State v. William T. Peterson

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.
September 10, 2019
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. 2017AP1871 Cir. Ct. No. 2014CF42

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WILLIAM T. PETERSON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Eau Claire County:
JON M. THEISEN, Judge. Affirmed.

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).
No. 2017AP1871

¶1 PER CURIAM. William Peterson, pro se, appeals an order denying
his WIS. STAT. § 974.06 (2017-18)1 postconviction motion for plea withdrawal and
sentence modification. Peterson argues that his plea was unknowing, thus
entitling him to plea withdrawal, because the circuit court did not inform him at
the plea hearing that read-in offenses could be used to increase his sentence up to
the maximum or that it could order him to have no contact with his biological
daughter. Peterson also contends he is entitled to sentence modification because
the court erroneously weighed sentencing factors. We reject these arguments and
affirm the order.

BACKGROUND

¶2 The State charged Peterson with first-degree sexual assault of a child
under the age of thirteen; first-degree sexual assault of a child under the age of
sixteen, by use of force or violence; first-degree sexual assault of a child under the
age of twelve; incest with a child by a stepparent; felony intimidation of a victim;
false imprisonment (domestic abuse); two counts of repeated sexual assault of a
child; and three counts of exposing genitals or pubic area. In exchange for his
guilty pleas to one count of repeated sexual assault of a child and one count of
felony intimidation of a victim, the State agreed to cap its sentence
recommendation at ten years’ initial confinement, but it remained free to argue the
term of extended supervision. The remaining counts were dismissed and read in
for sentencing purposes.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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¶3 At the sentencing hearing, Jonathan Dickey, a licensed psychologist
from the Division of Community Corrections at the Wisconsin Department of
Corrections, testified about a “Sex Offender Evaluation Report” he had prepared
for the circuit court. Dickey opined that Peterson fell within the “moderate” risk
range for sex offense recidivism, but that risk could be reduced through proper
treatment and external controls. Dickey further explained that his assessment did
not take into account the fact that Peterson had other alleged victims, because the
tools used did not account for charges occurring during the same time period that
did not result in convictions, such as the dismissed and read-in charges. When
asked to discuss the dynamic factors affecting Peterson’s risk level, Dickey noted,
among other things, that there was “partial evidence of sexual interest in children,”
noting the victim was eleven years old. Apart from evaluating Peterson’s overall
level of risk to sexually reoffend, Dickey did not offer a sentence
recommendation.

¶4 Defense counsel expanded on Dickey’s written report, emphasizing
a statement therein that Peterson’s crimes were likely motivated by a “confluence”
of psychological problems rather than a pedophilic interest in children. Defense
counsel recommended five years’ initial confinement and twenty to twenty-five
years’ extended supervision for the repeated sexual assault of a child count, with a
concurrent sentence of two years’ initial confinement and two to three years’
extended supervision for the intimidation of a victim count. Consistent with the
plea agreement, the State recommended ten years’ initial confinement followed by
twenty years’ extended supervision for the repeated sexual assault of a child count.
For the intimidation count, the State recommended a withheld sentence and five
years’ probation.

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¶5 The circuit court ultimately followed the State’s sentencing
recommendation. The court also ordered that Peterson “have no contact with
anyone under 18 other than incidental contact,” adding that “the contact should
never be alone.” However, the court ordered that Peterson could have contact
with his minor biological daughter if she requested contact and once it was
screened by the Department of Corrections “for appropriateness.”

¶6 After the time for filing a direct appeal had expired, Peterson filed
the underlying motion requesting plea withdrawal and sentence modification
pursuant to WIS. STAT. § 974.06. Peterson also requested a Machner2 hearing,
though he did not allege a claim of ineffective assistance of counsel. After a
postconviction hearing limited to argument, the court denied Peterson’s motion.
This appeal follows.

