State v. Zachary Christopher Goth

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 10, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP519-CR Cir. Ct. No. 2020CF875

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ZACHARY CHRISTOPHER GOTH,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: BARBARA W. McCRORY, Judge. Reversed and cause remanded with
directions.

Before Blanchard, Nashold, and Taylor, JJ.

¶1 BLANCHARD, J. Zachary Goth appeals the circuit court’s denial
of his postconviction motion to allow him, after sentencing, to withdraw his guilty
plea to a charge of third-degree sexual assault. The parties now agree that Goth
No. 2024AP519-CR

made a prima facie showing that the circuit court erred at the plea hearing in
failing to ascertain Goth’s awareness of one element of the offense that the State
would have to prove beyond a reasonable doubt at trial to secure a conviction.
The pertinent element that was not covered at the plea hearing was that, when
Goth had unconsented sexual contact with the victim, it was for the purpose of
sexually degrading or sexually humiliating the victim, or for the purpose of
sexually arousing or gratifying himself. We call this “the purpose element” of the
offense.

¶2 The issue in this appeal is whether, despite this omission by the
circuit court at the plea hearing, the State, in response to Goth’s postconviction
motion, provided the court with clear and convincing evidence that Goth was in
fact aware of the purpose element at the time of his plea. We conclude that the
State failed to prove Goth’s awareness. Therefore we reverse the judgment of
conviction and the order and remand with directions that the circuit court vacate
the judgment of conviction and permit Goth to withdraw his guilty plea.

BACKGROUND

Original Charge

¶3 The State charged Goth with second-degree child sexual assault in
the form of sexual contact with a child under the age of 16, in violation of WIS.
STAT. § 948.02(2) (2021-22).1 The criminal complaint alleged that Goth entered

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2024AP519-CR

the bedroom of a nine-year-old girl, in the house where they both then resided, and
intentionally touched her vagina.

Plea Hearing

¶4 Defense counsel and the prosecutor reached an agreement under
which Goth would plead guilty to a different sex crime than WIS. STAT.
§ 948.02(2). Under the agreement, Goth would enter a plea to an amended charge
of third-degree sexual assault, contrary to WIS. STAT. § 940.225(3)(b), through a
violation of subdivision (5)(b)2. Unlike § 948.02(2), the charge to which Goth
would enter a plea does not require that the victim be younger than 16.2 For ease
of reference, we sometimes refer to this as “the third-degree sexual assault
charge.” As we now describe in more detail, the circuit court accepted Goth’s plea
to the third-degree sexual assault charge.

¶5 At the outset of the plea hearing, defense counsel informed the
circuit court that under the proposed plea agreement Goth would be entering a plea
to third-degree sexual assault and that the prosecutor would move to dismiss a
misdemeanor charge in a separate case. The circuit court directly confirmed with
Goth that, in this case, Goth had reviewed and signed the Plea Questionnaire and

2
Explaining the amended charge further, a violation of WIS. STAT. § 940.225(3)(b)
occurs through unconsented sexual contact with a victim (regardless of the victim’s age) when
one of two means is used: those described in § 940.225(5)(b)2. or those described in
§ 940.225(5)(b)3. At issue here is subdivision (5)(b)2., which, as pertinent here, requires the
State to prove that the defendant had unconsented sexual contact with the victim through:

[i]ntentional penile ejaculation of ejaculate or intentional
emission of urine or feces by the defendant … upon any part of
the body clothed or unclothed of the complainant if that
ejaculation or emission is either for the purpose of sexually
degrading or sexually humiliating the complainant or for the
purpose of sexually arousing or gratifying the defendant.

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Waiver of Rights form that had been filled out by defense counsel, that Goth
understood the contents of the form, and that Goth had no questions about the
contents. The court also directly confirmed with Goth that he understood that he
would be waiving his right to require the State to prove beyond a reasonable doubt
the elements of third-degree sexual assault.

¶6 The circuit court asked Goth if he understood that “the elements that
the state would have to prove are that you did have sexual intercourse with [the
victim] and you did so without that person’s consent.” Goth said that he thought
he would be entering a plea to a charge involving “sexual contact,” not “sexual
intercourse.” The court countered that an amended information that had been filed
by the prosecutor charged a violation of WIS. STAT. § 940.225(3)(a), which
criminalizes unconsented sexual intercourse, not unconsented sexual contact.
During further discussion, the prosecutor confirmed that he initially filed an
amended information that inadvertently reflected a charge different from the one
to which the parties had agreed Goth would enter a plea.3 The prosecutor added,
“I’ll file a second Amended Information” that would charge third-degree sexual
assault through sexual contact and not sexual intercourse, and the court
acknowledged that the prosecutor was “going to” file a new amended information.

