author: DEININGER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Anthony L. Dawson, Defendant-Appellant.
    Court of Appeals

      No. 03-2116-CR.

      Submitted on briefs March 18, 2004.

      Decided August 19, 2004.

    2004 WI App 173
    (Also reported in 688 N.W.2d 12.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, assistant state public defender, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, PJ., Vergeront and Lundsten, JJ.
   DEININGER, PJ.

¶ 1. Anthony Dawson appeals a judgment convicting him of first-degree sexual assault of a child. He also appeals an order denying his post-conviction motion to withdraw his no contest plea. Dawson contends that he should be allowed to withdraw his plea because the plea agreement included a provision that, upon his successful completion of five years probation, the State would move to reopen the case and amend the charge to intentional physical abuse of a child. We agree with Dawson that the reopen-and-amend provision of the plea agreement is legally unenforceable and thus renders his plea unknowing and involuntary. Accordingly, we reverse the appealed judgment and order and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 2. Under a plea agreement with the State, Dawson pled no contest to first-degree sexual assault of a child. In return, the State dismissed an unrelated charge of failing to report to jail, recommended five years of probation with numerous conditions in lieu of a prison sentence, and requested a presentence investigation. The State also agreed that if Dawson successfully completed probation, the State would move to reopen the case and to amend the charge to a lesser one, intentional physical abuse of a child.

¶ 3. The State presented the details of the plea agreement at Dawson's plea hearing. During the plea colloquy, the trial court asked Dawson if he understood the agreement as stated, and he replied that he did. The court then asked Dawson if he understood that the court was not a party to the plea negotiations, that it was not hound by the plea agreement and that it was free to impose whatever penalty it saw fit, up to the maximum prescribed by law. Dawson replied that he understood each of these things. The trial court subsequently withheld sentence and placed Dawson on probation for five years with various conditions, including a stayed term of nine months' confinement in the county jail. The court did not mention the reopen-and-amend provision when specifying the terms and conditions of Dawson's probation.

¶ 4. Dawson filed a postconviction motion seeking to withdraw his plea on the grounds that the reopen- and-amend provision in the plea agreement is not authorized by Wisconsin law. The trial court denied the motion after an evidentiary hearing. The court reasoned that, because it had informed Dawson during the plea colloquy that it was neither a party to plea negotiations nor bound by the plea agreement, Dawson had no reason to expect that his conviction would be reopened in order to reduce the charge to a lesser one. Second, the trial court concluded that it had not approved or accepted the "invalid" portion of the plea agreement because it did not order the reopen-and-amend provision incorporated as a condition of probation at sentencing. Finally, the court questioned the "ripeness" of Dawson's motion inasmuch as his probation was still in effect and the time had thus not arrived for the State to make good on its promise to move for reopening and amendment of the charge.

¶ 5. Dawson appeals the order denying his post-conviction motion for plea withdrawal and the judgment convicting him of sexual assault. We present additional facts in the analysis which follows.

ANALYSIS

¶ 6. A defendant who seeks to withdraw a plea after sentencing has the burden of showing by "clear and convincing evidence" that a "manifest injustice" would result if the withdrawal were not permitted. State v. Truman, 187 Wis. 2d 622, 625, 523 N.W.2d 177 (Ct. App. 1994). To meet this standard, a defendant must show "serious questions affecting the fundamental integrity of the plea." Libke v. State, 60 Wis. 2d 121, 128, 208 N.W.2d 331 (1973). A plea of guilty or no contest that is not shown by the record to have been knowingly, voluntarily and intelligently entered does not comply with constitutional requirements for a valid plea. See State v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986) (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)).

¶ 7. Although it is often said that whether to grant a post-sentence plea withdrawal motion is committed to the sound discretion of the trial court, when a defendant establishes a constitutional violation, the withdrawal of his or her plea becomes a matter of right and the trial court has "no discretion in the matter" to deny the motion. Bangert, 131 Wis. 2d at 283. Whether a plea was knowingly and voluntarily entered is a question of constitutional fact. Id. We affirm the trial court's findings of evidentiary or historical facts unless they are clearly erroneous, but we independently determine whether the established facts constitute a constitutional violation that entitles a defendant to withdraw his or her plea. Id. at 283-84; State v. Sturgeon, 231 Wis. 2d 487, 496, 605 N.W.2d 589 (Ct. App. 1999).

¶ 8. Dawson argues that his no contest plea is constitutionally infirm because it was induced by a legally impermissible plea bargain. According to Dawson, the reopen-and-amend provision in the plea agreement is unauthorized and unenforceable under State v. Hayes, 167 Wis. 2d 423, 425-28, 481 N.W.2d 699 (Ct. App. 1992). The defendant in Hayes negotiated a plea agreement with the State that provided, in exchange for his guilty plea to a felony, if he "successfully completed his probation, the case would be reopened and he would be convicted of a misdemeanor." Id. at 425. The trial court, however, "concluded that it lacked the power to implement" that provision of the plea agreement and refused to incorporate it when imposing sentence. Id.

¶ 9. We rejected the defendant's argument that the court had erred in refusing to accept the plea agreement provision for reopening the case and amending the charge upon successful completion of probation. We explained as follows:

The agreement was that the judgment of conviction would be amended, not the charge. No prosecutor can amend a judgment.
Section 973.09(l)(a), Stats., provides in relevant part: "The court may impose any conditions [on probation] which appear to be reasonable and appropriate." Hayes asserts that because the promise of a milder judgment in exchange for a successful probation is a reasonable condition of probation, sec. 973.09(l)(a) authorizes the reopening provision. Hayes is wrong. He confuses rewards with conditions. He proposes an additional reward for successful probation. The only reward for successful probation is discharge.
We conclude that the trial court lacked the power to impose probation in accordance with the reopening provision in the plea agreement. The court did not abuse its discretion when refusing to do so.

Id. at 427-28 (footnotes omitted).

¶ 10. Dawson contends that the virtually identical provision in his plea agreement with the State in this case is similarly unenforceable. Because he relied on the possibility of ultimately avoiding a felony conviction when entering his plea, a possibility that did not, in fact, exist, Dawson claims that his plea was not knowingly and voluntarily entered. We agree.

¶ 11. The State responds in several ways. First, although not necessarily conceding that the reopen- and-amend provision was "illegal," the State argues that the inclusion of an illegal provision in a plea agreement does not render a plea unknowing or involuntary because only a lack of knowledge of (1) the nature of the charge pled to, (2) the potential penalties upon conviction, or (3) the constitutional protections being waived can support such a conclusion. Although a defendant's lack of understanding regarding any of the items the State cites is sufficient to render a plea unknowing or involuntary, see Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976), they are not the only misunderstandings that may do so. A plea agreement that leads a defendant to believe that a material advantage or right has been preserved when, in fact, it cannot legally be obtained, produces a plea that is "as a matter of law . . . neither knowing nor voluntary." See State v. Riekkoff, 112 Wis. 2d 119, 128, 332 N.W.2d 744 (1983).

¶ 12. The defendant in Riekkoff pled guilty believing, "with the acquiescence of the trial court and the prosecutor," that "he had preserved his right of [appellate] review, when as a matter of law he could not." Id. The supreme court noted that the legally unenforceable stipulation for appellate review was "a primary inducement" for the defendant's guilty plea. Id. at 129. The court concluded that these circumstances resulted in a plea that was "neither knowing nor voluntary," thereby entitling the defendant to withdraw it. Id. at 128.

¶ 13. Here, the record shows that the reopen-and-amend provision was a "primary inducement" for Dawson's no contest plea, that he believed when he entered his plea that a post-probation reopening of his case to reduce the charge was possible and that neither the State nor the trial court disabused him of that notion at any time prior to his plea, conviction and sentencing. In his statement to the court at sentencing, Dawson twice referred to the importance to him of the possibility of avoiding a permanent felony conviction. Following Dawson's allocution, the prosecutor explained to the court that "[t]he agreement. . . called for upon successful completion of probation we'd amend to physical abuse of a child," but that there were conditions on the State's promise: "[o]ne, five years has to pass, and two, Mr. Dawson has to successfully complete probation." The court then added, "[a]nd the Court has to review all of the documents of his time on probation and everything else," noting further that "I just wanted to verify the record reflected Mr. Dawson's agreement in that regard and understanding."

