the
record, and that Scott did not object to the phrasing of the plea agreement. Scott
replied that he looked at trial counsel, who said to him, “I got this. Don’t worry
about this.”
¶18 Scott acknowledged sending multiple letters while the case was
pending, including three to the circuit court in September and October 2019, and
January 2020. Scott was asked if those letters discussed the plea agreement, and
he stated that he instead wrote to the Wisconsin Supreme Court after sentencing.
Although Scott produced a copy of the letter, the circuit court did not receive it
and did not consider it relevant. Further, Scott acknowledged sending two letters
to the circuit court after sentencing that did not raise concerns about the plea.
¶19 The circuit court further questioned Scott by referencing the plea
hearing transcript. The court quoted two questions, where Scott said he
understood that the court was not bound by any plea agreement and that he
understood the proceedings despite being on medication.
¶20 The circuit court ordered the State and the defense to simultaneously
submit findings of fact and conclusions of law. The circuit court issued a written
decision denying Scott’s motion for postconviction relief on September 20, 2022.
The court’s written decision stated that it “agree[d] with the proposed findings of
fact and conclusions of law submitted by the State on August 6, 2022[,] and adopts
those findings and conclusions of law as the decision of the court.” The court also
made independent findings that “the court found the testimony of [trial counsel]
credible and the testimony of [Scott] not credible.” The court concluded that “the
9
No. 2022AP1618-CR
State has met its burden of demonstrating by clear and convincing evidence that
the defendant’s plea was knowingly, voluntarily, and intelligently entered.”
¶21 The circuit court struck the State’s finding that “other claims” had
been withdrawn or denied without a hearing, and instead found that the
evidentiary hearing addressed Scott’s ineffective assistance of counsel claim. The
court concluded that Scott “failed to demonstrate that his attorney
miscommunicated the plea deal or that he relied on any alleged miscommunication
in deciding to enter his plea.” The court then concluded that “[c]onsequently,
counsel was not ineffective and the defendant was not prejudiced[,]” and denied
any ineffective assistance of counsel claim.
¶22 The State’s findings of fact and conclusions of law included that
Scott had “[twelve] years of schooling, understands English, understands the
charges to which he is pleading, that he is receiving treatment for depression, and
that he has taken either alcohol, medication, or drugs in the past 24 hours.” The
forms stated that Scott understood that he was giving up constitutional rights, that
the circuit court is not bound by the plea agreement, that the maximum penalty
was forty years and a $100,000 fine, that he was entering the plea of his own free
will, and that he was not threatened or forced to enter the plea.
¶23 The State’s findings also included that during the plea colloquy,
Scott “was present when the negotiations were put on the record and did not
dispute them.” It also stated that Scott “stated that his depression medication does
not interfere with his ability to understand what is going on, and, that he did
understand everything that was going on.”
¶24 This appeal follows.
10
No. 2022AP1618-CR
DISCUSSION
¶25 Scott argues that the circuit court’s adoption of the State’s findings
of fact meant that the court failed to exercise its discretion when it denied his
motion for postconviction relief. He asserts that the State failed to satisfy its
burden by clear and convincing evidence that Scott’s plea was entered knowingly,
intelligently, and voluntarily. Scott’s appeal renews his postconviction motion’s
claims of six issues that he asserts make his plea not knowing, intelligent and
voluntary: (1) his understanding of the plea agreement; (2) his ability to enter a
knowing and intelligent plea; (3) his understanding of the nature of the charge,
including the definition of the term “intercourse” in the charge; (4) whether his
plea was voluntary, with an absence of threats or promises; (5) his understanding
of his constitutional rights; and (6) his understanding of a read-in charge.
I. Scott has not shown that the court’s findings were clearly erroneous
¶26 We begin with Scott’s claim that the circuit court abdicated its duties
by adopting the State’s findings of facts. “A circuit court is not prohibited from
adopting the brief of one of the parties as its decision in the case.” State v. Lock,
2013 WI App 80, ¶10, 348 Wis. 2d 334, 833 N.W.2d 189. “However, if a circuit
court chooses to adopt a party’s brief, it is required to indicate the factors on which
it relied when making its decision and state those on the record.” Id. Scott asserts
that the circuit court failed to state on the record the basis of its reasoning. We
disagree. The circuit court’s written decision was brief, but when faced with
almost entirely opposite testimony about what trial counsel told Scott, the court
found trial counsel to be credible and Scott incredible.
