author: CURLEY, J. FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jarmal Nelson, Defendant-Appellant.

    Court of Appeals

      No. 2004AP1954-CR.

      Submitted on briefs February 2, 2005.

      Decided April 19, 2005.

    2005 WI App 113
    (Also reported in 701 N.W.2d 32.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William J. Tyroler, assistant state public defender, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Shannon Wittenberger, assistant attorney general.
    Before Fine, Curley and Kessler, JJ.

       Petition to review dismissed.

   CURLEY, J.

¶ 1. Jarmal Nelson appeals from the judgment, entered following his guilty pleas, convicting him of three counts of first-degree sexual assault (two counts alleged sexual intercourse and one count alleged sexual contact), one count of kidnapping, and one count of armed burglary, all while concealing his identity, as a party to a crime. He also appeals from the order denying his motion for postconviction relief.

¶ 2. Nelson argues that while the trial court properly exercised its discretion when, in considering his pre-sentencing motion seeking to withdraw all of his pleas, the trial court acknowledged that he had established a fair and just reason to withdraw his pleas to the three counts of first-degree sexual assault, the trial court erroneously exercised its discretion when, in denying the motion, it found that the State would be substantially prejudiced if Nelson was allowed to withdraw his pleas. He also contends that the trial court erroneously exercised its discretion when, at his post-sentencing motion to both withdraw his plea to the sexual assault counts on a new theory and to renew his earlier motion to withdraw all of his pleas, the trial court concluded that the State had proved by clear and convincing evidence that Nelson's prior attorney had explained to him all of the elements of proof needed to convict him of the charge of first-degree sexual assault alleging sexual contact, and refused his request to withdraw his other pleas. If successful in withdrawing some of his pleas, he also argues that he is entitled to withdraw all of his pleas "because a partial plea withdrawal repudiates the entire plea bargain," citing State v. Robinson, 2002 WI 9, 249 Wis. 2d 553, 638 N.W.2d 564, as support.

¶ 3. With regard to the pre-sentencing motion, we agree with the trial court that Nelson presented a "fair and just reason" for withdrawing his guilty pleas to the three counts of first-degree sexual assault. However, we disagree with the trial court's determination that the State met its burden of proving it would be substantially prejudiced if Nelson was allowed to withdraw his pleas. Consequently, we reverse those convictions and remand for a new trial on those three counts. Finally, we are not persuaded that our decision to permit Nelson to withdraw his guilty pleas to three counts requires a withdrawal of the two remaining convictions. Because we conclude that Nelson is entitled to withdraw his pleas to the three sexual assault charges, it is not necessary for us to address the remaining argument regarding Nelson's post-sentencing motion. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be addressed).

I. Background.

¶ 4. In October 2002, Nelson was charged with: (1) three counts of first-degree sexual assault, two counts alleging sexual intercourse and the remaining count alleging sexual contact, all while concealing his identity, as a party to a crime, contrary to Wis. Stat. §§ 940.225(1)(b) (2001-02), 939.641 and 939.05; (2) one count of kidnapping, while concealing his identity, as a party to a crime, contrary to Wis. Stat. §§ 940.31(1)(b), 939.641 and 939.05; (3) one count of armed burglary, while concealing his identity, as a party to a crime, contrary to Wis. Stat. §§ 943.10(2), 939.641 and 939.05; (4) one count of armed robbery, while concealing his identity, as a party to a crime, contrary to Wis. Stat. §§ 943.32(1)(a) and (2), 939.641 and 939.05; and (5) one count of operating a vehicle without owner's consent, as a party to a crime, contrary to Wis. Stat. §§ 943.23(2) and 939.05. These charges resulted from an incident that occurred approximately one year earlier, on September 11, 2001, when Will McGee and a woman friend, L.D.C., reported to the police that, as L.D.C. and McGee were parking a van at 3:00 a.m. behind a residence located on North 35th Street in Milwaukee, four armed and masked men approached them, ordered them out of the car, and told them to undress. After they complied, one of the men, who went by the name "Jamaal" or something similar, took L.D.C. to the rear door of the residence where she was ordered to unlock the door. Once inside the residence, "Jamaal" went through L.D.C.'s purse and then had nonconsen-sual sexual intercourse with her until his accomplices interrupted him. L.D.C. was then ordered to unlock the door to the upper unit and, once inside, the men began to remove items from the unit such as a television set, a stereo and jewelry. L.D.C. was forced to carry stereo speakers back to the van and two of the men then drove away in it. Another left saying he was "going back to the station wagon." "Jamaal" remained behind and committed two additional acts of sexual assault of L.D.C. and then left, walking down the alley. Some time later, the computer database produced a match between Nelson's DNA and the DNA of the man who assaulted L.D.C., which resulted in the charges against him.

¶ 5. As the result of a plea negotiation, in February 2003, Nelson pled guilty to one count of kidnapping, one count of burglary, and three counts of first-degree sexual assault. The trial court ordered a presentence investigation report. One month later, Nelson filed a pro se motion requesting a new attorney, claiming that his attorney was ineffective. His attorney was allowed to withdraw.

¶ 6. Prior to sentencing, Nelson's new attorney filed a motion seeking to withdraw all of Nelson's guilty pleas based on the fact that Nelson's previous counsel neglected to advise Nelson before he entered his guilty pleas that, as a result of his convictions for the sexual assaults, he could be committed as a sexually violent person pursuant to Wis. Stat. ch. 980. At the onset of the hearing on Nelson's request to withdraw his pleas, the trial court ruled that should the three counts of first-degree sexual assault be reinstated and the guilty pleas withdrawn, Nelson was not entitled to withdraw the other two guilty pleas. Both Nelson and his former attorney testified. Afterwards, the trial court found that Nelson had established a "fair and just reason" for allowing him to withdraw his guilty pleas, but that the State would be prejudiced if he was allowed to do so because the sexual assault victim's whereabouts were temporarily unknown. Several months later, the trial court sentenced Nelson to twenty-five years' imprisonment and ten years' extended supervision on each count, to he served concurrently.

¶ 7. Following the appointment of postconviction counsel, Nelson filed a motion seeking to withdraw his guilty pleas. In this motion, Nelson renewed his request to withdraw his pleas due to the failure of his attorney to tell him that he could be subject to a Chapter 980 commitment as a sexually violent person, and he alleged for the first time that his attorney failed to advise him that one of the elements of the first-degree sexual assault charge alleging sexual contact was that the sexual contact had to be for the purpose of sexual gratification or the victim's humiliation. The motion was denied.