¶ 14. Thus, as in Riekkoff, Dawson entered his plea under a misapprehension that he had preserved the possibility of a material benefit to him that was legally impossible for him to obtain, and the State and the trial court acquiesced in this mistaken view. We therefore conclude that Dawson's plea was "neither knowing nor voluntary," and he must be permitted to withdraw it. Id.; also see State v. Woods, 173 Wis. 2d 129, 140, 496 N.W.2d 144 (Ct. App. 1992) (concluding that a plea agreement providing for a "legal impossibility" renders the resulting plea "neither knowing nor voluntary").

¶ 15. The State next argues that, because a sentencing court may reject any joint dispositional recommendation arising from a plea agreement, and because the trial court here rejected the proffered reopen-and-amend provision, Dawson's plea and conviction are valid. The principal flaw in the State's argument is that, even if the trial court had rejected the provision at sentencing, which we conclude it did not, this would not have cured the error stemming from the fact that Dawson was induced to enter his plea by a promise that the State could never keep. The fact that the trial court might not be persuaded to accept the reopen-and-amend provision does not mean that the opportunity to seek the reduction, and the possibility of obtaining it, were not strong incentives to Dawson to plead no contest. Cf. Dairyland Greyhound Park, Inc. v. McCollum, 2002 WI App 259, ¶ 16, 258 Wis. 2d 210, 655 N.W.2d 474 (concluding that, even though a contracting party had no "legally enforceable right" to a certain outcome, because it had bargained for the "opportunity to convince" a decision maker to permit it, the party had a substantial interest in preserving the decision maker's authority to do so).

¶ 16. The State's third contention is that Hayes, properly read, does not govern the present facts. The State notes that, at one point in our opinion, we characterized the plea agreement in Hayes as providing that "the judgment of conviction would be amended, not the charge," and we commented that "[n]o prosecutor can amend a judgment" of conviction. Hayes, 167 Wis. 2d at 427. The State sees a distinction in the fact that, here, the prosecutor agreed only to move the trial court to reopen the case and to amend the underlying charge, not the judgment of conviction. The State's attempt to distinguish Hayes is, at best, unpersuasive.

¶ 17. We note first that in the opening paragraph of Hayes, we described the plea agreement provision at issue as follows: "if Hayes successfully completed his probation, the case would be reopened and he would be convicted of a misdemeanor." Id. at 425. That is precisely what the agreement in this case called for. We conclude that the agreement before us is indistinguishable from that in Hayes.

¶ 18. Moreover, our later characterization of the agreement in Hayes as calling for an amendment to the judgment of conviction was in the context of refuting an argument that, because prosecutors can amend charges before a judgment of conviction is entered, we should conclude that they can also agree to do so afterward. See id. at 426-27. Our point in Hayes was that, once a charge becomes a conviction, a prosecutor may not amend it, because amending the charge would also necessarily require amending the judgment of conviction to reflect the reduced charge, which no statute authorizes either a prosecutor or trial court to do. Id. at 427. We are bound by that conclusion. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).

¶ 19. The State next asserts that the plea agreement permits the State to move to reopen-and-amend , at any time, including before Dawson completes his five-year term of probation. The record, however, does not support the State's assertion of what the parties agreed to. At the plea hearing, the prosecutor told the court that the plea agreement included a provision that "should there be a successful completion of the period of probation, we would move to reopen and amend the charge to intentional physical abuse of a child" (emphasis added). Later, at sentencing, the prosecutor again explained to the court that "[t]he agreement, your Honor, called for upon successful completion of probation we'd amend to physical abuse of a child" (emphasis added).

¶ 20. As Hayes makes clear, this "additional reward for successful.. . probation" is not authorized by law. Hayes, 167 Wis. 2d at 428. The State asserts, however, that nothing in Hayes prohibits it from moving to reopen and amend the charge several months before the end of Dawson's probation term. It argues that we should permit Dawson's plea to stand with the proviso that the State time its motion in this fashion, thereby preserving "an agreement with a possibility of performance." Although the agreement in Hayes, like this one, called for a motion to reopen and amend upon successful completion of probation, we do not read our decision as leaving open the loophole the State proposes.

¶ 21. What precluded enforcement of the reopen- and-amend provision in Hayes was not the timing of the motion but the lack of statutory authority for granting it. We concluded in Hayes that there was simply no statutory authority for a court to reopen a judgment convicting a defendant of a felony and amend it to a lesser charge. Id. at 427-28. We now conclude that this is so regardless of whether a motion seeking to reopen and amend is filed before or after a probation term has ended.

¶ 22. Next, noting that the trial court was under no obligation to grant a future motion to reopen the case and amend the charge, the State asserts that Dawson could not have reasonably relied when entering his plea on ever obtaining that result. We agree with the State that there were no guarantees given to Dawson in the plea agreement that his charge would definitely be reduced to a lesser one at some future time. As we have noted, Dawson was informed before entering his plea that the sentencing court was not bound by any plea agreement between him and the State, and the court could have expressly rejected the provision at the time of sentencing (although we have concluded that it did not do so, see footnote 2). The State's obligation to make the motion was also conditioned on Dawson successfully completing his probation. Finally, of course, the State did not promise, because it could not, that the court would grant the motion if and when it was made.

¶ 23. The State's argument is essentially that, because the postconviction reduction of Dawson's charge was conditional and subject to a future exercise of trial court discretion, the fact that it was also impossible to achieve should be deemed of little or no consequence. We disagree. Despite the fact that Dawson's ultimate attainment of a reduced charge was by no means certain, what he bargained for and relied on in deciding to plead no contest to felony sexual assault was the possibility of achieving that outcome. He was told that if he successfully completed probation, the State would move to reopen and amend the charge to a lesser one, which presumably both he and the State would then attempt to persuade the court to order. As we have explained in discussing the State's argument that the trial court rejected the reopen-and-amend provision at sentencing, the fact that the trial court might not be persuaded to ultimately grant the reduction in charge does not mean that the opportunity to seek the reduction, and the possibility of obtaining it, were not strong incentives to Dawson to plead no contest.

¶ 24. The State's final argument is that, because the reopen-and-amend provision is conditioned on Dawson's successful completion of five years' probation (which will not occur until 2006 and, as the State notes, may never occur if Dawson's probation is revoked), Dawson's claim is not yet "ripe" for adjudication. This argument, however, misses the point of Dawson's claim and the relief he seeks. He is not asking for the plea agreement to be enforced, as did the defendant in Hayes; rather, Dawson wants to withdraw his plea because he now knows he can never get what he bargained for, even if his performance on probation is exemplary. The infirmity in the plea agreement, and the unknowing and involuntary plea it produced, are readily apparent from the record as it now exists, and there is thus no reason to require Dawson to wait until 2006 to seek to withdraw his plea. Moreover, it would be unfair to Dawson to require him to complete his term of probation before allowing him to request a plea withdrawal.

¶ 25. In sum, the State has not presented us with a valid rationale for upholding the denial of Dawson's plea withdrawal motion. Dawson has established that his plea was not knowing and voluntary because it was induced by the promise of a possible future benefit that could never be conferred. We thus conclude that, in order to avoid a manifest injustice, Dawson must be permitted to withdraw his plea. On remand, therefore, the criminal proceedings shall recommence with an arraignment on the charge set forth in the information. Additionally, if the State so requests, the charge of failing to report to jail in Dane County Case No. 00-CF-2310, which was dismissed as part of the plea agreement, shall be ordered reinstated. See State v. Howard, 2001 WI App 137, ¶ 38 n.11, 246 Wis. 2d 475, 630 N.W.2d 244 ("A defendant who successfully withdraws his or her pleas no longer has the benefit of any concessions or dismissals initiated by the State pursuant to the plea bargain.").

CONCLUSION

¶ 26. For the reasons discussed above, we reverse the appealed judgment and order, and we remand the case to the circuit court for proceedings consistent with this opinion.