¶27 As the State argues, we must accept the circuit court’s credibility
determinations unless they are clearly erroneous. When acting as a fact finder, the
11
No. 2022AP1618-CR
circuit court is the “ultimate and final arbiter of the credibility of witnesses,” and
this court must accept the circuit court’s credibility determination. Nicholas C.L.
v. Julie R.L., 2006 WI App 119, ¶23, 293 Wis. 2d 819, 719 N.W.2d 508. “An
appellate court will not overrule a circuit court’s credibility determination absent a
finding that it is ‘inherently or patently incredible,’ or ‘in conflict with the uniform
course of nature or with fully established or conceded facts.’” Id. (citation
omitted).
¶28 Our examination of the record shows that the circuit court’s
credibility determinations were not inherently incredible or in conflict with
established facts. Exhibits one and three show Scott’s signature, which matches
trial counsel’s account of explaining the plea agreement and charge to Scott. Scott
does not dispute it was his signature. Scott’s testimony was illogical, asserting
that his original attorney had negotiated a deal for five years, but he did not accept
that deal, he filed an OLR complaint against her, and he could not produce any
documentation of that offer. In contrast, the State presented exhibit two, which
showed the plea offer from the State to Scott’s original attorney and described the
terms of the plea agreement Scott eventually entered into.
¶29 At the evidentiary hearing, trial counsel and Scott testified to every
contested fact as to the nature of Scott’s understanding of the plea. Scott’s
testimony contradicted trial counsel’s testimony in almost every respect; therefore,
the court’s credibility determinations affected nearly every relevant fact. Scott
argues that the circuit court’s decision was conclusory because of the brevity of its
findings. However, even if the circuit court “inadequately explains the reasons for
its decision, the reviewing court must independently review the record to find
support for the circuit court’s decision if the justification is there.” State v.
Jenkins, 2007 WI 96, ¶46, 303 Wis. 2d 157, 736 N.W.2d 24. Our examination of
12
No. 2022AP1618-CR
the record shows there was ample evidence in the record upon which the circuit
court could rely including the detailed testimony of trial counsel and the three
exhibits presented by the State.
¶30 Scott argues that the circuit court’s findings were clearly erroneous
to the extent that the court relied upon two of the State’s findings: that the plea
negotiations were placed on the record by trial counsel4 and that Scott filed
numerous pro se motions during and after the plea hearing.5 We share concerns
4
Although the State argues that the circuit court’s statement in the plea colloquy: “So
the defendant’s entering a plea of guilty to the second-degree sexual assault that carries up to 40
years and/or a $100,000 fine?” is a statement of the plea agreement, it is difficult to consider that
an adequate discussion of the plea negotiation. It appears perfunctory. As our supreme court has
discussed, “[t]he plea hearing colloquy must not be reduced to a perfunctory exchange.” State v.
Bangert, 131 Wis. 2d 246, 278-79, 389 N.W.2d 12 (1986). Nevertheless, this does not rise to a
clearly erroneous finding, and it does not undermine the circuit court’s ultimate credibility
determination. We caution the State about its characterization of the record. During the
evidentiary hearing, the prosecutor asked Scott: “Would you disagree if I told you that in the
transcript of the plea your lawyer … said the plea agreement on the record, right? And you didn’t
dispute that. You didn’t speak up and say, ‘Hey, that’s not the agreement.’” This is problematic
because our examination of the plea hearing transcript does not show trial counsel putting the
plea agreement on the record. As recited earlier in this decision, trial counsel spoke two words
during the hearing, responding “yes” when the court stated the charge and possible sentence and
then again, “yes” when the court asked if he believed Scott’s waiver of his constitutional rights
was knowing, intelligent and voluntary. We presume the transcript was available during the
evidentiary hearing because the circuit court appeared to quote from it in its examination of Scott.