DISCUSSION

¶7 As a threshold matter, the State asserts that this court lacks
jurisdiction to review this matter because there is no written order in the record on
appeal. A judgment or order must be reduced to writing and filed with the clerk of
the circuit court before an appeal can be taken. Ramsthal Advert. Agency v.
Energy Miser, Inc., 90 Wis. 2d 74, 75, 279 N.W.2d 491 (Ct. App. 1979). The
transcript of the hearing does not satisfy the requirement that a written judgment
or order be entered. See State v. Powell, 70 Wis. 2d 220, 222, 234 N.W.2d 345
(1975).

2
See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

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¶8 The circuit court orally denied Peterson’s WIS. STAT. § 974.06
motion at a June 23, 2017 hearing. Peterson subsequently wrote the court
requesting a “written judgment” so that he could file a notice of appeal. In an
October 26, 2017 letter signed by the judge, the court responded to Peterson’s
request stating it was “unclear as to which motions that [it] denied, that [Peterson]
believe[d] do not include an order.” The court further stated that “[a]n appeal
should go to the appellate court,” suggesting its belief that all requests for relief
had been denied at that point. Ambiguities should be liberally construed to
preserve the right to appeal. See Wambolt v. West Bend Mut. Ins. Co., 2007 WI
35, ¶50, 299 Wis. 2d 723, 728 N.W.2d 670. We therefore construe the
October 26, 2017 letter as the order denying Peterson’s § 974.06 motion.

¶9 Although the order was filed after the notice of appeal, the notice of
appeal is deemed filed on the date of entry of the order on appeal. See WIS. STAT.
§ 808.04(8). To the extent the notice of appeal does not identify the October 26,
2017 order, the failure of the notice of appeal to correctly identify the final
appealable document is not fatal to appellate jurisdiction. See Carrington v.
St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267
(1992).

¶10 Turning to the merits of this appeal, Peterson contends he should be
allowed to withdraw his plea because it was not knowingly entered. In a
postsentence motion for plea withdrawal, the defendant carries the heavy burden
of establishing, by clear and convincing evidence, that plea withdrawal is
necessary to correct a manifest injustice. See State v. Thomas, 2000 WI 13, ¶16,
232 Wis. 2d 714, 605 N.W.2d 836.

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¶11 The manifest injustice standard requires the defendant to show “a
serious flaw in the fundamental integrity of the plea.” Id. (citation omitted). One
way for a defendant to meet this burden is to show that he or she did not
knowingly, intelligently, or voluntarily enter the plea. State v. Brown, 2006 WI
100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906. Whether a plea is knowing,
intelligent, and voluntary is a question of constitutional fact. Id., ¶19. We accept
the circuit court’s findings of historical and evidentiary fact unless they are clearly
erroneous, but we determine independently whether those facts demonstrate that
the defendant’s plea was knowing, intelligent, and voluntary. Id.

¶12 Where, as here, a defendant moves to withdraw his or her plea based
on an alleged error in the plea colloquy, the defendant must: (1) make a prima
facie showing of a violation of WIS. STAT. § 971.08 or another court-mandated
duty; and (2) allege that he or she did not, in fact, know or understand the
information that should have been provided during the plea colloquy. State v.
Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986). If the defendant satisfies
these obligations, the burden shifts to the State to prove by clear and convincing
evidence that the defendant’s plea was knowing, intelligent, and voluntary despite
the inadequacy of the plea colloquy. Id. The State may utilize any evidence in the
record “to show that the defendant in fact possessed the constitutionally required
understanding and knowledge which the defendant alleges the inadequate plea
colloquy failed to afford him [or her].” Id. at 274-75.

¶13 Citing State v. Sulla, 2016 WI 46, 369 Wis. 2d 225, 880 N.W.2d
659, Peterson first contends the circuit court was required to inform him at the
plea hearing that the read-in offenses could be used to increase his sentence up to
the maximum possible penalty. Peterson, however, has misinterpreted Sulla.
There, as relevant to this appeal, our supreme court held that the circuit court

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“should” advise a defendant that the read-in charge will be considered by the
sentencing court, but the maximum penalty will not be increased. Id., ¶35. Such
an advisement, however, is not mandatory. See also State v. Straszkowski, 2008
WI 65, ¶93, 310 Wis. 2d 259, 750 N.W.2d 835 (discussing the better practice of
informing defendants about the implications of a read-in offense, but never
declaring that a court is required to do so).

