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State v. Scott

Court of Appeals of Wisconsin, District II

May 17, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Richard J. Scott, Defendant-Appellant.

         APPEAL 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.

          Before Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

          NEUBAUER, C.J.

         ¶1 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).[1] 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).

         Factual and Procedural Background

         ¶2 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.

         ¶3 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 girls.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 The circuit court denied Scott's motion.

         Engaging in Repeated Acts of Sexual Assault of the Same Child

         ¶9 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 ...


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