II. Analysis.

¶ 8. Nelson argues that the trial court erroneously exercised its discretion when it failed to allow him to withdraw his guilty pleas to the three counts of first-degree sexual assault. He agrees with the trial court's finding that because he did not know that his convictions made him eligible for Chapter 980 commitment, he had a fair and just reason to withdraw his pleas. However, he disagrees with the trial court's conclusion that if he had been allowed to withdraw his guilty pleas, the State would have been substantially prejudiced.

¶ 9. The State, somewhat disingenuously, insists that the trial court "did not clearly indicate whether it was finding that Nelson's claimed basis was a fair and just reason," and proceeds to argue that Nelson failed to present a fair and just reason for withdrawing his guilty pleas to the sexual assault charges. The State points to the fact that Nelson had, as a juvenile, "a prior qualifying substantiation," and was presumably warned of the possibility of a Chapter 980 commitment. This, coupled with his attorney's testimony that it was his practice to review such ramifications, like sexually violent person commitments, with his clients, leads the State to claim no "fair and just reason" was established. The State also submits that, even if a fair and just reason was established, the prosecution would have been substantially prejudiced if Nelson had been allowed to withdraw his pleas.

¶ 10. "The question of whether a defendant may withdraw his plea is left to the sound discretion of the [trial] court." State v. Bollig, 2000 WI 6, ¶ 28, 232 Wis. 2d 561, 605 N.W.2d 199. "In order to sustain a [trial] court's discretionary decision to deny a plea withdrawal, we must ensure that the court's determination was made upon the facts of record and in reliance on the appropriate and applicable law." Id., ¶ 41. As such, "[w]e will find an erroneous exercise of discretion if the court improperly relied upon irrelevant or immaterial factors." Id.

¶ 11. "A defendant seeking to withdraw a plea of guilty or no contest prior to sentencing must show that there is a fair and just reason, for allowing him or her to withdraw the plea." State v. Kivioja, 225 Wis. 2d 271, 283, 592 N.W.2d 220 (1999) (citation omitted). A fair and just reason is "some adequate reason for defendants change of heart[,] ... other than the desire to have a trial." State v. Canedy, 161 Wis. 2d 565, 583, 469 N.W.2d 163 (1991) (citation omitted). The burden is on the defendant to prove a fair and just reason for withdrawal of the plea by a preponderance of the evidence. Id. at 583-84. If a defendant makes the necessary showing, "the court should permit the defendant to withdraw his or her plea unless the prosecution would be substantially prejudiced." Kivioja, 225 Wis. 2d at 283-84. "[O]nce the defendant presents a fair and just reason, the burden shifts to the State to show substantial prejudice so as to defeat the plea withdrawal." Bollig, 232 Wis. 2d 561, 34. The circuit court must apply this test liberally. Kivioja, 225 Wis. 2d at 284.

¶ 12. We first address the State's claim that the trial court never determined that Nelson had shown a fair and just reason for withdrawing his pleas to the three sexual assault charges and that Nelson was aware of the possibility of a Chapter 980 commitment because of a previous charge. Nelson testified that he was unaware that a conviction could lead to his being committed as a sexually violent person. His former attorney testified that he had no "independent recollection" of discussing Chapter 980 with Nelson. Contrary to the State's assertion, the trial court found that Nelson had met his burden of proof and established a "fair and just reason." The trial court explained:

THE COURT: All right. The Court has to make a determination, first of all, whether there's a fair and just reason to allow the defendant to withdraw his plea. And the Court believes that the law is very liberal with regard to that, and the Court believes that that is the case with regard to Counts 3, 4 and 5. That's what is being claimed here, that the collateral consequences of the pleas to three sexual assault charges are what he did not know about, and that would be certainly a problem for him.

(Emphasis added.) Following this discussion, the trial court then went on to address the question of whether the State was substantially prejudiced, and seemingly concluded that it would be.

¶ 13. As to the State's next contention that no fair and just reason was established because Nelson was well aware of the possibility of a Chapter 980 commitment as a sexually violent person, the State asserts:

Nelson's claims are not entirely credible. First, he was adjudicated delinquent for a first-degree sexual assault of a child as a juvenile, also a qualifying offense for Chapter 980 proceedings, and placed at Lincoln Hills as a result of this finding. During his testimony, Nelson admitted that he had first became aware of Chapter 980 civil commitments when he was at Lincoln Hills.

(Record citations omitted.) Although the record reflects that at age thirteen Nelson was charged with first-degree sexual assault, and he was adjudicated on that charge in the Juvenile Court, nowhere in the record is there confirmation that Nelson was advised of the possibility of a Chapter 980 commitment. Moreover, the only information which Nelson admitted to having before his second attorney's disclosure about Chapter 980 commitments is reflected in his answer to the State's questions:

[ASST. DISTRICT ATTORNEY]: Mr. Nelson, you were aware back in Lincoln Hills about this law?
THE DEFENDANT: It was - It was brought up briefly.
[ASST. DISTRICT ATTORNEY]: And what did you understand back then [that] it meant?
THE DEFENDANT: That you just had to register. It wasn't anything about like going to prison and having to keep - or better way to put it like stay in prison after you finish your term. I never knew that.

Thus, in light of the state of the record, there is little support for the State's contention that Nelson was aware that he faced the possibility of a Chapter 980 commitment as a sexually violent person before he pled guilty. Consequently, the underpinnings for two of the State's arguments are on shaky ground.

¶ 14. In determining whether the trial court properly determined that a fair and just reason was established, we find the holding in Bollig particularly instructive. There, Bollig pled no contest to a reduced charge of attempted sexual assault of a child under the age of thirteen. Before he was sentenced, he sought to withdraw his plea because he had not been told that a conviction would require him to register as a convicted sex offender. On appeal, the State conceded that Bollig had presented a fair and just reason for withdrawing his plea, and the supreme court agreed, stating: "When viewed liberally, as required under the Libke [v. State, 60 Wis. 2d 121, 208 N.W.2d 331 (1973),] standard, we conclude that Bollig's lack of knowledge as to the consequences of his plea constituted a fair and just reason." Bollig, 232 Wis. 2d 561, ¶ 31.

¶ 15. Nelson was also unaware of the consequence of his pleas — that he could be subject to a Chapter 980 commitment as a sexually violent person. Just like the lack of knowledge as to the sex offender registration requirement is a fair and just reason to withdraw one's plea, so too is the lack of knowledge that one is now eligible for a Chapter 980 commitment a fair and just reason. In fact, eligibility for a Chapter 980 commitment has the potential for far greater consequences than registering as a sex offender. Sex offender registration merely centralizes information already in the public domain. A Chapter 980 commitment, however, could be lifelong.