¶7 The circuit court directly confirmed with Goth that he understood
that he would be entering a plea to “third[-]degree sexual contact” and that “in
order for the state to convict you of that, [it] would have to prove that you did have

3
To clarify, the initially filed amended information did not charge that Goth had sexual
contact with the victim without her consent in the form of intentionally ejaculating or
intentionally emitting urine or feces onto her or that, in doing so, his purpose was to sexually
degrade or humiliate her or to sexually arouse or gratify himself.

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No. 2024AP519-CR

sexual contact with [the victim] and you had that sexual contact without [the
victim’s] consent.” The court further directly confirmed with Goth that he would
be waiving his right to have the prosecution prove the elements of that offense
beyond a reasonable doubt. The court directed the attention of counsel and Goth
to the plea questionnaire.

¶8 We now pause the chronology to briefly summarize pertinent aspects
of the plea questionnaire as it appears in the record in order to place the circuit
court colloquy with Goth and the attorneys in proper context. The questionnaire
as filled out by defense counsel states that Goth would be entering a guilty plea to
a violation of “[WIS. STAT.] § 940.225(3).” This omits reference to either of the
following sets of topics:

 Whether the plea would be to paragraph (a) or (b) of subsection
§ 940.225(3) (the sexual intercourse or sexual contact versions of third-
degree sexual assault);

 Whether, if the plea would be to paragraph § 940.225(3)(b), it would be
to subdivision 1., 2., or 3. of paragraph (5)(b) (defining three different
means of sexual contact).

At the place on the questionnaire addressing the “elements that the State would
have to prove beyond a reasonable doubt” at trial, counsel had written the
following: “1) [symbol for defendant] had sexual contact w/vic [stating her
initials] 2) Vic did not consent.” This summary of “the elements” omits reference
to either of the following sets of topics:

 Goth’s alleged ejaculation on the victim or emission on her of urine or
feces;

 Goth’s alleged purpose to sexually degrade or sexually humiliate the
victim or to sexually arouse or gratify himself.

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No. 2024AP519-CR

¶9 Returning to events at the plea hearing, defense counsel confirmed
that he had gone over the questionnaire with Goth and that counsel believed Goth
understood it. Counsel responded in the affirmative when the court asked whether
counsel had “explained to [Goth] the elements of the offense as if he was charged
under [WIS. STAT. §] 940.225(3)(b),” but the court did not ask about discussion
regarding the contents of a particular subdivision of § 940.225(5)(b) (the three
different means of sexual contact).

¶10 The circuit court confirmed with the prosecutor that he was “going
to be filing” a second amended information, this one charging a violation of WIS.
STAT. § 940.225(3)(b)—although, again, no one referred to a particular
subdivision of paragraph (5)(b). Without expressly identifying the elements, the
court confirmed with defense counsel that “those are the elements that [counsel]
explained to Mr. Goth” and that counsel believed that Goth understood the
elements.

¶11 The circuit court confirmed with both Goth and defense counsel that
each agreed with the court that “there is a factual basis” in the criminal complaint
on which the court could find Goth “guilty of third[-]degree sexual assault,” “with
the understanding that it’s sexual contact.”4

4
For context, we note that Goth does not raise in this appeal a lack of a factual basis for
the plea, and we do not address that as a potential issue. Explaining further, despite the fact that
the circuit court relied on the criminal complaint to determine that there was a factual basis for
the plea, no one at the plea hearing raised the point that the criminal complaint contained no
reference to ejaculation by Goth or to emission of urine or feces by anyone. This created a
mismatch between the purported factual basis and the emission aspect of what the State would
have to prove at trial to obtain a conviction on the third-degree sexual assault charge. However,
Goth does not argue in this appeal that he is entitled to plea withdrawal because the court failed to
determine that there was a factual basis for the plea by making “such inquiry as satisfies [the
court] that the defendant in fact committed the crime charged.” See WIS. STAT. § 971.08(1)(b);
see also State v. Thomas, 2000 WI 13, ¶14, 232 Wis. 2d 714, 605 N.W.2d 836 (factual basis
(continued)

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No. 2024AP519-CR

¶12 The transcript reflects discussion by the prosecutor, which is quoted
in its entirety in the discussion section below, indicating that he was attempting to
use a computer in the courtroom to generate and electronically file the second
amended information with the clerk of court, making it available to the circuit
court and defense counsel.

