source: Caselaw Access Project

author: CURLEY, J. FINE, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Ricky J. Fortier, Defendant-Appellant.
    Court of Appeals

      No. 2004AP3189-CR.

      Submitted on briefs November 1, 2005.

      Decided December 28, 2005.

    2006 WI App 11
    (Also reported in 709 N.W.2d 893.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert N. Meyeroff of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sally L. Wellman, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Curley, JJ.
   CURLEY, J.

¶ 1. Ricky J. Fortier appeals from an order denying his motion to modify his sentence under Wis. Stat. § 974.06 (2003-04). He contends that he should not be procedurally barred from raising the issue of whether his sentence was illegally raised upon resentencing, even though he did not raise it in a response to a no-merit report at the time of appeal, because: (1) his raised sentence is analogous both to an illegal repeat-offender sentence, which can be raised in successive postconviction motions, and to an erroneous imposition of a probationary term, consecutive to a previous sentence of probation, which can be declared a nullity; and (2) where there is no new factor and the issue was not identified by either the appellate attorney or the appellate court after the no-merit report was filed, to hold that he should have identified the issue in his response to the no-merit report is unfair and unreasonable and constitutes a sufficient reason under § 974.06(4), why the issue was not previously raised. In his reply, Fortier also claims that a procedural bar would constitute a miscarriage of justice because his due process rights were violated by the increased sentence. Consequently, Fortier argues that his sentence was, in fact, illegally increased when a $1,000.00 fine, one-thousand hours of community service, and concurrent five-year revocations of his driver's license were added as conditions for probation, and should be reduced to the terms of the original sentence because the resentencing court articulated no new factors for increasing the original sentence.

¶ 2. We conclude that, despite his failure to raise the issue in a response to appellate counsel's no-merit report, Fortier is not procedurally barred from raising the issue of a sentence illegally raised upon resentenc-ing, because he had a sufficient reason under Wis. Stat. § 974.06(4) for failing to raise it. Consequently, the trial court's decision and order is reversed and the cause remanded for a hearing on the merits to determine whether Fortier's sentence was in fact illegally raised, and thus whether his sentence should be modified.

I. Background.

¶ 3. On November 6, 1998, the Milwaukee Police Department conducted a search pursuant to a search warrant of Fortier's residence at 3888 East High Street in the City of Oak Creek. The search warrant was issued based on an affidavit from a confidential informant. According to the affidavit, the informant had personally observed "an undetermined quantity of marijuana in separate bags and scales" in the residence within the past seventy-two hours, and the informant knew the substance was marijuana because the informant had, among other things, previously made two "controlled buys" of marijuana for law enforcement at a different location. According to the affidavit, the controlled buys were also a reason why the investigator found the informant to be credible.

¶ 4. Upon entry into Fortier's residence, officers observed Fortier trying to flee, but he was detained at a door and searched by a detective. In Fortier's shirt pocket, the detective found two bags of marijuana, weighing approximately six grams each, and one bag of cocaine, weighing approximately twenty-six grams. The search of Fortier's residence uncovered additional drugs, as well as drug paraphernalia, scales, material used to cook cocaine, and packaging material used to package controlled substances. Laboratory tests later revealed that the total quantities recovered were 22.652 grams of marijuana and 35.657 grams of cocaine.

¶ 5. Fortier was charged with possession with intent to deliver a controlled substance, cocaine, contrary to Wis. Stat. §§ 961.16(2)(b)(l) and 961.41(lm)(cm)(3) (1997-98). The State subsequently filed an amended information, which added two new charges: failure to pay controlled substance tax, contrary to Wis. Stat. §§139.87(2), 139.88(2), 139.89, 139.95(2), and 961.16(2)(b)(l) (1997-98); and possession of controlled substance, tetrahydrocannabinols (marijuana), contrary to Wis. Stat. §§ 961.14(4)(t), 961.01(14), and 961.41(3g)(e) (1997-98). Fortier pled not guilty to all charges.

¶ 6. The case proceeded to a jury trial. Fortier testified in his own defense and admitted that the drugs belonged to him, but denied intending to sell them and claimed that they were for personal use only. Investigators with drug enforcement experience testified that the quantity of cocaine found was so large that it was highly unlikely that it was intended for personal use, particularly when combined with the fact that the detectives recovered packaging material commonly used by drugs dealers. On January 14, 1999, the jury returned a verdict of guilty on all three counts. A sentencing hearing was held on February 24, 1999. Justifying the sentence recommended by the State, the assistant district attorney made the following statement: "The case was initiated based on a search warrant. The search warrant was based on controlled buys which were made out of his residence ...."

¶ 7. Before sentencing Fortier, consistent with the assistant district attorney's earlier statement, the court noted:

The reference to the controlled buys are set forth in the search warrant that was filed in which there was an issue that we discussed about disclosing the informant, but in that search warrant, the basis was that there were controlled buys by that informant out of the home, and the sheer amount of cocaine clearly reflects a sale.

¶ 8. The court sentenced Fortier to: (1) six years' imprisonment for possession with intent to deliver cocaine; (2) five years' imprisonment, to be served consecutive to the other sentences, but stayed and replaced by five years' probation, to be served consecutive to the other sentences, for failure to pay controlled substance tax; and (3) six months' imprisonment to be served concurrently with the sentence for the first count, for possession of marijuana. The court also imposed two six-month suspensions of Fortier's driver's license on counts one and three respectively, to run concurrently, as well as an additional six-month suspension on count two, to run consecutive to the suspensions on counts one and three. Judgment of conviction was entered accordingly.

¶ 9. On March 5,1999, Fortier filed a notice of his intent to pursue post-dispositional relief. He was appointed new postconviction counsel, who on August 4, 1999, filed a postconviction motion requesting resen-tencing. In his motion, Fortier explained that the mention of two "controlled buys" in the affidavit for the search warrant was in reference to two previous instances in which the informant had worked with law enforcement and was intended to justify why the investigator believed the informant was credible, and that the affidavit did not state that the informant had made controlled buys from Fortier or from Fortier's residence. Because the court accepted the assistant district attorney's erroneous statement that the search warrant was based on controlled buys out of Fortier's home, Fortier contended that he was sentenced based on inaccurate information. The trial court granted Fortier's motion for resentencing and vacated the previously imposed sentences.

¶ 10. On November 17, 1999, a resentencing hearing was held in front of a judge different from the one who originally sentenced Fortier. The new sentences were the same as the original, with the exception of the fact that the court added two new conditions for probation, on the failure to pay controlled substance tax count: a $1,000.00 fine and one-thousand hours of community service (comparable to approximately six months of forty-hour weeks), to be served within four years. The court also changed the suspensions of Fortier's driver's license from the previously imposed two concurrent six-month suspensions on counts one and three, and the consecutive six-month suspension on count two. The new sentence instead demanded concurrent five-year revocations on all three counts.

¶ 11. On December 6, 1999, Fortier filed a notice of intent to pursue postconviction relief. He was appointed new postconviction counsel, who filed a notice of appeal. Fortier's new attorney then proceeded to file a no-merit report with this court. Fortier was informed of his right to file a response to the no-merit report, but did not do so. The only issue addressed by the no-merit report was whether the circuit court erroneously exercised its discretion when it resentenced Fortier. This court concluded that, "[w]hile the circuit court could have reduced Fortier's sentence, it was not required to do so simply because the original sentencing court imposed its sentence, in part, on erroneous information." Accordingly, this court concluded that the record revealed no issues of potentially arguable merit and summarily affirmed the judgment of conviction.

¶ 12. On February 27, 2003, Fortier filed a motion with the trial court asking it to clarify the judgment as to the driver's license revocation to state that the two five-year periods would run concurrently, and to have the revocation commence on the date of conviction, rather than following release. The motion was denied.

¶ 13. On October 1, 2004, Fortier filed with the trial court a motion to reduce his sentence to the sentence given at the original sentencing "because the resentencing court gave no reason for increasing the sentence as to count two." On October 11, 2004, the trial court issued a decision and order denying Fortier's motion. The trial court based its decision on State v. Escalona-Naranjo, 185 Wis. 2d 168, 181, 517 N.W.2d 157 (1994), and concluded that Fortier was procedurally barred from pursuing the claim:

Section 974.06(4), Stats., requires a defendant to raise all grounds for postconviction relief in this original motion or appeal. Failure to do so precludes a defendant from raising additional issues, including claims of constitutional or jurisdictional violations, in a subsequent motion or appeal where those issues could have been raised previously. Escalona, supra. The defendant could have raised this claim in a response to the no-merit report. His failure to file any response is deemed as a waiver of his current challenge to the terms and conditions of his sentence.

¶ 14. Fortier now appeals the order denying his motion to reduce sentence.

II. Analysis.

¶ 15. Fortier contends that he should not be precluded from raising the issue of a sentence illegally raised upon resentencing, even though he failed to raise it in a response to the no-merit report at the time of the original appeal. We begin by addressing Fortier's argument that he should be permitted to raise the sentencing issue, because not to do so is unfair and unreasonable and constitutes a sufficient reason under Wis. Stat. § 974.06(4), why the issue was not previously raised, even though the issue was not identified by either the appellate attorney or the appellate court after a no-merit report was filed, and that he should not have been required to identify the issue in his response to the no-merit report. We conclude that Fortier is not procedurally barred from raising the sentencing issue.

