                                                                     2018 WI 15

                  SUPREME COURT             OF       WISCONSIN
CASE NO.:               2015AP2429-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Shannon Olance Hendricks,
                                  Defendant-Appellant-Petitioner.

                             REVIEW OF A DECISION OF THE COURT OF APPEALS
                              Reported at 373 Wis. 2d 309, 895 N.W.2d 104
                                          (2017 – Unpublished)

OPINION FILED:          February 20, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 2, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               David L. Borowski and M. Joseph Donald

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, J. dissents, joined by A.W. BRADLEY,
                        J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       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.
                                                                                2018 WI 15
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2015AP2429-CR
(L.C. No.    2011CF4101)

STATE OF WISCONSIN                                 :              IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,                                         FILED
      v.                                                             FEB 20, 2018
Shannon Olance Hendricks,                                               Sheila T. Reiff
                                                                     Clerk of Supreme Court
             Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                       Affirmed.



      ¶1     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.1                                 Because

sexual      contact    is     not   an   element       of   the     crime       of    child

enticement, and because the record shows Hendricks understood


      1
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
                                                           No. 2015AP2429-CR



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 decision2 upholding the circuit court's order3 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


     2
       See State v. Hendricks, No. 2015AP2429-CR,                unpublished
slip op. (Wis. Ct. App. Dec. 15, 2016).
     3
       The Honorable M. Joseph Donald, Milwaukee County Circuit
Court decided this postconviction motion; the Honorable David L.
Borowski, Milwaukee County Circuit Court presided over the plea
colloquy,    subsequent    hearings,    sentencing,   and    the
postconviction motions through the entry of the amended judgment
of conviction.
     4
       The victim testified at the preliminary hearing (which
Hendricks agreed to use as the factual basis for his plea) that
as Hendricks touched these different parts of her body, he kept
saying "please" and that "he hasn't had it [meaning sexual
intercourse] in a while."


                                     2
                                                                     No. 2015AP2429-CR



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
                                          3
                                                            No. 2015AP2429-CR



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)

                                   4
                                                        No. 2015AP2429-CR


    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?

                                     5
                                                              No. 2015AP2429-CR


       [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?

       [PROSECUTOR]:     Yes.

       [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

                                        6
                                                       No. 2015AP2429-CR



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.




                                    7
                                                           No. 2015AP2429-CR


      Q   And you also knew exactly what you were being
      accused of because you've been through the revocation
      hearing on October 26th 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



                                     8
                                                                              No. 2015AP2429-CR



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.


                                               9
                                                                           No. 2015AP2429-CR



      ¶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:



      5
       These motions dealt with sentence modification issues,
ultimately resulting in a reduction of the initial confinement
portion of his sentence so that it matched the time left on the
sentence he was already serving.


                                             10
                                                        No. 2015AP2429-CR


         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 is not a
    required element, and therefore, a court is not
    required to explain the meaning of sexual contact.
    See State v. Trochinski, 253 Wis. 2d 38, 61 (2002) (a
    valid plea requires only knowledge of the essential
    elements of the offense, not knowledge of nuances and
    descriptions of the elements).
The circuit court found both the plea colloquy and the plea

questionnaire   established   that    Hendricks   had   the   requisite

knowledge of the elements of child enticement; he "understood

the essential elements of this offense" when he pled guilty.

Thus, he failed to establish a defect in the plea colloquy, and



                                 11
                                                                                  No. 2015AP2429-CR



no    evidentiary        hearing      was    required.               The    court       of    appeals

affirmed.         We granted the petition for review.

                                II.    STANDARD OF REVIEW

       ¶17    Whether      a     defendant         is    entitled          to    an    evidentiary

hearing      on    his    plea       withdrawal         motion        under       Bangert          is   a

question of law we review independently.                              See State v. Howell,

2007 WI 75, ¶30, 301 Wis. 2d 350, 734 N.W.2d 48.                                      We review de

novo whether Hendricks (1) "has pointed to deficiencies in the

plea colloquy that establish a violation of Wis. Stat. § 971.08

or    other       mandatory         duties       at     a     plea     hearing";             and    (2)

sufficiently           alleged       that    he        did     not     know       or    understand

information that should have been provided at the plea hearing."

See   State       v.   Brown,       2006    WI    100,       ¶21,     293       Wis. 2d 594,         716

N.W.2d 906.

                                      III.       DISCUSSION

             A.    There is no deficiency in the plea colloquy.

       ¶18    Hendricks asserts intent to have "sexual contact" is

an essential element of child enticement and, therefore, the
circuit      court's      failure      to    define          the     term    "sexual         contact"

during the plea colloquy rendered it deficient under both Wis.

Stat. § 971.08 and Bangert.6                       The State responds that because

"sexual       contact"         is     not    an        essential           element       of        child

enticement, the circuit court was not required to give Hendricks



       6
       See        State    v.       Bangert,      131        Wis. 2d 246,         389    N.W.2d 12
(1986).


                                                  12
                                                                    No. 2015AP2429-CR



its legal definition, and therefore the plea colloquy complied

with § 971.08 and Bangert.            The State is correct.

      ¶19     Wisconsin   Stat.      § 971.08(1)       requires    a     court    to    do

four things before it "accepts a plea of guilty or no contest":

      (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.

      (c)     Address the defendant personally and advise the
              defendant as follows: "If you are not a citizen
              of the United States of America, you are advised
              that a plea of guilty or no contest for the
              offense with which you are charged may result in
              deportation, the exclusion from admission to this
              country or the denial of naturalization, under
              federal law."

