Criminal Procedure

Guilty Plea – Child Enticement – Court’s Duty to Ensure That Defendant Understands Charge

State v. Hendricks, 2018 WI 15 (filed 20 Feb. 2018)

HOLDINGS: 1) The circuit court was not required to provide a legal definition of “sexual contact” to the defendant when the defendant entered a guilty plea to the crime of child enticement. 2) The circuit court record establishes that the defendant fully understood the charge to which he was pleading guilty.

SUMMARY: A criminal complaint charged defendant Hendricks with one count of second-degree sexual assault of a child under the age of 16. The charge 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. On the second day of his trial, the defendant decided to accept the state’s plea offer, which reduced the charge to one of child enticement, contrary to Wis. Stat. section 948.07. The crime of child enticement requires the state to prove that the defendant caused or attempted to cause any child under the age of 18 years to go into any vehicle, building, room, or secluded place with the intent to commit any one of six enumerated acts, including having sexual contact with the child.

During the plea colloquy, the court made an extensive record with the defendant explaining that the crime to which he was pleading guilty involved taking the victim into a secluded place for the purpose of having sexual contact with her. The defendant indicated that he was “admitting to that.” During the plea hearing, the court referenced the allegations in the criminal complaint (summarized above) as well as the victim’s preliminary hearing testimony describing the defendant’s conduct. However, the court’s explanation of the crime did not include a legal definition of the term “sexual contact.”

In a postconviction motion, the defendant alleged a deficiency in his plea colloquy because the circuit judge failed to advise him about the legal definition of “sexual contact.” This, he claimed, violated the requirement of Wis. Stat. section 971.08 that a defendant must understand the nature of the charge to which he is pleading guilty. The circuit court denied relief and, in an unpublished decision, the court of appeals affirmed.

In a majority decision authored by Justice R.G. Bradley, the supreme court affirmed the court of appeals. It agreed with the state that sexual contact is not an essential element of the crime of child enticement and therefore the circuit court was not required to provide a legal definition of the term to the defendant (see ¶ 18). The crime of child enticement requires proof that the defendant acted with any one of several different objectives (including having sexual contact with the victim), and the circuit court must identify at least one of these objectives to ensure that there exists a factual basis for accepting the plea (see ¶ 26). Section 971.08(1) requires a court, before accepting a plea, to “determine that the plea is made voluntarily with understanding of the nature of the charge.” Before accepting the defendant’s plea, the circuit court accomplished both of these requirements (id.).

The court also rejected the defendant’s claim that he did not understand the meaning of the term “sexual contact” because the record “belies [his] claim” (¶ 28). The record “conclusively establishes [the defendant’s] graphic understanding of the nature of the crime to which he pled guilty” (¶ 30).

Justice Abrahamson filed a dissent in which she concluded that “it is inconsistent with due process for a circuit court to accept a defendant’s guilty plea to a charge that requires proof of an intended underlying act without verifying that the defendant understands what the underlying intended act is” (¶ 37). Justice A.W. Bradley joined this dissent.

Confessions – Custody – Miranda

State v. Bartelt, 2018 WI 16 (filed 20 Feb. 2018)

HOLDING: The defendant was not in custody for Miranda purposes when he confessed while being interviewed by police officers; thus, his request for counsel did not trigger Miranda protections.

SUMMARY: Police officers suspected the defendant of murdering an acquaintance and, in a separate incident, of attacking another woman with a knife in a park. He voluntarily appeared for an interview at the police station. After admitting he attacked the woman in the park, the defendant requested counsel. He was arrested a short time later.

The next day, different police officers interviewed him about the murder. Although he did not confess, the defendant talked about traveling to a park; he then requested counsel and terminated the interview. Police officers later discovered incriminating physical evidence in the park that tied the defendant to the murder. The circuit court denied his motion to suppress his statements and any evidence derived from them. A jury convicted the defendant of the murder, and he later pleaded guilty to the attack in the park. In a published decision, the court of appeals affirmed the conviction. See 2017 WI App 23.

The supreme court affirmed in a majority opinion authored by Chief Justice Roggensack. Case law holds that for Miranda purposes, an invocation of counsel is effective only if the defendant is in custody at the time (see ¶ 30). Custody is governed by a totality of the circumstances test. Essentially, the defendant contended that he was in custody when he requested counsel’s presence after confessing to the park attack; thus, he should not have been interrogated about the murder the next day.

The court disagreed. “[A]lthough an admission of guilt to a serious crime is a factor to consider in a custody analysis, Bartelt’s admission to attacking M.R. was not enough to transform his status to that of ‘in custody’ given the totality of the circumstances” (¶ 53). Because he was not in custody when he first requested counsel, police officers could interview him the next day about the murder. The majority found it unnecessary to discuss whether the request for counsel was sufficiently unequivocal to trigger a mandatory termination of all interrogation.