¶14 In any event, Peterson signed a plea questionnaire form that
described the possible effects of read-in offenses, thereby acknowledging his
understanding that: (1) although the judge may consider read-in charges when
imposing the sentence, the maximum penalty will not be increased; (2) he may be
required to pay restitution on any read-in charges; and (3) the State may not
prosecute him for any read-in charges. To the extent Peterson nevertheless asserts
he did not know the read-in offenses could be considered to increase his sentence
up to the maximum, his claimed lack of understanding does not entitle him to
relief because the circuit court was only required to advise Peterson of direct
consequences of his plea. See State v. James, 176 Wis. 2d 230, 238, 500 N.W.2d
345 (Ct. App. 1993). There is no requirement that a defendant entering a plea be
informed of indirect or “collateral” consequences of conviction. Id.

¶15 “A direct consequence of a plea is one that has a definite, immediate,
and largely automatic effect on the range of a defendant’s punishment.” State v.
Byrge, 2000 WI 101, ¶60, 237 Wis. 2d 197, 614 N.W.2d 477. In contrast, a
collateral consequence is indirect, does not automatically flow from the
conviction, and may depend on the subsequent conduct of a defendant. Id., ¶61.
If the circuit court fails to disclose a direct consequence of a plea, a defendant may
withdraw the plea as a matter of right. State v. Merten, 2003 WI App 171, ¶7, 266
Wis. 2d 588, 668 N.W.2d 750. However, if the court does not disclose a collateral

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consequence of a plea, a defendant may not withdraw his or her plea on the basis
of that lack of information. Id.

¶16 The potential impact of a read-in offense at sentencing is a collateral
consequence of the plea because the circuit court maintains discretion in
determining how or if it will use a read-in offense. The mere possibility that the
court may consider a read-in offense at sentencing does not create a definite,
immediate, and largely automatic effect on the range of a defendant’s punishment.
We likewise reject Peterson’s assertion that the court was required to inform him
that he may be required to pay restitution on the read-in charges. Because the
decision whether restitution will be ordered and in what amount is left to the
circuit court’s discretion, see State v. Madlock, 230 Wis. 2d 324, 329, 602 N.W.2d
104 (Ct. App. 1999), the chance a defendant may be required to pay restitution on
read-in charges does not establish a definite, immediate and automatic effect on
the sentence. The court, therefore, had no mandatory duty to inform Peterson of
the effects of the read-in offenses.

¶17 Next, Peterson argues the circuit court was required to inform him
that it could order no contact with Peterson’s biological daughter. Peterson asserts
that such a restriction is punishment constituting a direct consequence of his plea.
As an initial matter, we note that the court did inform Peterson that a no-contact
order was possible. Specifically, when ascertaining Peterson’s understanding of
the plea agreement, the court stated: “It’s going to entail no contacts. It’s going
to—And I would say no contacts certainly with [the victim] my guess would be.”
The court added it “assume[d] that it also [was] going to include no contacts with
minor children. Something like that.” The court ultimately ordered that Peterson
have no contact with minors, but it specifically exempted Peterson’s biological
daughter from that order, noting he could have contact at his daughter’s request

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and with the approval of the Department of Corrections. We therefore conclude
the court did inform Peterson that it could order he have no contact with his
biological daughter.