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

       The trial court, in its ruling on Dawson's postconviction plea, withdrawal motion, referred to the prospective amended charge as a "misdemeanor." Similarly, the State characterizes the agreement in its brief as being "if Dawson successfully completed a five-year period of probation, the prosecutor would move to reopen the case and amend the charge from a felony to a misdemeanor." Finally, Dawson's statement to the court at sentencing suggests that he believed the agreement would allow him to avoid a permanent felony conviction. The only reference to the prospective amended charge at the plea hearing, however, was the State's description of it as "intentional physical abuse of a child." The plea questionnaire identified the amended charge as "physical abuse of a child," as did the State at sentencing. We note that Wis. Stat. § 948.03, captioned "Physical abuse of a child," currently includes several crimes of differing classifications depending on the actor's state of mind and the degree of harm suffered by the child, but none are misdemeanors. Our analysis is unaffected by whether the prospective amended charge was to be a misdemeanor or simply a lesser felony. We will refer to it as a "lesser" charge.

       We note that the State's claim that the trial court "rejected" the provision at sentencing finds no support in the record. It is true that the trial court did not order the reopen- and-amend provision to be incorporated in the judgment of conviction, but neither did it say anything to indicate that it had rejected that part of the parties' plea agreement. To the contrary, the court's comments at sentencing, which we have quoted above, convey that the court was receptive to a motion to reopen and amend, upon the filing of which, the court would review "all of the documents of his time on probation and everything else." Notwithstanding the trial court's later observation (when denying Dawson's postconviction motion) that "nothing in the Court's record.. . indicates that this Court approved or accepted the proposal to reopen and amend," we conclude that the record similarly provides no support for the State's assertion that the court had rejected it.

       We note that the State also argues that State v. Hayes, 167 Wis. 2d 423, 481 N.W.2d 699 (Ct. App. 1992), on which Dawson principally relies, actually supports the trial court's action in denying Dawson's request to withdraw his plea. The State points out that, even though the trial court in Hayes explicitly rejected the reopen-and-amend provision in the plea agreement, we "affirmed the judgment and sentence that followed on the plea." We reject the State's suggestion that our holding in Hayes stands for the proposition that defendants who rely on the possibility of obtaining a benefit provided for in a plea agreement that cannot legally be conferred are not entitled to withdraw their pleas. The defendant in Hayes sought to have the bargained provision declared valid and enforceable. See id. at 426-27. There is no indication in our opinion that the defendant in Hayes asked to withdraw his plea if the provision could not be enforced, and we did not address whether his plea was rendered unknowing and involuntary because of the unenforceable provision.

       We commented in Hayes that it might be "desirable if trial courts could amend a judgment of conviction as an additional reward for successful completion of probation," pointing out that Wis. Stat. § 973.015(1) provides for expunction of the record of a conviction for a misdemeanor committed by a person under the age of twenty-one, "upon successful completion of a sentence." In the intervening twelve years, the legislature has not granted courts the authority we found lacking in Hayes to amend felony convictions to lesser charges.


source: Caselaw Access Project

author: LUNDSTEN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Brandon L. Mason, Defendant-Appellant.
    Court of Appeals

      No. 03-2693-CR.

      Submitted on briefs April 22, 2004.

    Decided August 19, 2004.

    2004 WI App 176
    (Also reported in 687 N.W.2d 526.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ellen Henak, assistant state public defender of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Aaron R. O'Neil, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Vergeront, Lundsten and Higginbotham, JJ.
   LUNDSTEN, J.

¶ 1. Brandon Mason seeks resen-tencing. He argues that the circuit court misconstrued the felony murder statute, Wis. Stat. § 940.03 (1999-2000), and, therefore, miscalculated Mason's possible maximum term of initial confinement. For purposes of calculating initial confinement, it matters under truth-in-sentencing whether felony murder is a penalty enhancer added to the underlying crimes listed in that statute, or instead is a stand-alone unclassified crime. The circuit court concluded that felony murder is a penalty enhancement statute and, consequently, that felony murder/armed robbery has a maximum term of initial confinement of 40 years. However, we agree with Mason that attempted felony murder/armed robbery is a stand-alone unclassified crime with a maximum term of initial confinement of 37 years and 6 months. In the absence of a viable harmless error argument from the State, we reverse and remand for resentencing.

Background

¶ 2. The homicide victim, Adrian Drew, was in his car when he was approached by Mason. Mason wore a mask and displayed a handgun. Drew attempted to flee. Drew put his car into gear but, before he pulled away, Mason shot Drew in the chest. Drew drove off at a high rate of speed, but soon stopped and told his passenger he had been shot. Drew died at the scene. In addition to other evidence, Mason later admitted he was attempting to steal Drew's car.

¶ 3. Mason pled guilty to one count of felony murder/attempted armed robbery. At sentencing, the parties agreed that the maximum bifurcated penalty was 50 years, hut disagreed about the maximum period of initial confinement. The circuit court concluded that the felony murder statute is the "equivalent" of a penalty enhancer and, therefore, carried a possible period of initial confinement of 40 years. The circuit court sentenced Mason to a bifurcated sentence of 40 years, comprised of 27 years of initial confinement and 13 years of extended supervision.

Discussion

¶ 4. The resolution of this case turns on whether the felony murder statute, Wis. Stat. § 940.03, is a penalty enhancer added to the underlying crimes listed in that statute, or is instead a stand-alone unclassified crime. Although Mason's maximum bifurcated sentence is the same under either scenario, 50 years, the difference matters because it affects the calculation of Mason's maximum term of initial confinement under truth-in-sentencing. As summarized below, if the felony murder statute is a penalty enhancer, Mason's maximum term of initial confinement is 40 years. If, instead, felony murder is a stand-alone unclassified crime, Mason's maximum term of initial confinement is 37 years and 6 months.

¶ 5. Mason committed his crime on July 30, 2002. Accordingly, the applicable statutes are found in the 1999-2000 version of the statutes and, unless otherwise noted, all statutory references in this decision are to that version. Since then, parts of several statutes we discuss have changed. In footnotes, we comment on some of those changes to assist the reader in applying this decision to the current statutes.

Initial Confinement Calculation: Felony Murder as a Penalty Enhancer

¶ 6. Armed robbery, under Wis. Stat. §§ 943.32(2) and 973.01(2)(b)l., carries a maximum term of initial confinement of 40 years. This is true because, under those statutes, armed robbery is a Class B felony and the specified maximum initial confinement for a Class B felony is 40 years. Application of the attempt statute, Wis. Stat. § 939.32(1), reduces that term by half, to 20 years.

¶ 7. If the felony murder statute is treated as a penalty enhancer, it adds 20 years to the maximum term of initial confinement, for a total of 40 years of initial confinement. See Wis. Stat. § 973.01(2)(c); see also State v. Jackson, 2004 WI 29, ¶ 6, 270 Wis. 2d 113, 676 N.W.2d 872; State v. Volk, 2002 WI App 274, ¶¶ 35-36, 258 Wis. 2d 584, 654 N.W.2d 24.

Initial Confinement Calculation: Felony Murder as a Stand-Alone Unclassified Crime

¶ 8. Because attempted armed robbery, under Wis. Stat. §§939.32(1), 943.32(2), and 939.50(3)(b), carries a maximum bifurcated sentence of 30 years, and because the felony murder statute specifies that the maximum shall be 20 years more, the maximum bifurcated sentence for felony murder/attempted armed robbery is 50 years.

¶ 9. Under truth-in-sentencing, the term of initial confinement for unclassified felonies is subject to the "75% rule." Wisconsin Stat. § 973.01(2)(b)6. provides that the maximum term of initial confinement for an unclassified felony is "75% of the total length of the bifurcated sentence." This language remains unchanged, but has been renumbered to § 973.01(2)(b)10. (2001-02).

¶ 10. Thus, if felony murder/attempted armed robbery is treated as a stand-alone unclassified crime, Mason's maximum term of initial confinement is 75% of 50 years, or 37 years and 6 months.

Whether Felony Murder is a Penalty Enhancer or a Stand-Alone Unclassified Crime

¶ 11. We agree with Mason that resolution of this case depends on the proper construction of the felony murder statute. We review questions of statutory construction de novo. State v. Delaney, 2003 WI 9, ¶ 12, 259 Wis. 2d 77, 658 N.W.2d 416.

