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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.
March 31, 2004
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.   01CF000394
Appeal No.                                                                                03-1252-CR
STATE OF WISCONSIN                                                                                                                                            IN COURT OF APPEALS
                                                                                                                                                              DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
PAUL C. WOZNY,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and an order  of  the circuit court for
Walworth County:   MICHAEL S. GIBBS, Judge.   Affirmed.
Before Anderson, P.J., Brown and Nettesheim, JJ.
¶1                                                                                        PER  CURIAM.    Paul  C.  Wozny  appeals  from  the  judgment  of
conviction  entered  against  him  and  from  the  order  denying  his  motion  for
postconviction relief.   He argues that he is entitled to withdraw the no contest
pleas  he  entered  because  his  pleas  were  not  knowingly,  intelligently,  and
voluntarily  entered,  and  he  did  not  understand  the  elements  of  the  offenses.




No.   03-1252-CR
Because we conclude that Wozny entered his plea knowingly, intelligently, and
voluntarily, we affirm.
¶2                                                                                                     Wozny pled  no contest to one  count each  of  first-degree  sexual
assault of a child, causing a child to expose a sex organ, and repeated sexual
assault of the same child.   Six additional counts were dismissed and read in.   The
court sentenced him to a total of twenty-five years of initial confinement and
forty-five years of extended supervision.1    After sentencing, Wozny moved to
withdraw his pleas.   He argued that the plea colloquy conducted by the trial court
was not adequate.    Specifically he argued that the trial court did not have a
personal colloquy with him to ensure that he understood the elements of the crime,
and that the trial court did not advise him that it was not bound by the plea
agreement.
¶3                                                                                                     The court held a hearing and Wozny testified.   At the conclusion of
the hearing, the court questioned Wozny’s testimony.   The court noted that Wozny
was intelligent and educated.   The court further explained that while Wozny had
opportunities during the plea hearing, prior to sentencing, and at sentencing, to let
the court know that he did not understand what was going on, he had not done so.
The court further found that Wozny had waited until after the court imposed a
sentence that was longer than the one he wanted, to say he did not understand.
The court stated:                                                                                      “If he had gotten less, or what they asked for, I have a sneaky
feeling that we wouldn’t be here today.”   The court then went on to review the
1  Specifically, the court sentenced him to ten years of initial confinement and fifteen
years of extended supervision for the first-degree sexual assault; five years of initial confinement
and fifteen years of extended supervision, to be served consecutively, for the exposing count; and
ten years of initial confinement and fifteen years of extended supervision, also to be served
consecutively, on the final count.
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No.   03-1252-CR
record to show that Wozny understood the elements of the offenses before he
entered his plea.   The court found that it had adequately explained to Wozny that it
was not bound by the terms of the plea agreement.   The court then denied the
motion.   Wozny renews his arguments in this appeal, and asks to be allowed to
withdraw his pleas.
¶4                                                                                      After  sentencing,  a  plea  may  be  withdrawn  only  if  doing  so  is
necessary to correct a manifest injustice.   State v. Booth, 142 Wis. 2d 232, 235,
418  N.W.2d  20  (Ct.  App.  1987).    A  defendant  has  the  burden  of  proving  a
manifest injustice by clear and convincing evidence.   State v. Bentley, 201 Wis. 2d
303, 311, 548 N.W.2d 50 (1996).   A plea will be considered manifestly unjust if it
was not entered knowingly, voluntarily and intelligently.    State v. Giebel,  198
Wis. 2d 207, 212, 541 N.W.2d 815 (Ct. App. 1995).
¶5                                                                                      Wozny first argues that the trial court did not comply with State v.
Bangert, 131 Wis. 2d 246, 268-69, 389 N.W.2d 12 (1986), because the court did
not properly determine whether he understood the elements of the crimes charged.
In Bangert, the court offered a non-exhaustive list of methods a trial court may
use to determine the defendant’s understanding.   Id. at 266-72.   One is for the
court to summarize the elements of the offense by reading the jury instructions.
Id.   Another is for the court to ask counsel if she or he explained the elements to
the defendant and to ask counsel to summarize that explanation.   Id. at 268.   The
third is for the court to review relevant portions of the record or other evidence to
establishing the defendant’s understanding.   Id.   The court may also use the plea
questionnaire   to   determine   the   defendant’s   understanding.                     State   v.
Moederndorfer, 141 Wis. 2d 823, 827, 416 N.W.2d 627 (Ct. App. 1987).
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No.   03-1252-CR
¶6                                                                                      The trial court here asked Wozny whether his counsel had explained
all the elements of each of the offenses to him.   Wozny responded that counsel
had.   Attached to the plea questionnaire were the jury instructions for the offenses
charged.    The court asked Wozny if he had read, signed, and understood the
questionnaire.   Wozny replied that he had.   At the hearing on Wozny’s motion for
postconviction relief, his trial counsel testified that he had discussed the elements
of  the  offense  with  Wozny.    Based on this record,  we  conclude  that  Wozny
understood the elements of the offenses to which he pled.
¶7                                                                                      Wozny next argues that the trial court did not personally inform him
that it was not bound by the terms of the plea agreement, and consequently that he
is entitled to withdraw his pleas.   In State v. Hampton, 2002 WI App. 293, ¶11,
259 Wis. 2d 455, 655 N.W.2d 131, review granted, 2003 WI 16, 259 Wis. 2d 100,
657 N.W.2d 706 (Wis. Feb. 19, 2003) (No. 01-0509-CR), this court held that the
trial court “must personally inform defendants that courts are not bound by plea
agreement terms.”   The court went on to say, however, that “magic words” are not
required.    Id. at  ¶16.    The court must personally convey  “in any manner” the
information that it is not bound by the plea agreement.   Id.
¶8                                                                                      The record in this case establishes that the trial court asked:        “Do
you understand that I am not bound by any promises or threats anyone has made to
you?”   Wozny replied that he understood.   We conclude, therefore, that while the
trial court did not specifically say “do you understand that the court is not bound
by  the  plea  agreement,”  the  words  it  did  use  conveyed  the  same  meaning.
Consequently, we conclude that the court personally conveyed the information
during the plea colloquy in satisfaction of the Hampton rule.
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No.   03-1252-CR
¶9                                                                                       Even if we were to conclude that those words were not adequate,
however,  Wozny  still  would  not  be  entitled  to  withdraw  his  pleas.    Once  a
defendant  establishes  that  the  court’s  colloquy  was  not  adequate,  the  burden
switches to the State to demonstrate that the defendant understood he was not
bound by the agreement.   Id. at ¶¶15, 26.   The State presented such evidence at the
postconviction  hearing.    The  State  showed  that  the  plea  questionnaire  which
Wozny signed stated that “I understand that the judge is not bound by any plea
agreement  and  recommendations  and  may  impose  the  maximum  penalty.”
Further, Wozny’s counsel testified at the postconviction hearing that he explained
to Wozny that the judge was not bound by the recommendation and could impose
a higher sentence.   While Wozny testified that he thought the court was bound by
the agreement, the trial court found Wozny’s testimony to be incredible.    We
conclude that Wozny is not entitled to withdraw his plea.   For the reasons stated,
we affirm the judgment and order of the circuit court.
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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