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COURT OF APPEALS
NOTICE
DECISION
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.
July 16, 2002
A party may file with the Supreme Court a
Cornelia G. Clark                                                                   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.
Cir. Ct. No.   00-CF-286
Appeal Nos.                                                                         01-2883-CR
02-0378-CR
STATE OF WISCONSIN                                                                  IN COURT OF APPEALS
                                                                                    DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
DAVID GALLAGHER,
DEFENDANT-APPELLANT.
APPEALS from a judgment and an order of the circuit court for
Brown County:  JOHN D. MCKAY, Judge.  Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1                                                                                  PER CURIAM.    David Gallagher appeals his conviction for having
sexual intercourse with a child under the age of thirteen, contrary to WIS. STAT.




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§ 948.02(1),1 and an order denying postconviction relief.   Gallagher argues that
the trial court failed to determine that he understood the nature of the offense
before accepting his no contest plea.   Specifically, Gallagher contends that he was
not advised of and did not understand the elements of the offense.   We disagree
and conclude that Gallagher understood the elements of the offense with which he
was  charged  and  that  the  record  shows  that  he  entered  his  no  contest  plea
voluntarily, knowingly and intelligently.   We therefore affirm the judgment and
order.
BACKGROUND
¶2                                                                                               The State charged Gallagher, in both the criminal complaint and the
information, with having sexual intercourse with a child under age thirteen.   In the
complaint, there were statements from a three-year-old child that Gallagher had
touched her vagina, that it hurt and that he “used two fingers to break her body.”
A sexual assault nurse found two tears in the child’s vagina and said that the initial
examination revealed that the child had been sexually assaulted in her vagina.   She
stated that the child’s injuries were consistent with digital penetration.
¶3                                                                                               At his arraignment, Gallagher waived reading of the information,
and his counsel informed the court that, “Mr. Gallagher’s aware of the nature of
the allegations against him, as well as the penalties associated therewith.”   Before
accepting his plea, the court confirmed that Gallagher had reviewed and signed the
plea questionnaire and waiver of rights form.   The court specifically reminded
1  WISCONSIN  STAT.                                                                              § 948.02(1)  punishes                                                 “Whoever  has  sexual  contact  or  sexual
intercourse with a person who has not attained the age of 13 years ….”   All references to the
Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
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Gallagher of the portion of the form pertaining to his “right to have a jury trial and
have guilt established beyond a reasonable doubt.”   That portion of the form also
informed Gallagher that he had been charged with having sexual intercourse with
a child under age thirteen years.   Gallagher stipulated that the criminal complaint
and the preliminary hearing both provided the factual basis for his plea, and the
court accepted his no contest plea.
¶4                                                                                                     At the postconviction hearing, Gallagher’s trial counsel testified that
he  had  repeatedly  discussed  the  elements  of  the  charge  with  Gallagher  and,
specifically, that he had  “at least some discussion about the legal definition of
intercourse  as  opposed  to  a  layman’s  use  of  that  term.”2    Further,  Gallagher
admitted  that  his  attorney  had  reviewed  the  plea  questionnaire  with  him.
Gallagher argued, however, that he was not advised of and did not understand the
elements of the offense with which he was charged.   Specifically, he claimed that
he  did  not  understand  what  he  baldly asserted  was  the  “sexual  gratification”
element of the offense.   The court decided that Gallagher had not made a prima
facie showing that he entered his plea without knowledge of the crime of which he
had been accused and pointed out that sexual gratification simply was not an issue
in the case.   Gallagher now appeals.
DISCUSSION
¶5                                                                                                     On  appeal,  Gallagher  makes  a  more  generalized  assertion.    He
argues that the court failed to adequately determine that he understood the nature
2  WISCONSIN   STAT.                                                                                   § 948.01(6)  provides:                                                    “‘Sexual  intercourse’”  means  vulvar
penetration … or any other intrusion, however slight, of any part of a person’s body or of any
object into the genital or anal opening either by the defendant or upon the defendant’s instruction.
The emission of semen is not required.”
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Nos.   01-2883-CR
02-0378-CR
of the offense with which he was charged.   He contends that the court did not
comply with the requirements of WIS. STAT. § 971.08 for taking a plea and did not
ensure that he understood the elements of the offense.    However, Gallagher’s
argument on appeal is so generalized that he does not specifically identify the
element or elements that he contends were not described to him or that he claims
he did not understand.   Gallagher also claims that even without the deficiencies in
taking the pleas, nothing shows that he had sufficient understanding of the offense
to voluntarily and knowingly enter a plea.   We disagree.3
A.  PLEA WITHDRAWAL
¶6                                                                                                  Before  accepting  a  plea  of  guilty  or  no  contest,  WIS.  STAT.
§ 971.08(1)(a)  requires  that  a  court  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.”    In State v. Bangert,  131
Wis. 2d  246,  267-68,  389 N.W.2d  12  (1986), the court explained that the trial
court  can  satisfy  the                                                                            § 971.08(1)(a)  requirement  to  determine  the  defendant’s
understanding of the nature of the charge by using any one or a combination of
three methods.4    However, in State v. Brandt,  226 Wis.  2d  610,  619-20,  594
N.W.2d 759 (1999), the court emphasized that the Bangert list is not exclusive.   It
3  Gallagher also suggests, but does not develop, an argument that he was improperly
charged.
