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State v. Hendricks

Supreme Court of Wisconsin

February 20, 2018

State of Wisconsin, Plaintiff-Respondent,
Shannon Olance Hendricks, Defendant-Appellant-Petitioner.

          Submitted on Briefs: oral argument: October 2, 2017

          REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 373 Wis.2d 309, 895 N.W.2d 104

         Circuit court Milwaukee County L.C. No. 2011CF4101 David L. Borowski and M. Joseph Donald Judge

          For the defendant-appellant-petitioner, there were briefs filed by and an oral argument by Hannah Schieber Jurss, assistant state public defender.

          For the plaintiff-respondent, there was a brief filed by and an oral argument by Warren D. Weinstein, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.


         ¶1 Shannon Olance Hendricks seeks to withdraw the guilty plea he entered to one count of child enticement. He claims the circuit court's failure to tell him the legal definition of "sexual contact" at his plea hearing violated Wis.Stat. § 971.08's requirement that a pleading defendant must understand the nature of the charge.[1] Because sexual contact is not an element of the crime of child enticement, and because the record shows Hendricks understood the nature of the charge to which he pled guilty, the plea colloquy comported with both § 971.08 and State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986), and Hendricks is not entitled to an evidentiary hearing. Accordingly, we affirm the court of appeals decision[2] upholding the circuit court's order[3] denying Hendricks' motion for plea withdrawal. Moreover, we decline the State's request to modify the Bangert requirements.

         I. BACKGROUND

         ¶2 The criminal complaint charged Hendricks with one count of second-degree sexual assault of a child under the age of 16. The charges stemmed from Hendricks taking his girlfriend's 14-year-old niece to a park where he touched the victim's chest over her clothes, tried to touch her breasts under her clothes, rubbed her thighs, and touched her buttocks over her clothes while pressuring her to let him have sexual intercourse with her.[4] In January 2012, on the second day of his trial for second-degree sexual assault, Hendricks decided to take the State's plea offer: Hendricks would plead guilty to the reduced charge of child enticement and the State would recommend a sentence concurrent to the prison sentence Hendricks was currently serving. With help from his lawyer, Hendricks filled out a guilty plea questionnaire and waiver of rights form. After he completed the form, the circuit court conducted a plea colloquy.

         ¶3 The circuit court began the colloquy by going over the plea questionnaire and waiver of rights form and personally confirming with Hendricks that: (1) he was admitting he committed child enticement, a felony; (2) he was 31 years old, completed high school, understands English, and understands the charge; (3) he was taking medication for anxiety and depression, but had not used any other drugs or alcohol in the last 24 hours; and (4) he understood the constitutional rights he was giving up by pleading guilty including the right to trial, the right to remain silent, the right to testify, the right to a jury trial, and the right to force the State to prove its case beyond a reasonable doubt.

         ¶4 Next, the circuit court asked Hendricks' lawyer if he had discussed the elements of the offense with his client and noted defense counsel had attached an element sheet to the plea questionnaire. Hendricks' lawyer answered: "Correct, Your Honor. We did go over the elements." Defense counsel told the court he was satisfied that Hendricks understood the elements. The circuit court then asked Hendricks again if he understood he was "pleading guilty and admitting to, as I said, child enticement, which is a felony, " and Hendricks answered affirmatively. Next, the circuit court asked Hendricks if he was admitting that he:

. . . did entice a child, a person under the age of 18, to go into a vehicle, building or room or secluded place, in this case, given the facts in the complaint and given what's indicated on the element sheet, you're admitting that you did cause the victim in this case to go into a secluded area; you intended to have her go to that secluded area, and you understand and knew that the victim was under the age of 18; is that correct?

         Hendricks answered, "Yes, Your Honor." After going through all the information related to sentencing, the required deportation warning, the effect pleading guilty would have on Hendricks' right to vote and possession of a firearm, and confirming he was pleading guilty of his "own free will" because he was in fact guilty, the circuit court recognized it had not mentioned any of the prohibited intents listed in the child enticement statute and the elements sheet attached to the plea questionnaire did not specify a prohibited intent.