      (d)     Inquire of the district attorney whether he or
              she has complied with s. 971.095(2).
The   issue    here    focuses     solely     on   paragraph      (a)    and     whether

Hendricks      understood      "the     nature       of    the    charge."             "An

understanding     of    the    nature    of    the     charge     must    include      an
awareness of the essential elements of the crime."                       Bangert, 131

Wis. 2d at 267.        To ensure a defendant understands the nature of

the   charge,     a    circuit     court      must     employ     "any     one    or    a

combination of" three methods:                (1) "summarize the elements of

the   crime     charged       by   reading      from      the    appropriate         jury

instructions . . . or         from    the     applicable        statute";      (2)     ask

defense "counsel whether he explained the nature of the charge
to the defendant and request him to summarize the extent of the


                                         13
                                                                No. 2015AP2429-CR



explanation, including a reiteration of the elements at the plea

hearing";   or     (3)   "expressly     refer    to     the   record    or   other

evidence of defendant's knowledge of the nature of the charge

established prior to the plea hearing."               Id. at 267-68.

    ¶20     The record demonstrates the circuit court employed a

combination       of   the    various     methods.        The   circuit      court

interacted directly with Hendricks and repeatedly summarized the

elements of child enticement.             Every time, Hendricks responded

that he understood.          The circuit court asked defense counsel if

he explained the nature of the crime and if he discussed the

elements with Hendricks.7          Defense counsel assured the circuit

court he had.          Further, during the plea colloquy the circuit

court referred to the record demonstrating Hendricks' knowledge

of the nature of the charge, including the complaint, the guilty

plea waiver form, and the victim's testimony at the preliminary

hearing.    There is no question the circuit court conducted an

extremely thorough and complete plea colloquy.

    ¶21     The    child     enticement      statute,    Wis.   Stat.    § 948.07
provides:

    Whoever, with intent to commit any of the following
    acts, causes or attempts to cause any child who has
    not attained the age of 18 years to go into any
    vehicle, building, room or secluded place is guilty of
    a Class D felony:

    7
       Had this been the only method the circuit court chose, it
would have had to make defense counsel reiterate the elements.
This, however, was not the court's primary method; instead, it
was an additional check to ensure Hendricks' counsel discussed
the elements of the charge with him.


                                        14
                                                                   No. 2015AP2429-CR


       (1)     Having sexual contact or sexual intercourse with
               the child in violation of s. 948.02, 948.085, or
               948.095.

       (2)     Causing the child to engage in prostitution.

       (3)     Exposing genitals, pubic area, or intimate parts
               to the child or causing the child to expose
               genitals, pubic area, or intimate parts in
               violation of s. 948.10.

       (4)     Recording the child engaging in sexually explicit
               conduct.

       (5)     Causing bodily or mental harm to the child.

       (6)     Giving or selling to the child a controlled
               substance or controlled substance analog in
               violation of ch. 961.
There    are    three    elements      the   State    must   prove   in    a   child

enticement case:

               (1)   [T]hat the defendant caused or attempted to
                     cause a child to go into a vehicle,
                     building, room or secluded place;

               (2)   [T]hat the defendant did so with any one of
                     the   six   enumerated   intents,   generally
                     relating to sex and drug crimes; and

               (3)   [T]hat the victim had not attained the age
                     of 18.
State v. Derango, 2000 WI 89, ¶31, 236 Wis. 2d 721, 613 N.W.2d

833 (citing Wis. Stat.              § 948.07).       This court emphasized in

Derango      that    child   enticement      is   "one   offense   with    multiple

modes of commission."              236 Wis. 2d 721, ¶17.       The crime is the

"act    of   enticement,"      "not    the     underlying    intended     sexual   or

other misconduct."           Id.     Thus, an act of sexual contact is not

an element of child enticement.                 The crime of child enticement
prohibits "the act (or attempt) of enticement luring a child to


                                          15
                                                                             No. 2015AP2429-CR



a    secluded      place,    away      from     the    protections          of    the    general

public" for some improper purpose.                         Id., ¶¶18, 21.           Textually,

the act of enticement itself encompasses a bad intent.

       ¶22    Relying       on    three    sexual       assault       by     sexual      contact

cases, State v. Jipson, 2003 WI App 222, 267 Wis. 2d 467, 671

N.W.2d 18, State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460

(Ct.       App.    1998),        and   State     v.        Bollig,     2000       WI     6,   232

Wis. 2d 561,         605    N.W.2d 199,          Hendricks          argues        that    sexual

contact is an essential element of child enticement and the term

should      have    been    defined       for    him    at    the     plea       hearing.     We

disagree.          As the circuit court correctly noted in its order

denying Hendricks' postconviction motion, child enticement is a

different crime from child sexual assault.                              The elements are

different, the punishments are different, and "[t]here is not a

single case which holds that the meaning of sexual contact is an

essential element of child enticement."                         Because the State must

prove sexual contact itself in a child sexual assault case, it

makes      sense    that    to    understand         the    nature     of    the    charge,    a
defendant pleading to sexual assault based on sexual contact

must be told the specific statutory definition of sexual contact

in   Wis.     Stat.   § 948.01(5).8             The     crime    of    child       enticement,


       8
       Wisconsin Stat § 948.01(5)                      defines      "sexual       contact"    as
"any of the following":

       (a) Any   of   the   following  types  of   intentional
       touching, whether direct or through clothing, if that
       intentional touching is either for the purpose of
       sexually   degrading    or  sexually  humiliating   the
                                                        (continued)
                                                16
                                                                   No. 2015AP2429-CR



however,     does    not    require    the   State   to    prove     a   defendant

committed (or attempted to commit) an act of sexual contact;

rather, the State must prove the act of criminal enticement,

which presupposes bad intent.            Obviously, a person could not be

charged with the crime of child enticement for luring her child

into   their      garage    to   surprise    the   child    with    a    brand   new

bicycle.

       ¶23   In    addition,     the   courts   in   Jipson,   Nichelson,        and

Bollig specifically held that sexual contact is an essential

       complainant     or   sexually    arousing     or    gratifying     the
       defendant:

       1. Intentional touching by the defendant or, upon the
       defendant's instruction, by another person, by the use
       of any body part or object, of the complainant's
       intimate parts.