¶13 The record on appeal contains the second amended information,
which charges a violation of WIS. STAT. § 940.225(3)(b), through the mode
specified in (5)(b)2. The record further reflects that this document was filed on
the day of the plea hearing. The second amended information explicitly charges
that Goth had sexual contact with the victim without her consent by intentionally
ejaculating or intentionally emitting urine or feces onto her for the purpose of
sexually degrading or humiliating her or sexually arousing or gratifying himself.
But the plea hearing transcript does not contain any reference by anyone to the
second amended information or to the specific charge that it contains during the
balance of the plea hearing.

requirement “‘protect[s] a defendant who is in the position of pleading voluntarily with an
understanding of the nature of the charge but without realizing that his conduct does not actually
fall within the charge’” (alteration in Thomas)). The only issue that Goth clearly raises in this
appeal is a claim under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and the only
disputed aspect of Goth’s Bangert claim is whether the State met its burden of showing that Goth
was aware at the time he entered his plea that the State would have to prove at trial that his
purported purpose in committing the third-degree sexual assault was to sexually degrade or
sexually humiliate the victim or to sexually arouse or gratify himself.

We do not reach the issue of whether it was error for the circuit court to fail to ascertain
that Goth was aware that the State would also have to prove beyond a reasonable doubt that Goth
ejaculated on the victim or emitted urine or feces on her. We also do not address in any manner
the fact that Goth was allowed to enter a plea to an amended information that ignored the young
age of the victim. We emphasize that we do not intend to convey in this opinion any views about
the propriety of any aspect of Goth’s plea in this case apart from the purpose-element issue in the
Bangert context.

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No. 2024AP519-CR

Pre-Sentencing Motion for Plea Withdrawal

¶14 In advance of sentencing, Goth moved to withdraw his plea and the
circuit court held a hearing on this motion. Goth’s primary ground for pre-
sentencing plea withdrawal was that he had experienced a change of heart since
the plea hearing. The circuit court rejected this as a proper basis for plea
withdrawal, and Goth does not now challenge that decision.5

Post-Sentencing Motion for Plea Withdrawal

¶15 After the circuit court sentenced Goth, and while he was represented
by new counsel, he filed the postconviction motion for plea withdrawal that is the
subject of this appeal. Goth argued that his plea was not knowing, intelligent, and
voluntary in light of the obligations of circuit courts in taking pleas. See WIS.
STAT. § 971.08(1)(a) (A circuit court must directly address the defendant “and
determine that the plea is made voluntarily with understanding of the nature of the
charge and the potential punishment if convicted.”); State v. Bangert, 131 Wis. 2d
246, 268-69, 274, 389 N.W.2d 12 (1986) (a defendant pursuing a post-sentencing
challenge to a guilty or no contest plea has the initial burden to make a prima facie
case that (1) the circuit court accepted the plea without conforming to § 971.08 or
other mandatory procedures, and (2) the defendant did not understand the
information that should have been provided at the plea hearing; if the defendant
makes such a prima facie case, the burden of persuasion shifts to the State to show

5
A defendant does not have an absolute right to withdrawal of a plea before sentencing.
State v. Jenkins, 2007 WI 96, ¶32, 303 Wis. 2d 157, 736 N.W.2d 24. In that situation, the
defendant must prove by a preponderance of the evidence that there is a fair and just reason for
plea withdrawal. Id. The reason must be something other than “belated misgivings” about
entering a plea. Id.

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No. 2024AP519-CR

by clear and convincing evidence that the plea was knowingly, intelligently, and
voluntarily made despite shortcomings at the plea hearing).

¶16 Goth’s argument was that he must be allowed to withdraw his plea
because (1) the circuit court failed to ascertain at the plea hearing that he was
aware that, in order to secure a conviction at trial on the third-degree sexual
assault charge, the State would have to prove beyond a reasonable doubt that Goth
intentionally ejaculated or emitted urine or feces on the victim and that he did so
either for the purpose of sexually degrading or sexually humiliating the victim or
sexually arousing or gratifying himself; and (2) Goth was not in fact aware at the
plea hearing that the State would have to prove these things.

