from a judgment and an order of the circuit court for
Milwaukee County No. 2013CF4833 DAVID L. BOROWSKI, Judge.
Reversed in part and cause remanded.
Brennan, P. J., Kessler and Brash, J J.
Mario Douglas appeals a judgment of conviction, entered upon
a guilty plea, of one count of second-degree sexual assault
of a child under the age of sixteen. He also appeals from the
order denying his postconviction motion to withdraw his
guilty plea. Douglas contends that his plea was not knowing,
intelligent, and voluntary because he was incorrectly advised
about the potential convictions and sentences he faced.
Alternatively, Douglas argues that he is entitled to sentence
modification. He also contends that a no-contact order
prohibiting contact with children under the age of sixteen
violates his constitutional rights as a parent because it
prohibits contact with his own children while he is
incarcerated. We conclude that Douglas is entitled to
withdraw his guilty plea because it was entered based on
incorrect legal advice and thus was not knowing, intelligent,
and voluntary. We therefore reverse the judgment of
conviction and the postconviction order and remand this
matter to the trial court to allow Douglas to withdraw his
On October 22, 2013, Douglas was charged with one count of
second-degree sexual assault of a child under the age of
sixteen, and one count of first-degree sexual assault of the
same child under the age of sixteen, with the threat or use
of force. According to the criminal complaint: on or about
July 10, 2013, O.L.G. and Douglas, with whom she was friends,
met up at a park. The two eventually went to Douglas's
house, where Douglas told O.L.G. that his girlfriend was in
the basement and wanted to speak with O.L.G. O.L.G. went into
the basement, but Douglas's girlfriend was not there.
Douglas pushed O.L.G. onto a bed, where he tried to unbutton
her shorts, slapped her multiple times, and squeezed her
throat. Douglas ultimately inserted his penis into her
At the initial appearance, Douglas's counsel moved to
dismiss count two (first-degree), or alternatively, count one
(second-degree), on the grounds that there were insufficient
facts to support both counts. A court commissioner denied the
At the final pretrial hearing, the State told the trial court
that it offered Douglas a plea deal "allowing Mr.
Douglas to enter a plea to Count 1, which is second-degree
sexual assault of a child. The State would be recommending an
initial term of confinement of six to eight years or
recommending incarceration, leaving the length up to the
Court's discretion. The State would move to dismiss Count
2, which does, if convicted, contain a mandatory [minimum]
sentence of 25 years confinement." The State informed
the court that Douglas rejected the offer. The following
exchange then ensued between the trial court and the parties:
[Trial Court]: [Trial counsel], you want to make a record on
that? You advised your client that he's facing about 100
years in prison?
[Trial counsel]: Yes, Your Honor. We have talked about that.
[Trial Court]: You advised him that he not only is facing,
but will serve at least 25 years of initial confinement on
Count 2, and if he's convicted on both, the State may
very well ask me to stack sentences for those two, and he may
be facing 30, 40 years of initial confinement. You explained
that to your client?
[Trial counsel]: I did, Your Honor....
[Trial Court]: ... I'm not telling you or, more
specifically, your client what to do. If he wants a trial,
wonderful. We'll bring in a jury, you both can try it,
I'll preside over it. But if your client is concerned
about six to eight years of initial confinement, he needs to
understand if he loses, the earliest date he possibly walks
out of prison is the year 2039.
And if he's convicted on both counts, the State, if they
ask, or maybe, I, myself, could easily be persuaded to stack
time on top of that as there's two offenses, two separate
So if he's worried about six to eight years of initial
confinement, he should do the math and figure out that 25 or
30 years of initial confinement is a lot more than six.
Has he done that math? Is he capable of that?
[Trial counsel]: He is, Your Honor. We've actually gone