STATE of Wisconsin, Plaintiff-Respondent, v. John T. TROCHINSKI, Jr., Defendant-Appellant-Petitioner.
No. 00-2545-CR
Supreme Court
Oral argument February 6, 2002.—Decided May 30, 2002.
2002 WI 56 | 644 N.W.2d 891
¶ 1. N. PATRICK CROOKS, J. John T. Trochinski, Jr. (Trochinski) seeks review of an unpublished court of appeals’ decision affirming the circuit court‘s decision rejecting Trochinski‘s argument that
¶ 2. Trochinski is now before this court with the same arguments. Trochinski contends that he should be able to withdraw his no contest plea because he did not understand the meaning of “harmful to children” under
¶ 3. We reject both of Trochinski‘s arguments and affirm the court of appeals’ decision. First, we conclude that Trochinski has failed to establish a prima facie case that his plea was involuntary. Based on the standard set forth in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), we conclude that the signed plea questionnaire and waiver of rights form, together with the plea colloquy, establish that Trochinski knew and understood the elements of the offense to which he was pleading.
¶ 4. We similarly reject Trochinski‘s constitutional challenge to
¶ 5. The facts, as stated in the probable cause portion of the complaint and relied on by the circuit court, are not in dispute. On December 18, 1998, John T. Trochinski, Jr. entered the Amoco station in Poy Sippi, Wisconsin, and had a conversation with Jill L., an employee of the gas station. At this time, Jill was seventeen years, three months old. During their conversation, Trochinski gave Jill an envelope containing a set of ten nude photos of himself, with his penis exposed. In addition, Trochinski gave her a copy of a letter from Playgirl, indicating that the nude photos of Trochinski would be published in the magazine,2 and a personal letter that he wrote to Jill “inviting her to review the photographs.”
¶ 6. In the two-page personal letter, which the circuit court relied on at sentencing, Trochinski wrote, among other things,
If you decide to keep these photos then please keep them in a safe place out of reach of children—If you decide not to keep them then just wait ‘til you see me again okay—In all honesty I do hope you‘ll keep them ‘cause they mean alot to me and as long as you keep these photos I‘ll make sure I get you a copy of the professional ones which I am waiting on getting back[.]
. . .
Well, I guess I‘ll close for now in the hopes that you will keep these photos. If at all possible would you please write back and let me know what you think of these photos and also let me know if you would like a copy of the professional photos as well!
¶ 7. Trochinski was subsequently charged with two counts of exposing minors to harmful materials, contrary to
¶ 8. On June 9, 1999, an information charged Trochinski with the same two counts of exposing minors to harmful materials, as alleged in the complaint, but also charged Trochinski as a repeat offender under
¶ 10. At the plea hearing, Trochinski and his attorney submitted a signed plea questionnaire and waiver of rights form. On the plea form, Trochinski indicated, by signing his initials, that he understood the plea agreement and the constitutional rights he was waiving by entering into the plea agreement. The form also indicated that Trochinski knew the elements of the offense to which he was pleading no contest. The form listed the elements of
(1) You exhibited harmful material to a child. (2) You had knowledge of the nature of the material. (3) The child had not attained the age of 18 at the time of the alleged offense. (4) That you were previously convicted of a felony during the 5-year period preceding this offense excluding the time you were incarcerated.
¶ 11. After receiving the written plea questionnaire and waiver of rights form, Judge Lewis R. Murach engaged Trochinski in a personal plea colloquy on the record.6 In response to questions from the court, Trochinski indi-
I do want to touch bases though with certain constitutional rights. You understand that if you plead no contest to a charge, I‘m going to find that you are guilty of this charge?
THE DEFENDANT: Yes, I understand that.
THE COURT: And the format is that if the State claims that you engaged in particular criminal acts on a particular date, time, and place and that if your official plea is that you are not contesting or disputing that claim, then the Court would take the claim as so looking just to be sure that there is a factual basis for it. You understand that?
THE DEFENDANT: Yes, I do.
