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State v. Douglas

Court of Appeals of Wisconsin, District I

January 9, 2018

State of Wisconsin, Plaintiff-Respondent,
v.
Mario Douglas, Defendant-Appellant.

         APPEAL 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.

          Before Brennan, P. J., Kessler and Brash, J J.

          KESSLER, J.

         ¶1 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 guilty plea.[1]

         BACKGROUND

         ¶2 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 vagina.

         ¶3 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 motion.

         ¶4 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 crimes.
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 ...

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