       2. Intentional touching by the complainant, by the use
       of any body part or object, of the defendant's
       intimate parts or, if done upon the defendant's
       instructions, the intimate parts of another person.

       (b) Intentional penile ejaculation of ejaculate or
       intentional emission of urine or feces by the
       defendant or, upon the defendant's instruction, by
       another person 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.

       (c)   For  the  purpose   of  sexually   degrading                  or
       humiliating the complainant or sexually arousing                    or
       gratifying the defendant, intentionally causing                    the
       complainant to ejaculate or emit urine or feces on                 any
       part of the defendant's body, whether clothed                       or
       unclothed.


                                        17
                                                                        No. 2015AP2429-CR



element    of   the    crimes      of    second-degree        sexual    assault          of   a

child, first-degree sexual assault of a child, and attempted

sexual contact with a child.               None of these cases, however, say

sexual contact is an element of the crime of child enticement.

This distinction follows naturally from the differences in the

language of the statutes involved.                      The statutes at issue in

Jipson,    Nichelson,        and    Bollig       list    "sexual       contact"      as       a

specific   element      of   the    crime,       whereas      the    child    enticement

statute lists "sexual contact" as one of six alternative modes

of commission rather than as a specific element.9

     ¶24    Hendricks        argues       we     cannot        rely     on     Derango's

conclusion      that   sexual      contact       is    not    an    element    of    child

enticement because Derango did not involve plea withdrawal, but

instead addressed jury unanimity.                     Hendricks insists Derango's

analysis and holding on the elements of child enticement must be

limited to unanimity cases.              We disagree.         Although Hendricks is

correct that this court in Derango analyzed the child enticement

statute    in   the    context      of    jury    unanimity,         this    in     no    way
influences      our    identification            of     the    elements       of     child


     9
       State v. Jipson, 2003 WI App 222, 267 Wis. 2d 467, 671
N.W.2d 18, dealt with Wis. Stat. § 948.02(2), which states
"[w]hoever has sexual contact or sexual intercourse with a
person who has not attained the age of 16 years."      (Emphasis
added.)    State v. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460
(Ct. App. 1998), dealt with Wis. Stat. § 948.02(1)(1997-98),
which states "[w]hoever has sexual contact or sexual intercourse
with a person who has not attained the age of 13 years."
(Emphasis added.)   State v. Bollig, 2000 WI 6, 232 Wis. 2d 561,
605 N.W.2d 199, also dealt with § 948.02(1).


                                           18
                                                                               No. 2015AP2429-CR



enticement.           Sexual      contact      is    either        an    element     of   child

enticement or it is not.                 It cannot be an element for one type

of case, but not in another.                    In Derango, this court examined

the    plain    language       of   the       statute    to    determine         that     sexual

contact is not an element of the crime of child enticement.                                  See

Derango,       236    Wis. 2d 721,        ¶¶16-17.            We    held       the   statutory

language to be "straightforward"——"[t]he act of enticement is

the    crime,        not    the     underlying        intended           sexual      or   other

misconduct."         Id., ¶17.        We supported this interpretation with

additional cases interpreting the child enticement statute and

with   the     statute's       legislative          history.            Id.,   ¶¶19-20.      See,

e.g., id., ¶19, (citing State v. Hanson, 182 Wis. 2d 481, 487,

513 N.W.2d 700 (Ct. App. 1994)) ("The gravamen of the crime is

not    the   commission        of   an    enumerated      act,          but    succeeding     in

getting a child to enter a place with intent to commit such a

crime." (emphasis added)).                    Our analysis remains sound and we

see no reason to overturn, abandon, or distinguish it.

       ¶25     Our    conclusion         is    further    supported             by   State     v.
Steele, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595.                                  Steele

was a plea withdrawal case, which relied upon a jury unanimity

case   to    ascertain       the    essential        elements           of   armed   burglary.

Id., ¶¶1, 8-9.             Steele argued his plea colloquy was deficient

because the circuit court did not specifically identify which

"felony" supported the burglary charge; he claimed the specific

felony was an essential element and needed to be discussed.

Id., ¶¶1-3, 8.             The circuit court identified the elements as:
(1) entering a dwelling; (2) intentionally; (3) without consent;
                                               19
                                                                  No. 2015AP2429-CR



(4) intending to commit a felony; (5) armed with a dangerous

weapon.   Id., ¶3.        In rejecting Steele's claim that the felony

had to be explained10 because it is an essential element, the

court of appeals relied on State v. Hammer, 216 Wis. 2d 214, 576

N.W.2d 285 (Ct. App. 1997).         Hammer was a jury unanimity case,

which analyzed the statutory language of Wis. Stat. § 943.10,

the burglary statute, and concluded that what specific felony a

defendant intends to commit is not an essential element because

§ 943.10 "sets forth a 'single offense with multiple modes of

commission,'    not   multiple    offenses         defined   by   each      possible

underlying     felony."       Steele,        241   Wis. 2d 269,        ¶9   (quoting

Hammer, 216 Wis. 2d at 220).

    ¶26   From     Derango,     Steele,        and   Hammer,      we    discern    a

governing principle.       The modes of commission following "intends

to commit" language within statutes do not constitute an element

of a crime.       Of course, a statute's mode of commission must

    10
        The court of appeals in State v. Steele, 2001 WI App 34,
241 Wis. 2d 269, 625 N.W.2d 595, additionally held that the
circuit   court's "failure to specify the underlying felony was
not a defect in the plea proceedings."     Id., ¶10.   While the
particular mode of commission in a child enticement case need
not be legally defined because it is not an element of the
offense, it does need to be identified during the plea colloquy
to ensure a factual basis exists for the plea. In the context
of a burglary, Wis. Stat. § 943.10 does not specify the
particular felonies the defendant must have intended to commit;
therefore, as the court in Hammer noted, "it does not matter
which felony formed the basis of that intent." State v. Hammer,
216 Wis. 2d 214, 220, 576 N.W.2d 285 (Ct. App. 1997). The child
enticement statute, in contrast, specifies six separate intended
acts, at least one of which must be identified during the plea
colloquy.