THE COURT: And you appreciate that looking for a factual basis to support a plea is something a great deal different than hearing and evaluating evidence at a trial and deciding elements of a crime beyond a reasonable doubt. You understand that difference?
THE DEFENDANT: Yes, I do.
THE COURT: Now, if you enter a no contest plea, then you will be waiving and giving up your right to remain silent, your right to testify, your right to a 12 person jury trial, your right to have a unanimous verdict, your right to confront your accuser in court, cross-examine that person under oath, right to call witnesses on your own behalf, and the right to prove beyond a reasonable doubt each element of the offense to which you are charged. You understand that that would be the case?
THE DEFENDANT: Yes, I do.
THE COURT: And by elements of the offense, the Court is talking about the things that has [sic] to be proven in order to obtain a conviction. We‘ve already addressed the repeater aspect, so I‘m not going to repeat that, but Count 2 says that on or about December 18th of 1998, that you transferred material to a child, that you had knowledge of the nature of the material, that the material was harmful material, that being a picture of yourself depicting nudity. You understand all of those elements?
THE DEFENDANT: Yes, I do.
¶ 12. After accepting Trochinski‘s plea, the circuit court immediately proceeded to sentencing. The court heard testimony, and then sentenced Trochinski to six years in prison.
¶ 13. Trochinski subsequently filed a postconviction motion seeking to withdraw his no contest plea on grounds that he did not understand the “harmful to
THE COURT: And by child, a child is referencing someone who had not as yet reached the age of 18 years. You understand that‘s what we mean by child?
THE DEFENDANT: Yes, I do.
THE COURT: All right. Then to the charge contained in Count 2 of the information, the count that says that on or about December 18th of 1998 unlawfully with knowledge of the nature of the material, that you transferred to a child, that being J.A.L., a female white child with a birth date of September 30, 1981, harmful materials, to wit a picture of yourself depicting nudity contrary to “948.11(2)(a)” of the Wisconsin Statutes, a Class E Felony crime, that with the enhancement would subject you to a fine not to exceed $10,000, imprisonment not to exceed eight years, or both. To that charge, what is your plea.
THE DEFENDANT: No contest. (Emphasis added.)
A: If I recall, his explanation was, I can‘t believe they even got it in court. I talked to other attorneys in other counties, and they could not see any point in this.
Q: All right. So in your personal opinion mere nudity was not sufficient for a prosecution; is that right?
A: From what was in the photos, I do not believe that was harmful material. It was also published as art. (Emphasis added.)
¶ 14. Trochinski appealed both the judgment of conviction and the order denying his postconviction motion. The Court of Appeals, District IV, affirmed the
Q: Are you telling us, sir, that it would have been your understanding that it would have been acceptable for you to display pictures of yourself with your penis hanging out to children irrespective of whether you were erect or not?
A: No.
Q: What are you telling us then?
A: I‘m saying that for one, she was inside the 60 days from turning 18. After I was arrested I found that out. I had every reason to believe she was over 18. She was the one that questioned me why I don‘t get into porn films, why I ain‘t going for calendars, and everything else. I had every reason to believe she was over 18. When she asked me for pictures, yes, I did give them to her.
Q: Would you agree with me, sir, that the pictures that we are discussing, which are in the record having been introduced at the time of the sentencing hearing, are totally inappropriate for children?
A: Yes, for children.
Q: And that was your understanding at the time that you entered the plea, correct, that these would have been totally inappropriate for children?
A: Yes, for children. I also—
Q: And in fact, sir, that is exactly what the element of the offense you are saying you don‘t understand is, correct, that the State would have to prove what you just said you understood?
A: From what I was understanding, I wasn‘t dealing with children. I was dealing with somebody presenting herself as an adult. And as far as the sentencing part, all of the material was not used as exhibits. There were three pieces out of ten. And I‘m guessing that those three were probably the worst three to make it look harmful in that manner.