¶ 16. It is well-settled that a defendant must raise all grounds for relief in his or her original, supplemental or amended motion for postconviction relief. Wis. Stat. § 974.06; Escalona, 185 Wis. 2d at 181. If a defendant's grounds for relief have been finally adjudicated, waived or not raised in a prior postconviction motion, they may not become the basis for a new postconviction motion, unless there is a "sufficient reason" for the failure to allege or adequately raise the issue in the original motion. Sec. 974.06; Escalona, 185 Wis. 2d at 181-82; see State v. Lo, 2003 WI 107, ¶ 44, 264 Wis. 2d 1, 665 N.W.2d 756 (reaffirming Escalona, 185 Wis. 2d at 181-82).

¶ 17. It is undisputed that Fortier could have raised the issue he now wishes to raise - whether his sentence was illegally raised when he was resentenced - in a response to his postconviction counsel's no-merit report, and it is equally undisputed that Fortier failed to do so since he did not file a response to the no-merit report. The issue thus becomes whether Fortier had a "sufficient reason" for failing to raise the issue. Wis. Stat. § 974.06; Escalona, 185 Wis. 2d at 181.

¶ 18. Because the facts and procedural history underlying this appeal are not in dispute, whether Fortier's appeal is procedurally barred by our prior no-merit decision pursuant to Escalona and Wis. Stat. § 974.06(4) is a question of law that we review de novo. See State v. Bodoh, 226 Wis. 2d 718, 724, 595 N.W.2d 330 (1999).

¶ 19. In State v. Tillman, 2005 WI App 71, ¶ 19, 281 Wis. 2d 157, 696 N.W.2d 574, this court recently considered the applicability of the procedural bar of Escalona to no-merit appeals, and concluded that the procedural bar of Escalona can indeed be premised upon a no-merit appeal. In Tillman, we also cautioned that Escalona's procedural bar is not absolute, and held:

[I]n considering whether to apply the procedural bar of Escalona, in a given case, the court (both trial and appellate) must pay close attention to whether the no merit procedures were in fact followed. In addition, the court must consider whether that procedure, even if followed, carries a sufficient degree of confidence warranting the application of the procedural bar under the particular facts and circumstances of the case.

Tillman, 281 Wis. 2d 157, ¶ 20 (emphasis added; footnote omitted).

¶ 20. The no-merit appeal procedure has its origins in Anders v. California, 386 U.S. 738 (1967). In Anders, the United States Supreme Court addressed "the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." Id. at 739. The Court held that:

[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel— then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.

Id. at 744 (emphasis added).

¶ 21. In Wisconsin, the no-merit procedure set forth in Anders is codified and explained in Wis. Stat. Rule 809.32. First, appointed counsel must examine the record and prepare a report that "shall identify anything in the record that might arguably support the appeal and discuss the reasons why each identified issue lacks merit." Rule 809.32(l)(a). Counsel must provide the defendant with a copy of the report and advise the defendant of his right to respond. Rule 809.32(1)(b)2. Next, the defendant has the opportunity to respond to the no-merit report and raise additional issues. Rule 809.32(l)(e). Then, the appellate court not only examines the no-merit report but also conducts its own scrutiny of the record to find out whether there are any potential appellate issues of arguable merit. Anders, 386 U.S. at 744. Finally, the appellate court's no-merit decision sets forth the potential appellate issues and explains in turn why each has no arguable merit. Rule 809.32(3).

¶ 22. Wilkinson v. Cowan, 231 F.3d 347, 349 (7th Cir. 2000), is an example of a case in which the no merit procedures were not followed. See Tillman, 281 Wis. 2d 157, ¶ 20 n.5. Wilkinson had raised the issue of ineffective assistance of counsel in a pro se postconviction motion, but the issue had been dismissed by the trial court, and Wilkinson had failed to re-raise it in a response to a no-merit report. Wilkinson, 231 F.3d at 349. The court found that the no-merit procedures were not followed because while the clerk of court advised Wilkinson that he could respond to the no-merit report, he was not told that a response was a matter of obligation if he wanted to preserve his claim for further review, and was thus "not invited to file a response [to the no-merit report]," within the meaning of the statute. Id. at 349-51. As a result, the court held that Wilkinson was not barred from re-raising the issue. Id. at 348.

¶ 23. In this case, it is, as mentioned, undisputed that Fortier was informed by his appellate counsel of his right to file a response to the no-merit report and that Fortier did not file a response. See Wis. Stat. Rule 809.32(1)(e). However, it is equally undisputed that in his no-merit report, Fortier's appellate counsel failed to raise the fact that an illegally raised sentence at resen-tencing could be a meritorious issue, and on the contrary, stated that no issues of arguable merit existed. See Rule 809.32(l)(a). Similarly, it is also clear that this court did not identify the increased sentence as a potential appellate issue and, instead concluded:

The court has reviewed the no merit report and has conducted an independent review of the appellate record. Based upon that review, the court concludes that there would be no arguable merit to any issue that could be raised on appeal. We therefore summarily affirm the judgment of conviction ....

¶ 24. However, it is now evident that the issue of a sentence illegally increased at sentencing, which was eventually raised by Fortier in a motion to reduce sentence on October 1, 2004, is indeed an issue of arguable merit. The issue was hence overlooked not only by Fortier, but also by his appellate counsel, who filed the no-merit report addressing only the issue of erroneous exercise of sentencing discretion and con-eluding that no issues of arguable merit remained, and by this court, that agreed with the no-merit report.

¶ 25. Fortier explains that because the no-merit report did not identify any potential appellate issues, he "did not realize that the enhanced penalties upon re-sentencing were an appellate issue and did not respond to the no merit report." He maintains that because "both the appellate attorney and the appellate court had far more training and experience in identifying appellate issues than [him]," it is both "unfair and a miscarriage of justice" to hold that he waived his right to object to the increased sentence.

¶ 26. The State predictably disagrees, and argues that Fortier is procedurally barred under Wis. Stat. § 974.06 and Escalona from raising the issue. The State asserts that Fortier "offers no support, however, for his theory that ignorance is a sufficient reason to avoid the procedural bar," and argues that Fortier's failure to raise the issue in a response to the no-merit report, or even in his subsequent motion on February 27, 2003, should bar him from doing so now. We disagree.

¶ 27. Had Fortier's appellate counsel performed the requisite "conscientious examination" of the case, Anders, 386 U.S. at 744, he would have identified an illegally-raised sentence as a potential appellate issue and would not have filed a no-merit report, asserting that any further appeal would be frivolous. Likewise, because this court failed to identify the existence of an issue of arguable merit, "a full examination" was not conducted. Id. We therefore conclude that the no-merit procedures, under Anders and Wis. Stat. Rule 809.32, were not followed in this case, and agree that Fortier's appellate counsel and this court should have identified the raised sentence at resentencing as an issue of arguable merit. See Tillman, 281 Wis. 2d 157, ¶ 20. Because we cannot fault Fortier for his reliance on his appellate counsel's assertion in the no-merit report that there were no issues of arguable merit, we are satisfied that Fortier has shown a "sufficient reason" for failing to raise the issue in a response to the no-merit report. Wis. Stat. § 974.06(4); Escalona, 185 Wis. 2d at 181. Accordingly, Fortier is not procedurally barred from raising the issue of a sentence illegally raised.

¶ 28. We believe it is appropriate to return the case to the trial court to give that court the first opportunity to consider the merits of Fortier's argument for reduced sentences, and we thus reverse and remand for a hearing at the trial court.

¶ 29. Because we reverse and remand based on our determination that Fortier has demonstrated a "sufficient reason" for his failure to raise the issue in his original appeal, and is not barred from raising it now, we need not address Fortier's remaining arguments for why he should not be barred from raising the issue. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (if a decision on one point disposes of an appeal, we will not decide other issues raised). Similarly, because we remand to the trial court the question of whether Fortier's resentencing was proper or whether the sentence should be modified, we also do not reach Fortier's subsequent claim that his increased sentence should be reduced to the terms of the original sentence. See id. Accordingly, the order is reversed and the cause remanded for a hearing on the merits of Fortier's claim.

By the Court. — Order reversed and cause remanded.

FINE, J.

¶ 30. {concurring!dissenting). I agree with the Majority that under the circumstances of this case Ricky J. Fortier is not barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 181, 517 N.W.2d 157, 162 (1994), from seeking redress on this appeal. I disagree, however, with the Majority's decision to remand.

¶ 31. First, the Majority does not assert that there is a presumption of unlawful vindictiveness that tainted Fortier's second sentencing. Indeed, under State v. Naydihor, 2004 WI 43, ¶¶ 32-56, 270 Wis. 2d 585, 608-623, 678 N.W.2d 220, 232-240, there is no presumption that vindictiveness infected the resentencing unless the error that led to the need for resentencing was that of the sentencing court. Here, as the Majority notes, the error that tainted the first sentencing in this case was made by the prosecutor, not by the judge, and, moreover, a different judge imposed the increased penalties after our remand. Absent a presumption of sentencing vindictiveness, a defendant who contends that the record does not justify the increased penalties "is required to demonstrate actual vindictiveness in order to prevail." Id., 2004 WI 43, ¶ 33, 270 Wis. 2d at 609-610, 678 N.W.2d at 233. Fortier has not done that.