                                        20
                                                                 No. 2015AP2429-CR



still be disclosed and acknowledged at a plea hearing in order

to ensure a factual basis for the plea.                   For burglary, the

circuit court must advise a defendant that one of the elements

is the "intent to commit a felony."               It would be insufficient

for   the   circuit    court     to    simply    say   "intent      to    commit."

Likewise, for child enticement, a circuit court cannot simply

say to a pleading defendant that he must have enticed a child to

a   secluded   place   "with    intent."        That   would   be   absurd.      A

circuit court must identify at least one of the prohibited modes

of committing child enticement to ensure there exists a factual

basis for accepting a plea.11           And, Wisconsin Stat. § 971.08(1)

requires a court, prior to accepting a plea, to "determine that

the plea is made voluntarily with understanding of the nature of

the   charge."    Before    accepting       Hendricks'    plea,     the    circuit

court accomplished both of these requirements.

      ¶27   The   circuit      court    here     recognized      the      mode   of

commission was initially missing and took the proper steps to

correct the omission.          As a result, the circuit court actually
read all six of the prohibited intents listed in the statute

during the plea colloquy and then specifically asked Hendricks


      11
       The dissent's fabricated Bokononism example is not one of
the modes of commission in the child enticement statute.     See
dissent, ¶51. Our decision in this case is based on the actual
law in place and the extensive record recounted in part I of
this opinion.   The record establishes that Hendricks failed to
demonstrate any plea defect.    The dissent's insistence that a
plea deficiency exists does not make it so——no matter how many
times the dissent says it.


                                       21
                                                                           No. 2015AP2429-CR



if he was admitting to the prohibited intent of sexual contact.

Hendricks      repeatedly        answered      affirmatively,          expressing               no

confusion at any point regarding the meaning of sexual contact

or otherwise.         In fact, as detailed more fully below, Hendricks

conceded      the    victim's     testimony      at     the    preliminary           hearing

accurately         recounted    his    actions,       thereby       establishing               his

understanding        of   the    nature     of    the       charge,        including          his

intention      to     engage     in    sexual     contact       with         the     victim.

Hendricks      fails      to    establish      any     deficiency          in      his        plea

colloquy.12

  B.    The record shows Hendricks knew the nature of the charge.

       ¶28    We    further     hold    Hendricks          failed     to     sufficiently

allege he did not know or understand information that should

have been provided at the plea hearing.                     We already rejected his

claim that he should have been given the legal definition of

sexual      contact.      We    also   reject     his      contention         he    did       not

understand the meaning of this term because the record belies

Hendricks' claim.
       ¶29    The entire record is fair game in assessing whether

Hendricks understood the circuit court's repeated questions as

to whether he committed the crime of child enticement.                                         See

Bollig,      232     Wis. 2d 561,      ¶53.          The    record     before            us    is

substantial and to some extent unusual because we not only have

       12
       Hendricks turns to party-to-a-crime cases to support his
position.   Because Hendricks was not charged as party to a
crime, we decline to analyze the unique nature of plea
colloquies involving party-to-a-crime charges.


                                          22
                                                                  No. 2015AP2429-CR



the   plea    colloquy      to    consider,   we    also   have   Hendricks'    own

testimony from his pre-sentence plea withdrawal hearing.                        At

that hearing, Hendricks admitted to knowing the charges to which

he pled because he was present at a revocation hearing where the

charges      were   read;    he    admitted   his    attorney     went   over   the

elements of the charge; and he admitted that he saw and read the

original      complaint.          The   original     complaint,    as    material,

states:

         The defendant "did have sexual contact" with the
          victim, who "had not attained the age of 16 years."

         "The victim has known the defendant for a                      long
          period of time and thinks of him as an uncle."

         "The defendant walked with the victim to . . . the
          victim's grandmother's house. The defendant learned
          that his girlfriend, the victim's aunt, was coming
          to the location so he suggested that he wanted to
          leave the area and that the victim should go with
          him. The victim went with the defendant to Pulaski
          Park."

         "Once they were in the park, the victim was seated
          on the top of a picnic table and the defendant sat
          on the seat portion of the table.      The defendant
          positioned himself between the victim's legs."

         "[T]he defendant started to touch her legs.      The
          victim told him to stop.    The defendant picked up
          the victim's legs and held them until they were
          level with his shoulders. The defendant then stated
          to the victim, 'Can I kiss there?'       The victim
          understood this to mean her vagina because that is
          where he seemed to be looking when he said this.
          The defendant stated, 'Please, I haven't had it in a
          while.'"

         "The defendant continued to rub the victim's legs
          and tried to touch her vagina over her shorts. The


                                         23
                                                               No. 2015AP2429-CR


           victim pushed her knees together to                 stop     the
           defendant and told the defendant, 'No.'"

          "The victim pushed the defendant's hand away from
           her vagina and repeatedly told [him] to stop.    The
           defendant then reached around the victim and grabbed
           her buttock over her clothing."

          "The defendant then kissed the victim's upper arms
           and chest area."

          "The defendant rubbed and squeezed the victim's
           breasts over her clothing and kept saying, 'Please,
           please, please,' into her ear. The defendant placed
           his hand inside the victim's shirt and moved his
           hand onto her breast but was not able to fully grab
           her breast before she pushed his hand away.     The
           defendant then attempted to unhook her bra and
           expose her breasts."
     ¶30     Also, Hendricks was present when the victim testified

at   the    preliminary     hearing,   and    he    conceded    the     victim's

testimony     accurately      recounted     his    actions.       The     victim

testified that Hendricks placed his hands on her inner thighs,

her chest and her buttocks while begging her to "please" let him

have sexual intercourse with her because he had not "had it in a

while."     This case goes beyond showing Hendricks acted to entice

the child victim to a secluded place with the intent to have

sexual contact.         Hendricks' claim that he did not understand the

nature of the charge is belied by the record before us.                       Even

Hendricks' lawyer at the pre-sentence plea withdrawal hearing

admitted     the    circuit    court   conducted     a   "great       colloquy."