¶ 12. The last time a majority of the supreme court expressly took up and set forth governing principles of statutory construction was in State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶¶ 44-46, 271 Wis. 2d 633, 681 N.W.2d 110. The author of Kalal subsequently provided a summary of that decision:

"[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect."... 'We assume that the legislature's intent is expressed in the statutory language."
Thus, statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.
"[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Statutes are read where possible to give reasonable effect to every word, to avoid surplusage. "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning."...
... "[S]cope, context, and purpose are perfectly relevant to a plain meaning interpretation of an unambiguous statute as long as the scope, context, and purpose are ascertainable from the text and structure of the statute itself, rather than extrinsic sources, such as legislative history."
... Wisconsin courts generally do not consult extrinsic sources of interpretation, such as legislative history, unless the statute is ambiguous .... If the language of the statute is ambiguous even when considered in light of its textually ascertainable context, scope, and purpose, then the primary intrinsic analysis has been exhausted and secondary extrinsic sources of interpretation become relevant.

State v. Hayes, 2004 WI 80, ¶¶ 105-09, 273 Wis. 2d 1, 681 N.W.2d 203 (Sykes, J., concurring) (citations omitted).

¶ 13. Accordingly, we will first attempt to resolve the dispute before us by looking at "the scope, context, and purpose [that] are ascertainable from the text and structure of the statute itself, rather than extrinsic sources, such as legislative history." Kalal, 271 Wis. 2d 633, ¶ 48.

¶ 14. The version of Wis. Stat. § 940.03 in effect at the time of Mason's crime provided as follows:

Felony murder. Whoever causes the death of another human being while committing or attempting to commit a crime specified in s. 940.225(1) or (2)(a), 943.02, 943.10(2) or 943.32(2) may be imprisoned for not more than 20 years in excess of the maximum period of imprisonment provided by law for that crime or attempt.

¶ 15. This statute shares a key characteristic with recognized penalty enhancers: it adds a specified term to the maximum penalty applicable to underlying crimes based on the presence of an additional element. This differentiates felony murder from the burglary statutes we recently construed in State v. Beasley, 2004 WI App 42, ¶¶ 12, 15, 271 Wis. 2d 469, 678 N.W.2d 600. In Beasley, we concluded that the various types of burglary were stand-alone crimes in part because the various types of aggravated burglary are designated as Class B felonies; there is no add-on structure to the penalty provision.

¶ 16. On the other hand, like the statute in Beasley, felony murder is located not in Chapter 939, but in one of the chapters of the criminal code that define substantive crimes. Also like the statute in Beasley, the felony murder statute fully defines crimes not by detailing all the elements, but by referencing some elements located elsewhere. Id., ¶ 15 ("Section 943.10(2) incorporates the definition of burglary contained in § 943.10(1).").

¶ 17. We conclude that an analysis of "the scope, context, and purpose" that is "ascertainable from the text and structure of the statute itself," Kalal, 271 Wis. 2d 633, ¶ 48, does not unambiguously disclose whether the legislature intended that felony murder be a penalty enhancer or a stand-alone crime. Accordingly, we turn our attention to legislative history and other extrinsic aids. Unfortunately, although the statute has much history, almost none of it sheds light on the question before us. Rather than spend time explaining why we find various legislative history arguments made by Mason and the State unpersuasive, we will direct our attention to the one aspect of that history that does shed some light on relevant legislative intent.

¶ 18. In 1955, the penalty structure in the felony murder statute, then called third-degree murder, was similar to its current form. The penalty for felony murder was arrived at by adding 15 years to the penalty for other crimes. Wis. Stat. § 940.03 (1955). The penalty structure changed in 1977. As part of a broad penalties reclassification in 1977, the add-on penalty structure of felony murder was deleted and the crime was designated as a Class B felony. See Walter Dickey, David Schultz, and James L. Fullin, Jr., The Importance of Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis. L. Rev. 1323,1366; Wis. Stat. § 940.02(2) (1977). With this change, felony murder was no longer structured like a penalty enhancer. In fact, under the analysis we recently used in Beasley, 271 Wis. 2d 469, ¶¶ 12, 15, it seems apparent that we would have concluded that felony murder — designated as a Class B felony — was a stand-alone crime. Like the statute at issue in Beasley, this prior version of the felony murder statute contained all of the elements of the crime and specified the penalty as a particular class of felony. See id., ¶ 15 ("This language [in Wis. Stat. § 943.10(2)(a)] does not add an additional penalty to an underlying crime; it fully defines a distinct Class B felony. Section 943.10(2) incorporates the definition of burglary contained in § 943.10(1).").

¶ 19. Of course, felony murder is no longer a Class B felony and the question is why. As the Dickey article explains, there was widespread agreement that classifying felony murder as a Class B felony was a mistake, but there was sharp disagreement on the solution. A prolonged and complicated debate ensued over how to amend the statute or whether to repeal it. Dickey, 1989 Wis. L. Rev. at 1366-70. The debate involved many aspects of the crime and its interaction with other crimes, but what is missing from information we have about that debate is any suggestion that the legislature thought it was dealing with a penalty enhancer. Id. When yet another bill to amend felony murder was introduced in 1987 — the year the statute was finally amended once more to, essentially, its current form— that bill would have made felony murder a Class A felony. Id. at 1370. A compromise led to a return to the penalty structure prior to 1978, but that compromise, so far as we can tell, had nothing to do with whether felony murder was considered a stand-alone crime or a penalty enhancer. See id. at 1366-70.

¶ 20. Therefore, we are persuaded that the legislature believed it was addressing a stand-alone crime, not a penalty enhancer. To summarize, the legislature at one time designated felony murder as a Class B felony, thus eliminating the primary reason the State now contends felony murder is a penalty enhancer: its add-on penalty structure. Further, in fixing unrelated problems, the legislature considered retaining the designated felony approach by making felony murder a Class A felony. We think it apparent that if the legislature thought it was dealing with a penalty enhancer, some part of the debate would reflect the need to return to an add-on penalty structure so as to restore the statute to penalty-enhancer status. However, we find no indication that this was part of the debate. Rather, the legislature returned to the old penalty language for reasons unrelated to whether the statute was thought to be a penalty enhancer.

¶ 21. This is a close case. But the relevant legislative history indicates that the legislature considers felony murder to be a stand-alone substantive crime. Accordingly, we agree with Mason that the circuit court sentenced him under an erroneous view of the maximum term of initial confinement.

¶ 22. The State argues that, even if the circuit court acted under a misapprehension of the true maximum term of initial confinement, the error was harmless because the circuit court imposed a term of initial confinement of 27 years, well below the true maximum of 37 years and 6 months. In support, the State relies on State v. Quiroz, 2002 WI App 52, ¶¶ 5-16, 251 Wis. 2d 245, 641 N.W.2d 715. However, the State's reliance on Quiroz is misplaced.

¶ 23. The defendant in Quiroz needed to demonstrate a manifest injustice as a prerequisite to plea withdrawal. Id., ¶ 7. The defendant complained that his plea was not knowingly and voluntarily entered because the circuit court misinformed him about the maximum penalty. Id., ¶ 8. After explaining that the circuit court correctly calculated the maximum and provided accurate information to the defendant, we went on to say:

Furthermore, even if the maximum penalty had been overcalculated, which we have determined it was not, Quiroz fails to establish that a plea withdrawal would correct a manifest injustice. Quiroz was sentenced to twelve years in prison, less than the fourteen-year maximum correctly calculated by the court and less than the thirteen-year maximum incorrectly calculated by Quiroz. No matter which way the maximum sentence is calculated, Quiroz received less than the maximum.

Id., ¶ 16. Thus, the issue in Quiroz was not whether this court may or should order resentencing when a sentencing court acts under a misapprehension of an applicable maximum sentence. Rather, we opined that the defendant in that case did not establish a "manifest injustice" warranting plea withdrawal because his sentence was less than the maximum, even assuming a lower maximum than contemplated by the sentencing court.

¶ 24. The State provides no other authority for its harmless error argument and, in the absence of any additional developed argument on the topic, we decline to declare the error harmless. Accordingly, we remand for resentencing.