¶ 32. Second, in light of the absence of any evidence of sentencing vindictiveness — by virtue of either the presumption discussed in Naydihor, or actual vindictiveness shown by Fortier — this case presents a simple appellate issue: did the second trial judge erroneously exercise her discretion in Fortier's resentenc-ing. See State v. Gallion, 2004 WI 42, ¶ 17, 270 Wis. 2d 535, 549, 678 N.W.2d 197, 203 ("It is a well-settled principle of law that a circuit court exercises discretion at sentencing. On appeal, review is limited to determining if discretion was erroneously exercised.") (citation omitted). Thus, I do not understand why the Majority is remanding the case to the trial court for, presumably, an evidentiary hearing.

¶ 33. Third, I have read closely the trial court's sentencing explanation of why it was imposing the 1,000 hours of community service, and why the trial court was concerned that Fortier needed significant help to avoid relapse into either alcohol dependency (which Fortier indicated he had resolved) or illegal-substance dependency (which the trial court determined was Fortier's alcohol-surrogate). Significantly, the trial court explained that the 1,000 hours were not to be make-work punishment, but, rather, were "to be performed at an organization which is appropriate to deal with persons who have addictions to controlled substance[s], or alcohol." Thus, the trial court also directed that Fortier participate in "a program of counseling and treatment at least four times a week. All the time that you're on probation." Further, the five-year suspension of Fortier's driving privileges is consistent with any sentencing court's mandate to protect the public: persons who have a proclivity to use substances that adversely affect their reasoning and their motor-skills and reflexes should not be driving. A defendant who contends that a trial court erroneously exercised its sentencing discretion must show that the trial court based the defendant's sentence on "clearly irrelevant or improper factors." Ibid. Fortier has not done so here.

¶ 34. In sum, I do not perceive how the trial court erroneously exercised its sentencing discretion on remand, and, accordingly, I would affirm. Thus, I respectfully dissent from the Majority's decision to remand this case for a hearing, although, as noted, I agree that Fortier's arguments on this appeal are not barred by Escalona-Naranjo.

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

       The no-merit report is not part of the record in this case, but as a previous filing in this proceeding, this court takes judicial notice of the contents of the no-merit report.

       Wisconsin Stat. 974.06(4) provides:
      All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.

        See, e.g., State v. Crockett, 2001 WI App 235, ¶¶ 7-8, 248 Wis. 2d 120, 635 N.W.2d 673 (an issue waived under Escalona may still be addressed by the court in its discretion); State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (waiver is a rule of judicial administration, not jurisdiction, and courts have discretion to make exceptions).

       We do not dispute the Dissent's remark that Fortier does not meet the standard of presumptive vindictiveness under State v. Naydihor, 2004 WI 43, ¶¶ 32-56, 270 Wis. 2d 585, 678 N.W.2d 220. See Dissent, ¶ 2. We also agree that this leads to the question of whether the trial court erroneously exercised its discretion when it re-sentenced Fortier. State v. Gallion, 2004 WI 42, ¶ 17, 270 Wis. 2d 535, 678 N.W.2d 197. See Dissent, ¶ 3. However, we feel that even if the new sentence alone might not amount to an erroneous exercise of sentencing discretion, the question of whether raising the sentence was illegal remains, and could potentially have been an erroneous exercise of discretion for the reasons Fortier voices in his appeal. No new factor was presented in this case that would have justified the significant increase in Fortier's sentence. See State v. Pierce, 117 Wis. 2d 83, 88, 342 N.W.2d 776 (Ct. App. 1983). We believe that this, at the very least, presents an issue that has arguable merit. We also see a particular reason for caution, given that the reason Fortier was unable to make these arguments sooner was due to the oversight by his former attorney and this court. Thus, unlike the Dissent, we believe Fortier should be given the chance to present his arguments for why the new sentence might have been illegally raised, and we think it is premature to at this juncture make a determination about the appropriateness of the raised sentence.

       One-thousand hours spread over the four years, as directed by the trial court, works out to a mere five hours per week on a fifty-week year. Many persons who have not been convicted of crimes volunteer more time than that to their community. In my view, it is far from unreasonable to require that Fortier do the same.


author: PETERSON, J.

text:
    22 Shawano, LLC, Bonduel City Express Corp., J. S. Rusch, Inc., Lee'z Gas and Mini Mart, Inc. and Schierl Sales Corp., Plaintiffs-Respondents, Shawano Petroleum, LLC and Welsing and Son, LLC, Plaintiffs, v. Dr. R. C. Samanta Roy Institute of Science and Technology, Inc., Defendant-Appellant. [2005AP427] Auto Prep Center of Shawano, Inc., Plaintiff-Respondent, v. Dr. R. C. Samanta Roy Institute of Science and Technology, Inc., Defendant-Appellant. [2005AP428]
    Court of Appeals

      Nos. 2005AP427, 2005AP428.

      Submitted on briefs November 28, 2005.

    Decided December 28, 2005.

    2006 WI App 14
    (Also reported in 709 N.W.2d 98.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Winston A. Ostrow and Sherry D. Coley of Godfrey & Kahn, S.C., Green Bay.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Francis J. Slattery of Slattery Law Offices, LLC, Oshkosh.

      A nonparty brief was filed by Thomas L. Skalmoski of Weiss Berzowski Brady LLP, of Milwaukee, for Petroleum Marketers Association of Wisconsin/Wisconsin Association of Convenience Stores, Inc.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   PETERSON, J.

¶ 1. The Wisconsin Unfair Sales Act, Wis. Stat. § 100.30, generally prohibits a retailer from selling gasoline below cost. However, the Act does not apply when a retailer acts in good faith to meet a competitor's price. In this case, the circuit court concluded the retailer did not act in good faith when it sold gasoline below cost and entered judgment accordingly. The court appeared to interpret the Act to require retailers to survey competitors' prices at least every twenty-four hours. Because the Act imposes no such requirement, we conclude the court erred when it found the retailer violated the Act. Accordingly, we reverse the judgment.

¶ 2. The retailer here is the Dr. R.C. Samanta Roy Institute of Science and Technology, Inc. (the Institute), which operates the Midwest Oil Mobil Service Station in Shawano. The Institute competes with Shawano area gasoline stations operated by 22 Shawano, LLC; Bon-duel City Express Corp.; J.S. Rusch, Inc.; Lee'z Gas and Mini Mart, Inc.; Sheirl Sales Corp., and Auto Prep Center of Shawano, Inc. These competitors commenced private actions, as allowed under the Act, against the Institute, seeking damages and attorney fees.

¶ 3. The relevant facts are undisputed. At the beginning of the day on October 17, 2002, the Institute was selling regular unleaded gasoline for $1.54 per gallon. The Institute's store was managed by Naarah Kindseth. Kindseth's practice was to survey the Institute's competitors' gasoline prices each day and adjust the Institute's price to correspond with the lowest competitor's price. Kindseth would then file a Notice of Meeting Competition with the Wisconsin Department of Agriculture, Trade and Consumer Protection in the manner required by the Act.

¶ 4. When Kindseth conducted her survey on October 17, sometime between 7:40 a.m. and 8 a.m., the station operated by Auto Prep Center was charging $1.54 per gallon, a price below cost. Accordingly, Kind-seth left the Institute's price at $1.54 per gallon and filed a notice with the department. However, at approximately 9 a.m., Auto Prep Center raised its price to $1.59 per gallon. As a result, at that time, the Institute was the only station in the area selling at $1.54 per gallon.

¶ 5. On October 18, Kindseth was out of town and did not conduct her price survey in the morning. At around 2 p.m., the local Kwik Trip station conducted a price survey, noted that the Institute was selling at $1.54 per gallon, and lowered its price to match. Around 4:30 p.m., Kindseth conducted her price survey, saw Kwik Trip's price of $1.54 per gallon, and did not change the Institute's price. Kindseth filed the required notice with the department that the Institute was meeting Kwik Trip's price.

¶ 6. Pursuant to the Act, two private actions were commenced against the Institute by its competitors. As relevant to this appeal, the competitors alleged that the Institute violated the Act by selling gasoline below cost on October 18 and that the competitors were entitled to damages and attorney fees. The cases were consolidated and tried to the court on December 14, 2004. The Institute conceded that its gasoline price on October 18 was below cost. However, it contended its actions did not violate the Act because it set its price in good faith to meet competition and timely filed the required notice with the department.

¶ 7. The court found the Institute did not act in good faith. Its good faith finding rested primarily on the timing of the Institute's price surveys:

There's also the indication in the record that at the time that this happened this was a rising market; the prices were going up again. That should alert the retailers that they better be watching their competitors' prices if you're selling under your cost. If you're above your cost apparently it doesn't make any difference, but if you're selling under cost and you want to be the lowest person in town, you better be watching your competitors. Now again there's nothing in the statute that says how often you have to do that, and the department says they use a twenty-four hour rule to determine whether there was good faith in attempting to meet the competition, but in a rising market I think the argument can be made that twenty-four hours might be too short of a time.