¶ 16. Thus, we, like the trial court, are satisfied that Nelson presented a fair and just reason for the withdrawal of his pleas to the three counts of first-degree sexual assault, and the burden accordingly shifted to the State to prove substantial prejudice.

¶ 17. We next turn to the question of whether the State met its burden of proof. We can find little case law touching on what constitutes substantial prejudice. The dictionary definition of "substantial" includes the words "important" and "essential." See Webster's Third New International Dictionary 2280 (1993). We conclude that the prejudice that need be shown to merit a denial of the withdrawal of a plea must be significant in order to trump a defendant's fair and just reason.

¶ 18. In Bollig, our supreme court was satisfied that substantial prejudice was shown because, as the trial court concluded, the effects of any further delay would "hamper the [four-and-one-half-year-old] victim's ability to recall pertinent events." 232 Wis. 2d 561, ¶¶ 43, 46. Several federal cases have also addressed the issue and found that withdrawal of a plea would present a substantial prejudice to the government under the following circumstances: having once again to provide protection for endangered witnesses during trial, United States v. Trott, 779 F.2d 912, 915 (3d Cir. 1986); having to assemble witnesses after co-defendant's acquittal when joint trial was possible, Government of the Virgin Islands v. Berry, 631 F.2d 214, 221-22 (3d Cir. 1980); death of a chief government witness, United States v. Vasquez-Velasco, 471 F.2d 294, 294-95 (9th Cir. 1973) (per curiam); when physical evidence is discarded, United States v. Jerry, 487 F.2d 600, 611 (3d Cir. 1973); and when other defendants with whom defendant had been joined for trial had already been tried in a lengthy trial and defendant's plea was taken mid-trial, State v. Lombardozzi, 436 F.2d 878, 881 (2d Cir. 1971).

¶ 19. Contrasting those reasons with the circumstances present here, we conclude the State failed to prove substantial prejudice. Nelson's trial had been set for February 17, 2003, and, presumably, on that date the State was prepared to call L.D.C. as a witness. However, in July 2003, some six months later, at Nelson's motion hearing seeking to withdraw his pleas, the State claimed to have lost contact with her. As to L.D.C.'s whereabouts, the State admitted that L.D.C. was only "missing" for a few months. Indeed, the State described her absence as temporary, stating that, "because of her transient lifestyle, we've lost track of her." In discussing her absence, the State was confident she could be found:

I think at some point we probably would be able to locate her again. I'm confident that we will be able to do that and reinstate the charges against [co-defendant], but in the last few months we haven't been able to find her.

The State failed to establish that she could not eventually be located or to set forth what attempts had been made to find her. This is a far cry from the facts in Bollig, where the victim was only four-and-one-half-years old at the time of the offense, and Bollig had engaged in "numerous dilatory tactics" for several years. See 232 Wis. 2d 561, ¶ 42.

¶ 20. At the hearing, the State also pointed to the fact that L.D.C.'s absence resulted in the dismissal of a co-defendant's case. The trial court, seizing upon the fact that he was the judge who dismissed the co-defendant's case, stated this was a sufficient reason for denying Nelson's request:

The Court then has to go on and make a determination after I found that there is a fair and just reason, whether the State is substantially prejudiced by the defendant withdrawing his plea at this point, and I make that finding at this point also. I handled the case of [the co-defendant] and was here and actually dismissed the case against him due to the fact that the State was not ready to proceed.

The trial court also commented that "my guess is that Mr. Nelson's choice to withdraw his pleas ... is the fact that the State could not proceed [in the other case] and therefore if he had a trial in this case, his cases would be dismissed also." The trial court erroneously exercised its discretion because the trial court failed to consider the strength of the State's case against Nelson.

¶ 21. The State has a far stronger case against Nelson than it has or had against any of the co-defendants. Indeed, one of the co-defendant's criminal complaints was based, in part, upon Nelson's confession. Here, however, DNA evidence connected Nelson to the sexual assaults and he confessed to the crimes. Additionally, Will McGee, the other victim of the crimes, could testify and verify that one of the attackers was called "Jamaal," or something similar. Further, while L.D.C. could corroborate the nonconsensual nature of the sexual assaults, she would have little more to offer. She certainly could not identify Nelson or any of his accomplices because all of the assailants were masked. The evidence available to the State, without the victim, was sufficient to find Nelson guilty beyond a reasonable doubt.

¶ 22. Thus, we conclude, under the facts as they existed at the time of the hearing, that the State failed to meet its burden of proof. While it may have been somewhat inconvenienced by the withdrawal of Nelson's pleas, it failed to show that it was "substantially prejudiced." Consequently, we conclude that the trial court erroneously exercised its discretion in denying Nelson the opportunity to withdraw his pleas to three counts of first-degree sexual assault.

¶ 23. Finally, Nelson asserts that if he is successful in withdrawing some of his pleas, he is entitled to withdraw all of his guilty pleas, relying on Robinson, 249 Wis. 2d 553, ¶ 47. Robinson successfully argued that the two counts to which he pled no contest were multiplicitous. He originally had been charged with aggravated battery and recklessly endangering safety along with penalty enhancers. After the parties entered into a plea negotiation reducing the aggravated battery to recklessly endangering safety, Robinson pled no contest to the two counts. When Robinson sought to have one count dismissed as multiplicitous, the State sought to reinstate the information containing the more serious charges. Robinson opposed this request. In such a circumstance, the Robinson court stated:

We conclude that the appropriate remedy in such circumstances ordinarily is to reverse the conviction, vacate the negotiated plea agreement upon which the conviction was based, set aside the amended information, and reinstate the original charges against the accused. But the appropriate remedy depends on the totality of the circumstances. A court must examine all of the circumstances of a case to determine an appropriate remedy for that case, considering both the defendant's and State's interests.

Id., ¶ 48. While reinstatement was ordered in that case, the supreme court also stated that reinstating the original charges is not always the correct remedy: "We also conclude, however, that under some circumstances this remedy might not be appropriate." Id., ¶ 57. We are satisfied this is such a case.

¶ 24. We conclude that this case more closely resembles the situation found in State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77, where one of the charges to which Krawczyk pled guilty pursuant to a plea negotiation was later found to be improper. Krawczyk sought to have his other convictions overturned and to face trial on all the charges. The State opposed his motion and the trial court agreed with the State. The court explained:

Just as a defendant should not be vindictively penalized for successfully challenging one of several convictions on appeal, neither should a defendant obtain a windfall from what is, in essence, a breach of his plea agreement with the State. That is, Krawczyk is entitled to be relieved of the consequences flowing from the wrongful conviction, but nothing more.

