State v. Jesse T. Adams

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.
March 9, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP981-CR Cir. Ct. No. 2014CF328

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JESSE T. ADAMS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Eau Claire County: KRISTINA M. BOURGET and JOHN F. MANYDEEDS,
Judges.1 Affirmed in part; reversed in part and cause remanded for further
proceedings.

1
The Honorable Kristina M. Bourget presided over trial and entered the original and
amended judgments of conviction. The Honorable John F. Manydeeds entered the order denying
the defendant’s postconviction motion.
No. 2019AP981-CR

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Jesse Adams appeals from an amended judgment
convicting him of repeated sexual assault of a child and possession of child
pornography, and from an order denying without a hearing his postconviction
motion for plea withdrawal or resentencing. Adams claims that his pleas were
based upon erroneous information about the applicability of lifetime supervision
and that the sentences set forth in the amended judgment were erroneously
imposed outside of his presence. We affirm the amended judgment of conviction
and postconviction order with respect to the validity of Adams’ pleas, but we
reverse with respect to the validity of his sentences. We remand with directions
that the circuit court provide Adams with a resentencing hearing.

BACKGROUND

¶2 At a plea hearing held on May 26, 2015, Adams pleaded no contest
to one count of repeated sexual assault of a child and one count of possession of
child pornography, each as a repeat offender. As a result of the convictions,
Adams was subject to lifetime supervision as a serious sex offender under WIS.
STAT. § 939.615(2)(a) (2017-18).2 In exchange for the pleas, the State dismissed
and read in several other charges and agreed to make a joint recommendation of
ten years of initial confinement, with both parties free to argue regarding extended

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP981-CR

supervision. Although the parties did not so specify either in the plea
questionnaire or during the plea colloquy, it appears undisputed that the ten-year
cap on initial confinement referred to the aggregate total amount of time imposed
on both charges, whether as concurrent terms of up to ten years each or as
consecutive terms together totaling no more than ten years.

¶3 Prior to accepting the pleas and after discussing the maximum
potential imprisonment for each count, the circuit court advised Adams that he
would be subject to lifetime supervision as a serious sex offender upon conviction.
Adams stated he had been unaware of that “until right now” and that he did not
believe the negotiated pleas had anything to do with lifetime supervision. The
court further explained that both counts sought lifetime supervision as a serious
sex offender, so if convicted, Adams would be subject to lifetime supervision.
Adams then acknowledged his revised understanding that he would be subject to
lifetime supervision as a serious sex offender if the court accepted his pleas. The
court subsequently accepted the pleas and ordered that a presentence investigation
report (PSI) be prepared.

¶4 Both the PSI and an alternate PSI commissioned by Adams were
filed. The PSI author recommended “15-16 years confinement followed by
lifetime Extended Supervision” on the sexual assault count and she made no
recommendation on the child pornography count. The alternate PSI recommended
a total sentence for both charges of seven years of initial confinement followed by
ten years of extended supervision.

¶5 At the sentencing hearing, the State recommended ten years of initial
confinement on the sexual assault charge, with a concurrent mandatory minimum
term of three years of initial confinement on the child pornography charge. The

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No. 2019AP981-CR

State asserted “[t]here is lifetime extended supervision,” without recommending a
term of extended supervision. Adams’ trial counsel recommended ten years of
initial confinement, without specifying the count or mentioning extended
supervision. The circuit court stated that it was imposing consecutive terms of
“15 years of initial confinement with lifetime extended supervision” and “three
years of initial confinement, lifetime supervision as well.” The court then entered
a judgment of conviction listing “0” as the period of extended supervision on each
count.

¶6 The Department of Corrections (DOC) sent the circuit court a letter
asking it to review the judgment of conviction. The DOC noted that WIS. STAT.
§ 973.01(2)(d) requires the term of extended supervision on a bifurcated sentence
to be at least twenty-five percent of the length of the term of initial confinement.
In response, and without any input from the parties, the court directed that an
amended judgment of conviction be entered imposing fifteen years of extended
supervision on the sexual assault charge and ten years of extended supervision on
the child pornography charge.

¶7 Adams eventually filed a pro se postconviction motion seeking to
withdraw his pleas on the grounds that they had not been knowingly, intelligently
and voluntarily entered. Adams alleged that the State, the circuit court, and
defense counsel had all erroneously informed him that he would be sentenced to
“a lifetime of supervision” when the maximum terms of extended supervision for
his crimes of conviction were limited by WIS. STAT. § 973.01(2)(d). Adams
further requested resentencing on the ground that he had not been present at
sentencing when the court amended the judgment of conviction in response to the
DOC letter, as he believed to be required by WIS. STAT. § 971.04(1)(g).