II
¶ 15. To withdraw his plea after sentencing, Trochinski needed to establish by clear and convincing evidence, that failure to allow a withdrawal would result in a manifest injustice. State v. Thomas, 2000 WI 13, ¶ 16, 232 Wis. 2d 714, 605 N.W.2d 836. In other words, Trochinski was required “to show ‘a serious flaw in the fundamental integrity of the plea.‘” Id. (quoting State v. Nawrocke, 193 Wis. 2d 373, 379, 534 N.W.2d 624 (Ct. App. 1995)). One of the situations where plea withdrawal is necessary to correct a manifest injustice is when “the plea was involuntary, or was entered without knowledge of the charge . . . .” State v. Reppin, 35 Wis. 2d 377, 385, 151 N.W.2d 9 (1967) (citing ABA
¶ 16. Trochinski contends that his plea was entered without knowledge of the “harmful to children” element. We, therefore, review whether his plea was knowingly, voluntarily and intelligently entered as a question of constitutional fact. State v. Bollig, 2000 WI 6, ¶ 13, 232 Wis. 2d 561, 605 N.W.2d 199. “We will not upset the circuit court‘s findings of historical or evidentiary facts unless they are clearly erroneous.” Id. However, whether Trochinski‘s plea was knowing and intelligent poses a constitutional fact question, which we independently review, benefiting from the analyses of the circuit court and the court of appeals. See id. at ¶ 47 (“A plea violates due process unless the defendant has a full understanding of the nature of the charges against him.“); see also State v. Brandt, 226 Wis. 2d 610, 618, 594 N.W.2d 759 (1999) (application of a set of facts to the appropriate legal standard is a question of law we review independently).
¶ 17. The standard and procedure for determining whether a plea is knowing, intelligent, and voluntary are laid out in
¶ 18. Trochinski contends that he established a prima facie case in that he did not understand an element of the charge to which he pled. Specifically, Trochinski argues that he did not understand the meaning of “harmful to children.” Trochinski contends that his trial counsel did not advise him about this element and what the State must show in order to convict him. Trochinski alleges he did not understand that the State must prove that the nude photographs were patently offensive to prevailing community standards regarding what is suitable for children—specifically, a child of like age—and lacked serious value when taken as a whole. He further contends that trial counsel erroneously failed to show him the jury instruc-
(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.
(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.
¶ 19. Trochinski also contends that the plea colloquy is insufficient to establish that the court inquired and determined his knowledge of the “harmful to children” element. He also argues that the plea questionnaire and waiver of rights form, which he initialed and signed, provides no evidence that he understood that not every photo depicting nudity is harmful to children. Based on this evidence, Trochinski contends that he has established the prima facie showing that his plea was not knowing and voluntary, and, therefore, the burden shifts to the State to establish by clear and convincing evidence that his plea was knowing, intelligent and voluntary. Trochinski argues that the State failed to meet this burden and, therefore, he is entitled to withdraw his plea as a matter of right.
¶ 21. In Bangert, the State and the defendant both admitted that the circuit court “neither recited the elements [of the offense] nor characterized the nature of the crime in a general manner.” Id. at 265. This court, therefore, held that in order to find that a plea is knowing, intelligent, and voluntary, the circuit court must ensure the defendant understands, or is aware of, the essential elements of the crime.13 Using this court‘s superintending and administrative authority, this court required circuit courts to determine a defendant‘s understanding of the nature of the charge at the plea hearing. Id. at 267.
We characterize this obligation as a duty to first inform a defendant of the nature of the charge or, alternatively, to first ascertain that the defendant possesses accurate information about the nature of the charge. The court must then ascertain the defendant‘s understanding of the nature of the charge as expressly required by sec. 971.08(1)(a).
¶ 22. Wisconsin‘s courts have been relying on Bangert since it was written in 1986, and nothing in that case suggests that a circuit court is required to do as Trochinski suggests here—describe the elements of the offense and ensure the defendant specifically understands how the State must prove each element. Trochinski alleges that he did not understand that every nude photo of him is not necessarily harmful to children. However, this is not required.