Hendricks failed to show any Bangert violation, as the record

conclusively establishes Hendricks' graphic understanding of the

nature of the crime to which he pled guilty.
                   C.   State's request to modify Bangert

                                       24
                                                                           No. 2015AP2429-CR



      ¶31     The    State    requests       this       court       modify      Bangert       to

conform      Wisconsin      plea     practice      to     what      the    United       States

Supreme Court held is constitutionally-mandated.                               Specifically,

the second Bangert method requires the circuit court to first

ask defense counsel if he explained the nature of the charge to

the defendant and then request counsel to "summarize the extent

of the explanation, including a reiteration of the elements, at

the   plea    hearing."           131    Wis. 2d at       268.        In    asking      us   to

eliminate the latter requirement, the State cites Bradshaw v.

Stumpf,      545    U.S.     175    (2005),       which      held     a    plea       colloquy

sufficient where competent defense counsel simply assures the

circuit court "the defendant has been properly informed of the

nature    and      elements    of    the   charge       to   which        he    is    pleading

guilty."      Id. at 183.          In other words, defense counsel would not

need to "summarize the extent of the explanation" or reiterate

the elements on the record, as Bangert requires.                                It would be

enough for defense counsel to simply advise the circuit court

that counsel had the requisite conversation with the defendant.
      ¶32     We    reject    the       State's    request       to       change      Bangert.

Bangert set forth three reasonable methods of satisfying Wis.

Stat.     § 971.08's       statutory       requirement          ensuring        a     pleading

defendant understands the nature of the charge, which includes

an awareness of the elements of the crime.                           Each of the three

methods adequately protects the rights of a defendant who elects

to plead guilty or no contest.                    Scaling back Bangert's second

method in favor of a general assurance from defense counsel
would    inevitably        lead    to   motions     where     defendants             claim   the
                                            25
                                                                            No. 2015AP2429-CR



conversation        with    defense      counsel         never   occurred.          Bangert's

current method puts the conversation between defense counsel and

the defendant on the record contemporaneously with taking the

plea.     Bangert's methods have worked well for over 30 years and

we are not convinced a modification of Bangert is necessary or

prudent.       In addition, the State forfeited the right to request

a change to Bangert by failing to raise this issue in a cross-

petition for review or in its response to Hendricks' petition

for     review.       See     State      v.    Smith,       2016     WI     23,     ¶41,   367

Wis. 2d 483, 878 N.W.2d 135.

                                   IV.    CONCLUSION

       ¶33    We hold sexual contact is not an element of the crime

of    child    enticement.         Rather,         the    six    enumerated        prohibited

intents       are   modes     of   commission.              At     least     one    mode    of

commission must be referenced during a plea colloquy, but the

terms comprising each mode need not be specifically defined.

This is because the crime of child enticement does not require

proof of the actual, physical action contemplated by the mode of
commission, only that the defendant                        acted to entice           a child

while intending to do one of the prohibited acts.                                 The act of

enticement is the crime, not the underlying intended sexual or

other misconduct.           Hendricks failed to establish any deficiency

in this plea colloquy, which comported with both Wis. Stat.

§ 971.08 and Bangert.              Wisconsin Stat. § 971.08(1) requires a

court, prior to accepting a plea, to "determine that the plea is

made     voluntarily        with   understanding            of    the      nature    of    the
charge."       The record establishes Hendricks fully understood he
                                              26
                                                                  No. 2015AP2429-CR



enticed the child victim to a secluded place with the intent of

having sexual contact.          His claimed incomprehension contradicts

the record.      Finally, we reject the State's invitation to alter

Bangert's     required    procedures.           The    Bangert     framework      is

designed    to   ensure   a    defendant   understands      the    nature    of    a

charge in order to protect a defendant's rights when entering a

plea.      Accordingly,   we    affirm the court of appeals decision

upholding the circuit court's order denying Hendricks' motion

for plea withdrawal.

    By     the   Court.—The     decision   of    the    court    of   appeals     is

affirmed.




                                      27
                                                                No.    2015AP2429-CR.ssa


       ¶34    SHIRLEY      S.     ABRAHAMSON,       J.    (dissenting).                 The

majority's conclusion in the instant case that a circuit court

need not verify that a defendant understands the specific mode

of    commission     of    the    crime    to   which    he   is      pleading     guilty

creates serious due process concerns.

       ¶35    As Hendricks aptly queried in his brief:                        "How can a

defendant knowingly and intelligently plead guilty to causing a

child to go into a secluded place with intent to do 'X' if he

need not understand what 'X' is?"1                How indeed?

       ¶36    The majority fails to articulate a satisfactory answer

to    this   question.          Instead,    the    majority     looks        to   the   law

governing jury unanimity.            It holds that the modes of commission

within the child enticement statute are not elements as to which

a defendant is entitled to jury unanimity and concludes that as

a consequence, the circuit court was not required to verify that

Hendricks understood what constituted "sexual contact" under the

law before accepting his guilty plea.

       ¶37    I conclude 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.          Accordingly, I dissent.

                                            I

       ¶38    I begin by setting forth two settled legal principles

that guide my analysis in the instant case.

