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COURT OF APPEALS
DECISION
DATED AND RELEASED
December 18, 1996
NOTICE
A party may file with the Supreme Court                                                  This opinion is subject to further editing.
a petition to review an adverse decision                                                 If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                               appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                      Official Reports.
No.   95-2864-CR
STATE OF WISCONSIN                                                                       IN COURT OF APPEALS
                                                                                         DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DENNIS RUDE,
Defendant-Appellant.
APPEAL from judgments and an order of the circuit court for
Kenosha County:  DAVID M. BASTIANELLI, Judge.  Affirmed.
Before Brown, Nettesheim and Snyder, JJ.
PER  CURIAM.    Dennis  Rude  has  appealed  from  judgments
entered in three consolidated cases, convicting him upon no contest pleas of two
counts of sexual assault of a child in violation of § 948.02(1), STATS., and one
count  of  child  enticement  in  violation  of  § 948.07(1),  STATS.    He  has  also
appealed from an order denying his motion to withdraw his pleas to one of the
sexual  assault  charges  and  the  child  enticement  charge.    We  affirm  the
judgments and the order.




No.   95-2864-CR
Rude contends that withdrawal of the two challenged no contest
pleas should have been permitted because he always maintained his innocence
in the two cases in which those pleas were entered, thus rendering them invalid
Alford1 pleas.   He also contends that he was deprived of his right to effective
assistance of counsel because after he advised his trial counsel that he was
innocent in the two cases, counsel failed to disclose to the trial court that the
pleas were Alford pleas and erroneously told Rude that he could not proceed to
trial in two cases while pleading no contest in the third case.
The  trial  court  refused  to  permit  the  pleas  to  be  withdrawn,
concluding  that  Rude  did  not  enter  Alford  pleas  and  therefore  could  not
withdraw them on the ground that the specific procedures for that type of plea
were  not  followed.    It  also  found  credible  trial  counsel's  postconviction
testimony that he did not tell Rude that if he pled no contest in one case, he
could not go to trial in the other two cases.
After sentencing, a defendant who seeks to withdraw a plea of
guilty  or  no  contest  must  establish  by  clear  and  convincing  evidence  that
withdrawal is necessary to correct a manifest injustice.   State v. Krieger, 163
Wis.2d 241, 249, 471 N.W.2d 599, 602 (Ct. App. 1991).   This court will sustain a
trial court's order denying a motion to withdraw a plea unless the trial court
erroneously exercised its discretion.   State v. Garcia, 192 Wis.2d 845, 861, 532
N.W.2d 111, 117 (1995).
A  manifest  injustice  occurs  when  a  plea  is  not  knowingly,
voluntarily and intelligently entered, State v. Harrell, 182 Wis.2d 408, 414, 513
N.W.2d 676, 678 (Ct. App.), cert. denied, 115 S. Ct. 167 (1994), or where the trial
court fails to establish a factual basis showing that the conduct which the
defendant  admits  constitutes  the  offense  to  which  he  pleads,  State  v.
Harrington,  181 Wis.2d  985,  989,  512 N.W.2d  261,  263  (Ct. App.  1994).    A
manifest injustice also occurs if a defendant is denied effective assistance of
counsel.  State v. Bentley, 201 Wis.2d 303, 311, 548 N.W.2d 50, 54 (1996).
1  An Alford plea derives its name from North Carolina v. Alford, 400 U.S. 25 (1970).
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No.   95-2864-CR
Rude contends that there is no factual basis for his two challenged
pleas because he has consistently maintained his innocence in those cases.   He
acknowledges that when he entered the no contest pleas, he never told the trial
court that he denied committing the offenses.   However, at the postconviction
hearing, both he and his trial counsel testified that before entering the pleas,
Rude  told  his  trial  counsel  that  he  was  innocent  of  those  charges.    Rude
contends that this testimony conclusively establishes that his pleas were Alford
pleas and that they were invalid because the record did not disclose strong
evidence of his actual guilt and because the trial court failed to follow proper
procedures for accepting Alford pleas.