4  The trial court may (1) summarize the elements of the crime charged by reading from
the appropriate jury instructions or from the applicable statute;  (2) ask defendant’s counsel
whether he explained the nature of the charge to the defendant and request him to summarize the
extent of the explanation, including a reiteration of the elements, at the plea hearing; and
(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.  State v. Bangert, 131 Wis. 2d 246, 268, 389 N.W.2d
12 (1986).
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Nos.   01-2883-CR
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clarified that a trial court’s colloquy need not be done in any particular fashion as
long as the record demonstrates that the defendant knowingly, voluntarily and
intelligently entered the plea.   Id. at 620.
¶7                                                                                                  Whether a plea is entered knowingly, voluntarily and intelligently is
a question of constitutional fact that we review without deference to the trial court.
State v. Nichelson, 220 Wis. 2d 214, 217, 582 N.W.2d 460 (Ct. App. 1998).   In
Brandt, 226 Wis. 2d at 620-22, the court outlined the necessary analysis in claims
to withdraw pleas.   To successfully withdraw a plea, a defendant must first make a
prima facie showing that the trial court violated WIS. STAT. § 971.08 by failing to
demonstrate that the defendant understood the nature of the crime to which he or
she had pled.   Id. at 617-18.
B.   ELEMENTS OF THE OFFENSE
¶8                                                                                                  Here, the court demonstrated that Gallagher understood the charge
against  him  and  satisfied  WIS.  STAT.                                                           § 971.08(1)(a)  by  reviewing  the  plea
questionnaire and  waiver of  rights form in the plea  colloquy.5    A court may
“specifically refer to and summarize any signed statement of the defendant which
might demonstrate that the defendant has notice of the nature of the charge.”
Bangert, 131 Wis. 2d at 268.
5  If the defendant makes a prima facie showing of a WIS. STAT. § 971.08(1)(a) violation
and alleges that he or she in fact did not understand the elements of the crime, then the burden
shifts to the State to show by clear and convincing evidence that the defendant entered the plea
knowingly, voluntarily and intelligently.   Bangert, 131 Wis. 2d at 274-75.   Here, however, we
conclude that Gallagher failed to make a prima facie showing that the trial court erred by taking
his plea.
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Nos.   01-2883-CR
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¶9                                                                                                     Gallagher asserts that the court’s discussion of the plea questionnaire
is insufficient to satisfy WIS. STAT. § 971.08(1)(a) because the form merely recites
the language of the statute.   However, the language of the sexual assault statute
clearly  indicates  the  elements  of  the  offense.    WISCONSIN  STAT.  § 948.02(1)
prohibits both sexual contact and sexual intercourse with a child under the age of
thirteen.6    As indicated, Gallagher was charged with sexual intercourse with a
child.   Only two elements must exist to support a conviction for this offense.   WIS
JI—CRIMINAL 2102.   First, the person must have had intercourse with the child.
Id.   Second, the child must have been under the age of thirteen.   Id.   Here, every
pleading and the plea colloquy made it clear that the State had charged Gallagher
with having sexual intercourse with a child based on digital penetration of her
vagina, as opposed to mere sexual contact.
¶10    We conclude that Gallagher was advised of the two elements of the
charged  offense—sexual  intercourse  and  age.7     No  further  explanation  was
necessary and, in fact, Gallagher has never claimed that he did not understand
these two elements.
6  When the State charges a defendant with a violation based on sexual contact, it must
prove the “sexual gratification” element.   See WIS. STAT. § 948.02(5) and (6).   However, as the
trial court observed, when a defendant is charged with having sexual intercourse with a child,
sexual gratification is not an element.
7  The  complaint, information  and plea questionnaire and waiver of rights form all
describe the charge against Gallagher.  Sexual intercourse with a child under age thirteen requires
the State to prove just that:   having sexual intercourse, as defined by the statutes, and having it
with a child under age thirteen.  WIS. STAT. § 948.02(1).  These documents, along with testimony
of digital penetration at the preliminary hearing and the attorney’s postconviction testimony that
he described to Gallagher the statutory definition of sexual intercourse, establish the two elements
of the offense.
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Nos.   01-2883-CR
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C.   VOLUNTARY AND KNOWING PLEA
¶11    In any event, we conclude that Gallagher’s challenge to his plea fails
because the record demonstrates that Gallagher was aware of the charge against
him.  The record is clear that he entered a knowing and voluntary plea.
¶12    Gallagher’s trial counsel testified that he had repeatedly discussed
the elements of the actual charge with Gallagher and that they had “at least some
discussion about the legal definition of intercourse as opposed to a layman’s use of
that term.”   The court specifically inquired whether Gallagher had reviewed the
plea questionnaire and waiver of rights form, and Gallagher personally admitted
that he had and acknowledged his signature.   The form explains that by pleading
to the charge, Gallagher was agreeing to release the State from its obligation to
prove, beyond a reasonable doubt, the elements of the charged offense of first-
degree sexual assault of a child.   Finally, Gallagher, through counsel, stipulated
that  the  criminal  complaint  and  the  preliminary hearing  transcript  provided  a
factual basis for his pleas.   Both clearly establish that Gallagher must have been
aware of and understood the allegations to which he pled.
CONCLUSION
¶13    Gallagher failed to make a prima facie case that the trial court did
not demonstrate that Gallagher understood the nature of the crime to which he had
pled.   In fact, Gallagher acknowledged the nature of the charges and assented that
he understood them.   The trial court complied with WIS. STAT.  § 971.08(1)(a).
Gallagher has no grounds on which to withdraw his plea.
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Nos.   01-2883-CR
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By the Court.—Judgment and order affirmed.
This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
§ 809.23(1)(b)5.
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