         ¶5 After a sidebar, the circuit court continued with the plea colloquy:

[T]he plea under 948.07 needs to be entered to child enticement but under a specific subsection.
There are six subsections. Subsection (1) is the person, the defendant, enticing a child under 18 to go to a vehicle, room, building or secluded place for one of - and there are alternate purposes. Subsection (1) is having sexual contact or intercourse with a child; subsection (2) is for the purpose of prostitution; subsection (3) is exposing a sex organ; subsection (4) is making a recording of a child engaged in explicit conduct; subsection (5) is causing bodily or mental harm to the child; subsection (6) is giving or selling the child a controlled substance.
Obviously, in this case, according to the complaint and the information, and what I just discussed with the attorneys, what applies, correct me if I'm wrong is Subsection (1), the enticement was for the purpose of, at a minimum, sexual contact, correct counsel?

         Hendricks' lawyer answered, "Correct, Your Honor."

         ¶6 The circuit court then directly addressed Hendricks, asking him if he understood "that's what you're admitting to; you're admitting to child enticement? You were bringing this child under 18 to, in this case, a secluded area for the purpose of potentially having sexual contact with that child, and that's indicated in the complaint, indicated in this case; is that correct, sir?" Hendricks replied, "Yes, it is, Your Honor." The circuit court asked again if Hendricks was pleading guilty because he was guilty and he replied "Yes, I am, Your Honor." The circuit court then went through whether anyone threatened, forced, or told Hendricks to plead guilty and Hendricks assured the court no one had. Hendricks confirmed that his attorney had gone over the guilty plea form with him, that Hendricks read the form, "went over the case" with his lawyer, signed the form, and "had enough time to review this matter" and discuss it with his attorney.

         ¶7 The circuit court then addressed questions to Hendricks' lawyer:

THE COURT: Counsel, you went over the agreement with your client?
[DEFENSE COUNSEL]: We did, Your Honor.
THE COURT: You're satisfied his plea today is free, voluntary and intelligent?
[DEFENSE COUNSEL]: I am, Your Honor.
THE COURT: You saw your client sign and date the questionnaire today?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: I've read the complaint. The parties are stipulating to the facts in the complaint as a factual basis to support the amended charge and the plea; is that correct?
[DEFENSE COUNSEL]: Your Honor, we are agreeing to the complaint. As far as what the contact was, we're agreeing to what the victim testified to at the preliminary hearing, which, you know, which would also support the plea.
THE COURT: Well, it was certainly enough on this case.

         ¶8 The circuit court then directly asked Hendricks if he was "admitting to that, " and he said "Yes, Your Honor." The circuit court continued with Hendricks: "You're admitting to the contact, again, with a child who was under 18, the victim, with a date of birth of 9/19/1996, and you're admitting that it was sexual contact, correct, sir?" Hendricks replied, "Yes, Your Honor."

         ¶9 Based on the stipulation, the complaint, and "what's been indicated in court by counsel and the defendant, " the circuit court found: (1) there was a factual basis "for the charge of and plea to child enticement, which is a felony, under 948.07(1)"; and (2) "the defendant has freely, voluntarily and intelligently entered his plea; freely, voluntarily and intelligently waived his rights in this matter." The circuit court accepted the plea, ordered a pre-sentence investigation report, and set a date for sentencing.

         ¶10 Before sentencing occurred, Hendricks filed a motion seeking to withdraw his plea claiming he pled guilty because he felt rushed and overwhelmed that the victim was going to testify against him; he now claimed he was not guilty. This also led to the withdrawal of his first attorney and the appointment of a second State Public Defender. Hendricks testified at the plea withdrawal hearing that the medication he was on made him "go along" with his first attorney's suggestion that he take the plea because his lawyer said if he did not plead guilty, he would lose at trial and be sentenced to the maximum of 40 years. He admitted that he read the criminal complaint and an "outline of what the jurors would have to go by" to convict him. He also testified he understood the charges against him:

Q Now, in terms of understanding the charges against you and the content of it, your defense attorney showed you the complaint, correct?
A The original complaint?
Q Correct.
A Yes. I saw it before.
Q And you guys went over the elements; what you're pleading to prior to the entry of your plea, correct?
A Yes.
Q And you also knew exactly what you were being accused of because you've been through the revocation hearing on October 26 of 2011, correct?
A Yes.

         When the circuit court questioned why Hendricks admitted his guilt during the plea colloquy and why he said his guilty plea was of "his own free will, " Hendricks explained he really did not want to plead guilty but his lawyer said he would lose at trial. He said he just answered yes to all of the circuit court's questions because he thought his lawyer would not fight for him if the case was tried.