¶ 23. Applying the Bangert standard and procedure to the facts presented here, and upon review of the record, we conclude that Trochinski has failed to meet his burden to establish a prima facie case. Trochinski‘s knowledge of the elements of the offense is clearly established by both the signed plea questionnaire and the plea colloquy. The elements of
¶ 24. We specifically reject Trochinski‘s argument that he did not understand the meaning of “harmful to children” because he did not understand that the jury would decide whether the photos were inappropriate for Jill L., who was seventeen years and three months old. Under the laws of Wisconsin, Jill L. was still a child because she had not yet attained the age of eighteen. See
¶ 25. Trochinski also relies on State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998) to support his position. However, the facts of Nichelson are not analogous to the facts present here. Among other things, Nichelson involved a defendant with a
¶ 26. In contrast to Nichelson, this court‘s decisions in State v. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, and State v. Brandt, 226 Wis. 2d 610, 594 N.W.2d 759 (1999), support our decision. In Bollig, the State conceded that the circuit court did not inform the defendant of one of the essential elements of the offense. 2000 WI 6, ¶ 51. Accordingly, the court concluded that the defendant made a prima facie showing that his plea did not conform to the Bangert requirements. Id. However, this court then relied on the entire record to determine that the defendant was aware of all of the elements of the crime charged. Id., ¶ 53. Specifically, this court looked to the signed plea questionnaire, containing a specific reference to the elements of the offense, followed by the defendant‘s signature, and the defendant‘s presence at a pre-trial hearing. Id., ¶¶ 54-55. “Viewed together, the plea questionnaire and Bollig‘s presence at the pre-trial hearing satisfied the State‘s burden to show by clear and convincing evidence that Bollig was aware of the nature of his offense, despite the inadequacy of the plea colloquy.” Id., ¶ 55.
¶ 28. Brandt and Bollig are persuasive here because in those cases this court relied on either the plea questionnaire or the plea colloquy to conclude that the defendant understood the elements of the offense. See also, State v. Duychak, 133 Wis. 2d 307, 314, 395 N.W.2d 795 (Ct. App. 1986) (concluding that trial court‘s compliance with one of the alternative methods mandated in Bangert reflects the defendant‘s understanding of the offense). Here, we have both a complete and accurate plea waiver questionnaire and a complete and accurate plea colloquy establishing that Trochinski knew and understood the elements of the offense to which he was pleading.
¶ 29. Furthermore, like the language in Bangert, the language in Brandt and Bollig supports our conclusion that a valid plea requires only knowledge of the elements of the offense, not a knowledge of the nuances and descriptions of the elements. See also State v. McKee, 212 Wis. 2d 488, 494, 569 N.W.2d 93 (Ct. App 1997) (rejecting argument that additional steps beyond Bangert are required for a valid plea). In Brandt, this court quotes with approval from Bangert, “A defendant‘s understanding of the nature of the charge must ‘include an awareness of the essential elements of the crime.’ ” 226 Wis. 2d 610 at 619 (emphasis added). In Bollig, we also cited the Bangert standard, concluding that the State must prove that Bollig “was aware of all three elements of his offense, despite the inadequacy of the plea colloquy.” 2000 WI 6, ¶ 52 (emphasis added). We further cited Brandt, stating, “The information contained in the questionnaire may be used to demonstrate Bollig‘s awareness of the nature of his offense.” Id., ¶ 54 (emphasis added).