Justice A.W. Bradley filed a dissenting opinion that was joined by Justice Abrahamson. In their view, no reasonable person confessing to a serious crime, such as the knife attack in the park, would have felt he was not in “custody” from that point onward. Moreover, the defendant’s request for counsel was unequivocal, precluding any later police interrogation.

Employment Law

Public Employee Unions – Annual Certification Elections – Act 10

Wisconsin Ass’n of State Prosecutors v. Wisconsin Employment Relations Comm’n, 2018 WI 17 (filed 28 Feb. 2018)

HOLDINGS: 1) The Wisconsin Employment Relations Commission (WERC) did not exceed its authority when it promulgated certain rules for the conduct of annual certification elections for public employee unions. 2) WERC may decertify a union when it fails to file a timely petition for a certification election.

SUMMARY: This case arises under the annual certification requirement for public employee unions pursuant to 2011 Wis. Act 10. WERC has the responsibility for conducting the certification elections. To that end it has promulgated rules requiring unions seeking certification to file a petition for election with WERC by September 15. See Wis. Admin. Code chs. ERC 70, ERC 80.

Here the unions submitted tardy petitions for certification, and WERC decertified them. In a series of cases the unions sought a declaratory judgment that WERC’s administrative rules were invalid because they conflict with the statutory mandate that WERC hold annual certification elections. They also sought writs of prohibition preventing WERC from enforcing the administrative rules. Finally, petitions for judicial review were filed seeking to overturn WERC’s decisions to deny certification elections to the unions because their petitions for election were not timely filed. The circuit court granted relief to the unions. In a published decision, the court of appeals affirmed the circuit court. See 2016 WI App 85.

In a majority decision authored by Justice Ziegler, the supreme court reversed the court of appeals. It held that “WERC did not exceed its authority because it has express authority under Wis. Stat. ch. 111 to promulgate rules that require a demonstration of interest from labor organizations interested in representing collective bargaining units; consequently, we reinstate WERC's orders dismissing the Unions' petitions for election as untimely” (¶ 55). It further concluded that “WERC may decertify a current representative labor organization on September 15, or at the expiration of the collective bargaining agreement, whichever occurs later, where there are no timely petitions for election filed because the plain language of the statute requires WERC to conduct elections on or before December 1” (¶ 56).

Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.

Real Property

Foreclosures – Guaranty

Horizon Bank v. Marshalls Point Retreat LLC, 2018 WI 19 (filed 6 March 2018)

HOLDING: The question of “fair value” for purposes of a foreclosure action is governed by Wis. Stat. section 846.165; it does not, however, apply to credits toward a money judgment on a guaranty.

SUMMARY: The bank loaned $5 million to Marshalls Point Retreat LLC, secured by a mortgage on property in Door County. A member of the LLC, Musikantow, signed a continuing guaranty of payment for the loan. Following a default, the bank filed a foreclosure action resulting in a judgment of foreclosure and a money judgment against Musikantow as guarantor for more than $4 million. As the sole bidder, the bank bought the property for a credit bid of $2.25 million at a sheriff’s sale. The bank sought no deficiency judgment, and the parties did not object to the bank’s sale price. Marshalls Point and Musikantow contended, however, that the property’s fair market value far exceeded the $2.25 million winning bid; thus, the bid amount should not govern the credit for the guaranty.

The circuit court confirmed the sale but declined to rule on the credit to be applied toward the judgment on the guaranty. Later it ruled that by terms of the guaranty, the credit issue was governed by federal law. In an unpublished opinion, the court of appeals reversed, finding that the parties’ stipulation controlled, and the credit on the guaranty was $2.25 million.

The supreme court reversed the court of appeals in a majority opinion authored by Justice A.W. Bradley. The court held that “Wis. Stat. § 846.165 does not apply to credits toward a judgment on a guaranty. Rather, it applies to the relationship between only the mortgagee and mortgagor who signed the promissory note underlying the mortgage. Therefore, it cannot be read as requiring the circuit court to determine the amount of a credit to be applied to a judgment on a guaranty when confirming the foreclosure sale” (¶ 57).

It also held that “when an action for foreclosure against a mortgagor and an action for a money judgment on a guaranty are brought in the same proceeding as in the instant case, the circuit court may, in its discretion, decide the separate questions of fair value for purposes of Wis. Stat. § 846.165 and the amount of any credit toward the judgment on the guaranty either at the same time or separately” (¶ 58). The court also found that the stipulation was “ambiguous as to the amount of the total credit” (¶ 53). Specifically, it provided a “floor” for the amount of the credit, but not a “ceiling” (¶ 54).

Justice R.G. Bradley dissented on grounds that the majority “incorrectly invokes equity to trump the terms and conditions” of an otherwise valid stipulation (see ¶ 99).