       1
           Brief and Appendix of Defendant-Appellant-Petitioner                          at
17.


                                            1
                                                                  No.   2015AP2429-CR.ssa


      ¶39   First,       proof    of    an     intended     underlying      act    is   an

element2    of    some    crimes,       even     though     there   may    be     several

alternative qualifying acts.                   The individual jurors need not

agree as to which particular intended underlying act was proven,

so long as they agree that at least one qualifying intended

underlying act was proven beyond a reasonable doubt.3

      ¶40   For example, in order to convict a defendant of child

enticement, the jury must unanimously agree that the defendant

caused a child to go to a secluded place with intent to commit

at least one of six statutorily listed acts.                        If an individual

juror does not believe that the State proved intent to commit

any   of    the    six    qualifying         acts,    the    defendant      cannot       be

convicted.        However, if the individual jurors agree that the

State proved intent to commit at least one of the six qualifying

acts, the defendant can be convicted even though the jurors

disagree    about    which       particular       intended       underlying     act     was

proved.      See     State       v.    Derango,      2000   WI    89,    ¶¶13-25,       236




      2
       In State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12
(1986), and other cases, the court sometimes uses the undefined
phrase "essential element."
      3
       See, e.g., State v. Derango, 2000 WI 89, ¶25, 236
Wis. 2d 721, 613 N.W.2d 833 (defendant not entitled to jury
unanimity at trial as to the underlying mode of committing child
enticement);   State  v.   Hammer  216   Wis. 2d 214,  220,  576
N.W.2d 285 (Ct. App. 1997) (defendant not entitled to jury
unanimity as to intended underlying felony in a burglary charge
because burglary——entering a building with intent to commit a
felony——is a single offense with multiple modes of commission
based upon the intended underlying felony).


                                             2
                                                                    No.    2015AP2429-CR.ssa


Wis. 2d 721,     613       N.W.2d 833;       see    also     State        v.   Hammer,     216

Wis. 2d 214, 218-22, 576 N.W.2d 285 (Ct. App. 1997).

    ¶41     Second, Wis. Stat. § 971.08 and State v. Bangert, 131

Wis. 2d 246, 389 N.W.2d 12 (1986), address the plea colloquy.

The statute requires a circuit court to "[a]ddress the defendant

personally and determine that the plea is made voluntarily with

understanding of the nature of the charge" before accepting the

defendant's      guilty      plea.          Wis.     Stat.    § 971.08(1)(a).              As

interpreted by Bangert, § 971.08 makes it "mandatory upon the

trial    judge   to       determine    a    defendant's       understanding           of   the

nature of the charge . . . ."                Bangert, 131 Wis. 2d at 267.

    ¶42     The Bangert court declared that the circuit court must

(1) either inform the defendant of the nature of the charge or

ascertain    that     the     defendant       "possesses      accurate          information

about the nature of the charge[,]" and then (2) "ascertain the

defendant's understanding of the nature of the charge . . . ."

Bangert, 131 Wis. 2d at 267.                      "Nature of the charge" is not

defined     in   the        statute,       but      Bangert    stated          that    "[a]n
understanding        of    the   nature      of    the    charge     must       include    an

awareness of the essential elements of the crime."                             Bangert, 131

Wis. 2d at 267.            Compliance with Wis. Stat. § 971.08(1) helps

ensure    that   a    defendant's          plea    is    knowing,    intelligent,          and

voluntary and satisfies due process.                      State v. Brown, 2006 WI

100, ¶23, 293 Wis. 2d 594, 716 N.W.2d 906; State v. Finley, 2015

WI App 79, ¶17, 365 Wis. 2d 275, 872 N.W.2d 344.

    ¶43     Thus, in order to accept a guilty plea, the circuit
court must verify that the defendant is aware of the elements of

                                              3
                                                                        No.     2015AP2429-CR.ssa


the crime.        With regard to crimes with alternative modes of

commission, the defendant is advised at the plea hearing of the

mode of commission to which he is pleading guilty even though,

if the defendant does not plead guilty and the case goes to

trial, a jury need not be unanimous on the mode of commission in

order to return a guilty verdict.

                                                II

      ¶44   The       majority      opinion           is        flawed.         The       majority

essentially       adopts      the    reasoning             of    the    court        of   appeals

decision in State v. Steele, 2001 WI App 34, 241 Wis. 2d 269,

625 N.W.2d 595.         Majority op., ¶25-26.                    In Steele, the court of

appeals relied on jury unanimity law in determining the elements

of   burglary     in    order       to    decide       whether          the     circuit       court

properly discharged its obligations under Wis. Stat. § 971.08

and Bangert.       The court of appeals held in Steele that because

the particular underlying felony to which the defendant pleaded

was not an element that required jury unanimity, the circuit

court   did     not     err    in        failing       to       specify       the     particular
underlying      felony     during         the       plea        colloquy.           Steele,     241

Wis. 2d 269, ¶¶7-10.

      ¶45   The     majority        adopts           the    reasoning         enunciated         in

Steele, although the court of appeals has raised doubts about

the validity of its own Steele decision and has suggested that

this court should overturn Steele.                         I agree with the court of

appeals that Steele is not good law and should be overturned.

The court of appeals challenged the reasoning in                                     Steele     for
improperly      relying       on    jury        unanimity         law     for       purposes    of

                                                4
                                                       No.   2015AP2429-CR.ssa


evaluating the adequacy of a plea colloquy.           State v. Hendricks,

No. 2015AP2429-CR, unpublished slip op., ¶¶28-30 (Wis. Ct. App.

Dec. 15, 2016).

     ¶46   Nevertheless,   the    majority   adopts    the    reasoning    of

Steele, as follows:

     We hold sexual contact is not an element of the crime
     of child enticement.      Rather, the six enumerated
     prohibited intents are modes of commission. At least
     one mode of commission must be referenced during a
     plea colloquy, but the terms comprising each mode need
     not be specifically defined.      This is because the
     crime of child enticement does not require proof of
     the actual, physical action contemplated by the mode
     of commission, only that the defendant acted to entice
     a child while intending to do one of the prohibited
     acts.   The act of enticement is the crime, not the
     underlying intended sexual or other misconduct.
Majority op., ¶33 (emphasis in majority).4

     ¶47   The general rule derived from the majority opinion is

that a circuit court is not required to verify in the plea

colloquy   that   a   defendant   understands    the     meaning     of   any

particular qualifying intended underlying acts of the charged

     4
       The majority borrows language directly from the court's
decision in Derango. Derango, 236 Wis. 2d 721, ¶17 ("The act of
enticement is the crime, not the underlying intended sexual or
other misconduct."). I conclude this statement in Derango needs
clarification.