Id., ¶ 37 (citation omitted). Here, Nelson has not explained why the proper remedy is a reversal of all the charges, or how his legitimate interests are harmed. He bargained for a reduction of charges from seven to five. He currently remains convicted of two. The State never agreed to recommend a specific prison term, only to ask the trial court at sentencing for "substantial prison." Nelson got the benefit of his bargain.

¶ 25. For the reasons stated, we remand to the trial court to permit Nelson to withdraw his pleas to the three counts of first-degree sexual assault and to set a trial date for the charges.

By the Court. — Judgment and order reversed and cause remanded.

FINE, J.

¶ 26. (dissenting). Not telling a defendant that he or she is subject to a commitment under Wis. Stat. ch. 980 does not make his or her guilty plea not "knowing and voluntary." State v. Myers, 199 Wis. 2d 391, 393-395, 544 N.W.2d 609, 610-611 (Ct. App. 1996). The same is true with the requirement that a defendant register as a sex offender. State v. Bollig, 2000 WI 6, ¶ 27, 232 Wis. 2d 561, 577, 605 N.W.2d 199, 206.

¶ 27. As the Majority points out, the State conceded in Bollig that under the circumstances in that case not knowing about the sex-registration requirement was "a fair and just reason for plea withdrawal." Id., 2000 WI 6, ¶ 31, 232 Wis. 2d at 578, 605 N.W.2d at 206. That does not, of course, end the matter because whether the State would be prejudiced by a plea withdrawal is vested in the trial court's discretion. Id., 2000 WI 6, ¶ 32, 232 Wis. 2d at 578, 605 N.W.2d at 206.

¶ 28. Unfortunately, the Majority here overrides the trial court's discretion with its own, and weighs the evidence. In my view, the trial court rationally assessed the evidence presented to it; our commission thus does not give us warrant to second-guess its determination.

¶ 29. The upshot of this sad case is that the victim of horrendous assaults will have to suffer anew (if the State can still produce her) for something, as Bollig teaches in the context of registration as a sex offender, that did not violate Jarmal Nelson's due-process rights. Id., 2000 WI 6, ¶ 27, 232 Wis. 2d at 577, 605 N.W.2d at 206. Indeed, Myers teaches that the trial court here did not have any obligation to tell Nelson that he could be committed under Wis. Stat. ch. 980. Myers, 199 Wis. 2d at 394, 544 N.W.2d at 610. Nevertheless, despite the Majority's apparent conclusion that the evidence against Nelson is so overwhelming that the State could not possibly be prejudiced, the victim will have to endure more rounds of humiliation and torment added to what she has already suffered. Of course, this ignores prejudice to the victim. In my view, nothing in the law or logic either does or should compel that result. See Morris v. Slappy, 461 U.S. 1, 14-15 (1983) (Sparing victim the potential trauma of having to testify at a new trial is an appropriate factor to consider in deciding whether to reverse a conviction.). I respectfully dissent.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The judgment roll and the judgment of conviction state that Nelson pled guilty on February 13, 2003. However, the transcript reflects, and one of the witnesses testified, that the guilty pleas were entered on February 14, 2003. On remand, the trial court should determine which is the correct date and correct the judgment of conviction, if necessary.

       While in State v. Myers, 199 Wis. 2d 391, 544 N.W.2d 609 (Ct. App. 1996), this court affirmed the trial court's refusal to permit withdrawal of a guilty plea to a first-degree sexual assault based upon Myers' claim that he was never told of the possibility of a Wis. Stat. ch. 980 commitment, Myers' request was made after sentencing in a postconviction motion and, thus, was subject to a different and more stringent test.

       With respect to the trial court's suspicions, they do not appear to be the accurate considering the circumstances of the co-defendant's case. There is no indication that the charges would have been dismissed.

       The State argues that Nelson only confessed to one sexual assault. Nelson's confession to the police is not part of the record. However, Nelson admitted to the presentence writer that he had committed three separate nonconsensual sexual assaults of L.D.C.

       The record reflects that L.D.C. never contacted the pre-sentence writer after phone calls were placed to L.D.C.'s daughter and sister seeking her input. The record is silent as to whether L.D.C. refused to call the agent back or never received the message.


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Richard C. Plank, Defendant-Appellant.

    Court of Appeals

      No. 2004AP2280-CR.

      Submitted on briefs February 21, 2005.

      Decided April 19, 2005.

    2005 WI App 109
    (Also reported in 699 N.W.2d 235.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jamy R. Johansen of Jo-hansen Law Office, Superior.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Alan Lee, assistant attorney general, Madison.

      Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 7-8-05.

   PETERSON, J.

¶ 1. Richard Plank appeals a judgment of conviction for substantial battery and an order denying his motion for postconviction relief. Plank argues he is entitled to withdraw his no contest plea because: (1) the court failed to personally inform him that it was not bound by the plea agreement and (2) the court failed to explain that, under truth-in-sentencing, he would not be eligible for early release or given good-time credit. We disagree and affirm the judgment and order.

BACKGROUND

¶ 2. On June 2, 2003, Plank struck his girlfriend in the face, fracturing her nose and causing her lip to swell. He was charged with several offenses, including substantial battery contrary to Wis. Stat. § 940.19(2).

¶ 3. Plank entered into a plea agreement whereby he agreed to plead no contest to substantial battery, which carried a maximum sentence of three and one-half years' imprisonment and a $10,000 fine. The remaining charges would he dismissed and read in at sentencing. The State agreed that it would not recommend prison and would ask for thirty-six months' probation.

¶ 4. On September 8, 2003, the court accepted Plank's no contest plea. At the plea hearing, the court did not personally inform Plank that it was not bound by the plea agreement or that, under truth-in-sentencing, he was ineligible for parole or good-time credit. The court declined to follow the plea agreement's sentence recommendation and instead sentenced Plank to three and one-half years' imprisonment, including one and one-half years of initial confinement and two years' extended supervision.

¶ 5. On May 25, 2004, Plank moved to withdraw his no contest plea, claiming it was not knowingly and voluntarily entered. After a hearing, the court denied the motion.