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No. 2019AP981-CR

¶8 Despite a concession by the State that Adams was entitled to
resentencing, the circuit court denied Adams’ postconviction motion without a
hearing. Adams now appeals.

DISCUSSION

¶9 In order to obtain a hearing on a postconviction motion, a defendant
must allege material facts sufficient to warrant the relief sought if those facts are
proven true. State v. Allen, 2004 WI 106, ¶¶9, 36, 274 Wis. 2d 568, 682 N.W.2d
433. No hearing is required when a motion presents only conclusory allegations
or when the record conclusively demonstrates that the defendant is not entitled to
relief. Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). We
review a circuit court’s decision to deny a postconviction motion without an
evidentiary hearing under the de novo standard, independently determining
whether the facts alleged would establish the denial of a constitutional right. See
State v. Bentley, 201 Wis. 2d 303, 308, 548 N.W.2d 50 (1996).

¶10 The right to an evidentiary hearing may be waived when the parties
stipulate that there are no facts in dispute or agree to a different procedure.
Kavanaugh Rest. Supply, Inc. v. M.C.M. Stainless Fabricating, Inc., 2006 WI
App 236, ¶14, 297 Wis. 2d 532, 724 N.W.2d 893. When the facts alleged in a
postconviction motion seeking resentencing are uncontested, a court can decide
de novo questions of statutory interpretation, constitutional violations, and
harmless error. See State v. Koopmans, 210 Wis. 2d 670, 673, 675, 563 N.W.2d
528 (1997).

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No. 2019AP981-CR

1. Plea Withdrawal

¶11 In the context of a claim for plea withdrawal, the facts alleged in a
postconviction motion must either: (1) show the plea colloquy was defective in a
manner that resulted in the defendant actually entering an unknowing,
unintelligent or involuntary plea; or (2) demonstrate some other manifest injustice,
such as coercion, the lack of a factual basis to support the charge, ineffective
assistance of counsel, or failure by the prosecutor to fulfill the plea agreement.
See generally State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986)
(discussing deficient colloquies); see also State v. Krieger, 163 Wis. 2d 241, 249-
51 & n.6, 471 N.W.2d 599 (Ct. App. 1991) (discussing manifest injustice). Here,
Adams argues both that the plea colloquy was defective and that a manifest
injustice occurred because the circuit court and Adams’ trial counsel each
misinformed Adams that he was subject to lifetime supervision.3 Both contentions
fail because they are based on the false premise that Adams is not subject to
lifetime supervision when, in fact, he is subject to lifetime supervision as a serious
sex offender.

¶12 WISCONSIN STAT. § 939.615(2)(a) provides that the circuit court
may place a person convicted of a “serious sex offense” on lifetime supervision if
the person has been given notice and if the court determines that lifetime
supervision of the person is necessary to protect the public. The statutory
definition of a “serious sex offense” includes violations of WIS. STAT.

3
In light of our conclusion that Adams’ defective colloquy and manifest injustice claims
both suffer from the same fatal flaw, we do not address the State’s additional argument that
Adams failed to adequately preserve or develop his claim of manifest injustice based on
ineffective assistance of counsel.

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No. 2019AP981-CR

§ 948.025(1) (repeated sexual assault of the same child) and WIS. STAT. § 948.12
(possession of child pornography)—which are the counts of conviction here. See
§ 939.615(1)(b)1. The notice provision may be satisfied by a statement in the
complaint or Information that the prosecutor will seek to have the person placed
on lifetime supervision, both of which were done here. See WIS. STAT.
§ 973.125(1).

¶13 Lifetime supervision of serious sex offenders under WIS. STAT.
§ 939.615 is separate from the extended supervision portion of a bifurcated
sentence under WIS. STAT. § 973.01(2). Lifetime supervision does not begin until
the offender’s discharge from extended supervision or parole. WIS. STAT.
§ 939.615(3)(b). Thus, lifetime supervision is imposed in addition to—not in lieu
of—extended supervision.

¶14 The transcript shows the circuit court advised Adams during the plea
colloquy as to the maximum amount of imprisonment he faced on each count.
The maximum amount of imprisonment includes both the initial confinement and
extended supervision portions of a bifurcated sentence. See WIS. STAT.
§ 973.01(2). The court separately advised Adams that he would be subject to
lifetime supervision upon conviction. WISCONSIN STAT. § 939.615(2)(a) provides
an offender convicted of the crimes at issue here may be placed on lifetime
supervision if certain conditions are met.