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

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The current statutes also produce different terms of initial confinement depending on how felony murder is viewed. Armed robbery is currently a Class C felony, carrying a maximum term of initial confinement of 25 years. Wis. Stat. §§ 943.32(2) and 973.01(2)(b)3. (2001-02). Application of the attempt statute, Wis. Stat. § 939.32(1) and (lg) (2001-02), reduces that term by half, to 12 years and 6 months. The current felony murder statute, Wis. Stat. § 940.03 (2001-02), if treated as a penalty enhancer, adds 15 years to the maximum term of initial confinement, for a total of 27 years and 6 months of initial confinement.
      On the other hand, if the current felony murder statute is treated as an unclassified stand-alone crime, felony murder/ attempted armed robbery carries a maximum term of initial confinement of 26 years and 3 months. Under the current statutes, armed robbery is a 40-year Class C felony. Wis. Stat. §§ 943.32(2) and 939.50(3)(c) (2001-02). Cutting that maximum in half under the attempt statute produces a maximum bifurcated sentence of 20 years. Because the current felony murder statute specifies that the maximum shall be 15 years more,' the maximum bifurcated sentence for felony murder/attempted armed robbery is 35 years. Applying the 75% rule found in Wis. Stat. § 973.01(2)(b)10 (2001-02) yields a maximum term of initial confinement of 26 years and 3 months.

       We note that for purposes of the question presented here there does not appear to be any relevant difference between this statute and the current statute. The current version of Wis. Stat. § 940.03 (2001-02) reads:
      Felony murder. Whoever causes the death of another human being while committing or attempting to commit a crime specified ins. 940.225(1) or (2)(a), 943.02,943.10(2), 943.23(lg), or 943.32(2) may be imprisoned for not more than 15 years in excess of the maximum term of imprisonment provided by law for that crime or attempt.

       The State has not argued that the error was harmless under reasoning analogous to that used in penalty enhancer cases in which error with respect to a penalty enhancer is ignored if the penalty enhancer is not used to enhance a sentence. See State v. Kourtidias, 206 Wis. 2d 574, 590, 557 N.W.2d 858 (Ct. App. 1996). We mention this possible harmless error argument solely because we think many readers will wonder whether the argument was made. It was not. We stress that we express no opinion on the topic.

       Mason also argues that the circuit court erred when, at sentencing, the court considered the victim's good character and standing as a community leader when determining the severity of Mason's crime. Mason acknowledged that, at the time of briefing, this issue was controlled by our decision in State v. Gallion, 2002 WI App 265, 258 Wis. 2d 473, 654 N.W.2d 446. But Mason pointed out that the supreme court had granted review in Gallion. The supreme court has now issued its Gallion decision, and that decision affirms our conclusion that a sentencing court may consider a victim's good character. State v. Gallion, 2004 WI 42, ¶ 68, 270 Wis. 2d 535, 678 N.W.2d 197 ('We reject Gallion's assertion that the good character of the victim is irrelevant."). It follows that we must reject Mason's argument here.


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jimmie R.R., Defendant-Appellant.
    Court of Appeals

      No. 02-1771-CR.

      Oral argument April 10, 2003.

    Decided August 25, 2004.

    2004 WI App 168
    (Also reported in 688 N.W.2d 1.)

      On behalf of the defendant-appellant, there was a brief and oral argument by Martha K. Askins, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Diane M. Welsh, assistant attorney general. There was oral argument by Lara M. Herman.

    Before Brown, Nettesheim and Snyder, JJ.
   BROWN, J.

¶ 1. Jimmie R.R., under oath at trial, denied sexually assaulting his five-year-old daughter. Following his convictions for sexual assault and incest but prior to sentencing, Jimmie changed his story at the urging of his defense presentence investigator and admitted committing the assaults. Subsequently, the district attorney charged Jimmie with perjury, theorizing that Jimmie had lied under oath to avoid conviction and then admitted committing the crimes during the sentencing phase in hopes of receiving a lighter sentence. At the perjury trial, without any objection from Jimmie's attorney, both the court-ordered presentence investigator and Jimmie's own presentence investigator testified. The primary issue before us is whether Jimmie's counsel's failure to object to their testimony constitutes ineffective assistance of counsel.

¶ 2. We heard oral argument in this case on April 10, 2003. We placed this case on hold pending the supreme court's decision in State v. Greve, 2004 WI 69, 272 Wis. 2d 444, 681 N.W.2d 479, a case which we certified to the supreme court and has now been released. In Greve, the court held that State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989), and Wis. Stat. § 972.15 (2001-02) require court-ordered presentence investigation reports to remain confidential unless the court authorizes their release, but do not require confidentiality for a defendant's sentencing memorandum. See Greve, 681 N.W.2d 479, ¶¶ 1-2. We, therefore, hold that Jimmie's counsel's failure to object to the testimony of the court-ordered presentence investigator constitutes deficient performance, but his failure to object to the testimony of the defense presentence investigator does not. However, because the defense presentence investigator's testimony was properly before the jury, there was sufficient evidence to convict Jimmie of perjury and counsel's error was not prejudicial. We also reject Jimmie's other claims. We affirm the judgment of conviction and the order denying postcon-viction relief.

¶ 3. The pertinent facts are as follows. In 1997, the State charged Jimmie with three counts of first-degree sexual assault of a child and three counts of incest with a child for an incident involving his five-year-old daughter, Cassandra. The case proceeded to a jury trial. Jimmie testified on his own behalf and denied ever having touched Cassandra sexually. The jury convicted Jimmie on all counts.

¶ 4. Following the convictions, the court ordered a presentence investigation. Douglas Geske, a probation and parole agent, was assigned to prepare the presen-tence investigation report. Geske interviewed Jimmie on at least three occasions as part of his presentence investigation. Jimmie initially told Geske that Cassandra's mother and her son were framing Jimmie for an offense that the son actually committed. Geske testified that the second time they met, Jimmie told him that he was very intoxicated on the day the assaults took place and he could not remember what happened.

¶ 5. Prior to sentencing, Jimmie's counsel hired Will Swierenga, an independent presentence investigator, to prepare a defense sentencing memorandum. Swierenga recalled meeting with Jimmie twice. When Swierenga began the interview process, Jimmie denied committing the offenses; he blamed the victim for the assaults. Swierenga walked Jimmie through the process of breaking down his denial. During this process, it was Swierenga's practice to look for signs of remorse and victim empathy, which he believed could help mitigate Jimmie's sentence. In an effort to facilitate the process, Swierenga informed Jimmie that it would be to his benefit for him to admit to Swierenga that he had engaged in wrongful conduct. As Jimmie gained confidence in the process of working through his denial, he was able to admit his involvement in the incident to Swierenga.

¶ 6. Following Jimmie's admission, Swierenga called Geske and informed him that Jimmie had changed his story and would like to speak with him again. Geske then met with Jimmie a final time. According to Geske, he did not tell Jimmie during this final interview to confess nor did he tell him that it would be better for him if he would admit committing the assaults because he might get a lighter sentence. However, Jimmie ultimately confessed to Geske.

¶ 7. Swierenga testified at the sentencing hearing, but Geske did not. Swierenga's testimony established that after initially denying the crimes, Jimmie admitted involvement in the crimes. The court sentenced Jimmie to sixty-four years in prison.

¶ 8. In 2001, the State filed a criminal complaint charging Jimmie with perjury, stemming from Jimmie's testimony at his trial for sexual assault. The State alleged that Jimmie committed perjury when he testified on his own behalf and denied committing the assaults. The State's witnesses were an officer who investigated the sexual assault allegations, Geske, Swierenga and Cassandra, who appeared by a videotaped statement that had also been played at the sexual assault trial. Jimmie's counsel did not object to either Swierenga's or Geske's testimony, both of whom testified about the course of events leading up to Jimmie's admission. The jury convicted Jimmie of perjury.

¶ 9. Jimmie filed a postconviction motion alleging that he was denied the effective assistance of counsel in a variety of ways and that he should get a new trial on those grounds and in the interests of justice. His primary claim was that he did not receive effective assistance of counsel in the perjury trial because his attorney failed to object to Geske's testimony. He reasoned that pursuant to Crowell and its interpretation of Wis. Stat. § 972.15, presentence investigation reports are confidential and cannot be used against a defendant at trial.