DISCUSSION

¶ 6. A defendant may withdraw a no contest plea after sentencing by establishing by clear and convincing evidence that the plea was not knowingly, voluntarily and intelligently entered. State v. Bangert, 131 Wis. 2d 246, 283, 389 N.W.2d 12 (1986). Bangert sets forth the procedure to determine whether a defendant's plea was knowingly, intelligently and voluntarily entered. First, a defendant must make a prima facie showing that his or her no contest plea was accepted without complying with Wis. Stat. § 971.08 or another court-mandated duty. Bangert, 131 Wis. 2d at 274. A prima facie showing must also include a defendant's assertion that he or she did not know or understand the information the court failed to provide. Id. We accept the circuit court's findings of evidentiary or historical fact unless they are clearly erroneous. State v. Trochinski, 2002 WI 56, ¶ 16, 253 Wis. 2d 38, 644 N.W.2d 891. However, whether a defendant has established a prima facie case presents a question of law that we review independently. State v. Hansen, 168 Wis. 2d 749, 755, 485 N.W.2d 74 (Ct. App. 1992).

¶ 7. If a defendant makes this initial showing, the burden shifts to the State to show by clear and convincing evidence that the plea was knowingly and voluntarily entered, despite the inadequacy of the colloquy at the time of the plea's acceptance. Bangert, 131 Wis. 2d at 274-75. The State may use the entire record to demonstrate that the defendant's plea was knowing and voluntary and may examine the defendant or his or her counsel to shed light on the defendant's understanding and knowledge. Id. We defer to the circuit court's determination on this prong, reversing if the circuit court erroneously exercised its discretion. State v. Mohr, 201 Wis. 2d 693, 701, 549 N.W.2d 497 (Ct. App. 1996).

¶ 8. Plank first contends that his plea was not knowing and voluntary because he mistakenly believed the court would impose the sentence included in the plea agreement. The State concedes that Plank has made a prima facie case on this issue because: (1) the court did not personally inform Plank that it was not bound by the plea agreement, as required by State v. Hampton, 2004 WI 107, ¶ 20, 274 Wis. 2d 379, 683 N.W.2d 14, and (2) Plank alleged in his postconviction motion that he did not understand that the court was not bound by the plea agreement's sentencing recommendation. Nevertheless, the State argues the circuit court correctly determined the State met its burden at the evidentiary hearing to show that Plank, in fact, knew the court was not bound by the sentencing recommendation of the plea agreement.

¶ 9. Plank signed a plea questionnaire and waiver of rights form that includes the following:

I understand that the judge is not bound by any plea agreement or recommendations and may impose the maximum penalty. The maximum penalty I face upon conviction is: $10,000 fine, 3.5 years imprisonment[.]

At the plea hearing, the following exchange occurred:

THE COURT: This is a Class I felony offense for which the Court could impose a fine not to exceed $10,000 or imprisonment not to exceed three years and six months, or both. Do you understand the maximum penalty you're at risk for?
THE DEFENDANT: Yes, I do.

¶ 10. At the evidentiary hearing on Plank's motion to withdraw his plea, Plank's trial counsel testified that he advised Plank of his rights concerning the plea, including that the court was not bound by the sentence recommendation of the plea. Counsel testified he gave the advice orally and covered the subject again when reviewing the written plea questionnaire with Plank. Counsel testified that he believed Plank understood the rights he was waiving. Plank testified at the evidentiary-hearing that he had read the plea questionnaire and his trial counsel reviewed it with him.

¶ 11. The only contrary evidence was Plank's own testimony at the evidentiary hearing. Plank was asked, "When you reviewed it [the plea questionnaire] with your attorney, did you understand that the $10,000.00 fine and three-and-a-half years imprisonment would be a potential penalty you were facing at sentencing?" Plank answered, "No, I thought I would not be facing that because I had the Plea Agreement." However, the circuit court found that testimony "just not believable." It is for the circuit court, not this court, to determine witness credibility. State v. Arredondo, 2004 WI App 7, ¶ 17, 269 Wis. 2d 369, 674 N.W.2d 647. Therefore, the record supports the circuit court's finding that Plank did, in fact, know the court was not bound by the plea agreement.

¶ 12. Plank also argues that his plea was not knowingly and voluntarily entered because the court failed to inform him that, under truth-in-sentencing, he was ineligible for parole or good-time credit. To withdraw his plea on these grounds, Plank must establish a prima facie case that the circuit court's plea colloquy was deficient. See Bangert, 131 Wis. 2d at 274. Plank contends the court's colloquy violated Wis. Stat. § 971.08(1)(a), which requires the court to determine that the defendant understands "the potential punishment if convicted." Accordingly, we must determine whether Plank has met his burden to show that the lack of good-time or parole under truth-in-sentencing is a "potential punishment" of which the court was required to inform him.

¶ 13. A defendant does not understand "the potential punishment" if the defendant is not informed of the direct consequences of a plea. State v. Byrge, 2000 WI 101, ¶ 60, 237 Wis. 2d 197, 614 N.W.2d 477. However, the circuit court need not inform a defendant of collateral consequences of a plea. Id., ¶ 61. Direct consequences have "a definite, immediate, and largely automatic effect on the range of a defendant's punishment." State v. Bollig, 2000 WI 6, ¶ 16, 232 Wis. 2d 561, 605 N.W.2d 199. "The distinction between direct and collateral consequences essentially recognizes that it would be unreasonable and impractical to require a circuit court to be cognizant of every conceivable consequence before the court accepts a plea." Byrge, 237 Wis. 2d 197, ¶ 61.

¶ 14. Plank contends his lack of parole and good-time eligibility is a direct consequence of his plea, relying exclusively on Byrge. In Byrge, the circuit court sentenced the defendant to life imprisonment and was therefore required under Wis. Stat. § 973.014 (1991-92) to make a parole eligibility determination. Id., ¶ 56. The court chose a date that exceeded Byrge's lifespan, assuring that Byrge would never be paroled. Id., ¶¶ 56, 67. Byrge sought to withdraw his plea because the court failed to inform him that the maximum sentence he faced was not merely life in prison with the possibility of parole but effectively life without the possibility of parole. Id., ¶ 54. The Byrge court concluded the circuit court's authority to establish the parole eligibility date was a direct consequence of the plea, because "[p] aróle eligibility in this discrete situation implicates punishment ...." Id., ¶ 68.

¶ 15. Plank contends that because Byrge holds that parole eligibility is a direct consequence, the lack of parole eligibility under truth-in-sentencing is also a direct consequence. We disagree. First, the Byrge holding was expressly limited to "the narrow circumstance in which a circuit court has statutory authority under Wis. Stat. § 973.014(2) to fix the parole eligibility date ...." Id. Because Plank did not face life imprisonment, Wis. Stat. § 973.014(2) did not apply.