¶17 In making this motion, Goth joined together as a single unit two
aspects of the third-degree sexual assault charge: (1) what we call “the emission
aspect” (i.e., the allegation that Goth intentionally ejaculated or emitted urine or
feces on the victim); and (2) the purpose element (i.e., the allegation that he did
this either for the purpose of sexually degrading or sexually humiliating the victim
or sexually arousing or gratifying himself). Goth did not cite legal authority
related to the emission aspect. But he did cite legal authority related to the
purpose element. The purpose element is the focus of this appeal.

¶18 Goth relied on cases stating that, when the charged form of sexual
assault requires proof of “sexual contact,” the part of the definition of “sexual
contact” that includes the purpose element is “an element of the offense.” See
State v. Jipson, 2003 WI App 222, ¶¶9-10 & n.4, 267 Wis. 2d 467, 671 N.W.2d
18 (citing State v. Bollig, 2000 WI 6, ¶50, 232 Wis. 2d 561, 605 N.W.2d 199
(describing “essential elements” of sexual contact with a child under 13)); State v.
Nichelson, 220 Wis. 2d 214, 220, 225, 582 N.W.2d 460 (Ct. App. 1998) (referring

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No. 2024AP519-CR

to the “essential elements” of sexual contact with a child). In Jipson, we
specifically applied this rule to reverse a circuit court’s denial of a postconviction
motion for plea withdrawal because the State failed to show that the defendant was
aware that the State would have to prove as an element of second-degree sexual
assault of a child that the defendant had sexual contact with the victim for
purposes of sexual degradation, humiliation, arousal, or gratification. Jipson, 267
Wis. 2d 467, ¶¶1, 17.

¶19 At the hearing on Goth’s postconviction motion, neither side called a
witness or produced new evidence. Instead, both sides and the circuit court
referred exclusively to the plea questionnaire, the plea hearing transcript, and the
second amended information. The prosecutor operated from the premise that,
before Goth entered the plea, he read or was shown the second amended
information. Based on that premise, the prosecutor primarily argued that Goth
must have been aware at the plea hearing of all of the elements of the third-degree
sexual assault charge, because the second amended information stated all of the
elements that were required to be addressed at the plea hearing. Goth’s counsel
argued in pertinent part that the State had not proven that Goth read or was shown
the second amended information before he entered his plea.

¶20 The circuit court denied the postconviction motion. The court
appeared to conclude that, even if Goth made a prima facie case under Bangert,
the State carried its burden of showing that Goth entered a knowing, intelligent,
and voluntary plea because: Goth demonstrated his awareness at the plea hearing
that he was entering a plea to unlawful sexual contact, and not to unlawful sexual
intercourse; and Goth said at the plea hearing that he understood the elements of
the offense. Goth appeals.

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No. 2024AP519-CR

DISCUSSION

¶21 A defendant seeking post-sentencing plea withdrawal must prove, by
clear and convincing evidence, that it would be a “‘manifest injustice’” to allow
the plea to stand. State v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d 594, 716
N.W.2d 906 (quoted source omitted). A manifest injustice is demonstrated on a
showing that the defendant “did not knowingly, intelligently, and voluntarily enter
the plea.” Id. Accordingly, if a guilty plea is not made knowingly, intelligently,
and voluntarily, the defendant “is entitled to withdraw the plea as a matter of right
because such a plea ‘violates fundamental due process.’” Id., ¶19 (quoted source
omitted).

¶22 “Whether a plea is knowing, intelligent, and voluntary is a question
of constitutional fact.” Id. “We accept the circuit court’s findings of historical
and evidentiary facts unless they are clearly erroneous but we determine
independently whether those facts demonstrate that the defendant’s plea was
knowing, intelligent, and voluntary.” Id.

¶23 As referenced above, to ensure that a defendant’s plea is knowing,
intelligent, and voluntary, the circuit court must directly address the defendant
“and determine that the plea is made voluntarily with [an] understanding of the
nature of the charge and the potential punishment if convicted.” WIS. STAT.
§ 971.08(1)(a).