¶18 In addition, to the extent Peterson is asserting that any limitation on
contact with his daughter is punishment, the State acknowledges that a circuit
court has a mandatory duty to inform a defendant of any potential punishment.
See WIS. STAT. § 971.08(1). However, the question remains whether the limited
contact order in this case constitutes punishment. Whether such a limitation is
punishment is determined by the intent-effects test. See State v. Muldrow, 2018
WI 52, ¶35, 381 Wis. 2d 492, 912 N.W.2d 74. Under that test, the threshold
question is whether the challenged limitation is a form of punishment or a
non-punitive, regulatory scheme. See State v. Rachel, 2002 WI 81, ¶18, 254
Wis. 2d 215, 647 N.W.2d 762.

¶19 First, the court looks to whether the express or implicit “intention of
the legislature was to impose punishment.” Smith v. Doe, 538 U.S. 84, 92 (2003).
If the legislature intended to impose punishment, the inquiry ends. Id. However,
if the legislature did not intend to impose punishment, the second inquiry is
whether the law should nonetheless be deemed punishment based on its effect. Id.
This showing requires the “clearest proof” that the law is not what it purports to
be. Id.

¶20 The second inquiry involves the consideration of seven
factors: (1) whether the limitation involves an affirmative disability or restraint;
(2) whether it has historically been regarded as a punishment; (3) whether it comes
into play only on a finding of scienter; (4) whether its operation will promote the
traditional aims of punishment—i.e., retribution and deterrence; (5) whether the

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No. 2017AP1871

behavior to which it applies is already a crime; (6) whether an alternative purpose
to which it may rationally be connected is assignable for it; and (7) whether it
appears excessive in relation to the alternative purpose assigned. Muldrow, 381
Wis. 2d 492, ¶31.

¶21 Here, Peterson’s biological daughter was a witness, as she confirmed
that Peterson was in the victim’s bedroom on the night of his arrest. WISCONSIN
STAT. § 973.049 applies to restrictions placed on contacting a victim, witness, or
co-actor, and it specifically states that the prohibition on contact of a witness is
permitted if it is “in the interest of public protection.” The stated intent of the
statute, therefore, is not punitive; it is designed for the protection of others, not to
punish the offender. We therefore turn to above-referenced factors to determine
whether the statute nevertheless has a punitive effect.

¶22 First, the limitation on contact with Peterson’s daughter is not an
affirmative disability or restraint. Under ex post facto cases, if the effect on a
defendant is a minor or indirect disability or restraint, its effect is unlikely to be
punitive. Smith, 538 U.S. at 99-100. The punishment of imprisonment is “the
paradigmatic affirmative disability or restraint.” Id. at 100. Any disability or
restraint imposed by the limited contact order in this case is very minor when
compared to the restraint of imprisonment. Thus, the first factor does not support
a finding of punitive effects.

¶23 Second, an order limiting contact is not a traditional form of
punishment. Third, the imposition of such an order is not reliant on an
independent scienter element. Fourth, the limited contact order here does not
serve to promote the traditional aims of punishment (retribution and deterrence).
Rather, it is concerned with public protection. While the State concedes it may

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have some deterrent effect on future crimes, that is not dispositive, as “[a]ny
number of governmental programs might deter crime without imposing
punishment.” Smith, 538 U.S. at 102.

¶24 Fifth, while the violation of a limited contact order may result in
punishment, the behavior of simply being in contact with someone is not
necessarily a criminal act. Thus, while there is a potential punishment associated
with violating the subject order, that does not render the order itself punishment.

¶25 Sixth, the limited contact order at issue in this case has a rational
connection to a non-punitive purpose—namely, protection of a victim or witness
against intimidation or further victimization. Id. Because there is a rational
connection between the limited contact order and the need for protection of
victims and witnesses, the statute does not have a punitive effect.