¶ 30. Our previous decisions make it clear that in order for Trochinski‘s plea to be knowing, intelligent, and voluntary, he needed to be aware of the nature of the offense to which he was pleading. Based on the record, including both the signed plea questionnaire and the plea colloquy, we, therefore, conclude that Trochinski was aware and understood the elements of
¶ 31. Before we address Trochinski‘s constitutional challenge, we note that we disagree with the dissent‘s characterization of the issue as “whether the totality of the facts in the record is sufficient to support the crime to which the defendant pleaded.” Dissent at ¶ 47. Specifically, the dissent contends that Trochinski “did not realize that his conduct did not fall within the
¶ 32. We further disagree with the dissent‘s conclusion that the nude photographs are not “harmful material” and therefore do not supply a factual basis for the offense charged. Dissent at ¶ 62. The dissent concludes that the photos of the defendant standing naked in front of a curtain, displaying a non-erect penis do not satisfy the three-part variable obscenity test in
III
¶ 33. We now turn to Trochinski‘s facial constitutional challenge to
¶ 34. Before addressing the merits of Trochinski‘s constitutional challenge, we begin by examining
(2) CRIMINAL PENALTIES. (a) Whoever, with knowledge of the nature of the material, sells, rents, exhibits, transfers or loans to a child any harmful material, with or without monetary consideration, is guilty of a Class E felony.14
We note that Trochinski is not challenging the statute as applied to this specific set of circumstances.15 In-
¶ 35. Trochinski claims that
¶ 36. Furthermore, Trochinski adds that the result of
¶ 37. Trochinski‘s constitutional arguments, however, overlook the holdings of Wisconsin appellate court decisions discussing constitutional challenges to statutes that do not require the State to prove the offender had knowledge of the victim‘s age. In State v. Kevin L.C., 216 Wis. 2d 166, 576 N.W.2d 62 (Ct. App. 1997), the court of appeals specifically rejected a facial constitutional challenge to
Because
§ 948.11(2)(a) , STATS., criminalizes acts where an individual personally confronts, or has the opportunity to personally confront, a specific child, thereby allowing the individual to easily ascertain the child‘s age, we conclude the statute does not create an unreasonable burden on the individual‘s First Amendment rights.
¶ 39. We conclude that the constitutionality of
[T]he language of sec. 948.11 focuses upon the affirmative conduct of an individual toward a specific minor or minors. Therefore, an individual violates the statute if he or she, aware of the nature of the material, knowingly offers or presents for inspection to a specific minor or minors material defined as harmful to children in sec. 948.11(1)(b).
183 Wis. 2d at 535. We reiterate that the personal contact between the perpetrator and the child-victim is what allows the State to impose on the defendant the risk that the victim is a minor.18
¶ 40. Here, the personal contact between Trochinski and Jill L. is what allows the State to impose on Trochinski the risk that Jill L. is a minor. Trochinski had face-to-face contact with Jill L. when he gave her the photos and the letter. During this time, Trochinski had the opportunity to ascertain her age, and could have done so by questioning her, and requesting an official document verifying that she was eighteen. See
¶ 41. Based on this court‘s previous decisions, concluding that
IV
¶ 42. In summary, we affirm the court of appeals’ decision on both issues. First, Trochinski has failed to establish a prima facie case that his no contest plea was not a knowing, intelligent and voluntary one. Both the plea questionnaire and the plea colloquy indicate that Trochinski knew and understood the elements of the offense to which he was pleading. Second, we reject Trochinski‘s facial constitutional challenge to
By the Court.—The decision of the court of appeals is affirmed.
¶ 43. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting). Because a sufficient factual basis does not support the defendant‘s no contest plea to the crime charged, I conclude that the defendant must be permitted to withdraw his plea. Accordingly, I dissent.
¶ 44. Before accepting a defendant‘s plea of no contest, a circuit court must satisfy itself that a sufficient factual basis exists that the defendant committed the crime to which the defendant entered the plea.
¶ 45. This court reviews a circuit court‘s decision denying a defendant‘s motion to withdraw a plea of no contest to determine whether the circuit court erroneously exercised its discretion in denying the motion.4 “Failure by the circuit court judge to ascertain that ‘the defendant in fact committed the crime charged’ is an erroneous exercise of discretion.”5 Thus, when a circuit
¶ 46. At the hearing on the motion to withdraw his plea, the defendant testified that he did not believe that the photographs were sufficient to support a conviction for the crime. The circuit court made no finding at that hearing that the facts were sufficient to establish the crime. But the defendant did not directly argue that no factual basis supported his conviction. Rather, both in the circuit court and here, the defendant primarily argued that his plea was not voluntary because he did not understand the “harmful material” element of the offense. I agree with the circuit court and the majority opinion that the plea was voluntary in that the defendant understood the nature of the charge.