¶ 16. Second, in Byrge, the court's ability to set a parole eligibility date affected the range of punishment. The court informed Byrge he faced life imprisonment. The court did not inform Byrge it had the authority to set a parole eligibility date that exceeded his lifetime. That authority changed the applicable range of Byrge's punishment from life with parole to life without parole. Therefore, in that "discrete situation" parole eligibility was a direct consequence because it increased the maximum penalty. Id., ¶¶ 67-68. The lack of parole under truth-in-sentencing does not mean Plank will serve more time than the maximum penalty of which the court informed him. Thus, truth-in-sentencing does not affect his range of punishment.

¶ 17. Finally, Plank is not "ineligible" for parole or good-time — there simply is no parole or good-time under truth-in-sentencing. Wisconsin eliminated parole and good-time credit when it adopted its new sentencing scheme. At most, Plank's complaint is that he misunderstood the law concerning a collateral consequence of his plea. See State v. Rodriguez, 221 Wis. 2d 487, 490, 585 N.W.2d 701 (Ct. App. 1998). However, a misunderstanding of a collateral consequence is not a basis for plea withdrawal when, as here, Plank's misunderstanding was "the product of his own mind and entirely unexpressed in the plea bargaining process." Birts v. State, 68 Wis. 2d 389, 397, 228 N.W.2d 351 (1975).

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Wisconsin Stat. § 971.08 provides, in relevant part:
      (1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
      (a) 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.
      (b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.
      (c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."
      (d) Inquire of the district attorney whether he or she has complied with s. 971.095 (2).

       As a general rule, parole and good-time credit were collateral consequences under the former sentencing scheme. See, e.g., Birts v. State, 68 Wis. 2d 389, 398-99, 228 N.W.2d 351 (1975) (concluding it is "unreasonable to require the court to inform every defendant pleading guilty of his parole rights.").


author: NETTESHEIM, J.

text:
    Patricia M. Klinger, individually, and and as Special Administrator of the Estate of David A. Klinger, deceased, Plaintiffs-Appellants, v. Prudential Property and Casualty Insurance Company, a foreign insurance corporation, Defendant-Respondent.
    Court of Appeals

      No. 2004AP1704.

      Submitted on briefs February 17, 2005.

      Decided April 20, 2005.

    2005 WI App 105
    (Also reported in 700 N.W.2d 290.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Patrick O. Dunphy and Charles David Schmidt of Cannon & Dunphy, S.C. of Brookfield.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Kurt Van Buskirk of Law Offices of Stilp & Cotton of Brookfield.
    Before Anderson, PJ., Brown and Nettesheim, J.

       Petition to review denied 7-28-05.

   NETTESHEIM, J.

¶ 1. Patricia M. Klinger, individually and as Special Administrator of the Estate of David A. Klinger, (Klinger) appeals from a declaratory judgment in favor of Prudential Property and Casualty Insurance Company. The declaratory judgment court upheld the underinsured motorist (UIM) reducing clause provisions of the Prudential insurance policy issued to Klinger. Klinger argues that the reducing clause provisions are unenforceable pursuant to Hanson v. Prudential Property & Casualty Insurance Co., 2002 WI App 275, 258 Wis. 2d 709, 653 N.W.2d 915, which held that similar provisions violated Wis. Stat. § 632.32(5)(i) (2003-04) because they authorized UIM benefit reductions not recognized by the statute.

¶ 2. We conclude that Hanson no longer states the current law on this issue. Consistent with post -Hanson case law, we conclude that Prudential was entitled to reduce its UIM limits of liability by payments made by, or on behalf of, the party responsible for the loss. Therefore we affirm the declaratory judgment in favor of Prudential.

BACKGROUND

¶ 3. The underlying facts are not in dispute. On April 4, 2003, Klinger's husband, David Klinger, was killed in a motor vehicle accident caused by Matthew D. Olson, an underinsured drunk driver. Olson was insured by Auto Club Insurance Association which paid Klinger $50,000, the maximum limit of its liability.

¶ 4. At the time of the accident, Klinger and her husband were insured under a motor vehicle policy issued by Prudential. The policy provided UIM coverage with a liability limit of $250,000 "Each Person." Klinger demanded that Prudential pay the UIM policy limit of $250,000. Prudential tendered $200,000 to Klinger, contending that it was entitled to reduce its UIM liability limits by the $50,000 previously paid by Olson's insurer.

¶ 5. As a result, Klinger filed the instant declaratory judgment action seeking a ruling that the Prudential UIM reducing clause provisions were invalid and unenforceable pursuant to Wis. Stat. § 632.32(5)(i), and that the provisions were contextually ambiguous. The parties entered into a stipulation stating that "the sole issue in this case is whether the defendant may enforce a reducing clause in the [UIM] coverage of a policy of insurance it issued to the plaintiffs, which was effective on April 4, 2003." The parties additionally stipulated that the issue was appropriate for resolution by summary judgment.

¶ 6. Following briefing and oral argument, the trial court issued a bench decision granting summary judgment to Prudential. The court determined that Prudential's UIM reducing clause provisions complied with the statutory mandates of Wis. Stat. § 632.32(5) (i) and that under Folkman v. Quamme, 2003 WI 116, 264 Wis. 2d 617, 665 N.W.2d 857, the UIM provisions were not contextually ambiguous. Klinger appeals.

DISCUSSION

¶ 7. Our standard of review is de novo for two reasons. First, insurance contract interpretation presents a question of law that is reviewed de novo. Folkman, 264 Wis. 2d 617, ¶ 12. Second, we review a summary judgment ruling de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).

¶ 8. "The same rules of construction that govern general contracts are applied to the language in insurance policies. An insurance policy is construed to give effect to the intent of the parties as expressed in the language of the policy." Folkman, 264 Wis. 2d 617, ¶ 12 (citations omitted).

The Prudential UIM Coverage

¶ 9. The declarations in the Prudential policy provide underinsured motorists coverage for bodily injury with policy limits of $250,000, each person, and $500,000, each accident. "PART 5" of the policy is entitled "UNDERINSURED MOTORISTS — IF YOU ARE HIT BY A MOTOR VEHICLE THAT IS UN-DERINSURED." This section states:

A. OUR OBLIGATIONS TO YOU (PART 5)

1. Underinsured Motorists Bodily Injury Coverage
If you have this coverage (see your Declarations), we will pay up to our Limit Of Liability for bodily injury as described in How We Will Settle A Claim (Part 5) when an insured is struck by an underinsured motor vehicle.