The State’s finding as adopted by the circuit court appears to overstate the discussion of the plea
agreement.
5
Scott argues that the State misstated the record in its findings by labeling his letters to
the court as motions. The State argues that the labels of the documents are not dispositive, and in
any case, Scott does not dispute that he requested relief in those letters. The record reflects that
Scott filed three letters before the plea hearing and two letters between the plea hearing and the
sentencing hearing. “Under our rules, a defendant can wait until he knows his sentence before he
moves to withdraw his plea, and he may not be disadvantaged by this delay as long as he is able
to point to a deficiency in the plea colloquy.” State v. Brown, 2006 WI 100, ¶38, 293 Wis. 2d
594, 716 N.W.2d 906. If we accept Scott’s claimed belief about the meaning of the plea
agreement, there would be no reason for him to raise a concern that the plea agreement was
wrong until after sentencing. The record further reflects that Scott requested sentence
modification in a motion in January 2021, a year after he was sentenced. However, a Bangert
violation does not provide a legal basis for sentence modification. In any case, the issue of the
letters does not rise to a clearly erroneous finding, and it does not undermine the circuit court’s
ultimate credibility determination.
13
No. 2022AP1618-CR
about some of the State’s findings; however, those concerns do not overcome that
the circuit court had ample evidence to make credibility determinations.
¶31 Additionally, Scott argues that the circuit court misstated the legal
standard by which a post-sentencing plea withdrawal motion is assessed. The
State concedes that the court used the presentencing “fair and just” reason
language in the decision but argues that the court also correctly stated the standard
of manifest injustice. Scott has not shown that the court applied the wrong legal
standard.
¶32 Scott also argues that the circuit court was confused because it
denied the ineffective assistance of counsel claim that he did not pursue at the
evidentiary hearing. Scott acknowledges that there was ambiguity about the status
of the ineffective assistance of counsel claim because there was no express
withdrawal of the claim. Our examination of the record shows that the circuit
court succinctly denied that Scott had the ineffective assistance of counsel.
Although it is better practice to determine the claims before the court, the circuit
court’s findings were not clearly erroneous and do not undermine confidence in its
ultimate decision.
¶33 We conclude that the circuit court’s credibility determinations were
not clearly erroneous, and we therefore will uphold them. The court sufficiently
stated its reasoning and its adoption of the State’s findings did not abdicate its
authority. See Lock, 348 Wis. 2d 334, ¶10.
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No. 2022AP1618-CR
II. Scott has not shown a manifest injustice if plea withdrawal were not
granted
¶34 We now turn to Scott’s argument for plea withdrawal. “When a
defendant seeks to withdraw a guilty plea after sentencing, [the defendant] must
prove, by clear and convincing evidence, that a refusal to allow withdrawal of the
plea would result in ‘manifest injustice.’” State v. Brown, 2006 WI 100, ¶18, 293
Wis. 2d 594, 716 N.W.2d 906 (citation omitted). A defendant may satisfy the
burden to show manifest injustice by showing the plea was not knowingly,
voluntarily, or intelligently entered. State v. Trochinski, 2002 WI 56, ¶15, 253
Wis. 2d 38, 644 N.W.2d 891. The defendant must first make a showing of a prima
facie violation of WIS. STAT. § 971.08(1)(a) or other mandatory duties and allege
that the defendant “did not know or understand the information which should have
been provided at the plea hearing[.]” State v. Bangert, 131 Wis. 2d 246, 274, 389
N.W.2d 12 (1986).6 Then, the burden will “shift to the [S]tate to show by clear
6
To satisfy its obligations under WIS. STAT. § 971.08, our supreme court has set forth
the circuit court’s duties as follows:
(1) Determine the extent of the defendant’s education and
general comprehension so as to assess the defendant's capacity to
understand the issues at the hearing;
(2) Ascertain whether any promises, agreements, or threats were
made in connection with the defendant’s anticipated plea, his
appearance at the hearing, or any decision to forgo an attorney;
(3) Alert the defendant to the possibility that an attorney may
discover defenses or mitigating circumstances that would not be
apparent to a layman such as the defendant;
(4) Ensure the defendant understands that if he is indigent and
cannot afford an attorney, an attorney will be provided at no
expense to him;
(continued)
15
No. 2022AP1618-CR
and convincing evidence that the defendant’s plea was knowingly, voluntarily, and
intelligently entered, despite the inadequacy of the record at the time of the plea’s
acceptance.” Id.