¶ 47. The underlying issue in the case is not, in my view, whether the defendant‘s plea was voluntary, but whether the totality of the facts in the record is sufficient to support the crime to which the defendant pled. A circuit court must determine whether a factual basis for the crime exists when there is a plea of no contest. The factual basis for a crime charged when
¶ 48. So what is the factual basis for the charge? The complaint in the present case alleges that the defendant “unlawfully with knowledge of the nature of the material [did] transfer to a child, to-wit: J.A.L., F/W dob: 09-30-81, harmful material, to-wit: a picture of himself depicting nudity, contrary to Section 948.11(2)(a) Wis. Stats. (Class E Felony).” The Statement of Probable Cause describes the photographs as of the defendant “standing nude and in a manner displaying his penis.” The Statement of Probable Cause also refers to a letter the defendant gave the victim “inviting her [the victim] to review the photographs and conveying information regarding his achievement of being accepted to display himself in Playgirl Magazine.” The Statement of Probable Cause also refers to a letter from Playgirl Magazine (known to the officer “to be a periodical which includes publication of nude photographs of male individuals“) advising the defendant that he was being selected as a subject for entry into the magazine.
¶ 49. The photographs were not attached to the complaint or Statement of Probable Cause. The letters were not attached to the complaint or the Statement of
¶ 50. At the plea hearing in the present case, the circuit court accepted the plea without examining the photographs depicting nudity that the complaint alleges to be the harmful material. The circuit court simply concluded that the record, “especially the probable cause section of the complaint,” set forth a factual basis sufficient to support the plea. The defendant was thereafter sentenced to six years in prison, as recommended by the State.9
¶ 51. If our examination of the record ended here, it is obvious that a sufficient factual basis does not exist to support the circuit court‘s legal conclusion that the facts were sufficient to support the defendant‘s plea to the crime charged. The complaint and Statement of Probable Cause simply state that the defendant showed photographs of himself nude to a young woman who was then seventeen years and three months of age. That‘s it.
¶ 52. Not all nude photos shown to a person over the age of seventeen but below the age of eighteen violate the statute. Although the statute defines “harmful material” to mean a visual representation “that depicts nudity,”10 the statute requires that the visual representation of nudity be “harmful to children.”11 (Emphasis added.)
“Harmful to children” means that quality of any description, narrative account or representation, in whatever form, of nudity, sexually explicit conduct, sexual excitement,12 sadomasochistic abuse, physical torture or brutality, when it:
- Predominantly appeals to the prurient, shameful or morbid interest of children;
- Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children; and
- Lacks serious literary, artistic, political, scientific or educational value for children, when taken as a whole.13
The defendant also gave the young woman a copy of a letter allegedly from Playgirl and a letter from himself, the contents of which are not described in the Statement of Probable Cause. The complaint does not allege that these letters are harmful materials in violation of
¶ 54. Nudity seems to be the least offensive type of visual representation listed in the statute. The other visual representations falling within the statute are “sexually explicit conduct, sexual excitement, sadomasochistic abuse, physical torture or brutality.” Furthermore, the victim here is seventeen years and three months of age, nine months short of being beyond the age the statute covers. If the victim were eighteen years of age, the defendant could not be charged under this statute for displaying the photograph to the young woman.
¶ 55. The Wisconsin legislature created a variable obscenity statute in
¶ 56. A problem with
¶ 57. If we are to consider the age of the minor victim in interpreting
¶ 58. Thus, a simple review of the facts of the complaint and Statement of Probable Cause puts a court on notice that the facts stated are not sufficient to constitute the crime to which the defendant pled. However, in other cases involving a review of the factual basis of a plea (cases that are not entirely similar to the present case), this court has examined the whole
¶ 59. Two of the ten photographs referred to in the Statement of Probable Cause were offered and received in evidence at the sentencing hearing. The photographs show the defendant standing naked in front of a curtain, displaying a non-erect penis.