Thus, the court concluded the Institute, by failing to aggressively survey its competition, acted in bad faith and thus violated the Act. The court awarded each of the six competitors $2,000 in statutory damages plus attorney fees. Judgment in the competitors' favor was entered accordingly.

DISCUSSION

¶ 8. The Act prohibits the sale of gasoline at a price "less than cost as defined in this section ...." Wis. Stat. § 100.30(3). However, the Act does not apply where "[t]he price of merchandise is made in good faith to meet an existing price of a competitor and is based on evidence in the possession of the retailer ... in the form of. . . [a] price survey . . .." Wis. Stat. § 100.30(6)(a)7. The Act also requires a gasoline retailer to notify the department when the retailer sells below cost to meet competition. See Wis. Stat. § 100.30(7)(a). Section 100.30(7)(a) provides:

If a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner lowers in good faith the price of motor vehicle fuel below the applicable price specified under sub. (2)(am)lm. to meet an existing price of a competitor, the person shall submit to the department notification of the lower price before the close of business on the day on which the price was lowered in the form and the manner required by the department. (Emphasis added.)

A retailer that complies with § 100.30(7)(a) is immune from liability in a private action, like the one commenced here by the competitors. See Wis. Stat. § 100.30(5m) and (7)(c)2.

¶ 9. The competitors concede the Institute filed the required notice with the department on the day it lowered its price. Therefore, the dispute is whether the Institute acted in good faith when it priced gasoline to meet the price of a competitor.

¶ 10. To decide this issue, we must interpret the statute and apply it to the undisputed facts. These are questions of law that we review independently. Gibson v. Overnite Transp. Co., 2003 WI App 210, ¶ 12, 267 Wis. 2d 429, 671 N.W.2d 388. When we interpret statutes, we begin with the language of the statute and, if the meaning is plain, we ordinarily stop our inquiry. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. "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." Id.

¶ 11. Good faith is not specifically defined in the Act. Generally, good faith is defined as "a state of mind evidencing 'honesty in belief or purpose . . . [or] absence of intent to defraud or to seek unconscionable advantage.' " Ackerman v. Hatfield, 2004 WI App 236, ¶ 10, 277 Wis. 2d 858, 691 N.W.2d 396 (quoting Black's Law Dictionary 713 (8th ed. 2004)). The competitors do not argue that Kindseth set the Institute's price or delayed her price survey until 4:30 p.m. on October 18 with the intent to defraud or seek an unconscionable advantage. Instead, the competitors argue that a retailer that fails to conduct a price survey for more than twenty-four hours cannot in good faith set its price to meet competition.

¶ 12. However, the Act does not specify how often price surveys must be conducted. The timing of price surveys is mentioned in a note following Wis. Admin. Code § ATCP 105.23(1): "The department recommends that sellers maintain daily price surveys... especially for days that they are selling motor vehicle fuel below costs... ." Nowhere does the department require or even recommend a survey every twenty-four hours; rather, it recommends daily price surveys. It is undisputed that the Institute conducted price surveys on October 17 and October 18. Thus, the Institute performed "daily price surveys" and complied with the department's recommendation.

¶ 13. Indeed, the only time constraint included in the Act is that a notice of meeting a competitor's price must be filed "on the day" the price was lowered. See Wis. Stat. § 100.30(7)(a). It is uncontested that the Institute filed a notice on October 18 and therefore complied with the Act's time requirement.

¶ 14. The competitors attempt to support their argument by relying on a department "24-hour rule." However, neither the Act nor the administrative code provides or explains this rule. A department employee testified that the rule was designed to give retailers a twenty-four-hour grace period before the department would prosecute a violation of the Act. However, it is unclear from what event this twenty-four-hour grace period would run. In any event, when interpreting a statute, we owe no deference to a department rule of prosecutorial policy, especially when that rule does not comport with the plain language of the Act and the administrative code provisions.

¶ 15. In summary, there is no requirement that a retailer must conduct a price survey within any particular time period, let alone twenty-four hours. There is no evidence that Kindseth delayed her price survey or set the Institute's gasoline price with the intent to defraud or seek an unconscionable advantage. Because the competitors make no other arguments or offer no other evidence that the Institute acted in bad faith, the circuit court erred when it concluded otherwise.

By the Court. — Judgment reversed.

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

       Shawano Petroleum, LLC, and Welsing and Son, LLC, also operate gasoline stations in competition with the Institute and were initially named plaintiffs. However, those stations voluntarily dismissed their claims and are not parties to this appeal.

       WISCONSIN Stat. § 100.30(5m) provides:
      Private cause of action. Any person who is injured or threatened with injury as a result of a sale or purchase of motor vehicle fuel in violation of sub. (3) may bring an action against the person who violated sub. (3) for temporary or permanent injunctive relief or an action against the person for 3 times the amount of any monetary loss sustained or an amount equal to $2,000, whichever is greater, multiplied by each day of continued violation, together with costs, including accounting fees and reasonable attorney fees, notwithstanding s. 814.04(1). An action under this subsection may not be brought after 180 days after the date of a violation of sub. (3).

       Shawano County Case No. 03CV25 was initially commenced against "Sist Corporation" or "Dr. Samantha Roy." However, the competitors amended their summons and complaint to name the Institute as the sole defendant.

       All references to the Wisconsin Administrative Code are to the May 1999 version unless otherwise noted.

       The Institute argues the circuit court disregarded the "on the day" language regarding the timing of the notice. It quotes a portion of the circuit court's decision where the court stated, "There is nothing in the statute that says how often you have to do that. . . ." (Emphasis added.) The Institute's argument assumes "that" referred to filing the notice. However, read in context, "that" refers to conducting price surveys. The competitors do not argue that the Institute failed to file a notice on October 18 or otherwise challenge the timing of the notice; instead, they argue the notice was a nullity because the price was not lowered in good faith.

       In their brief, the competitors claim the twenty-four hour grace period began at 9 a.m. on October 17 when Auto Prep Center raised its price to $1.59 and the Institute was the only retailer selling at $1.54.


author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. David Barton, Defendant-Appellant.

    Court of Appeals

      No. 2005AP905-CR.

      Submitted on briefs November 7, 2005.

      Decided December 28, 2005.

    2006 WI App 18
    (Also reported in 709 N.W.2d 93.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Len Kachinsky of Sisson and Kachinsky Law Offices.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 2-27-06.

   CANE, C.J.

¶ 1. David Barton appeals a judgment of conviction and an order denying his postcon-viction motion. Barton contends a new trial should be ordered in the interest of justice because the trial court erroneously admitted a State expert's opinion testimony. The testimony was based in part on scientific tests conducted by a colleague. Barton asserts admitting the expert's testimony violated his confrontation right. We disagree and affirm.

Background

¶ 2. On October 26, 2000, firefighters were dispatched to a residential fire. Upon arrival, the firefighters found Barton, who was living at the house, outside with his mother. He claimed he had heard strange popping noises coming from some light fixtures. Barton had been remodeling the kitchen and stated he disabled the smoke alarms because dust, due to the remodeling, was causing false alarms.

¶ 3. David Lyle, a laboratory analyst at the state crime lab, performed several chemical tests on samples of materials from the residence. The tests revealed ignitable liquid and gasoline-like substances on the samples. The test results were used to determine the fire was intentionally set. Barton was ultimately linked to the fire and charged with arson.

¶ 4. At trial, Kenneth Olson, a technical unit leader at the crime lab, testified about the tests Lyle had performed. Lyle was unavailable to testify himself. Olson had performed a peer review of Lyle's tests, and he presented his own conclusions regarding the tests to the jury. The lab reports themselves, which detailed the test results, were not offered into evidence.

¶ 5. Barton was convicted. He filed a motion for postconviction relief arguing that the court erred by permitting Olson to testify about the tests performed by Lyle. The court denied the motion.

Standard of Review

¶ 6. Wisconsin Stat. § 752.35 permits this court to provide relief in the interest of justice if we are convinced "that the real controversy has not been fully tried ... ." If a party demonstrates that the real controversy was not fully tried, we may exercise our power of discretionary reversal, even if we conclude that it is not probable that the result would be different at a new trial. See id.-, Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990). Our power of discretionary reversal should only be exercised in exceptional cases. See Vollmer, 156 Wis. 2d at 11.

¶ 7. Determining whether a court's action violated a defendant's confrontation right is a question of constitutional fact. State v. Smith, 2002 WI App 118, ¶ 7, 254 Wis. 2d 654, 648 N.W.2d 15. This court has traditionally treated questions of constitutional fact as mixed questions of fact and law, and it has applied a two-step standard when reviewing lower court determinations of constitutional fact. Id., ¶ 8. An appellate court reviewing issues of constitutional fact examines two determinations made by the circuit court but applies a different standard of review to each. Id.