     The crime of child enticement is actually a combination of
enticing a child and having the intent to commit statutorily
proscribed conduct. Causing a child to go into a secluded place
without the requisite intent is not a violation of Wis. Stat.
§ 948.07. A defendant must cause a child to go into a secluded
place with intent to commit statutorily proscribed conduct in
order to be convicted of child enticement. Wis. Stat. § 948.07.
Thus, the act of enticement with the necessary intent is the
crime.


                                    5
                                                                No.    2015AP2429-CR.ssa


crime because no one particular qualifying intended underlying

act constitutes an element of the crime charged.

       ¶48    The majority's conclusion has at least two significant

flaws.       First, the majority's conclusion leads to an irrational

result.       Suppose, for example, that child enticement had only

one mode of commission——namely,                   a person is guilty of child

enticement if he or she causes a child to enter a secluded place

with intent to have sexual contact.                  According to the majority,

the circuit court would be required to verify the defendant's

understanding of child enticement and sexual contact.                             However,

once     five     additional      alternative        modes     of     commission      are

introduced       into   the     statute,    according     to    the    majority,       the

circuit court is no longer required to verify that Hendricks

understands any of the possible modes of commission because he

is not entitled to jury unanimity as to any particular mode of

commission of the crime.           What is the logic in this reasoning?

       ¶49    Second,     the    majority's       conclusion     fails       to    explain

adequately how a defendant can knowingly and intelligently plead
guilty to a charge that requires proof of intent to do "X" if

the defendant does not understand what "X" is.

       ¶50    Of course, the "X" in the instant case happens to be

"sexual      contact,"     a     term   with      which   adults       are    generally

familiar        even    though    the      term    has    a    distinct       statutory

definition.        See Wis. Stat. § 948.01(5).                I posit that the due

process problem left unaddressed by the majority is more obvious

if the reader replaces "sexual contact" with a term with which
the reader is unfamiliar.

                                            6
                                                             No.    2015AP2429-CR.ssa


      ¶51    Suppose that there was a seventh mode of committing

child enticement:       causing a child to go into a secluded place

with the intent to convert the child to Bokononism.                       Unless the

defendant happens to be a reader of Vonnegut, he or she is not

likely to know what Bokononism is.5                 Can a defendant really be

said to knowingly and intelligently plead guilty to causing a

child to go into a secluded place with intent to convert the

child to Bokononism if he or she does not know what Bokononism

is?       The majority apparently sees no problem with the circuit

court's accepting a guilty plea from a defendant under these

circumstances.        I do.    My hypothesizing an entirely unfamiliar

mode of committing an offense highlights the absurdity of the

majority's reasoning.

                                      III

      ¶52    Unlike    the    majority,       I   conclude   that    in    order   to

satisfy due process, a circuit court may not accept a guilty

plea from a defendant charged with a crime that requires proof

of an intended underlying act unless the court verifies that the
defendant understands what the intended underlying act is.

      ¶53    The   circuit    court   need        not   explain    every    mode   of

commission of the crime before accepting a defendant's guilty




      5
       Bokononism is an artificial religion practiced by the
inhabitants of the fictional Caribbean island of San Lorenzo in
Kurt Vonnegut's novel Cat's Cradle.


                                          7
                                                                  No.    2015AP2429-CR.ssa


plea.6       Rather, the circuit court is required to verify the

defendant's understanding of the mode(s) of commission to which

the    defendant     is    pleading       guilty   and     for    which    an   adequate

factual basis exists.          Such a rule is workable in practice and

ensures that a defendant's plea is knowing, intelligent, and

voluntary and therefore in compliance with the requirements of

due    process.           Brown,        293   Wis. 2d 594,        ¶23;     Finley,    365

Wis. 2d 275, ¶17.

                                              IV

       ¶54    In    addition       to    holding    that     Hendricks       failed    to

establish any deficiency in his plea colloquy, the majority also

concludes that Hendricks is not entitled to a hearing because

"the       record    conclusively             establishes        Hendricks'      graphic

understanding" of the meaning of sexual contact.                          Majority op.,

¶30.       Essentially, the majority reasons that Hendricks is not

entitled to a hearing to determine if he understood the meaning

of "sexual contact" because it is obvious that he understood the


       6
       An argument could be made that the circuit court actually
does need to verify that the defendant understands every
possible mode of commission.   After all, were the defendant to
stand trial, the State could convict him by convincing the jury
that the defendant intended at least one of the six statutorily
proscribed acts, and the jury need not agree which one of those
intended underlying acts was proved.   Thus, the argument goes,
the   defendant   should  understand  all   qualifying  intended
underlying acts that could be relied upon by individual jurors
to return a guilty verdict.

     While this approach might prove workable with regard to a
plea of guilty to child enticement, which has six possible modes
of commission, it will be unworkable with regard to a plea of
guilty to burglary, which has many more modes of commission.


                                               8
                                                                    No.   2015AP2429-CR.ssa


meaning of "sexual contact."                      Such reasoning is incompatible

with due process.