¶ 60. Many would probably agree that the defendant‘s conduct is distasteful and even possibly predatory.19 The issue before us, however, is not the character of the defendant, or whether he engaged in conduct of which we disapprove, or whether he engaged in some sort of anti-social or criminal conduct. The issue here is whether the defendant‘s conduct in displaying the photos to a young woman over the age of
¶ 61. The weakness of the State‘s decision to prosecute the offense charged is clearly demonstrated in the prosecutor‘s argument at sentencing. At the sentencing hearing the State argued that the pictures in and of themselves were not the “sort of the thing that would cause the concern that is before [the court].” The State emphasized that the crux of the offense in the present case was that the defendant was using the photographs in an attempt to seduce the seventeen-year-old and that the defendant should be punished for this predatory conduct.
¶ 62. After examining the entire record, I am compelled to conclude that the circuit court‘s decision that a sufficient factual basis exists to support the plea of no contest was an error of law. The circuit court never analyzed the statutory standard of “harmful material” set forth in
¶ 63. For the reasons set forth, I conclude that the defendant has raised a serious question as to whether displaying the photographs to the seventeen-year-old plus in the present case violates the statutory standard. I therefore further conclude that the circuit court erred as a matter of law in refusing to allow the defendant to withdraw his plea of no contest and that the parties
¶ 64. One final point. At least as to a seventeen-year-old victim, the statutes seem to punish persons who are less culpable more severely than they punish more culpable persons. For example, had the defendant had sexual intercourse with the victim, a minor over the age of sixteen, he would be guilty of a Class A misdemeanor, with a maximum punishment of imprisonment not to exceed nine months.20 However, the maximum penalty for the felony charged in the present case, displaying a photograph of a nude male to a minor who is seventeen years old, is two years in prison. I suggest that the legislature might want to review these statutes. See
¶ 65. For the reasons set forth, I dissent.
¶ 66. I am authorized to state that Justice WILLIAM A. BABLITCH joins this opinion.
Notes
All subsequent references to the Wisconsin Statutes are to the 1999–2000 version, unless otherwise indicated.(2) CRIMINAL PENALTIES. (a) Whoever, with knowledge of the nature of the material, sells, rents, exhibits, transfers or loans to a child any harmful material, with or without monetary consideration, is guilty of a Class E felony.
When there is a negotiated plea, as in the present case, the circuit court need not go to the same length to determine whether the facts would sustain the charge as it would when there is no negotiated plea. Broadie v. State, 68 Wis. 2d 420, 423-24, 228 N.W.2d 687 (1975); Wilson v. State, 57 Wis. 2d 508, 513, 204 N.W.2d 508 (1973).
(2) The actor is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period, which convictions remain of record and unreversed. It is immaterial that sentence was stayed, withheld or suspended, or that the actor was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded.State v. Johnson, 207 Wis. 2d 239, 244, 558 N.W.2d 375 (1997).
See White, 85 Wis. 2d at 490-92.THE COURT: All right. Mr. Trochinski, I have before me the plea questionnaire and waiver of rights form that would appear to have your signature on it. Did you sign the form?
THE DEFENDANT: Yes, I did.
THE COURT: And before signing it, did you go over all of the matters on that form with your attorney?
THE DEFENDANT: Yes, I did.
THE COURT: Did you understand all of the matters on the form?
THE DEFENDANT: Yes.
THE COURT: Now, the information contained on the form by the boxes checked, the things initialed, the information communicated by this form, is that information truthful?
THE DEFENDANT: Yes.
THE COURT: And I can rely upon it to be so?
THE DEFENDANT: Yes.
THE COURT: Now, I‘m not going to go over all of the things on the form with you. That‘s the purpose of having the form so that you can meet with your attorney; that you can go over all of the matters on the form; that you can discuss all of the matters and be sure that nothing is left out; and that you can do that outside of the pressures that are sometimes present in courtrooms.