¶ 8. The circuit court first determines the eviden-tiary or historical facts relevant to the issue. Id. The circuit court then applies those facts to resolve the constitutional questions. The standard of review by the appellate court of the trial court's findings of eviden-tiary or historical facts is that those findings will not be upset on appeal unless they are clearly erroneous. Id. This standard of review does not apply, however, to the trial court's determination of constitutional questions. Instead, the appellate court independently determines the questions of constitutional fact. Id.

Discussion

¶ 9. Barton contends the circuit court erred by allowing Olson to testify because doing so violated his confrontation right. Our supreme court directly addressed the issue Barton raises in this appeal in State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919. In Williams, police found Williams in possession of a substance that appeared to be cocaine. Id., ¶ 3. As a result, the State charged Williams with cocaine possession. Id. At trial, the State introduced into evidence a state crime lab report that showed the substance in Williams's possession tested positive as cocaine base. Id., ¶ 4. However, the State was unable to produce the analyst who performed the tests on the substance for testimony at trial. Id. Instead, the State presented the testimony of a crime lab unit leader who reviewed the analyst's results. Id. Based partly on the contents of the lab report, the unit leader testified in her opinion the substance in Williams's possession was cocaine base. Id.

¶ 10. Williams argued his confrontation right was violated because he was unable to cross-examine the analyst who performed the test, but the court disagreed. Id., ¶ 5. Turning to cases from other jurisdictions, the court acknowledged that: "Various courts have concluded that under certain circumstances the right of confrontation may be satisfied by the admission of expert testimony based upon lab test results even where the actual tester is not also present to testify." Id., ¶ 11. The court further stated, "The critical point... is the distinction between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the work of others." Id., ¶ 19. In sum, the court articulated the following standard:

Taken together, these cases teach that the presence and availability for cross-examination of a highly qualified witness, who is familiar with the procedures at hand, supervises or reviews the work of the testing analyst, and renders her own expert opinion is sufficient to protect a defendant's right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests.

Id., ¶ 20.

¶ 11. Applying this standard, the court concluded that Williams's confrontation right was not violated by the unit leader's testimony. Id. The court observed that the unit leader had considerable training and experience, id., ¶ 21, and she had been "closely connected to the tests and procedures involved in the case and supervised or reviewed the testing." Id., ¶ 22. Further, the unit leader testified that, "based on this peer review, as well as her review of the relevant records, it was her opinion that the substance tested in this case contained cocaine base." Id., ¶ 25. Therefore, the court stated, "although [the unit leader] based part of her opinion on facts and data gathered by someone else, she was not merely a conduit for another expert's opinion." Id. Because the unit leader "was a highly qualified expert employed by the lab who was familiar with the particular lab procedures and performed the peer review in this particular case, then gave an independent expert opinion, her presence" satisfied Williams's confrontation right. Id., ¶ 26.

¶ 12. The supreme court also rejected Williams's contention that the unit leader's testimony was inadmissible as an expert opinion because the lab report on which it was partly based was inadmissible hearsay and the unit leader herself had not tested the substance. Id., ¶ 27. The court held that an expert's opinion under Wis. Stat. § 907.03 may be based on inadmissible hearsay, id., ¶ 28, noting that it is "rare indeed that an expert can give an opinion without relying to some extent upon information furnished by others." Id., ¶ 29. Thus, the unit leader's expert opinion was admissible.

¶ 13. Applying the standard articulated in Williams, Olson's testimony was properly admitted because he was a highly qualified expert presenting his independent opinion. Similar to the expert in Williams, Olson was the technical unit leader in the trace evidence unit in the crime lab. He had a bachelor of science degree in chemistry, and he had been employed at the crime lab for twenty-four years where he had obtained further training. In addition, he had been examining items for the presence of ignitable liquids for many years.

¶ 14. Olson testified that Lyle tested three pieces of evidence for ignitable fluids. Olson presented to the jury the uniform procedures the crime lab employed to test for ignitable fluids; he further stated that, based on his review of the case file, Lyle had followed these procedures in his tests. Olson also testified that after Lyle completed his tests, Olson conducted a peer review of Lyle's work. The prosecutor asked for Olson's opinion whether two of the pieces submitted to the crime lab contained ignitable liquids.

Q. Now based on your review of the entire file, all the data that you reviewed, all the computations, the entire file that was completed in this case, do you have an opinion to a reasonable degree of scientific certainty if there were any ignitable liquids on the two pieces of charred wood in this case?
A. Yes, I do.
Q. Okay. And what is that opinion?
A. It's my opinion that the two items that were submitted, item A and item B, had ignitable liquid residues consistent with a weathered gasoline sample.
Q. Now, again, I'm going to ask you is that your opinion again and not just - what you've just indicated on the record is that your professional opinion not just a summary of David Lyle but it's your professional opinion as an expert; is that correct?
A. That's correct.

¶ 15. Next, the prosecutor questioned Olson about an exhibit that Olson testified included "photocopies of three chromatograms of unleaded gasoline in different stages of evaporation." Olson stated that he used those chromatograms to conclude that gasoline was present in the charred wood samples. Finally, Olson stated that another sample that had been submitted to the crime lab contained a "mid-range petroleum distillate" similar to lighter fluid or mineral spirits.

¶ 16. Like the unit leader's testimony in Williams, Olson's testimony was properly admitted because he was a qualified unit leader presenting his individual, expert opinion. Olson not only examined the results of Lyle's tests, but he also performed a peer review of Lyle's tests. He formed his opinion based on his own expertise and his own analysis of the scientific testing. He then presented his conclusions to the jury, and he was available to Barton for cross-examination. Thus, Olson's testimony satisfied Barton's confrontation right and is admissible under the supreme court's decision in Williams.

¶ 17. Barton contends that Crawford v. Washington, 541 U.S. 36 (2004), overrules Williams "to the extent Williams is interpreted as permitting the State to rely upon inadmissible hearsay as the basis for Olson's testimony in this case." We disagree. Our analysis commences with a discussion of the history of the holding in Crawford.

¶ 18. Prior to Crawford, the Supreme Court set forth a two-prong test to determine whether admitting hearsay evidence violated a defendant's confrontation right in Ohio v. Roberts, 448 U.S. 56 (1980). First, the declarant must be unavailable to testify at trial. Id. at 65. Second, the hearsay statement must "bear[] adequate 'indicia of reliability.'" Id. at 66. Reliability exists when the testimony fell under a firmly rooted hearsay exception or when it possessed "particularized guarantees of trustworthiness" as determined by a court. Id. at 66.

¶ 19. Crawford discarded the reliability prong of Roberts, concluding that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Crawford, 541 U.S. at 61. With regard to testimonial evidence, instead of reliability the Court instituted an inquiry into whether the defendant had a prior opportunity to cross-examine the declarant. Id. at 68.

¶ 20. The holding in Crawford does not undermine our supreme court's decision in Williams. Williams is clear: A defendant's confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another. Williams, 253 Wis. 2d 99, ¶¶ 9,11. We do not see, and Barton fails to explain, how Crawford prevents a qualified expert from testifying in place of an unavailable expert when the testifying expert presents his or her own opinion.

¶ 21. Our conclusion is supported by courts in other jurisdictions. In State v. Delaney, 613 S.E.2d 699, 700 (N.C. Ct. App. 2005), an expert testified that substances found on a defendant's property were marijuana and opium. The expert's conclusions were based on analyses conducted by a chemist who did not testify. Id. The North Carolina Court of Appeals held that the expert's testimony was admissible noting that "it is well established that an expert may base an opinion on tests performed by others in the field and [the defendant] was given an opportunity to cross-examine [the expert] on the basis of his opinion, we conclude that there has been no violation of [the defendant's] right of confrontation under the rationale of Crawford." Id. at 701.

¶ 22. In a similar case, the California Court of Appeals stated:

Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion. Crawford itself states that the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."

People v. Thomas, 30 Cal. Rptr. 3d 582, 587 (Cal. Ct. App. 2005) (quoting Crawford, 541 U.S. at 59, n.9).

¶ 23. Barton relies primarily upon Smith v. State, 898 So.2d 907 (Ala. Crim. App. 2004), for the proposition that Crawford overrules Williams, but we remain unconvinced. In Smith, the Court of Criminal Appeals of Alabama held that the trial court harmlessly erred by admitting an autopsy report and the testimony of two experts who testified about the autopsy but did not perform it. Id. However, the Smith court did not provide any noteworthy confrontation right analysis for the admission of the experts' testimony. We do not find Smith compelling enough to hold that Williams has been overruled by Crawford.

By the Court. — Judgment and order affirmed.

       Barton objected to Olson's testimony, and a motion hearing was held. Lyle was retired and would not testify unless he was paid approximately $1,000. The court ruled Olson could testify.

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

       The Confrontation Clause states, "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him. U.S. Const, amend. VI.