¶ 10. At the postconviction motion hearing, Jimmie's trial counsel testified that the theory of defense in the perjury trial was that Jimmie was truthful when he testified at his sexual assault trial and denied the charges, but that Jimmie lied to the presentence investigators in the hopes of receiving a lighter sentence. When asked about the admissibility of Geske's testimony, his attorney testified that he did not research the admissibility of information obtained during the presentence investigation as evidence, did not consider moving to strike Geske's testimony and had not reviewed Crowell prior to the perjury trial. He stated that he would have objected to Geske's testimony had he been aware of Crowell prior to the perjury trial. The trial court denied Jimmie's postconviction motion. Jimmie now appeals.

¶ 11. As noted at the outset, the primary issue in this appeal is Jimmie's ineffective assistance of counsel claim pertaining to his counsel's failure to object to Swierenga's and Geske's testimony at the perjury trial. To show ineffective assistance of counsel, the defendant must show that the attorney's performance was deficient and that such performance prejudiced the defense. State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). Performance is deficient if it falls outside the range of professionally competent representation. See id. at 636-37. We measure performance by the objective standard of what a reasonably prudent attorney would do in similar circumstances. See id.; Strickland v. Washington, 466 U.S. 668, 688 (1984). We indulge in a strong presumption that counsel acted reasonably within professional norms. Pitsch, 124 Wis. 2d at 637.

¶ 12. As to prejudice, it is not enough for a defendant to merely show that the alleged deficient performance had some conceivable effect on the outcome. State v. Erickson, 227 Wis. 2d 758, 773, 596 N.W.2d 749 (1999). Rather, the defendant must show that, but for the attorney's error, there is a reasonable probability that the result of the trial would have been different. Id.

¶ 13. A claim of ineffective assistance of counsel presents a mixed question of fact and law. State v. O'Brien, 223 Wis. 2d 303, 324-25, 588 N.W.2d 8 (1999). Upon appellate review, we will affirm the trial court's findings of historical fact concerning counsel's performance unless those findings are clearly erroneous. Id. However, the ultimate question of effective assistance is one of law, subject to independent review. Id. at 325.

¶ 14. The thrust of the parties' dispute in their briefs and at oral argument concerned the application of Crowell, which was the lead case at the time addressing the confidentiality of presentence investigation reports, to the facts of this case. Jimmie argued that his counsel should have objected to Swierenga's and Geske's testimony on the grounds that the confidentiality requirements espoused in Crowell and Wis. Stat. § 972.15 prohibited their use. He further submitted that his counsel's failure to object to the testimony was prejudicial. The State, on the other hand, maintained that Crowell had to be limited to its facts. According to the State, Crowell and § 972.15 only prohibited use of information obtained during the presentence investigation in a subsequent trial concerning the same charges, but did not prohibit use of the information in subsequent prosecutions for different offenses.

¶ 15. As explained, since the parties briefed and argued the issue, the supreme court has released Greve. In Greve, the supreme court revisited Crowell and Wis. Stat. § 972.15 and considered their application to defense sentencing memoranda. Therefore, we will discuss Greve, in addition to Crowell, in our analysis of Jimmie's ineffective assistance of counsel claim.

¶ 16. In Crowell, the defendant was allowed to withdraw his guilty plea after the presentence investigation had already taken place. Crowell, 149 Wis. 2d at 861-62. During the ensuing jury trial, the probation and parole officer who conducted the investigation was allowed to testify about certain inculpatory statements Crowell made during the presentence investigation and Crowell was convicted. Id. at 862. On appeal, Crowell argued that confidentiality protections built into Wis. Stat. § 972.15(4) prohibited the officer from testifying at the subsequent trial. Section 972.15, entitled "Pre-sentence investigation," provides, in relevant part:

(1) After a conviction the court may order a pre-sentence investigation, except that the court may order an employee of the department to conduct a presen-tence investigation only after a conviction for a felony.
(4) After sentencing, unless otherwise authorized under sub. (5) or ordered by the court, the presentence investigation report shall be confidential and shall not be made available to any person except upon specific authorization of the court.

¶ 17. After examining the purposes of a presen-tence investigation and the confidentiality provisions of Wis. Stat. § 972.15, the court held that the trial court erred in allowing the officer to testify at trial about the statements Crowell made during the investigation. Crowell, 149 Wis. 2d at 872-73. The court explained that the legislature intended to preclude a later use of presentence investigations in order to ensure the continued cooperation of defendants in the presentence investigation process. Id. at 869. "The quality and accuracy of the presentence investigation report [and therefore its helpfulness to the court] depend in large measure on the cooperation of the defendant." Id. If a defendant realizes that what he or she tells the presen-tence investigator can be used against him or her at trial, he or she "would he reticent to reveal potentially dangerous facts, and the information gathering process for sentencing purposes would be significantly inhibited." Id.

¶ 18. In Greve, the court both reaffirmed Crowell's holding that Wis. Stat. § 972.15 requires court-ordered presentence investigation reports to remain confidential and spoke to the question of whether Crowell and § 972.15 similarly protect defense sentencing memoranda. There, Greve pled guilty to first-degree sexual assault of a child. Greve, 681 N.W.2d 479, ¶ 3. In his defense sentencing memorandum submitted to the court, Greve made inculpatory statements regarding the sexual assault for which he was convicted. Id. Greve successfully appealed the judgment of conviction. Id., ¶ 4. After remand, the State sought permission to introduce Greve's inculpatory statements in the sentencing memorandum into evidence at the subsequent trial. Id., ¶ 5.

¶ 19. On appeal, Greve contended that because the court concluded in Crowell that Wis. Stat. § 972.15 prevents the subsequent use of a court-ordered presen-tence investigation report, and a defendant's sentencing memorandum serves the same purpose as a court-ordered presentence investigation report, § 972.15 protected his sentencing memorandum as well. Greve, 681 N.W.2d 479, ¶ 13. The State argued that both the statute and Crowell apply only to court-ordered presen-tence investigation reports. Greve, 681 N.W.2d 479, ¶ 13.

¶ 20. A majority of our supreme court held that neither the language of Wis. Stat. § 972.15 nor its decision in Crowell applies to a defendant's sentencing memorandum. Greve, 681 N.W.2d 479, ¶ 2. The court first walked through each of the subsections of § 972.15 individually, explaining that because each subsection specifically referred only to court-ordered presentence investigations, the legislature could not have intended for a defendant's privately prepared sentencing memorandum to be included within the ambit of the statute. See Greve, 681 N.W.2d 479, ¶¶ 16-20. The court then rejected Greve's argument that Crowell was broadly written and therefore elastic enough to be expanded to apply its concepts to a defendant's sentencing memorandum. Greve, 681 N.W.2d 479, ¶ 21. The court reasoned that Crowell was strictly a statutory interpretation case which applied only to court-ordered presentence investigations. Greve, 681 N.W.2d 479, ¶ 21. The majority of the court also held that public policy did not justify extending confidentiality to statements a defendant makes to the preparer of his or her sentencing memorandum and a plurality of the court concluded that a defendant's constitutional right to due process would not be violated by the use of his or her sentencing memorandum in a subsequent criminal trial. Id., ¶¶ 2, 39. Accordingly, the court held that Greve's sentencing memorandum was admissible at the second trial.

¶ 21. Having set forth the applicable law, we now apply it first to Swierenga's and then to Geske's testimony. Greve provides a direct response to Jimmie's intimations that his counsel should have used Crowell as a springboard for objecting to Swierenga's testimony. The Greve court's discussion of Crowell and Wis. Stat. § 972.15 makes it clear that there is no right to confidentiality of information obtained during a defense presentence investigation. Thus, Jimmie's counsel's failure to object to Swierenga's testimony did not constitute deficient performance.