Rude's argument fails because he entered no contest pleas, not
Alford pleas.   An Alford plea is a guilty or no contest plea where a defendant
pleads to a charge but either protests his innocence or does not admit to having
committed the crime.   See Garcia, 192 Wis.2d at 856, 532 N.W.2d at 115.   In this
case, Rude expressly entered no contest pleas, assenting to the trial court's
representation that pursuant to his plea he was "not saying I did do it but I'm
not saying I didn't do it."   He also acknowledged that the trial court would
make findings of guilt based on his pleas.
Before accepting a no contest plea, a trial court must ascertain that
the plea is made voluntarily with an understanding of the nature of the charge
and the potential punishment if convicted.   State v. Bangert, 131 Wis.2d 246,
260, 389 N.W.2d 12, 20 (1986).   It must ascertain that the defendant understands
the constitutional rights he or she is waiving.  Id. at 265-66, 389 N.W.2d at 22.  In
addition, it must make such inquiry as satisfies it that the defendant has in fact
committed the crime charged.  Id. at 260, 389 N.W.2d at 20.
A guilty plea questionnaire and waiver of rights form signed by a
defendant may be considered in determining whether a plea was knowing,
voluntary and intelligent.   Garcia, 192 Wis.2d at 866, 532 N.W.2d at 119.   In this
case,  the  transcript  of  the  plea  colloquy  and  the  plea  questionnaire  form
executed by Rude clearly establish that Rude was aware of the rights he was
waiving, the nature of the charges to which he was pleading, and the potential
punishment faced by him.   In addition, the allegations of sexual misconduct in
the three criminal complaints provided an adequate factual basis for his no
contest pleas.   The trial court properly considered those allegations because in
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No.   95-2864-CR
the guilty plea questionnaire and waiver of rights form, Rude stipulated that
they could be used in determining a factual basis for his pleas.2
Because the record indicates that Rude's no contest pleas were
knowing, voluntary and intelligent, and supported by a factual basis, Rude's
postconviction assertion to the trial court that he was in fact innocent in two of
the cases does not demonstrate a manifest injustice warranting withdrawal of
the pleas.   In making this determination, we also note that Rude was put on
notice at the plea hearing that his no contest pleas were, if not denials, at least
not admissions of guilt.   This occurred when the trial court explained to Rude
that his no contest pleas meant he was "not saying [he] did do it but ...not saying
[he] didn't do it."   While this remark may not have explained the entire essence
of an Alford plea, it clearly put Rude on notice that his pleas would lead to a
finding of guilt without an admission of guilt.   No basis therefore exists to
conclude that the pleas were unknowing, involuntary or unintelligent.
The trial court also properly rejected Rude's ineffective assistance
of counsel claim.  Before a defendant will be permitted to withdraw a no contest
plea based on ineffective assistance of trial counsel, the defendant must show
that counsel's performance was deficient and that it prejudiced the defense.
2   In his reply brief, Rude argues that the allegations of the complaints provided no factual basis
for the child enticement conviction because nothing in them indicated that Rude caused the victim
to go to a vehicle, building, room or secluded place for the purpose of having sexual contact with
her.   Arguments raised for the first time in a reply brief need not be considered by this court.
Swartwout v. Bilsie, 100 Wis.2d 342, 346 n.2, 302 N.W.2d 508, 512 (Ct. App. 1981).  In any event,
this conviction resulted from a plea bargain reducing a charge of first-degree sexual assault of a
child to child enticement.  When a defendant enters a plea of guilty or no contest pursuant to a plea
bargain, the factual basis requirement is satisfied if a factual basis is shown for either the offense to
which the plea was offered or to a more serious charge reasonably related to the offense to which
the plea was offered.  State v. Harrell, 182 Wis.2d 408, 419, 513 N.W.2d 676, 680 (Ct. App.), cert.
denied, 115 S. Ct. 167 (1994).   Since the allegations of the complaint which led to the child
enticement conviction provided a factual basis for the first-degree sexual assault charge, a factual
basis for the no contest plea also existed.