¶24 We have explained above the nature of Goth’s Bangert argument.
The State does not dispute that the circuit court failed to ascertain at the plea
hearing that Goth was aware that, to secure a conviction at trial under WIS. STAT.
§ 940.225(3)(b) and (5)(b)2., the State would have to prove beyond a reasonable
doubt that he did so for the purpose of sexually degrading or sexually humiliating

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No. 2024AP519-CR

the victim or sexually arousing or gratifying himself. Further, the State does not
dispute that the court was obligated to ascertain his awareness of the purpose
element. The State’s concession is appropriate. We see no room for an argument
that the relevant reasoning and statements in Jipson, Bollig, and Nichelson, did
not apply under these circumstances to require the circuit court to ascertain Goth’s
awareness that the State would have to prove the purpose element at trial.

¶25 We pause to note that this case involves one aspect, namely the
purpose element, of the definition of “sexual contact” that is used in three different
places in WIS. STAT. § 940.225(5)(b). Pertinent here is the fact that, in each of the
distinct means of “sexual contact” that are defined in subdivisions 1., 2., and 3.,
the State must prove that the defendant had the purpose of sexually degrading or
sexually humiliating the victim or sexually arousing or gratifying the defendant.
The specific subdivision at issue here is (5)(b)2. See supra note 2. The purpose
element contained in the three subdivisions of paragraph (5)(b) is stated slightly
differently from the definition of “sexual contact” used in WIS. STAT. § 939.22(34)
(which applies to offenses not found in § 940.225 or Chapter 948) and the
definition that is used in § 948.01(5) (which applies to offenses found in
Chapter 948). But, comparing the text of all of these statutes, it could not matter
that Jipson, Bollig, and Nichelson all involved Chapter 948 offenses, as opposed
to an offense under § 940.225 as here, because the legislature has chosen to use
consistent language in defining the purpose element “sexual contact” across these
various statutes.6

6
Compare the following substantially similar sets of definitions, with emphasis now
added on the topic of what the State must prove regarding the defendant’s purpose:

(continued)

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No. 2024AP519-CR

 The “sexual contact” definition in WIS. STAT. § 940.225(5)(b)2.: “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.”

 The four modes of “sexual contact” defined in WIS. STAT. § 939.22(34): “[A]ny of
the following if done for the purpose of sexual humiliation, degradation, arousal, or
gratification:”

(a) The intentional touching by the defendant or, upon the defendant’s
instruction, by a third person of the clothed or unclothed intimate parts of another
person with any part of the body, clothed or unclothed, or with any object or
device.

(b) The intentional touching by the defendant or, upon the defendant’s
instruction, by a third person of any part of the body, clothed or unclothed, of
another person with the intimate parts of the body, clothed or unclothed.

(c) The intentional penile ejaculation of ejaculate or the intentional
emission of urine or feces by the defendant or, upon the defendant’s instruction,
by a third person upon any part of the body, clothed or unclothed, of another
person.

(d) Intentionally causing another person to ejaculate or emit urine or
feces on any part of the actor’s body, whether clothed or unclothed.

 The three categories of “sexual contact” defined in WIS. STAT. § 948.01(5):

(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 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.

3. Touching by the complainant of the ejaculate, urine, or feces of any
person upon the intentional instructions of the defendant, upon the use or threat
of force or violence by the defendant, or upon an intentional act of the defendant.

(continued)

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No. 2024AP519-CR

¶26 Our supreme court has explained that the rule stated in Jipson,
Nichelson, and Bollig, comes into play only when the State must prove sexual
contact as part of a criminal charge. See State v. Hendricks, 2018 WI 15, ¶¶5-8,
18, 21, 33, 379 Wis. 2d 549, 906 N.W.2d 666 (plea colloquy in child enticement
case sufficient even though circuit court failed to provide a definition of sexual
contact; intent to have sexual contact is an element of the offense of child
enticement, but the commission of sexual contact is not an element). But when, as
here, the commission of sexual contact is part of the offense, the alleged purpose
of the defendant is an “essential element” to be covered at a plea hearing. See id.,
¶22 (“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

(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.

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No. 2024AP519-CR

statutory definition of sexual contact in WIS. STAT. § 948.01(5)” (emphasis in
original)).7

¶27 We now turn to the only contested issue here, namely, whether the
State proved by clear and convincing evidence that Goth was aware at the time he
entered the plea that, to secure a conviction at trial for the charged version of third-
7
In light of the rule stated in State v. Jipson, 2003 WI App 222, ¶¶9-10 & n.4, 267
Wis. 2d 467, 671 N.W.2d 18, that circuit courts at plea hearings must ascertain the defendant’s
awareness of the definition of “sexual contact” that includes the purpose element, we recommend
to the Wisconsin Criminal Jury Committee that it consider a review of the current instruction WIS
JI—CRIMINAL 1218B (last updated July 2018). This is the substantive instruction for alleged
violations of WIS. STAT. § 940.225(3)(b). To the best of our understanding, the current
instruction is accurate as far as it goes. But the instruction does not appear to take the Jipson rule
into account for use in plea hearings, which is one common use of pattern instructions that
address the substance of criminal offenses. This may have the potential to contribute to errors at
plea hearings. We now explain further.