¶35 On appellate review, the issue of whether a plea was knowingly,
voluntarily, and intelligently entered presents a question of constitutional fact.
State v. Bollig, 2000 WI 6, ¶13, 232 Wis. 2d 561, 605 N.W.2d 199. “We accept
the circuit court’s findings of historical and evidentiary facts unless they are
clearly erroneous but we determine independently whether those facts demonstrate
that the defendant’s plea was knowing, intelligent, and voluntary.” Brown, 293
Wis. 2d 594, ¶19. “[T]he reviewing court may look to the entire record to make
(5) Establish the defendant’s understanding of the nature of the
crime with which he is charged and the range of punishments to
which he is subjecting himself by entering a plea;
(6) Ascertain personally whether a factual basis exists to support
the plea;
(7) Inform the defendant of the constitutional rights he [or she]
waives by entering a plea and verify that the defendant
understands he [or she] is giving up these rights;
(8) Establish personally that the defendant understands that the
court is not bound by the terms of any plea agreement, including
recommendations from the district attorney, in every case where
there has been a plea agreement;
(9) Notify the defendant of the direct consequences of his plea;
and
(10) Advise the defendant that “If you are not a citizen of the
United States of America, you are advised that a plea of guilty or
no contest for the offense [or offenses] with which you are
charged may result in deportation, the exclusion from admission
to this country or the denial of naturalization, under federal law,”
as provided in []§ 971.08(1)(c).
Brown, 293 Wis. 2d 594, ¶35 (footnotes omitted).
16
No. 2022AP1618-CR
such measurement” of the defendant’s understanding of the nature of the charge
and the waiver of constitutional rights. Bangert, 131 Wis. 2d at 283.
¶36 The State concedes that the circuit court’s plea colloquy with Scott
was inadequate in certain respects. To rebut the defendant’s claim, the State may
“utilize any evidence which substantiates that the plea was knowingly and
voluntarily made.” Id. at 274-75. During the evidentiary hearing, the State
examined trial counsel and introduced three exhibits: (1) the plea questionnaire,
waiver of rights form, and addendum, which included the terms of the plea
agreement; (2) the plea offer sent to Scott’s original counsel in September 2019;
and (3) the jury instructions for second-degree sexual assault of a child. Scott’s
testimony does not dispute the veracity of these exhibits; although his testimony
recounting what trial counsel told him before his plea is entirely different than the
testimony of trial counsel. Most important to our review is the circuit court’s
finding that trial counsel was credible and Scott was incredible.
¶37 With the entire record and circuit court’s credibility findings before
us, we now review Scott’s claims. The first issue is Scott’s understanding of the
plea agreement. Trial counsel’s credible testimony established that he discussed
the plea agreement with Scott, and he wrote down the plea agreement on the plea
questionnaire form for Scott to read. Trial counsel attempted and failed to
negotiate a reduced charge for Scott, the same negotiation that failed for Scott’s
original attorney. Scott acknowledged seeing the plea questionnaire form and his
incredible testimony is the only evidence of another plea agreement negotiated by
his original attorney that he intended to enter into. With the signed, undisputed
plea questionnaire in the record, we conclude that the State showed that Scott
understood the plea agreement.
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No. 2022AP1618-CR
¶38 Scott’s second claim is that the State failed to show his ability to
enter a knowing and intelligent plea, particularly with respect to his medication
usage. In the plea colloquy, Scott affirmed that his medication did not impair his
ability to understand the proceedings. Trial counsel’s credible testimony was that
Scott was on medication for depression. While acknowledging that trial counsel is
not a mental health expert, trial counsel did not consider Scott impaired. Scott’s
own testimony was that he was tired and on high doses of medication. However
even if Scott’s testimony had been found credible, he did not explain how the
depression treatment rendered him unable to make a knowing and intelligent plea.