The section entitled "HOW WE WILL SETTLE A CLAIM" recites the reducing clauses at issue in this case:

1. Limit of Liability-Bodily Injury: Each Person
The limit stated under Underinsured Motorists-Bodily Injury-Each Person on your Declarations is the maximum we will pay for all damages, less all amounts recovered for all damages arising out of bodily injury to one person as a result of any one accident.
5. Payments Reduced
The Limit of Liability shall be reduced by all sums paid or payable because of the bodily injury by or on behalf of persons or organizations who may be legally responsible subject to the Each Person, Each Accident limit. This includes all sums paid or payable for bodily injury under any other Part of this policy or by other sources such as Worker's Compensation, disability or similar laws.

The Applicable Case Law

¶ 10. As noted, Klinger relies principally on this court's decision in Hanson to support her contention that Prudential's reducing clauses are unenforceable. In response, Prudential disputes the continued viability of Hanson in light of post -Hanson case law.

¶ 11. In Hanson, we construed similar UIM reducing clauses in a Prudential insurance policy to say that "the insured's UIM coverage would be reduced by payments from any and every source, rather than the three allowed by statute." Hanson, 258 Wis. 2d 709, ¶ 17. We thus held that the reducing clauses did not comply with Wis. Stat. § 632.32(5)(i) and, as such, the reducing clause provisions did not clearly inform the insured of the level of UIM coverage actually purchased. Hanson, 258 Wis. 2d 709, ¶ 17. Relying on the supreme court's then recent decision in Badger Mutual Insurance Co. v. Schmitz, 2002 WI 98, ¶ 46, 255 Wis. 2d 61, 647 N.W.2d 223, we went on to conclude that even if the reducing clause had conformed to § 632.32(5)(i), it was not "crystal clear" within the context of the whole policy. Hanson, 258 Wis. 2d 709, ¶ 18.

¶ 12. However, following its decision in Schmitz, the supreme court decided Folkman, where it clarified the "crystal clear" standard. Folkman, 264 Wis. 2d 617, ¶¶ 30-32. The court stated that it did not intend Schmitz to alter the standard of review for whether an automobile insurance policy is ambiguous. Folkman, 264 Wis. 2d 617, ¶¶ 30-32. The court stated, "Schmitz and its predecessors do not demand perfection in policy draftsmanship. These decisions advise insurers to draft policies in a clear manner.... To prevent contextual ambiguity, a policy should avoid inconsistent provisions, provisions that build up false expectations, and provisions that produce reasonable alternative meanings." Folkman, 264 Wis. 2d 617, ¶ 31. Thus, pursuant to Folkman, "crystal clear" is not the standard for ambiguity. Gohde v. MSI Ins. Co., 2004 WI App 69, ¶ 7, 272 Wis. 2d 313, 679 N.W.2d 835, review denied, 2004 WI 114, 273 Wis. 2d 655, 684 N.W.2d 136 (WI June 8, 2004) (No. 2001AP2121).

¶ 13. In addition, post -Hanson law has also established that an insured will not be heard to rely on hypothetical scenarios in an effort to invalidate a reducing clause. See Remiszewski v. American Family Ins. Co., 2004 WI App 175, ¶ 17, 276 Wis. 2d 167, 687 N.W.2d 809, review denied, 2004 WI 138, 276 Wis. 2d 30, 689 N.W.2d 57 (WI Oct. 19, 2004) (No. 2003AP2653). See also Van Erden v. Sobczak, 2004 WI App 40, ¶ 25, 271 Wis. 2d 163, 677 N.W.2d 718, review denied, 2004 WI 114, 273 Wis. 2d 655, 684 N.W.2d 136 (WI May 12, 2004) (No. 2002AP1595). Instead, we look to the actual facts of the particular case and determine whether the reducing clause at issue permitted the payment reduction in question and whether the reduction was authorized by Wis. Stat. § 632.32(5)(i). See Van Erden, 271 Wis. 2d 163, ¶ 25.

¶ 14. We therefore reject Klinger's request that we examine the Prudential policy in light of Hanson. The law has moved beyond the supreme court's "crystal clear" language relied upon by the Hanson court. In addition, the law no longer tests the validity of a reducing clause under hypothetical scenarios.

Validity of the Reducing Clauses

¶ 15. Klinger does not argue that the Prudential UIM reducing clause provisions suffer from the same organizational complexity as the policy in Hanson. However, Klinger does contend that the provisions carry the same statutory defect as those in Hanson by permitting reductions in UIM liability limits not authorized by Wis. Stat. § 632.32(5)(i). Our holding that Hanson is no longer the controlling law on that issue largely foretells our rejection of Klinger's argument.

¶ 16. We first address the language appearing in the first reducing clause. As in Hanson, the Prudential UIM "Limit of Liability" provision states, in part, that the limit of liability for UIM as stated in the Declarations is the limit of liability "less all amounts recovered for all damages." On a threshold basis, Prudential argues that this language is not a reducing clause. We disagree for two reasons. First, the language clearly and unambiguously authorizes Prudential to reduce its limit of UIM liability by the amount "recovered for all damages." Second, Hanson has already determined that this language functions as a reducing clause, prompting the court to conclude that the Prudential policy contained two reducing clauses. Hanson, 258 Wis. 2d 709, ¶¶ 22-23. We therefore treat this language as a reducing clause. Relying on Hanson, Klinger argues that this language operates to authorize UIM reductions beyond the scope authorized by Wis. Stat. § 632.32(5)(i).

¶ 17. Klinger mounts a similar Hanson-based argument with respect to the language in the second clause of the Prudential policy. This provision states that the UIM limit of liability will be reduced "by all sums paid or payable because of the bodily injury by or on behalf of persons or organizations who may he legally responsible subject to the Each Person, Each Accident limit." (Italics added.) Klinger contrasts this to Wis. Stat. § 632.32(5)(i), which permits insurers to reduce UIM liability limits by "[ajmounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made." Klinger contends that this reducing clause language is invalid because it impermissibly broadens the statutory language by failing to restrict reductions to payments made by those who, in the words of the statute, "may be legally responsible for the bodily injury or death for which the payment is made." See id. Klinger reasons that the language used in the reducing clause could allow for impermissible reductions such as towing expenses or health insurance payments.

¶ 18. We reject Klinger's challenge to the reducing clause provisions of the Prudential policy. Prudential has not reduced its UIM limits of liability by the theoretical payments argued by Klinger. To the contrary, Prudential reduced its UIM liability limits by the amount paid by the liability insurer for Olson, the drunk driver who caused the accident and who was responsible for the death and resultant damages. This reduction is permitted by the language of the first reducing clause, which authorizes a reduction for "all amounts recovered for all damages." The reduction is also permitted by the second reducing clause, which authorizes a reduction for "all sums paid ... because of the bodily injury by or on behalf of persons ... who may be legally responsible." We further hold that both of these reducing clauses fall within the ambit of Wis. Stat. § 632.32(5)(i), which states: "A policy may provide that the limits under the policy for... underin-sured motorist coverage ... shall be reduced by ... 1. Amounts paid by or on behalf of any person .. . that may be legally responsible for the bodily injury or death for which the payment is made." In making this holding, we bear in mind that a reducing clause need not mirror the language of § 632.32(5)(i). Myers v. General Cas. Co. of Wis., 2005 WI App 49, ¶ 12, 694 N.W.2d 723.