The current version of WIS JI—CRIMINAL 1218B lists “Elements of the Crime That the
State Must Prove” in a section that immediately precedes, but that is separated from, a section
labeled, “Meaning of ‘Sexual Contact.’” The list of “Elements” states that there are two
“[e]lements of the [c]rime” that the State “[m]ust [p]rove”: “1. The defendant had sexual contact
with (name of victim). 2. (Name of victim) did not consent to the sexual contact.” The part of
the instruction headed “Meaning of ‘Sexual Contact’” states that “[s]exual contact requires” proof
of one of the modes of ejaculation or emission described in WIS. STAT. § 940.225(5)(b) and “also
requires that the defendant acted with intent to [become sexually aroused or gratified] [sexually
degrade or humiliate (name of victim)].”

With that background, a circuit court or party relying on WIS JI—CRIMINAL 1218B might
misinterpret it to suggest that, at the time of a plea, the circuit court must ascertain the
defendant’s awareness regarding the “Elements of the Crime That the State Must Prove” but not
the defendant’s awareness regarding the “Meaning of ‘Sexual Contact.’” The problem is that the
last paragraph of the latter section, addressing the purpose element, is an “essential element”
under authority that includes Jipson.

Here, the circuit court did not indicate on the record that it relied on WIS JI—
CRIMINAL 1218B, nor was the instruction attached to the plea questionnaire as filed in the record.
But if the court or counsel for either party had consulted this instruction at the time of the plea, it
would have appeared to confirm the approach that the parties and the court effectively took at the
plea hearing, and that the court again took in resolving the postconviction motion. That is to say,
the instruction appears to operate from the following premise: the “Elements of the Crime That
the State Must Prove” part of the instruction contains the only elements that must be expressly
addressed at a plea hearing; the State’s obligation to prove the purpose element does not need to
be expressly addressed.

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No. 2024AP519-CR

degree sexual assault, the State would have to prove the purpose element beyond a
reasonable doubt.

¶28 In a Bangert challenge, the State may rely on any relevant part of
the record on appeal to attempt to demonstrate the defendant’s knowledge of the
nature of the offense at the time of a plea. See Bangert, 131 Wis. 2d at 274-75;
Bollig, 232 Wis. 2d 561, ¶53.

¶29 We conclude that the State, in responding to the postconviction
motion, failed to carry its burden of showing to the circuit court by clear and
convincing evidence that at the time of the plea Goth was aware of the purpose
element. As we proceed to explain below in rejecting various arguments by the
State, the record is silent on this issue, and “knowledge, like understanding, cannot
be inferred or assumed on a silent record.” See Bangert, 131 Wis. 2d at 269.

¶30 We begin by noting that the State applies an incorrect legal standard
when it argues that the circuit court properly exercised its discretion in denying the
postsentencing motion for plea withdrawal. As we have summarized the legal
standards above, Goth must be allowed to withdraw his plea—no discretionary
decision of the circuit court is at issue—if he can show that his plea was not made
knowingly, intelligently, and voluntarily.

¶31 Turning to the State’s arguments on the merits, it contends that
passages in the plea hearing transcript which reflect that Goth indicated that he
was aware of “the elements” of the charged offense are sufficient proof of his
pertinent awareness. But the transcript and record documents that are related to
the plea hearing reflect no reason to conclude that Goth was aware of the purpose
element in particular. At least as far as the record reveals, at the time of the plea
hearing, neither the prosecutor, defense counsel, nor the circuit court were aware

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No. 2024AP519-CR

of the rule stated in Jipson. When the court ascertained at the plea hearing that
Goth was aware of “the elements,” this appeared to mean only that he was aware
of the following two “elements” as summarized on the plea questionnaire: that
Goth had sexual contact with the victim and that the victim did not consent to that
contact.