       Both the North Carolina and California courts held that the underlying reports were admissible because they were not admitted for the truth of the matter asserted but as the basis of the expert's testimony. See State v. Delaney, 613 S.E.2d 699, 700-01 (N.C. Ct. App. 2005); People v. Thomas, 30 Cal. Rptr.3d 582, 587 (Cal. Ct. App. 2005). Our supreme ceurt in Williams held that the report upon which the expert based his opinion was inadmissible hearsay. See State v. Williams, 2002 WI 58, ¶¶ 34-49, 253 Wis. 2d 99, 644 N.W.2d 919. Here, the State never admitted the report into evidence, so there is no issue.


author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Steven A. Harvey, Defendant-Appellant.

    Court of Appeals

      No. 2005AP103-CR.

      Submitted on briefs October 27, 2005.

      Decided January 4, 2006.

    2006 WI App 26
    (Also reported in 710 N.W.2d 482.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher W. Rose, of Rose & Rose of Kenosha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Maura F.J. Whelan, assistant attorney general.
    Before Snyder, PJ., Nettesheim, J., and Daniel L. LaRocque, Reserve Judge.

       Petition to review denied 4-10-06.

   NETTESHEIM, J.

¶ 1. Steven A. Harvey appeals from judgments convicting him of third-degree felony sexual assault and fourth-degree misdemeanor sexual assault, contrary to Wis. Stat. §§ 940.225(3) and 940.225(3m) (2003-04) respectively. Harvey also appeals from a postconviction order denying reconsideration of the trial court's prior order rejecting his motion to withdraw his guilty pleas, denying his motion to withdraw his pleas postconviction, and denying his motion for sentence modification.

¶ 2. On appeal, Harvey contends that: (1) he was entitled to withdraw his guilty plea to the charge of third-degree sexual assault because the State failed to establish a factual basis for the sexual intercourse element of the charge; (2) he otherwise presented a "fair and just" reason entitling him to withdraw his guilty pleas prior to sentencing; (3) the State presented information at the sentencing hearing which circumvented its plea agreement to refrain from a sentencing recommendation; and (4) the trial court misused its sentencing discretion. Finding none of these arguments persuasive, we affirm the judgment of conviction and the postconviction order.

BACKGROUND

¶ 3. Harvey was convicted after pleading guilty to third-degree sexual assault and fourth-degree sexual assault. The charges stemmed from a June 2003 incident in which Harvey allegedly followed a woman home one night and entered her home uninvited. Then, despite her protests and efforts to resist, he sexually assaulted her by groping and fondling her and by "very forcefully" touching her genital area with his hands and mouth. He also repeatedly made her put her hand on his penis. The woman and Harvey are stepsiblings. Harvey does not deny that the event occurred, but maintains that it was consensual.

¶ 4. Harvey was charged in a four-count information as follows: Count 1, burglary pursuant to Wis. Stat. § 943.10(lm)(a), for the breaking and entering; Count 2, third-degree sexual assault pursuant to Wis. Stat. § 940.225(3), for an act of sexual intercourse by cunnilingus; and Counts 3 and 4, fourth-degree sexual assault pursuant to § 940.225(3m), for the contact of Harvey's hand to the victim's genital area and the forced contact of the victim's hand to Harvey's penis. The parties negotiated a plea agreement by which Harvey would plead guilty to third-degree sexual assault (Count 2) and fourth-degree sexual assault (Count 3), and the State would dismiss and read in the burglary (Count 1) and the further charge of fourth-degree sexual assault (Count 4). The plea agreement further provided that the State would be free to argue facts relevant to the sentence, but would not make any specific sentence recommendation.

¶ 5. At the plea hearing on August 4, 2004, the trial court questioned Harvey as to whether he clearly understood the charges to which he was pleading. As related to one of the issues on appeal, the court specifically ascertained Harvey's understanding that if he did not plead guilty to the third-degree sexual assault charge based on the act of cunnilingus, the State would have to prove beyond a reasonable doubt two elements: "[FJirst, that you had sexual intercourse with the victim. .. and that second. . . she did not consent to the sexual intercourse[.]" Harvey's counsel stated that he "went over in detail what they [the elements of the offenses] involved. . . and he understands for example for the third-degree, that it involves statutory sexual intercourse, which in this case was oral...Harvey stated that he understood the definition and what the State would have to prove. Finally, Harvey acknowledged that he and his attorney had thoroughly reviewed the plea questionnaire and waiver of rights form and that he understood everything in them. After finding a factual basis for Harvey's pleas based on the criminal complaint and the evidence presented at the preliminary hearing, the trial court accepted Harvey's pleas, ordered a presentence investigation report, and set the matter for sentencing.

¶ 6. Two weeks before sentencing, Harvey changed counsel. Still presentence, his new counsel moved to withdraw Harvey's guilty pleas, alleging that Harvey had a "fair and just reason" to do so. Specifically, Harvey averred that he was innocent because the sexual conduct with which he was charged was consensual and that his innocence was supported by the results of a lie detector test. Harvey claimed he had been urged by his wife and his former attorney to plead guilty because there was a seventy-five percent chance he could avoid prison if he entered into a plea. After an evidentiary hearing, the trial court denied the motion.

¶ 7. At the sentencing hearing, the trial court permitted the victim, her fiancé, and her sister to make statements. Likewise, the court heard statements from Harvey's wife, mother, stepfather, and one of his coworkers. The court also stated that it had reviewed apparently favorable letters from Harvey's children. The presentence investigation report recommended that Harvey be given a withheld sentence and five to six years' probation supervision on the third-degree sexual assault conviction and nine months' county jail confinement without work release on the fourth-degree sexual assault conviction. Per the plea agreement, the State did not make a specific sentencing recommendation.

¶ 8. The trial court imposed a bifurcated sentence of ten years' imprisonment (two years' confinement and eight years' extended supervision) on Count 3, the third-degree sexual assault conviction, and nine months' consecutive confinement in the county jail on Count 4, the fourth-degree sexual assault conviction. Postconviction, Harvey asked the trial court to reconsider the denial of his earlier motion to withdraw his pleas, or to now permit him to withdraw his pleas. Alternatively, Harvey sought a modification of his sentence. The trial court denied this motion. Harvey appeals. We will recite additional facts as necessary when we discuss the appellate issues.

DENIAL OF MOTION TO WITHDRAW GUILTY PLEAS

1. Factual Basis for Third-Degree Sexual Assault— Sexual Intercourse by Cunnilingus

¶ 9. The information charged Harvey with third-degree sexual assault pursuant to Wis. Stat. § 940.225(3), which states in part, "Whoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony." Section 940.225(5)(c) defines "sexual intercourse" as including "cunnilingus." However, the statutes do not define cunnilingus.

¶ 10. The charge of third-degree sexual assault was based on Harvey's alleged act of nonconsensual cunnilingus against the victim. Harvey complains that the trial court erroneously denied his motion to withdraw his guilty plea to this charge because the State failed to establish a factual basis for the sexual intercourse element of third-degree sexual assault— specifically cunnilingus. Before accepting a guilty plea, the trial court must make such inquiry as satisfies it that the defendant in fact committed the crime charged. Wis. Stat. § 971.08(l)(b). The remedy for failure to establish a factual basis is plea withdrawal. State v. Harrington, 181 Wis. 2d 985, 989, 512 N.W.2d 261 (Ct. App. 1994). Unless it was clearly erroneous, we will uphold the trial court's determination that there existed a sufficient basis to accept the plea. Id.

¶ 11. Specifically, Harvey contends that the State failed to establish that his act of cunnilingus resulted in oral stimulation of the victim's clitoris or vulva. Harvey correctly argues that State v. Childs, 146 Wis. 2d 116, 120, 430 N.W.2d 353 (Ct. App. 1988), recites that cunnilingus is "the oral stimulation of the clitoris or vulva." The Childs definition, like its counterpart in Wis JI — CRIMINAL 1200B, the current relevant jury instruction, derives from a standard dictionary. See Childs, 146 Wis. 2d at 120 and Wis JI — Criminal 1200B, n.3 (stating that the definition is from Webster's New Collegiate Dictionary). Harvey also looks to a standard dictionary to define "stimulation" as "to excite or arouse to action by some strong motive or persuasion." Harvey contends that, absent evidence of "stimulation," the factual basis established at the plea hearing demonstrated only sexual contact, not sexual intercourse. See Wis. Stat. § 940.225(5)(b)l.

¶ 12. The trial court rejected Harvey's request to withdrawal his guilty plea, ruling that the criminal complaint and the evidence presented at the preliminary hearing established a factual basis for the element of sexual intercourse by cunnilingus. Harvey does not challenge that the complaint and the evidence established that he placed his mouth on the victim's genital area. Indeed, he could not. Under the State's questioning at the preliminary hearing, the victim testified:

Q. Did he touch any of your — did he touch your genitals?
A. Yes; very forcefully.
Q. With what?
A. His hands, his mouth ....
Q. Now, when you said his mouth — I asked what part of your genitals were touched with what part. You said his hands and his mouth. Did his mouth actually make contact with your vagina?
A. Yes.

Harvey accurately states that this evidence does not show "oral stimulation" of the victim's clitoris or vulva as required by the jury instruction note and tacitly approved in Childs. The same can be said of the allegations in the criminal complaint.