A postconviction motion for the withdrawal of a guilty plea is granted to correct a manifest injustice. One type of manifest injustice is the failure to establish a sufficient factual basis that the defendant committed the offense to which he pleads. Johnson, 207 Wis. 2d at 244.
McCarthy v. United States, 394 U.S. 459, 467 (1969) (quoted in White, 85 Wis. 2d at 491).Q: And did you understand at the time you signed [the plea waiver form] that those were the matters that you were admitting, that these were the elements of the offense?
A: I understood that they were the elements. I didn‘t understand what was going to have to be proven to be convicted.
Q: Okay. That‘s pretty close to the same thing. An element is something that has to be proven for you to be convicted. Now, when you initialed the box that says you exhibited harmful material to a child, what was your understanding of what harmful material meant?
A: Exactly what I was told by my attorney, that it was harmful material and in photos.
Q: It was a photograph. It was a photograph of yourself without any clothes on; is that right?
A: Correct.
Q: And did you and your attorney ever discuss whether a mere picture of a nude was harmful to children?
A: No. I recall it being discussed that it wasn‘t considered harmful material because I wasn‘t erect and I was not touching myself.
Q: You talked about that with Mr. Haase?
A: Yes, I did.
Q: And his explanation to you was you have to be erect or touching yourself in order for it to be harmful?
A: He did say there would be jury instructions. I don‘t recall hearing what the instructions were.
The defendant was sentenced as a repeater. He had two prior convictions for battery, one that involved violence to a child and one that involved intoxication and violence to a woman. In addition, his parole had been revoked twice.A: As it was said in court, I was asked a question of if I had knowledge of the nature of the material, that it was harmful material. I agreed that it was. I was not given an opportunity to express if it was art or in an art form. To me harmful material would be if I was erect or if I was touching myself or if someone else was in that photo.
Nudity is defined as the showing of the human male or female genitals.971.08 Pleas of guilty and no contest; withdrawal thereof. (1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
(a) Whoever, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration, is guilty of a Class E felony if any of the following applies:
- The person knows or reasonably should know that the child has not attained the age of 18 years.
- The person has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan.
Trochinski perhaps could have utilized this affirmative defense in the statute if he showed reasonable cause to believe that Jill L. was eighteen (the sale of beer) and that Jill L. had exhibited some sort of official proof that she had attained eighteen. As the statute suggests, Trochinski should have acted on his purported belief that Jill L. was eighteen by asking her age and for official proof that she was indeed eighteen. Regardless, Trochinski cannot rely on this defense now because, pursuant to his no contest plea, Trochinski waived his right to present any such defense. The supreme court of Virginia concluded that “if a work is found to have a serious literary, artistic, political or scientific value for a legitimate minority of normal, older adolescents, then it cannot be said to lack such value for the entire class of juveniles taken as a whole.” American Booksellers Ass‘n v. Commonwealth, 882 F.2d 125, 127 (4th Cir. 1989) (quoting Commonwealth v. American Booksellers Ass‘n, 372 S.E.2d 618, 624 (Va. 1988)).It is an affirmative defense to a prosecution for a violation of this section if the defendant had reasonable cause to believe that the child had attained the age of 18 years, and the child exhibited to the defendant a draft card, driver‘s license, birth certificate or other official or apparently official document purporting to establish that the child had attained the age of 18 years. A defendant who raises this affirmative defense has the burden of proving this defense by a preponderance of the evidence.
In the sentencing hearing the prosecutor stressed that the case was about a man in his late twenties who displayed photos of himself and a soliciting type of letter. “What 29-year-old or 28-year-old self-respecting male is going to run around the countryside taking pictures of himself standing in the nude displaying his male organ, showing them to anybody ... ? We are talking about someone who is using pictures of himself in all likelihood to solicit candidates for his ongoing quest to father 12 children....”
This argument may be valid in a sentencing hearing but this argument does not assist in determining whether a factual basis exists for the crime charged.