¶32 The facts here contrast sharply with those in an opinion of our
supreme court on which the State relies. The State notes that our supreme court
concluded that a plea was knowing, intelligent, and voluntary in part because “the
record makes clear that the defendant knew the maximum penalty that could be
imposed,” even though the circuit court said incorrectly at the plea hearing that
there was a six-year maximum term of imprisonment. See State v. Taylor, 2013
WI 34, ¶8, 347 Wis. 2d 30, 829 N.W.2d 482. In Taylor, however, the record was
“replete with evidence that Taylor was aware” of the maximum sentence,
including statements in the criminal complaint and criminal information and in the
plea questionnaire. Id., ¶¶35-38. The facts in Taylor stand as good examples of
the types of facts that could support the State’s position in a Bangert case that is in
the same procedural posture as this case, but such facts are missing from the
record here.

¶33 Staying with the plea hearing transcript, the State specifically
contends that the fact that Goth showed awareness during the plea hearing that he
would be entering a plea to a charge of a form of sexual contact, as opposed to
sexual intercourse, necessarily means that he understood the purpose element of
the form of third-degree sexual assault to which he entered a plea. The State fails
to support this argument with logic or legal authority. It is true that the record
establishes that Goth understood that he was entering a plea to a form of sexual
contact as opposed to a form of sexual intercourse. The basic difference between

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No. 2024AP519-CR

contact (touching) and intercourse (penetration) is an easily grasped concept and
one that Goth apparently understood. But what matters in this appeal is that the
State fails to direct us to evidence that Goth understood that to prove sexual
contact the State would have to prove the purpose element of sexual contact.

¶34 Turning to a separate argument by the State, it contends that the
record establishes that, before he entered the plea, Goth read or was shown the
second amended information, which stated the purpose element. To the contrary,
the record appears to establish the opposite. As we now recap, during the course
of the plea hearing, the prosecutor signaled an intent to electronically sign and file
the second amended information, but it strongly appears from the transcript that
the prosecutor was the only person in the courtroom who saw the second amended
information before Goth entered a plea and the court accepted it.8

¶35 The prosecutor first filed an amended information that was
erroneously based on an allegation of sexual intercourse. After that mistake was
caught during the course of the hearing, the prosecutor said that he would file a
second amended information that would charge third-degree sexual assault
through sexual contact and not sexual intercourse. During the plea colloquy with
defense counsel that followed, the circuit court referred to the idea of counsel
explaining the elements to Goth “as if he was charged under [WIS. STAT.
§] 940.225(3)(b),” using appropriately precise wording to acknowledge the fact
that the prosecutor had not yet filed the charge.

8
At the postconviction motion hearing, the circuit court did not make a factual finding
either way as to whether Goth read or was shown the second amended information at the plea
hearing before entering his plea.

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No. 2024AP519-CR

¶36 Shortly after this, the transcript reflects the following discussion:

THE COURT: … Do we have the [second]
Amended Information, [prosecutor’s name]?

[PROSECUTOR]: I am just about to sign and send
[electronically].[9]

THE COURT: Just wait for a second.

[PROSECUTOR]: I just sent it.

THE COURT: Okay.

[DEFENSE COUNSEL]: Judge, the defense is
willing to proceed on the representation from the state that
they filed [the second] Amended Information charging that
offense.

THE COURT: Okay. All right. So based upon the
oral amendment that has been made by the state that is
going to be followed up with a second Amended
Information, how do you plead to the third[-]degree sexual
assault which is considered a sexual … contact?

THE DEFENDANT: Guilty.

THE COURT: And [defense counsel], do you
believe he is entering his plea today freely, voluntarily,
knowingly, and intelligently?

[DEFENSE COUNSEL]: I do, Your Honor.

THE COURT: And I would agree and find that
Mr. Goth understands the proceedings and that his plea is
freely, voluntarily, knowingly, and intelligently made. I
find that he understands the constitutional rights that are
waived by his plea and that he has freely, voluntarily, and
knowingly waived those rights.

I find from the record that a factual basis exists for
his plea and that the defendant has committed the crime as
charged. I will accept his plea to third[-]degree sexual

9
These were references to the prosecutor’s electronic signature on a digital document
and his plan to transmit the document to the clerk of the circuit court, who in the ordinary course
would provide electronic notice of the new filing to the circuit court and all parties.

19
No. 2024AP519-CR

assault of a sexual contact nature and find him guilty of
that ….