¶15 We are not persuaded the circuit court’s slightly different phrasing
from the statutory language renders its recitation of the potential penalties Adams
faced inaccurate. It is still true that Adams would be subject to lifetime
imprisonment if the court found the necessary conditions to be present. Even
assuming this semantic difference could be characterized as a defect in the plea

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No. 2019AP981-CR

colloquy, Adams has not alleged that he relied on one phasing of the lifetime
supervision requirement over the other. Instead, he erroneously claims that he was
not eligible for lifetime supervision at all, just extended supervision. Therefore,
Adams’ allegation that the plea colloquy was defective, even if true, would not
entitle him to plea withdrawal because he did not rely on the alleged defect.

¶16 Likewise, Adams’ trial counsel did not provide ineffective assistance
by advising Adams that he would be subject to lifetime supervision. Nor did
Adams’ alleged reliance upon the essentially accurate statements made by the
circuit court and his trial counsel render Adams’ pleas unknowing, unintelligent or
involuntary so as to constitute a manifest injustice. No manifest injustice occurred
as Adams was clearly informed he was subject to lifetime supervision as a serious
sex offender.

¶17 In short, the record conclusively demonstrates that Adams is not
entitled to relief on his plea withdrawal claim. Therefore, the circuit court
properly denied the plea withdrawal claim without a hearing.

2. Resentencing

¶18 As to Adams’ resentencing claim, no evidentiary hearing on the
postconviction motion was required because the State did not dispute—and the
record plainly supported—all of the alleged facts relevant to the claim. We will
therefore independently determine whether the uncontested facts warrant
resentencing.

¶19 Wisconsin law requires a defendant’s presence at the “imposition of
sentence” in a felony case. WIS. STAT. § 971.04(1)(g). A defendant also has a due
process right to be present at sentencing. State v. Perez, 170 Wis. 2d 130, 138,

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No. 2019AP981-CR

487 N.W.2d 630 (Ct. App. 1992). A defendant who has been sentenced in
absentia must be resentenced. Koopmans, 210 Wis. 2d at 679-80. This rule
extends to the modification of a sentence made in response to a postconviction
motion, although the harmless error rule applies in that context. See State v.
Stenseth, 2003 WI App 198, ¶17, 266 Wis. 2d 959, 669 N.W.2d 776.

¶20 Here, months after the original sentencing hearing, the circuit court
entered an amended judgment of conviction imposing periods of extended
supervision on Adams that more than doubled his total term of imprisonment. If
Adams were to violate the terms of his extended supervision, he could be returned
to prison to serve the time remaining on his bifurcated sentences. See WIS. STAT.
§ 302.113(9)(am). The court imposed these periods of extended supervision not
only outside of Adams’ presence, but without providing Adams any opportunity to
address the DOC’s letter. The State concedes before this court, as it did before the
circuit court, that the court’s action plainly violated WIS. STAT. § 971.04(1)(g).

¶21 The State further concedes that it cannot prove the error was
harmless. The record does not provide any explanation for why the circuit court
imposed the amount of extended supervision that it did. Neither party nor the
authors of the PSIs recommended the length of extended supervision the court
imposed, and the court itself did not discuss the appropriate length of extended
supervision at the sentencing hearing. Instead, the court’s reference to “lifetime
extended supervision” appeared to erroneously conflate the extended supervision
component of a bifurcated sentence with the lifetime supervision provision of
serious sex offenders set forth in WIS. STAT. § 939.615.

¶22 Additionally, we note the circuit court did not make an explicit
finding that lifetime supervision was necessary to protect the public in this case.

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No. 2019AP981-CR

In fact, it is unclear from the court’s sentencing comments that the court
understood that it was called upon to make a discretionary decision whether to
impose lifetime supervision in addition to extended supervision. The court’s
comments could indicate it erroneously thought that lifetime supervision was
either automatic or to be imposed in lieu of extended supervision.

¶23 In sum, we conclude Adams is entitled to resentencing, but not to the
withdrawal of his pleas. We reverse those portions of the judgment of conviction
and postconviction order, respectively, imposing sentence upon Adams and
denying resentencing, and we remand with directions that the circuit court hold a
resentencing hearing at which Adams is present and the parties are afforded the
opportunity to address the issues of extended supervision and lifetime supervision
as a serious sex offender.

By the Court.—Judgment and order affirmed in part; reversed in part
and cause remanded for further proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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