¶ 22. We anticipate that Jimmie would argue that the interlocking nature of Swierenga's and Geske's testimony demands that we create an exception to Greve. We expect that Jimmie would argue that because Swierenga contacted Geske and relayed to him the information about Jimmie's confession, he was an agent of Geske and, therefore, Swierenga's testimony would be prohibited under Crowell. If this is to be Jimmie's argument, we reject it. Jimmie's counsel hired Swierenga. Swierenga advised Jimmie that the court looks kindly on expressions of remorse and empathy. In obtaining the confession, Swierenga acted on his own, based on his professional expertise, and such action was independent of Geske. Swierenga testified to this at the sentencing hearing for the sexual assault case. Thus, the State had an independent basis for charging Jimmie with perjury. Accordingly, we reject what we anticipate would be Jimmie's argument regarding the creation of an exception to Greve.

¶ 23. While Swierenga's testimony was admissible, Geske's was not. Crowell, which Greve reaffirmed, plainly instructs that information obtained during a court-ordered presentence investigation must remain confidential unless the court has specifically authorized its use under the limited confidentiality exception provided in Wis. Stat. § 972.15(4). Indeed, Jimmie's counsel admitted at the Machner hearing that he had not researched the admissibility of Geske's testimony prior to the perjury trial and had he read Crowell, he would have objected to Geske's testimony. Because Jimmie's counsel did not object to Geske's testimony, the court did not have the opportunity to review the propriety of authorizing the release of the information Geske obtained during the investigation.

¶ 24. The State's attempt to limit Crowell to cases where the State seeks to use information from the presentence investigation at a trial following the withdrawal of a guilty plea must fail. The rationale behind the Crowell court's decision supports a broader application of Wis. Stat. § 972.15. The Crowell court was concerned that if a defendant was fearful that the information he or she provided an investigator could be used at a subsequent trial to obtain a conviction, the defendant would be less forthcoming with potentially dangerous facts, thereby jeopardizing the sentencing process. This concern is present regardless of whether that subsequent trial concerns the same or a different charge. Accordingly, we reject the State's argument that Geske's testimony was properly before the court and conclude that Jimmie's counsel's failure to object to Geske's testimony constitutes deficient performance.

¶ 25. Because we determined that Jimmie's counsel performed in a deficient manner, we now must address whether his counsel's deficient performance prejudiced his defense. The central issue for the jury in the peijury case was one of credibility — whether to believe Jimmie's story that he told the truth while he was on the stand at the sexual assault trial. Although Swierenga did not testify that Jimmie lied during the sexual assault trial, he did testify about the process he used with sex offenders to help them go from denial to responsibility. He testified that it was his practice to inform defendants, such as Jimmie, that it would be to their benefit to tell the truth and show remorse at the sentencing stage because it could potentially mitigate the sentence they received. His testimony demonstrated that he walked Jimmie through this process and saw Jimmie progress from blaming the victim to accepting responsibility for the crime. In light of Swierenga's testimony, the impact of Geske's testimony — which only served to confirm that Jimmie changed his story during the sentencing phase — on the jury's credibility determination was minimal. Our confidence in the outcome of the trial, therefore, is not undermined by the failure of Jimmie's counsel to object to Geske's testimony. We reject Jimmie's ineffective assistance of counsel claim as it pertains to Geske's testimony.

¶ 26. Having ruled as we did, we take a moment to express our concerns about the policy implications of this decision. On the one hand, it is important to encourage defendants to tell the truth on the stand, see State v. Canon, 2001 WI 11, ¶ 9, 241 Wis. 2d 164, 622 N.W.2d 270 (recognizing that the crime of perjury erodes the integrity of our judicial system), and it is equally important that the district attorney have the power to prosecute defendants when they fail to do so. On the other hand, we want to rehabilitate sexual offenders by encouraging them to work through their denial and admit their involvement in the crime. As noted by counsel at oral argument, admission of criminal activity is the single most important treatment goal for sexual offenders. Moreover, in order for the trial court to make appropriate sentencing decisions, it needs to be presented with accurate and reliable information. In order to facilitate this goal, it is important for the court to foster an environment where defendants feel comfortable confessing their guilt without repercussions.

¶ 27. Thus, we are presented with competing interests. We are concerned that the regular use of the perjury statutes may chill free and unfettered posttrial admissions, which are so necessary for rehabilitation and sentencing. However, a misuse of prosecutorial discretion challenge is not before us and we cannot address it here. Further, should prosecutors use this decision to charge defendants who admit guilt during the sentencing phase with perjury, the propriety of such charging decision is a question best left to the supreme court for a later date.

¶ 28. Jimmie also raises three other arguments on appeal. He claims that (1) he was entitled to Miranda warnings prior to the court-ordered presen-tence investigation, (2) his counsel was ineffective for failing to object to the introduction of evidence that he had been convicted of sexual assault, (3) his five-year-old daughter's videotaped statements were inadmissible and (4) he is entitled to a new trial in the interests of justice. We reject each of these arguments in seriatim.

¶ 29. In arguing that he is entitled to a new trial because he was not advised of his Miranda rights before making incriminating statements, Jimmie recognizes that the safeguards created in Miranda are inapplicable during a presentence interview where the interview is not accusatorial in nature. See Estelle v. Smith, 451 U.S. 454, 466-69 (1981); see also State v. Knapp, 111 Wis. 2d 380, 330 N.W.2d 242 (Ct. App. 1983). He contends, however, that the State's subsequent prosecution of him for perjury "converted the presentence process from an investigational process into an accusatorial one."

¶ 30. The trial court's findings of evidentiary or historical facts will not be overturned unless clearly erroneous. State v. Turner, 136 Wis. 2d 333, 343-44, 401 N.W.2d 827 (1987). However, questions of constitutional fact are subject to an independent appellate review and require an independent application of the constitutional principles involved to the facts as found by the trial court. Id. at 344.

¶ 31. The law is set forth in Estelle, a capital murder case from Texas. In Texas, capital cases are tried in bifurcated stages — a guilt phase and a penalty phase. Estelle, 451 U.S. at 457. Prior to trial, the trial court ordered a psychiatric examination of the defendant to determine whether he was competent to stand trial. Id. at 456-57.

¶ 32. After the defendant was convicted, the penalty phase of the trial was conducted. Id. Because the state was seeking the death penalty, the state had the burden, under Texas law, to show that the defendant would continue to endanger society. Id. at 457-58. To prove this element, the state introduced the testimony of the psychiatrist who had performed the pretrial examination. Id. at 458-59. The psychiatrist testified that based on his interview of the defendant, it was likely the accused would commit similar criminal acts in the future if given the opportunity to do so. Id. at 459-60.

¶ 33. The Supreme Court set aside the resulting death sentence, ruling that this use of the psychiatric interview violated Miranda. Estelle, 451 U.S. at 468-69. The Estelle Court required Miranda warnings because the psychiatrist went beyond simply reporting to the court his conclusions regarding competency. Rather, the results of his inquiry were used by the State to prove dangerousness, an element upon which the State still had the burden of proof for the penalty phase. Estelle, 451 U.S. at 466-67. The State had used the defendant's own statements, "unwittingly made [to the psychiatrist] without an awareness that he was assisting the State's efforts to obtain the death penalty." Id. at 466. It was under these distinct circumstances that the defendant's Fifth Amendment privilege was implicated. See id.

¶ 34. Here, unlike Estelle, the presentence investigation was not part of the accusatory stage of a criminal proceeding. Unlike the psychiatrist in Estelle, Geske could not have envisioned that he was going to be called upon to testify at an accusatory stage of a separate criminal proceeding. While Estelle does not say whether the psychiatrist had as part of his mission the investigation of dangerousness for the purpose of testifying at the penalty stage, there is nothing here to suggest that Geske was setting Jimmie up for a later perjury charge. Geske merely obtained Jimmie's statements in an effort to meet his obligation to develop an accurate appraisal of Jimmie's personality, social circumstances and general pattern of behavior, which then assisted the sentencing court in making an informed, thoughtful, and intelligent sentencing decision. Geske's interview was simply a routine and integral part of the sentencing process. Because the interview was routine and was not conducted while Jimmie's jeopardy was still in doubt, Jimmie, unlike the defendant in Estelle, was not entitled to Miranda warnings at his presen-tence interview.