¶37 This discussion reflects that, as the parties and the circuit court
waited for the promised second amended information to make its way through the
computer system to the court and the defense, defense counsel volunteered that the
defense was “willing to proceed,” given the prosecutor’s assurance that he was or
would shortly be filing a second amended information. The prosecutor did not
object to proceeding with the proposed plea despite the fact that neither the court
nor the defense had received the second amended information. The circuit court
also agreed to proceed with the plea, based on what the court called an “oral
amendment” of the charge. The court explained that the prosecution would be
permitted to “follow[] up with” the filing of a second amended information. The
court then directly proceeded to formally accept the plea based on the “oral
amendment.” At no time during the plea hearing were the contents of the second
amended information read aloud by anyone, nor was its substance summarized by
anyone.

¶38 In a separate argument, the State directs us to an event in this case
that preceded the plea hearing, namely, the preliminary hearing before a court
commissioner. The attorney who then represented Goth said, during the course of
arguing against bindover, “Sexual contact is defined in the Wisconsin Jury
Instructions 2101 as requiring not just the touching of a private or sexual area but
also that the touching be done with the intent to become sexually aroused or
gratified or to sexually degrade or humiliate.”

¶39 The State’s reliance on the preliminary hearing transcript is
misplaced for multiple reasons, none of which the State addresses on appeal. The
preliminary hearing occurred on October 6, 2020, two years before the plea

20
No. 2024AP519-CR

hearing. At that time, Goth was charged with violating WIS. STAT. § 948.02(2), a
crime different from the one to which he entered a plea. Further, this occurred
while he was represented by an attorney different from the one he would come to
have at the plea hearing, and the preliminary hearing was conducted over Zoom,
with Goth appearing from jail. Beyond all that, there is no suggestion in the
preliminary hearing transcript that anyone at the hearing specifically called Goth’s
attention to—much less sufficiently explained to him the meaning of—this passing
reference by his then-attorney in a legal argument to “Wisconsin Jury
Instructions 2101.” As Goth cogently puts it, there is “no affirmative evidence
demonstrating that Mr. Goth would have known that the same definition of sexual
contact applied to both” the charge at issue in the preliminary hearing and the
charge at issue in the plea hearing, “that he would have remembered that brief
discussion between the attorneys two years prior, or that he even understood that
concept to begin with.”

¶40 The State makes a separate argument based on an event in this case
that occurred after the plea hearing. The State directs our attention to the
following statements made at the postconviction motion hearing by the prosecutor,
who had also represented the State at the plea hearing, regarding events at the plea
hearing:

[I]f you look at the—the amended Information, which the
defendant had, which defense counsel had, and went
through because if you recall we—once I had the amended
Information we had to recess briefly to get it pulled through
and what not. And in that it talks about [Goth having]
sexual contact with [the victim], without that person’s
consent, to intentionally ejaculate[], or intentionally emitted
urine or feces onto the clothed or unclothed body of the
complainant for the purpose of … sexually degrading or
humiliating the complainant, or for the purpose of sexually
arousing or gratifying the defendant.

21
No. 2024AP519-CR

The State now characterizes this as the prosecutor “remind[ing] the court of how”
defense counsel at the plea hearing “went over the elements of the last Amended
Information with Goth.” We agree that this is one reasonable interpretation of
what the prosecutor asserted at the postconviction hearing. But the prosecutor’s
assertion at the postconviction hearing is belied by the transcript of the plea
hearing, including the fact that the plea hearing does not reflect a “recess” during
which the second amended information was “pulled through” before the court
accepted the plea. The State’s current argument on this point is meritless because
the State fails to acknowledge what is evident from the plea hearing transcript:
defense counsel did not go over the second amended information with Goth before
he entered his plea.

¶41 The State may intend to suggest that, even if none of the individual
events on which it relies allow it to carry its burden of showing Goth’s awareness
by clear and convincing evidence, some combination of them meets the burden.
As should be obvious from our discussion addressing each event, we would reject
a cumulative-proof argument. Goth is entitled to withdraw his plea because no
event or combination of events provides clear and convincing evidence of his
awareness of the purpose element at the time he entered his plea.

CONCLUSION

¶42 For all these reasons, we reverse the judgment of conviction and the
order denying the postconviction motion, and we remand the case with directions
to the circuit court to vacate the judgment of conviction and permit Goth to
withdraw his guilty plea.

By the Court.—Judgment and order reversed and cause remanded
with directions.

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No. 2024AP519-CR

Not recommended for publication in the official reports.

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