¶ 19. As we have also noted, recent case law from the court of appeals has declined to examine whether a hypothetical reduction might violate Wis. Stat. § 632.32(5)(i). Instead, we look to the actual reason for the reduction. That an insured may interpret a reducing clause as encompassing reducing payments not authorized by the statute does not render a reducing clause ambiguous or unenforceable as to reductions made for amounts paid by sources permitted under the statute. See Remiszewski, 276 Wis. 2d 167, ¶ 17 ("The fact that an insurance policy may include arguably ambiguous language upon which the insurer has not relied is of no consequence and will not defeat the right of an insurer to reduce its limits of liability under a valid provision."); see also Van Erden, 271 Wis. 2d 163, ¶ 25 (holding that a catchall phrase in a reducing clause that contained language not found in § 632.32(5)(i) did not render the clause ambiguous, noting that the language was not in dispute and did not apply to the facts at bar). Prudential reduced its UIM limits of liability on the basis of reducing clauses that pass muster under § 632.32(5)(i). We need not consider Klinger's hypothetical applications of the reducing clause provisions.

¶ 20. Finally, Klinger contends that the first reducing clause contains language that conflicts with the second clause. However, we see nothing in the language of the two clauses that, under the facts of this case, results in any conflict or confusion to a reasonable insured. As our analysis has revealed, both reducing clauses contemplate the reduction of the UIM limits of liability when the basis for the reduction is a payment for damages made by, or on behalf of, the responsible party. We appreciate the Folkman court's caution that "a policy should avoid inconsistent provisions, provisions that build up false expectations, and provisions that produce reasonable alternative meanings. These standards for clarity are consonant with Wisconsin law on ambiguity in insurance contracts." Folkman, 264 Wis. 2d 617, ¶ 31. Here, however, nothing in either reducing clause would lead a reasonable insured to any conclusion other than that the TOM liability limits may be reduced by the amount paid by, or on behalf of, the responsible party.

CONCLUSION

¶ 21. Wisconsin Stat. § 632.32(5)(i) allows for the reduction of a TOM limit of liability for payments made by, or on behalf of, the responsible party. The responsible party's insurer made such a payment in this case. Prudential's TOM reducing clause provisions unambiguously allow for a TOM payment reduction under those circumstances. We affirm the declaratory judgment upholding the Prudential TOM reducing clause provisions.

By the Court — Judgment affirmed.

       Wisconsin Stat. § 632.32(5)(i) provides:

        (i) A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall he reduced by any of the following that apply:
      1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
      2. Amounts paid or payable under any worker's compensation law.
      3.Amounts paid or payable under any disability benefits laws.
      All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       In making this statement, the supreme court noted three court of appeals cases which invoked the "crystal clear" language. Folkman v. Quamme, 2003 WI 116, ¶ 30 n.14, 264 Wis. 2d 617, 665 N.W.2d 857 (citing Gohde v. MSI Ins. Co., 2003 WI App 69, ¶¶ 6, 8, 261 Wis. 2d 710, 661 N.W.2d 470 ("Although a reducing clause may comply with the statute's language, the clause may still be unenforceable if its effect is not 'crystal clear in the context of the whole policy.'") (citing Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, ¶ 46, 255 Wis. 2d 61, 647 N.W.2d 223); Dowhower ex rel. Rosenberg v. Marquez, 2003 WI App 23, ¶¶ 22-23, 260 Wis. 2d 192, 659 N.W.2d 57 ("Schmitz teaches us that in order for the policy to explain the effects of the reducing clause with crystal clarity, all of the provisions helping the insured navigate his or her way through the policy must be consistent with one another and with the reducing clause."); Hanson v. Prudential Prop. & Cas. Ins. Co., 2002 WI App 275, ¶ 18, 258 Wis. 2d 709, 653 N.W.2d 915 ("Even if the reducing clause conformed to Wis. Stat. § 632.32(5)(i), it is not 'crystal clear' within the context of the whole policy.") (quoting Schmitz, 255 Wis. 2d 61, ¶ 46)).
      The parties in both Dowhower and Gohde filed petitions for review before the supreme court, which resulted in the supreme court vacating those decisions in light of the court's decision in Folkman. See Dowhower ex rel. Rosenberg v. Marquez, 2003 WI App 23, ¶ 1, 260 Wis. 2d 192, 659 N.W.2d 57, vacated, 2003 WI 127, 265 Wis. 2d 410, 668 N.W.2d 735 (WI Sept. 12, 2003) (No. 2001AP1347); Gohde v. MSI Ins. Co., 2003 WI App 69, ¶ 17, 261 Wis. 2d 710, 661 N.W.2d 470, vacated, 2003 WI 128, 265 Wis. 2d 412, 668 N.W.2d 556 (WI Sept. 12, 2003) (No. 2001AP2121). Therefore, these decisions, which employed the "crystal clear" test, are no longer good law. See also Van Erden v. Sobczak, 2003 WI App 57, ¶ 21 n.3, 260 Wis. 2d 881, 659 N.W.2d 896, vacated, 2003 WI 129, 265 Wis. 2d 414, 668 N.W.2d 735 (WI Sept. 12, 2003) (No. 2002AP1595). That Hanson survived the transition between Schmitz and Folkman appears to be a function of the fact that the petition for review was dismissed in Hanson and therefore the court of appeals never revisited that decision in light of Folkman.

       The clause in Hanson, 258 Wis. 2d 709, ¶ 13, provided:
      The limit stated under UNDERINSURED MOTORISTS — EACH PERSON on the Declarations is the limit of our liability less all amounts recovered for all damages, including damages for care or loss of services, arising out of bodily injury to one person as a result of any one accident. (Emphasis added.)

       Prudential argues that the language in this first clause is merely "an overview as to the split limit of liability coverage" and serves only "to provide additional notice to the insured that the amount of the UIM coverage can be reduced." Thus, Prudential concludes that only the second clause is the actual reducing clause.

       Although we hold that Hanson no longer represents current law as to the enforceability of such reducing clauses in light of subsequent case law, the Hanson statement that both clauses are reducing clauses remains good law.