In reaching this conclusion, we are aware that the Wisconsin Supreme Court has recently held that
the Harrell standard does not apply to an Alford plea, which requires strong proof of guilt as to
each element of the crime to which the defendant enters his or her plea.  State v. Smith, 202 Wis.2d
21, 27-28, 549 N.W.2d 232, 235 (1996).   Smith is inapplicable here because Alford pleas were not
entered.
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No.   95-2864-CR
Bentley, 201 Wis.2d at 311-12, 548 N.W.2d at 54.   The appropriate measure of
attorney  performance  is  reasonableness,  considering  all  the  circumstances.
State v. Brooks, 124 Wis.2d 349, 352, 369 N.W.2d 183, 184 (Ct. App. 1985).   To
prove deficient performance, a defendant must show that his counsel made
errors so serious that he or she was not functioning as the "counsel" guaranteed
by the Sixth Amendment.   Strickland v. Washington, 466 U.S. 668, 687 (1984).
To satisfy the prejudice prong, a defendant seeking to withdraw a plea must
show a reasonable probability that but for counsel's errors, he or she would not
have pleaded no contest and would have insisted on going to trial.   See Bentley,
201 Wis.2d at 312, 548 N.W.2d at 54.
The question of whether there has been ineffective assistance of
counsel is a mixed question of law and fact.   State ex rel. Flores v. State, 183
Wis.2d 587, 609, 516 N.W.2d 362, 368-69 (1994).   An appellate court will not
overturn a trial court's findings of fact concerning the circumstances of the case
and counsel's conduct and strategy unless the findings are clearly erroneous.
State v. Knight, 168 Wis.2d 509, 514 n.2, 484 N.W.2d 540, 541 (1992).   However,
the final determinations of whether counsel's performance was deficient and
prejudiced the defense are questions of law which this court decides without
deference to the trial court.  Id.
Rude   contends   that   his   trial   counsel   rendered   deficient
performance because after Rude told him that he was innocent in two of the
cases, counsel erroneously advised him that he could not proceed to trial on two
of the cases while pleading no contest in the third case.    He contends that
because he wanted to spare the victim from testifying in the third case, he then
entered the no contest pleas in all three cases.   Rude further contends that his
counsel should have disclosed to the trial court that he was maintaining his
innocence in two of the cases, which would have resulted in the trial court
following Alford procedures and advising him of his right to proceed to trial in
the two cases.   He contends that if this had been done, he would have entered
pleas of not guilty and would have asked for a jury trial in the two cases.
Rude's argument fails because after hearing testimony from both
Rude  and  his  trial  counsel  at  the  postconviction  hearing,  the  trial  court
specifically found that Rude was incredible and that counsel was credible when
he denied telling Rude that he could not go to trial in two of the cases if he
wanted to plead no contest in the third.   In fact, counsel testified that he and
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No.   95-2864-CR
Rude discussed going to trial in two cases but not the third on several occasions.
Based on this testimony and counsel's testimony concerning the factors relied
on by Rude in entering the no contest pleas, the trial court found that Rude
freely elected to plead no contest in all three cases, knowing that trial was not an
all or nothing proposition.
The trial court's findings on these matters are not clearly erroneous
and  cannot  be  disturbed  by  this  court.    Consequently,  no  basis  exists  to
conclude  that  trial  counsel  rendered  deficient  performance  by  erroneously
advising Rude that he could not go to trial in two of the cases if he wanted to
plead no contest in the third.   Moreover, based on the trial court's finding that
Rude elected to plead no contest in all three cases while knowing that he had
the option of going to trial in two cases, counsel cannot be deemed ineffective
for failing to tell the trial court that Rude was entering Alford pleas.   The no
contest pleas were knowingly and voluntarily entered, and no basis exists to
believe that Rude would have elected to go to trial if an Alford plea had been
explained to him.   Deficient performance and prejudice therefore have not been
shown.
By the Court.—Judgments and order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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