       ¶55    In    Bangert,      the    court          established       that     when     a

defendant shows "a prima facie violation of Section 971.08(1)(a)

or other mandatory duties, and alleges that he in fact did not

know    or    understand       the    information         which     should    have      been

provided at the plea hearing, the burden will then shift to the

state    to    show    by     clear     and       convincing      evidence       that     the

defendant's plea was knowingly, voluntarily, and intelligently

entered, despite the inadequacy of the record at the time of the

plea's acceptance."            Bangert, 131 Wis. 2d at 274.                    Subsequent

cases    have       made      clear     that       if    the      defendant's       motion

"establishes a prima facie violation of Wis. Stat. § 971.08 or

other court-mandated duties and makes the requisite allegations,

the     court         must      hold      a         postconviction           evidentiary

hearing . . . ."        Brown, 293 Wis. 2d 594, ¶40 (emphasis added).

       ¶56     In     State     v.    Hampton,          2004   WI     107,       ¶72,     274

Wis. 2d 379, 683 N.W.2d 14, the court explained the defendant's
right to an evidentiary hearing when the circuit court errs at

the plea hearing and the defendant alleges that he or she did

not understand the information that should have been provided:

       The State has offered several arguments as to why the
       defendant in fact understood that the court was not
       bound by the plea agreement.   This case, however, is
       not really about Corey Hampton's understanding at the
       time of his plea. It is about the circumstances under
       which a defendant is entitled to an evidentiary
       hearing when the court errs at a plea hearing.     We
       hold that Hampton is entitled to an evidentiary
       hearing on his motion. At the hearing the State will
       have the opportunity to prove that Hampton was aware

                                              9
                                                              No.   2015AP2429-CR.ssa

       in fact that the court was not bound by the terms of
       the plea agreement.
Hampton, 274 Wis. 2d 379, ¶72.

       ¶57      The court reiterated this point in State v. Howell,

2007 WI 75, ¶70, 301 Wis. 2d 350, 734 N.W.2d 48:

       In a Bangert motion, a circuit court and a reviewing
       court examine only whether "a defendant is entitled to
       an evidentiary hearing when the court errs at a plea
       hearing."   The State cannot circumvent a defendant's
       right to an evidentiary hearing under Bangert by
       arguing that based on the record as a whole the
       defendant,   despite  the   defective  plea  colloquy,
       entered a constitutionally sound plea.
Howell, 301 Wis. 2d 350, ¶70 (footnote omitted).7

       ¶58      Are Brown, Howell, and Hampton now overruled?                    The

majority flatly refuses to follow these cases.                        How are the

bench and bar to reconcile Brown, Howell, and Hampton with ¶¶28-

30 of the majority opinion?

       ¶59      The    majority's    reasoning      that      Hendricks    is    not

entitled        to    an   evidentiary   hearing    to   determine     whether     he

understood the meaning of "sexual contact" because it is obvious

that       he   understood    the   meaning    of   "sexual    contact"    makes    a
mockery of these prior cases and due process.                       The majority's


       7
       The Howell court has characterized the requirements of a
Bangert motion as "relatively relaxed," explaining that the
court "require[s] less from the allegations in a Bangert motion
because the circuit court bears the responsibility of preventing
failures in the plea colloquy."    State v. Howell, 2007 WI 75,
¶28, 301 Wis. 2d 350, 734 N.W.2d 48.

     For this court's review of a defendant's motion to withdraw
a guilty plea after sentencing, see State v. Reyes Fuerte, 2017
WI 104, 378 Wis. 2d 504, 904 N.W.2d 773; State v. Negrete, 2012
WI 92, ¶¶16, 17, 19, 343 Wis. 2d 1, 819 N.W.2d 749.


                                          10
                                                                           No.      2015AP2429-CR.ssa


reasoning is akin to "[d]ispensing with confrontation because

testimony is obviously reliable" or "dispensing with jury trial

because          a     defendant         is    obviously          guilty."            Crawford       v.

Washington, 541 U.S. 36, 63 (2004).

                                                     V

       ¶60       A      major      failing      of        the    majority's         reasoning       and

conclusion is that the majority rests on jury unanimity cases

that       are       not    applicable        in     the    context      of    determining          the

adequacy of a plea colloquy.8                        Relying on jury unanimity law for

guidance in the instant case results in the absurd proposition

that a defendant can knowingly and intelligently plead guilty to

a crime that involves an intended underlying act without knowing

the meaning of the intended underlying act.

       ¶61       The        majority's         ruling       is     inconsistent            with     due

process.             I would hold that in order to satisfy due process, a

circuit court may not accept a guilty plea from a defendant

charged          with       a    crime    that       requires      proof       of     an     intended

underlying            act       unless   the       circuit       court   verifies          that     the
defendant understands the intended underlying act.                                     The circuit

court must verify that the defendant understands the specific

mode(s)      of        commission        of    the       crime    to   which     he     or    she   is

pleading guilty.



       8
       Indeed, the court of appeals has correctly challenged the
reasoning in its earlier Steele decision for improperly relying
on jury unanimity law for purposes of evaluating the adequacy of
a plea colloquy.      State v. Hendricks, No. 2015AP2429-CR,
unpublished slip op., ¶¶28-30 (Wis. Ct. App. Dec. 15, 2016).


                                                     11
                                                          No.   2015AP2429-CR.ssa


    ¶62     Accordingly, I would overrule State v. Steele, 2001 WI

App 34, 241 Wis. 2d 269, 625 N.W.2d 595, as the court of appeals

suggests,   State    v.   Hendricks,    No.     2015AP2429-CR,        unpublished

slip op., ¶¶28-30 (Wis. Ct. App. Dec. 15, 2016), and remand the

instant case to the circuit court with instructions to hold an

evidentiary     hearing   at   which   the    State   bears     the    burden    of

proving   that    Hendricks'    plea    was    knowing,    intelligent,         and

voluntary despite the deficiency in the plea colloquy.

    ¶63     For the foregoing reasons, I dissent.

    ¶64     I   am   authorized   to    state    that   Justice       ANN   WALSH

BRADLEY joins this dissenting opinion.




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    No.   2015AP2429-CR.ssa




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