Submitted on Briefs: oral argument: October 2, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 373 Wis.2d
309, 895 N.W.2d 104
court Milwaukee County L.C. No. 2011CF4101 David L. Borowski
and M. Joseph Donald Judge
the defendant-appellant-petitioner, there were briefs filed
by and an oral argument by Hannah Schieber Jurss, assistant
state public defender.
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
REBECCA GRASSL BRADLEY, J.
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. 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 upholding the circuit court's
order denying Hendricks' motion for plea
withdrawal. Moreover, we decline the State's request to
modify the Bangert requirements.
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. 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
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.
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
. . . 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?
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
After a sidebar, the circuit court continued with the plea
[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?
lawyer answered, "Correct, Your Honor."
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.
The circuit court then addressed questions to Hendricks'
THE COURT: Counsel, you went over the agreement with your
[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
[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.
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,
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.
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
A The original complaint?
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?
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?
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.
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.
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.
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."
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.
After some postconviction motions not pertinent here, an
amended judgment of conviction was entered in September
2014.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.
The circuit court summarily denied the motion, reasoning:
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
[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 ...