¶26 Finally, the limited contact order is not excessive with respect to its
non-punitive purpose. This particular factor concerns “whether the regulatory
means chosen are reasonable in light of the non-punitive objective.” Id. at 105.
When it comes to orders restricting contact, such an order is not automatic.
Rather, the circuit court has discretion in determining whether and how such
restrictions will be imposed if the court determines that the restriction “would be
in the interest of public protection.” WIS. STAT. § 973.049(2); see also State v.
Campbell, 2011 WI App 18, ¶23, 331 Wis. 2d 91, 794 N.W.2d 276. Here, the
limited contact order provided Peterson with the ability to have contact with his
daughter in a reasonable way, given the nature of the offenses. The restrictions
imposed by the limited contact order were reasonably necessary for the protection
of Peterson’s daughter. Under the intents-effects test, Peterson has not met his
burden to show “by the clearest proof” that the order limiting his contact with his

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biological daughter has a punitive effect or otherwise constitutes criminal
punishment. See Smith, 538 U.S. at 92. Thus, the court was not required to
inform Peterson during the plea hearing that it could impose limitations on contact
with his daughter.

¶27 To the extent Peterson alternatively attempts to characterize the
limited contact order as a “waiver” of his constitutional right to contact his
daughter, we are not persuaded. Citing Oneida County Department of Social
Services v. Therese S., 2008 WI App 159, 314 Wis. 2d 493, 762 N.W.2d 122,
Peterson asserts that a parent must have knowledge of the constitutional rights
given up by a plea. Therese S., however, is distinguishable on its facts, as it
involved a plea to the grounds for termination of an individual’s parental rights.
The discussion in that case is therefore inapplicable to the pleas entered in this
criminal matter.

¶28 In any event, Peterson did not waive any right to contact his
daughter but, rather, voluntarily entered a plea with knowledge that the circuit
court could impose a no-contact condition. Because the court had no mandatory
duty to either explain the impact of the read-in charges or inform Peterson that it
could limit contact with his daughter, the court properly denied Peterson’s motion
for plea withdrawal without an evidentiary hearing. See Nelson v. State, 54
Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972) (no hearing required when
defendant presents only conclusory allegations or when record conclusively
demonstrates that he or she is not entitled to relief).

¶29 Next, Peterson argues the circuit court erred by denying his motion
for sentence modification. A circuit court has inherent authority to modify
criminal sentences in certain limited circumstances. State v. Harbor, 2011 WI 28,

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¶35, 333 Wis. 2d 53, 797 N.W.2d 828. One such circumstance is when a new
factor warrants modification. Id. Even where no new factor is presented, a circuit
court has authority to modify a sentence when the court determines that the
sentence is illegal or void, or when the court determines that the sentence is
unduly harsh or unconscionable. Id., ¶35 n.8. A court also has authority to vacate
a sentence and resentence the defendant if the court relied on inaccurate
information when originally sentencing the defendant. State v. Tiepelman, 2006
WI 66, ¶31, 291 Wis. 2d 179, 717 N.W.2d 1.

¶30 Here, Peterson does not argue there is a new factor warranting
sentence modification, nor does he claim his sentence is illegal, void, unduly
harsh, or unconscionable. Instead, he argues his sentence was based on
“inaccurate information.” Peterson, however, identifies no inaccurate information
considered by the circuit court at sentencing. Rather, he argues the court erred by
rejecting Dickey’s assessment that the crimes were not motivated by pedophilic
interest and by expressing its belief that the five-year sentence recommended by
defense counsel would not be sufficient given the harm caused to the victim.
Thus, Peterson’s actual complaint is with how the court exercised its discretion in
weighing sentencing factors, and he specifically asserts on appeal that the
sentencing court “abused its discretion.”

¶31 A challenge to the circuit court’s sentencing discretion, however,
cannot be raised in a WIS. STAT. § 974.06 postconviction motion. Smith v. State,
85 Wis. 2d 650, 661, 271 N.W.2d 20 (1978). “[P]ostconviction review under sec.
974.06 is applicable only to jurisdictional or constitutional matters or to errors that
go directly to the issue of the defendant’s guilt.” Id. Because none of Peterson’s
arguments are “jurisdictional or constitutional,” they cannot be raised in a

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§ 974.06 motion. The court, therefore, properly denied his motion for sentence
modification.

By the Court.—Order affirmed.

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

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