¶ 13. The Criminal Jury Instructions Committee comprises highly qualified legal minds whose goal is to uniformly and accurately state the law. State v. Gilbert, 115 Wis. 2d 371, 379, 340 N.W.2d 511 (1983), modified on other grounds, State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536. However, the Committee's pattern instructions are merely persuasive, not prece-dential, State v. Olson, 175 Wis. 2d 628, 642 n.10, 498 N.W.2d 661 (1993), and we are not duty-bound to accept the Committee's pronouncements. See State v. Beets, 124 Wis. 2d 372, 383 n.7, 369 N.W.2d 382 (1985).

¶ 14. Contrary to the Committee's definition of cunnilingus, we conclude that the statutory scheme of the sexual assault law does not require proof of "stimulation of the clitoris or vulva." We do so because the notion of "stimulation" of the victim offends the principles underpinning the sexual assault law. In State v. Eisch, 96 Wis. 2d 25, 37-38, 291 N.W.2d 800 (1980), the supreme court spoke to the purpose of the then recently enacted sexual assault law:

The general legislative intent of the statutory revision should also be considered. We take judicial notice that the revision of the statutes originating in 1975 (S.B. 233), which found its place in the Laws of 1975 and 1977, was the result of a legislatively perceived need to broaden the protections afforded by what had previously been referred to as crimes against sexual morality. The new laws recognized that forcible sexual assaults constitute threats to life and bodily security. The legislature recognized that what had previously been considered as perversions when coupled with force constituted dangerous threats to life and bodily security.

¶ 15. To require that an act of nonconsensual cunnilingus against a victim be accompanied by stimulation of the victim's clitoris or vulva flies in the face of this legislative change in attitudes about crimes of sexual assault. Such a requirement harkens back to a darker time when sexual assault was viewed as a crime of passion, not of violence. While an offender in a given case might seek stimulation when committing a sexual assault, the law should not require that the victim respond in kind as a required component of a sexual assault.

¶ 16. As noted, the Committee's definition of cunnilingus is drawn from WebsteR's New Collegiate Dictionary. Resort to a recognized dictionary is permitted to establish the ordinary and common meaning of a word. Childs, 146 Wis. 2d at 120. While the law commonly looks to a standard dictionary for guidance in defining a word in easily understood terms, such a source cannot always be relied upon, as Harvey does, to supply or explain legal nuances. Our focus must remain on ascertaining the legal definition consistent with the legislative intent.

¶ 17. A standard dictionary definition should not by default become the legal definition of a term if it unfairly or inaccurately states the law or misconveys the legislative intent. We conclude that a definition of cunnilingus that suggests the victim must be stimulated misrepresents the legislative intent to recognize sexual assault as a crime of violence and to protect victims of those crimes. Given the legal significance of the term "cunnilingus" in our sexual assault statute, we think a better resource is Black's Law Dictionaey 380 (6th ed. 1990), which more neutrally defines cunnilingus as "[a]n act of sex committed with the mouth and the female sexual organ."

¶ 18. However, our rejection of the Committee's definition of cunnilingus does not fully resolve this issue since, as we have observed, this definition met with at least tacit approval by the Childs court. However, we are not bound by the Childs case because it was not a cunnilingus case, a fact implicitly recognized by the current jury instruction. See Wis JI — Criminal 1200B, n.3 & 4. Childs was convicted of sexual intercourse by forced fellatio against the victim contrary to Wis. Stat. § 940.225(2)(a). Childs, 146 Wis. 2d at 118. Childs claimed the trial court wrongly instructed the jury that "[flellatio, the oral stimulation of the penis, is sexual intercourse" because that instruction relieved the State of proving a statutory element of the crime, intrusion of his penis into the complainant's mouth. Id. at 119-20. After reciting the full text of the then-applicable jury instruction, which included the same definition of cunnilingus urged in this case, the court of appeals concluded that the ordinary and common meaning of fellatio includes oral stimulation of the penis without penetration into the mouth, and the jury thus had been properly instructed as to the meaning of fellatio. Id. at 120.

¶ 19. The court of appeals' reference to cunnilingus in Childs occurred only because that term and its definition were part of the larger instruction that also addressed fellatio, which was the conduct at issue in the case. Thus, the court's reference to cunnilingus was factually irrelevant to the issue and unnecessary to the analysis and holding of the case. As such, the reference was dicta and we are not bound by such commentary. See State v. Sartin, 200 Wis. 2d 47, 60 and n.7, 546 N.W.2d 449 (1996) (stating that language expressed in a court's opinion which extends beyond the facts in the case and is broader than necessary and not essential to the determination of the issues before it is dicta and is not controlling).

¶ 20. Finally, we take note that other states have considered this issue and arrived at a definition of cunnilingus consistent with our determination. For example, in Beltz v. State, 980 P.2d 474, 477 (Alaska Ct. App. 1999), the court held that "oral-genital contact, no matter what the intent or the result, is sufficient to prove cunnilingus or fellatio." The defendant in Beltz argued that the jury was misinstructed concerning the definitions of fellatio and cunnilingus because the jury was not told that these forms of "sexual penetration" required proof of stimulation or sexual satisfaction. Id. at 476. The court rejected the defendant's suggestion that the legislature intended proof that either party sought or obtained sexual stimulation. Id. at 477. The court specifically noted that even those jurisdictions that define cunnilingus and fellatio using the term stimulation "tend to construe 'stimulation' broadly, so that any oral-genital contact qualifies as 'cunnilingus' or 'fellatio.'" Id. at 477 n.14; see also State v. Brown, 405 N.W.2d 600, 607 (Neb. 1987) (where the court chose not "to quibble . . . over the word 'stimulation' , contained in the definitions of cunnilingus ...." (citation omitted)).

¶ 21. The complaint and the undisputed evidence presented at the preliminary hearing demonstrated that Harvey performed an act of nonconsensual cunnilingus by placing his mouth on the victim's genital area. Neither the letter nor the spirit of current law requires that the victim's clitoris or vulva be stimulated as the result of such contact, or that the victim experience stimulation in any other manner. Whether or not Harvey's argument to the contrary has any arguable merit, we conclude that to endorse it would yield a result ultimately offensive to the articulated principles of Wisconsin's sexual assault law. We refuse to do so. The trial court correctly found that the criminal complaint and the preliminary hearing evidence established a factual basis in support of the element of sexual intercourse by cunnilingus pursuant to Wis. Stat. § 940.255(3).

2. "Fair and Just Reason"

¶ 22. Apart from the foregoing issue, Harvey argues that he otherwise established a "fair and just reason" for the withdrawal of his guilty pleas. Presen-tence, Harvey moved to withdraw his guilty pleas, claiming that the sexual conduct was consensual and that a polygraph test corroborated his innocence. He also contended that he never wanted to plead guilty but was convinced to do so by his wife and his first attorney so as to avoid prison. He revives these arguments here to no avail.

t7, 8]

¶ 23. A defendant seeking to withdraw his or her plea must sufficiently show a "fair and just reason." State v. Leitner, 2001 WI App 172, ¶ 24, 247 Wis. 2d 195, 633 N.W.2d 207, aff'd, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341. "Fair and just" means some adequate reason for the defendant's change of heart other than the desire to have a trial. Leitner, 247 Wis. 2d 195, ¶ 25. An assertion of innocence, while important, is not dispositive. Id.

¶ 24. Whether to permit a plea withdrawal rests within the trial court's discretion. See id., ¶ 24. Although plea withdrawal before sentencing should be liberally granted, it is not automatic. Id. We will sustain the trial court's discretionary determination if the court reached a reasonable conclusion based on the correct legal standard and a logical interpretation of the facts. State v. Kivioja, 225 Wis. 2d 271, 284, 592 N.W.2d 220 (1999).

¶ 25. The term "fair and just reason" does not lend itself to scientific exactness, but has developed over time from numerous appellate cases. State v. Shanks, 152 Wis. 2d 284, 290, 448 N.W.2d 264 (Ct. App. 1989). Reasons for permitting plea withdrawal prior to sentencing include coercion on the part of trial counsel or a genuine misunderstanding either of the plea consequences, or of the charges. Id.

¶ 26. Harvey does not contend that he was coerced or that he misunderstood either the plea bargain or any elements of the crimes charged. Rather, he equates his case to Libke v. State, 60 Wis. 2d 121, 208 N.W.2d 331 (1973). There, Libke entered his guilty pleas while he was represented by appointed counsel. Id. at 122. After expressing dissatisfaction with that counsel, Libke received new counsel who moved for permission to withdraw the pleas on grounds that they had been induced by Libke's failure to fully understand the circumstances. Id. At the motion hearing, Libke testified that his first counsel had talked him into making a plea he did not want to make. Id. at 122-23. The trial court denied his motion. Id. at 123. The supreme court reversed, concluding that Libke's assertion that he had pled guilty out of confusion because things were happening "too darn fast" adequately demonstrated a "fair and just reason" for plea withdrawal. Id. at 129.

