State v. Goth, 2024AP519-CR, 10/10/24, District IV (not recommended for publication); case activity
Goth challenges his plea to an amended charge of third-degree sexual assault. The parties agree he made a prima facie showing that the circuit court erred at the plea by failing to ascertain his awareness of “the purpose element” of sexual contact. The COA concludes that the state failed to establish that despite the court’s failure, Goth was aware of the purpose element when he entered his plea. (¶¶1-2).
The state initially charged Goth with second-degree child sexual assault, in the form of sexual contact with a child under the age of 16. (¶3). The parties reached a plea agreement, under which Goth was to plead to an amended charge of third-degree sexual assault, contrary to Wis. Stat. § 940.225(3)(b), through a violation of subdivision (5)(b)2. This does not require that the victim be under the age of 16, but requires the state to prove that the defendant had unconsented sexual contact with the victim through:
[i]ntentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant … upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.
While the circuit court was confirming with Goth that he understood the elements, the parties discovered that the amended information filed by the state included the sexual intercourse subsection of § 940.225. The prosecutor then filed a second amended information during the plea hearing. The court confirmed with Goth that he understood the elements, specifically that he had sexual contact with the victim without her consent. (¶¶6-7). The plea questionnaire contained essentially the same information as the court’s colloquy. (¶8). Although the prosecutor filed the second amended information during the plea hearing, the transcript does not reflect that Goth had the opportunity to read it, or that his attorney explained it to him prior to his plea. (¶13).
Goth filed a postconviction motion for plea withdrawal, relying on cases stating that, when the charged form of sexual assault requires proof of “sexual contact,” the part of the definition of “sexual contact” that includes the purpose element is “an element of the offense.” See State v. Jipson, 2003 WI App 222, ¶¶9-10 & n.4, 267 Wis. 2d 467, 671 N.W.2d 18 (citing State v. Bollig, 2000 WI 6, ¶50, 232 Wis. 2d 561, 605 N.W.2d 199 (describing “essential elements” of sexual contact with a child under 13)); State v. Nichelson, 220 Wis. 2d 214, 220, 225, 582 N.W.2d 460 (Ct. App. 1998) (referring to the “essential elements” of sexual contact with a child). (¶18). The state did not call any witnesses or produce any new evidence. (¶19).
The state did not dispute that the circuit court was obligated to ascertain his awareness of “the purpose element” of sexual contact or that Goth had made a prima facie showing for his Bangert claim. The COA agrees, stating it “see[s] no room for an argument that the relevant reasoning and statements in Jipson, Bollig, and Nichelson, did not apply to Goth’s plea.” (¶24).
Although the state argues on appeal that the record proves Goth understood the purpose element, the COA disagrees. After doing a bit of a deep dive on the law and the facts of the case, the COA concludes that the state failed to show Goth had an understanding of the purpose element because (1) the circuit court did not describe the purpose element or ascertain his understanding on the record; (2) the information was not on the plea questionnaire; and (3) the plea transcript does not establish that Goth’s counsel reviewed the elements of the last amended information with him after the state filed it but before he entered his plea. (¶¶24, 34-40).