         ¶11 Hendricks' first lawyer testified at the plea withdrawal hearing that: (1) he "very thoroughly" discussed with Hendricks the plea offer's amendment of the sexual assault charge to child enticement; (2) he "was totally convinced that [pleading guilty to the reduced charge] was a voluntary decision that [Hendricks] was making"; (3) there was no indication that Hendricks felt rushed; and (4) after going over the plea offer, and the strengths and weaknesses, the decision of whether to plead or go to trial was left to Hendricks.

         ¶12 At the end of the plea withdrawal hearing, the circuit court indicated that Hendricks' request for plea withdrawal was based on his hope that the victim would not show up to testify against him at a trial. The circuit court believed the request was based solely on Hendricks' "change of heart." It reviewed the plea colloquy finding it to be extremely thorough. Hendricks' lawyer agreed it was "a great colloquy" and suggested its only flaw was the failure to ask Hendricks if his medications affected his ability to understand.

         ¶13 In January 2013, the circuit court denied the plea withdrawal motion. It found: (1) the plea questionnaire and plea colloquy were "very thorough"; (2) Hendricks answered questions indicating he "was making this decision freely and voluntarily"; (3) Hendricks did not indicate "any hesitancy, whatsoever" at any time during the plea colloquy; (4) the circuit court discussed and explained the elements of the offense a couple times; (5) defense counsel "was satisfied that the defendant's plea was free, voluntary and intelligent"; (6) Hendricks had "plenty of time, more than adequate amount of time to go over the plea questionnaire, discuss it with his attorney"; (7) Hendricks' claim that his medication made him just "go along" was not credible because he was currently on the same medication but "fighting and fighting and fighting" to withdraw his plea; (8) he is a high school graduate with vocational training and some college; he does not have any learning disabilities; and (9) Hendricks failed to present a fair and just reason for plea withdrawal-his reason was nothing more "than a complete and total change of heart."

         ¶14 In February 2013, over a year after Hendricks entered his plea, he was sentenced in accordance with the agreed upon recommendation. The circuit court sentenced him to three years of initial confinement concurrent to the sentence he was then serving, plus four years of extended supervision.

         ¶15 After some postconviction motions not pertinent here, an amended judgment of conviction was entered in September 2014.[5]Initially, Hendricks' appellate counsel filed a no-merit appeal, but then requested dismissal of the no-merit appeal and an extension of time to file a new postconviction motion. The court of appeals granted those motions. Hendricks then filed a motion in the circuit court alleging a deficiency in his plea colloquy-namely, the circuit court failed to explain the meaning of "sexual contact" or to verify Hendricks understood the meaning of that term. Hendricks argued Wis.Stat. § 971.08 requires the circuit court to ensure a defendant understands the nature of the charge, which means a defendant must have an awareness of the essential elements of the crime. Hendricks contends the intent to have sexual contact is an essential element of sexual enticement and therefore the circuit court's failure to give him the legal definition of "sexual contact" rendered his plea deficient. He wanted the circuit court to hold an evidentiary hearing on the motion. The State conceded at the circuit court level that an evidentiary hearing should be held.

         ¶16 The circuit court summarily denied the motion, reasoning:

         The cases the defendant and the State rely on all involve sexual assault of a child. There is not a single case which holds that the meaning of sexual contact is an essential element of child enticement.

[T]he defendant in this case was not convicted of sexual assault of a child - he was convicted of child enticement. These crimes are not the same. As relevant to this case, the elements of child enticement include causing, or attempting to cause, a child to go into any vehicle, building, room, or secluded place, with the intent to have sexual contact with the child. Actual sexual contact is not a required element. This is because the purpose of section 948.07, Stats., is not to punish the commission of the enumerated act, but succeeding in getting a child to enter a place with intent to commit such a crime. State v. Hanson, 182 Wis.2d 481 (Ct. App. 1994). On the other hand, the purpose of section 948.02, Stats., is to punish the sexual contact itself. Consequently, when a defendant enters a guilty or no contest plea to a crime of sexual assault of a child, a crime which carries a far greater penalty than child enticement, the court must ascertain that the defendant understands the essential elements of that offense, including the element of sexual contact. But when a defendant enters a guilty or no contest plea to child enticement for the purpose of sexual contact, actual sexual contact ...

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