¶ 35. In the midst of his Miranda argument in his brief, Jimmie also suggests that he was entitled to counsel at the presentence interview. Jimmie does not substantiate his claim of entitlement to counsel with any legal analysis or citation. Further, as Jimmie himself recognizes, in Knapp, we held that the Sixth Amendment does not entitle a defendant to the presence of an attorney at a presentence interview. Knapp, 111 Wis. 2d at 381. We, therefore, decline to address the right to counsel issue further. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

¶ 36. Jimmie raises two challenges to bis attorney's concession that the State could introduce evidence that he had been convicted of sexual assault. Jimmie first argues that his counsel was deficient for failing to object to the evidence of his conviction on the grounds that it was irrelevant. He claims the conviction was irrelevant because the verdict "does not make it either more probable or less probable that Jimmie lied on the witness stand."

¶ 37. However, Jimmie's own theory of defense, which was entirely reasonable given the circumstances of the case, makes the conviction relevant. At the Machner hearing, Jimmie's attorney stated: "Our theory of defense was that [Jimmie] lied to Will Swierenga and to Doug Geske to somehow acquire a lesser sentence." It would be illogical, if not impossible, to advance this theory of defense without the jury knowing that Jimmie had been convicted in the sexual assault trial. The evidence of his conviction supports his claim that he was motivated to lie only after wrongly being found guilty in an effort to obtain a lesser sentence. Jimmie's counsel simply could not have in good conscience objected to the conviction on the grounds that it was irrelevant.

¶ 38. Jimmie next suggests that the evidence of his conviction by a jury should have been excluded because it "constituted opinion evidence that Jimmie did not tell the truth when he denied committing the assaults[,]" thus "invad[ing] the province of the perjury jury." Jimmie claims his position is supported by the holdings of State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984), and State v. Kuehl, 199 Wis. 2d 143, 149, 545 N.W.2d 840 (Ct. App. 1995), which prohibit a witness, expert or otherwise, to give an opinion either on direct or cross-examination that another mentally and physically competent witness is telling the truth. This argument is without merit. Put simply, a jury is not a witness and a verdict is not an opinion. Because we conclude that Jimmie's attorney's concession that the State could introduce evidence of Jimmie's conviction did not constitute deficient performance, we reject his second ineffective assistance of counsel claim.

¶ 39. Jimmie next claims that the trial court erred in admitting into evidence the videotape of his five-year-old daughter under the residual exception to the hearsay rule, Wxs. Stat. § 908.03(24). He argues that Wis. Stat. § 908.08 is the sole vehicle through which videotaped statements of children can be admitted and Cassandra's videotaped statements do not satisfy the admissibility requirements of § 908.08. The State responds that the plain language of § 908.08(7) permits a court to admit a child's videotaped statement under any other hearsay exception that may apply to the statement, including the residual hearsay exception, and that Cassandra's statements qualified for admission under the residual hearsay exception.

¶ 40. Since the parties submitted their briefs in late 2002, we have partially resolved their dispute in another case. In State v. Snider, 2003 WI App 172, ¶¶ 1, 16, 266 Wis. 2d 830, 668 N.W.2d 784, review denied, 2003 WI 140, 266 Wis. 2d 62, 671 N.W.2d 849 (Wis. Oct. 1, 2003) (No. 02-1628-CR), we held that Wis. Stat. § 908.08(7) permits a trial court to admit a child's videotaped statement under the residual hearsay exception without requiring compliance with other provisions of § 908.08. We, therefore, next consider whether the trial court properly admitted Jimmie's daughter's statements pursuant to Wis. Stat. § 908.03(24), the residual hearsay exception. The admission of out-of-court statements pursuant to an exception to the hearsay rule is a determination left to the discretion of the trial court. State v. Huntington, 216 Wis. 2d 671, 680, 575 N.W.2d 268 (1998).

¶ 41. Here, the trial court properly looked to State v. Sorenson, 143 Wis. 2d 226, 245-46, 421 N.W.2d 77 (1988), which sets out the requirements for admitting into evidence the hearsay statements of child sexual assault victims under the residual exception to the hearsay rules, to support its conclusion that the videotaped statements were admissible. In Sorenson, the supreme court held that because there is "a compelling need for admission of hearsay arising from young sexual assault victims' inability or refusal to verbally express themselves in court... use of the residual [hearsay] exception [under Wis. Stat. § 908.03(24)] is an appropriate method to admit these statements if they are otherwise proven sufficiently trustworthy." Sorenson, 143 Wis. 2d at 243. Under the residual exception, hearsay evidence may be admitted at trial if it possesses " 'circumstantial guarantees of trustworthiness' comparable to those existing for enumerated exceptions." Id. (citation omitted).

¶ 42. We have already had the opportunity to review Cassandra's statements for their trustworthiness. In State v. Jimmie R.R., 2000 WI App 5, ¶¶ 2, 38, 45, 232 Wis. 2d 138, 606 N.W.2d 196, we held that the trial court properly admitted Cassandra's statements pursuant to Wis. Stat. § 908.08(3) because Cassandra "understood] that false statements are punishable and of the importance of telling the truth." Our discussion in Jimmie R.R. concerning Cassandra's responses to specific questions about telling the truth reveals that Cassandra possessed an appreciation of the difference between truth and falsehood. See Jimmie R.R., 232 Wis. 2d 138, ¶¶ 40-45. Further, there is no indication that the child had difficulty communicating with or comprehending questions from the interviewers or that her answers were at all false or deceitful. Finally, as noted in Jimmie R.R., the essential information conveyed by the videotape was corroborated by other admitted evidence. Id., ¶¶ 46-49 (citing the testimony of Cassandra's mother, Cassandra's brother and the interviewers, all of which substantiated Cassandra's story). Given these circumstances, we conclude that the Sorenson trustworthiness requirements were met and the trial court properly admitted the videotape into evidence pursuant to Wis. Stat. § 908.03(24).

¶ 43. Finally, Jimmie asks this court to order a new trial in the interests of justice because, he claims, the real controversy was not fully tried. He maintains that the arguments we rejected in our preceding discussions support his claim. He also contends that the prosecutor asked improper questions of him on cross-examination. We have reviewed the record and fail to find any impropriety necessitating a new trial. Since we have rejected all of Jimmie's alleged errors, we decline to order a new trial. See Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752 (1976) ("Zero plus zero equals zero.").

By the Court. — Judgment and order affirmed.

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

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

        Miranda v. Arizona, 384 U.S. 436 (1966).

       WISCONSIN Stat. § 908.08, entitled 'Videotaped statements of children," provides in pertinent part:
      (1) In any criminal trial or hearing... the court or hearing examiner may admit into evidence the videotaped oral statement of a child who is available to testify, as provided in this section.
      (2)(a) Not less than 10 days prior to the trial or hearing, or such later time as the court or hearing examiner permits upon cause shown, the party offering the statement shall file with the court or hearing officer an offer of proof.... That party shall give notice of the offer of proof to all other parties, including notice of reasonable opportunity for them to view the videotape prior to the hearing under par. (b).
      (b) Prior to the trial or hearing in which the statement is offered and upon notice to all parties, the court or hearing examiner shall conduct a hearing on the statement's admissibility. At or prior to the hearing, the court shall view the videotape. At the hearing, the court or hearing examiner shall rule on objections to the statement's admissibility in whole or in part....
      (3) The court or hearing examiner shall admit the videotape statement upon finding all of the following:
      (a) That the trial or hearing in which the videotape statement is offered will commence:
      1. Before the child's 12th birthday ...

        [2.](b) That the videotape is accurate and free from excision, alteration and visual or audio distortion.
      (c) That the child's statement was made upon oath or affirmation or, if the child's developmental level is inappropriate for the administration of an oath or affirmation in the usual form, upon the child's understanding that false statements are punishable and of the importance of telling the truth.
      (d) That the time, content and circumstances of the statement provide indicia of its trustworthiness.
      (e) That admission of the statement will not unfairly surprise any party or deprive any party of a fair opportunity to meet allegations made in the statement.
      (7) At a trial or hearing under sub. (1), a court or a hearing examiner may also admit into evidence a videotape oral statement of a child that is hearsay and is admissible under this chapter as an exception to the hearsay rule.

       Wisconsin Stat. § 908.03(24), the residual hearsay exception, provides: "A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness."