from a judgment and an order of the circuit court for Kenosha
County No. 2015CF79: BRUCE E. SCHROEDER, Judge. Judgment
modified and, as modified, affirmed; order affirmed.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
Richard J. Scott appeals from a judgment entered upon his
plea of guilty to engaging in repeated acts of sexual assault
of the same child and possession of child pornography. Scott
further appeals from an order denying his motion seeking plea
withdrawal pursuant to Wis.Stat. Rule 809.30
(2015-16). Scott contends that he is entitled to
withdraw his plea because he was charged with a version of
engaging in repeated acts of sexual assault of the same child
that no longer existed at law and there was no factual basis
for his plea to possession of child pornography. We disagree
but modify the judgment to reflect that Scott pleaded guilty
to Wis.Stat. § 948.025(1)(e) (2007-08).
and Procedural Background
In March 2015, an information was filed charging Scott with
six counts of repeated sexual assault of two girls over
several years, with four counts charged as Class B felonies
and two counts charged as Class C felonies, and nine counts
of possession of child pornography. As relevant, count four
alleged that between August 1, 2007, and August 31, 2008, he
committed "repeated sexual assaults" of the same
child, M.M., then five and six years old, "where fewer
than three of the assaults were violations of [Wis. Stat.
§] 948.02(1) … contrary to [Wis. Stat.
§§] 948.025(1)(b), 939.50(3)(c) … a Class C
felony, " which exposed Scott to forty years of
imprisonment and a $100, 000 fine. The complaint alleged that
Scott first touched M.M. on the vagina when she was in
kindergarten and that he touched her at least three times
during that year.
The complaint, as it related to the charges of possession of
child pornography, explicitly described the types of
pornographic material he possessed and showed to the two
Scott decided to enter a plea of guilty to count four and one
count of possession of child pornography, as alleged in count
seven, in exchange for a sentencing recommendation from the
State of seven to nine years of initial confinement. The
State would dismiss the remaining counts. During the
colloquy, the circuit court confirmed the child's date of
birth and asked if between August 1, 2007, and August 31,
2008, he touched M.M.'s vagina on at least three
occasions. The court asked Scott to confirm that "on at
least three occasions you touched the child with some part of
your body on the vagina for the purpose of your own sexual
gratification. Do you understand this charge against
you?" Scott answered in the affirmative and stated that
he was pleading guilty.
Regarding count seven, the court directed Scott to page four
of the criminal complaint, which described the pornography
Scott possessed. Scott indicated that he understood that
charge and was pleading guilty. No objections were raised to
the plea, and the court accepted Scott's plea.
A year after Scott was sentenced, he moved for plea
withdrawal pursuant to Wis.Stat. Rule 809.30, arguing that
his plea to count four was not a crime that existed at law
and that the court lacked competence to accept a guilty plea
to a crime not properly alleged. Scott contended that he was
charged with engaging in repeated acts of sexual assault of
the same child under Wis.Stat. § 948.025(1) (2005-06),
which was repealed and recreated effective March 27, 2008,
during the time when Scott engaged in the prohibited conduct.
He contended that under the appropriate 2007-08 statute,
there was no crime with the same elements as the 2005-06
statute under which he was charged.
As to count seven, Scott argued that there was no factual
basis to support the allegation of knowing possession of an
image that contained child pornography. The allegation that
the image was on Scott's computer was inadequate to
permit the inference that Scott knew he possessed the image.
For example, there was no allegation in the complaint that
only Scott had access to that computer.
The circuit court denied Scott's motion.
in Repeated Acts of Sexual Assault of the Same Child
Scott contends that he was not charged with "a crime
known to law" and, thus, "the circuit court lacked
subject matter jurisdiction to accept his guilty plea."
Even if the circuit court did have subject matter
jurisdiction, Scott continues, during the plea colloquy the
court described the elements from the 2007-08 law, not the
2005-06 version under which he was charged, leaving Scott
without an understanding of the nature of the charge to which
he pled guilty. Finally, Scott claims that the facts the
court mentioned during the plea-that Scott touched M.M. on
the vagina on at least three occasions-took the case
"wholly out of the purview of … [Wis. Stat.]
§ 948.025(1)(b) (2005-06)" because that statute
required "fewer than 3 ...