We conclude the State has presented sufficient evidence to show that Scott had the
ability to enter into a knowing and intelligent plea.
¶39 Scott’s third claim is that the State failed to show his understanding
of the nature of the charge. Scott argues that he did not understand the term
“intercourse” in the charge for second-degree sexual assault of a child–sexual
intercourse with a person not yet sixteen years old. The record reflects that the
circuit court’s discussion of the nature of the charge was inadequate, with no
questions to gauge Scott’s understanding. Similar to our supreme court’s criticism
in Bangert, “[t]he elements of the crime were not discussed; no jury instructions
were read.” Id., 131 Wis. 2d at 280. Nevertheless, during the evidentiary hearing,
trial counsel testified about reviewing the jury instructions with Scott and
explaining why intercourse was the theory of the charge and not sexual contact.
Trial counsel also testified that Scott was focused on the plea after they reviewed
the discovery evidence that included that Scott’s DNA was found on the victim’s
cervix and vagina. The record reflects that Scott signed the jury instructions when
he reviewed them with trial counsel. We conclude that the State showed that Scott
understood the nature of the charge.
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No. 2022AP1618-CR
¶40 For Scott’s fourth and fifth claims, Scott concedes that if he was
properly found incredible, that the State satisfied its burden of proof. Because we
have concluded that the circuit court’s finding that Scott’s testimony was
incredible was not clearly erroneous, we agree that the State satisfied its burden.
¶41 Scott’s sixth claim is that the State failed to verify Scott’s
understanding of a read-in charge. Scott argues that trial counsel’s explanation of
a read-in count was insufficient to make Scott’s plea knowing, intelligent, and
voluntary. The record reflects that trial counsel testified that he explained a read-
in charge as follows: “you can’t be sentenced for it, you can’t be charged with it
in the future, so it’s gone forever, but the judge can consider the conduct when he
makes his sentence.” Scott asserts that trial counsel failed to explain the current
Wisconsin Supreme Court guidance that “the read-in charge will be considered by
the sentencing court[.]” State v. Sulla, 2016 WI 46, ¶35, 369 Wis. 2d 225, 880
N.W.2d 659. However, when we consider the full passage in Sulla, Scott’s claim
falls short. Our supreme court stated:
[C]ounsel and courts should advise defendants that (1) the
read-in charge will be considered by the sentencing court,
but the maximum penalty will not be increased; (2) the
defendant may be required to pay restitution on the read-in
charge; and (3) the defendant may not be prosecuted for the
read-in charge in the future.
Id. We conclude that trial counsel’s explanation was imperfect, but it was
sufficient to state the law.
¶42 We note that Scott’s complaints about the inadequacy of the plea
colloquy was fair. Our examination of the record shows that the plea colloquy
was “perfunctory” and did not show the attention and inquisitiveness that
Wisconsin demands in these situations. See Bangert, 131 Wis. 2d at 268-69. We
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No. 2022AP1618-CR
caution the circuit court to perform these mandatory duties with greater care. In
this case, the evidentiary hearing showed that trial counsel ensured that the
defendant was properly aware of the nature of the charges, the plea offer, the
constitutional rights being waived, and the court’s possible actions at sentencing.
“[I]f a defendant does understand the charge and the effects of his plea, he should
not be permitted to game the system by taking advantage of judicial mistakes.”
Brown, 293 Wis. 2d 594, ¶37. Therefore, we conclude it would not show a
manifest injustice to refuse to allow Scott to withdraw his plea. We affirm the
circuit court’s decision to deny Scott postconviction relief.
CONCLUSION
¶43 For the reasons stated above, we conclude that the circuit court’s
findings were not clearly erroneous and that Scott has failed to show a manifest
injustice based on a Bangert violation if he were not allowed to withdraw his plea.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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