¶ 27. Harvey makes no real claim on appeal that events in this case confused or outpaced him, however, and we see no other similarities between his situation and Libke sufficient to warrant second-guessing the trial court's exercise of discretion. Harvey, his wife and his first attorney all testified at the hearing on Harvey's motion to withdraw his pleas. The gist of Harvey's testimony was two-fold: he was innocent because the sexual encounter was consensual, but he pled guilty because he wanted to maximize his chances of avoiding or reducing prison time. Both Harvey's wife and first attorney also testified that Harvey insisted he was innocent, but that they urged him to take the pleas based on the attorney's estimation that pleading would yield a better chance of avoiding prison.

¶ 28. The trial court found that Harvey's assertions of innocence were due only to his claims that the sexual conduct was consensual, not that it did not happen or because "there was any confusion about what cunnilingus may mean or that intercourse includes touching the mouth to the vagina." The court further found that the change of attorneys had brought with it a change of professional opinion as to Harvey's chances at trial. The court also observed that Harvey had ample time to reconsider his decision, yet waited until "literally the eve of the sentencing hearing" to consult a second attorney. The court also found that Harvey "understood exactly what was happening" and that he could have indicated at the plea hearing that he did not want to go through with the guilty pleas, but did not. After verifying that Harvey understood all elements of the charges, the trial court found incredible any claim of confusion on Harvey's part, finding instead that Harvey's guilty pleas were the result of his own free, knowing and voluntary decision. The trial court concluded that Harvey's desire to withdraw his pleas based on his claim of innocence and on a change of heart about his odds at trial did not amount to a "fair and just reason."

¶ 29. A trial court makes numerous credibility assessments crucial to a determination of whether the evidence offered was a "fair and just reason" supporting withdrawal, and we must accept them. See Kivioja, 225 Wis. 2d at 289-91. We conclude that the trial court reached a reasonable conclusion based on the correct legal standard and a logical interpretation of the facts. It observed, correctly so, that Harvey's pleas were free, knowing and voluntary. The trial court concluded that Harvey's desire to withdraw his pleas was connected not to a misapprehension of the pleas or the plea process, but to his claim of innocence and the second opinion suggesting different odds of avoiding prison. A recalculation of one's chances at trial, without more, is not a fair and just reason. See Leitner, 247 Wis. 2d 195, ¶ 25. And while an assertion of innocence generally is an important factor, id., the facts found by the trial court here eviscerate that claim. We see no erroneous exercise of discretion.

SENTENCING ISSUES

1. Alleged Breach of Plea Agreement

¶ 30. Harvey argues that the State materially and substantially breached the plea agreement by presenting statements of the victim and people supportive of her at the sentencing hearing. He contends these statements amounted to an "end-run" by the State around its agreement not to make any sentencing recommendations. See State v. Hanson, 2000 WI App 10, ¶ 24, 232 Wis. 2d 291, 606 N.W.2d 278.

¶ 31. When reviewing an alleged breach of a plea agreement, the terms of the agreement and the historical facts of the State's conduct are questions of fact. State v. Williams, 2002 WI 1, ¶ 2, 249 Wis. 2d 492, 637 N.W.2d 733. Where, as here, the facts are undisputed on appeal, the question is one of law to be reviewed de novo. See State v. Wills, 193 Wis. 2d 273, 277, 533 N.W.2d 165 (1995). Whether the State's conduct constitutes a breach of the plea agreement and, if so, whether the breach is material and substantial are questions of law. Williams, 249 Wis. 2d 492, ¶ 2. A breach is material and substantial when it defeats the benefit for which the accused bargained. Id., ¶ 38.

¶ 32. We agree with Harvey that "end-runs" around plea agreements, like explicit repudiations of them, are prohibited. See Hanson, 232 Wis. 2d 291, ¶ 24. In other words, the State may not accomplish through indirect means what it promised not to do directly, and it may not covertly convey to the trial court that a more severe sentence is warranted than that recommended. Id.

¶ 33. Because the State's conduct at the sentencing is central to Harvey's challenge, we recite additional facts in some detail to flesh out this appellate issue. The terms of the plea agreement pertaining to this issue are not in dispute: the State was free to argue relevant facts at sentencing, but agreed not to make any specific sentencing recommendation. The historical facts of the State's conduct at the sentencing similarly are undisputed. The trial court opened the sentencing hearing with a recitation of the charges to which Harvey had pled guilty and ascertained that it understood the terms to which the parties had agreed. The court then asked whether the victim or any member of her family wanted to make a statement. The State responded that the victim, her sister and the victim's "significant other/fiancé" wished to address the court.

¶ 34. The victim's fiancé spoke first, under questioning by the trial court. During the course of this exchange, the fiancé said, "The maximum sentence in and of itself doesn't seem harsh enough." After the court thanked him for his statement, the State remarked, "Judge, I would ask [the fiancé] to also address [the victim's] demeanor and what [he] saw and heard of her when [he] got home that night." Harvey objected that permitting the State to ask questions would be going beyond arguing facts and circumstances of the offense. Harvey contended that the State was "using other witnesses to ask questions and bolster the case." The trial court overruled the objection on grounds that the questioning was relevant to a determination of consent, would assist in the sentencing decision, and did not run afoul of the plea agreement. The State then put various questions to the flaneé and Harvey's counsel followed up with questions of his own.

¶ 35. The sentencing hearing next proceeded with the statement of the victim's sister.

THE COURT: .... Your next witness.
[ASSISTANT DISTRICT ATTORNEY]: Corrina (Phon.) Skinner.
THE COURT: Ma'am, would you state your name for the record?
CORRINA SKINNER: Corrina Skinner.
[DEFENSE COUNSEL]: Again, Judge, if the questioning is going to come from the state, I'm making the same objection I did earlier [regarding questioning by the State].
THE COURT: I will preserve your objection. And if there is any specific thing that is said that I think violates the plea agreement or you think violates it in a different way from what you've already argued, then raise it or I'll raise it.
[DEFENSE COUNSEL]: All right.
THE COURT: But other than that, I will stand by the ruling I made.
[ASSISTANT DISTRICT ATTORNEY]: Judge, I want to make it very clear, the only prompts I've made to any of these witnesses is factually. I am not encouraging them to make any sort of recommendation at the state's behest. I'm absolutely not making any penalty recommendation. The only questions and conversations we have had are regarding factual issues.
THE COURT: Very well. Corrina, go ahead.

¶ 36. Skinner then presented a narrative statement, offering her perspective of the effect that Harvey's assault had on her sister and, given the stepsibling relationship, on the family as a whole. She also asked the court to "consider the maximum penalty." The victim then addressed the court in similar fashion and asked for "the maximum sentencing possible on both counts."

¶ 37. The State then offered "a few other factual matters" it wished to bring to the trial court's attention. Those matters included evidence unfavorable to Harvey that the State would have introduced at trial. At this juncture, Harvey again objected on grounds that (1) the State's commentary exceeded the bounds of factual argument and (2) the witnesses "were called as the state's witnesses, and they all made a recommendation to the court for a sentence. That's indirectly doing what the state can't do directly, which is make a sentencing recommendation...." The trial court disagreed with Harvey, noting that, just as it had received letters from Harvey's children asking for mercy in sentencing their father, the victim's family members were equally entitled to voice their opinions regarding sentencing.

¶ 38. Once again, the State stressed that it was not urging the trial court to adopt the recommendations made by any of the witnesses:

And just one final comment on the victim, her sister, and her fiancé making a statement. I think that I would be violating her constitutional rights to try and preclude her from making any statement. And I will reiterate, emphasize, underline, italicize that I am not asking the court to adopt her recommendation, [the fiancé's], or [the victim's sister's].
I'm not asking the court to adopt the presentence recommendations. I'm not asking the court to exceed that recommendation or to go lower than it was ... in the presentence report. I am not making any recommendation to the court at all.

¶ 39. Harvey argues that the State's affirmation of the plea agreement in this fashion could not overcome the State's "covert message" conveyed through Skinner that it, in fact, supported a severe sentence. Harvey contends that the State's "adopting the opinion of Corinna Skinner... by calling her as a state's witness," and by describing unfavorable evidence materially and substantially — albeit indirectly — breached the pact not to offer a sentencing recommendation. We are not persuaded.

¶ 40. We first disagree that the State breached the plea agreement by going beyond factual argument with its comments about evidence it would have introduced had there been a trial. Harvey's sole defense was that the sex was consensual. The State simply brought to the trial court's attention evidence that would refute that claim. The evidence included summaries of testimony witnesses would offer regarding telephone calls the victim and/or her fiancé allegedly had made shortly after the assault occurred, and regarding other instances of Harvey's sexual abuse of the victim. A party who opens the door on a subject cannot complain if the opposing party offers evidence on the same subject to explain, counteract, or disprove the evidence. State v. Richardson, 2001 WI App 152, ¶ 11, 246 Wis. 2d 711, 632 N.W.2d 84. Moreover, the plea agreement expressly permitted the State to present facts relevant to the sentence. The only bar was that the State could not make a specific sentence recommendation. The information provided by the State was in keeping with its pledge under the plea agreement.

¶ 41. We also disagree with Harvey that Skinner's role at the sentencing was as a "state's witness" and that her statement amounted to an "end-run" or in any way rose to the level of a material and substantial breach of the plea agreement. While Skinner would have been a "state's witness" had there been a trial, in the context of this sentencing proceeding, she was, more accurately, the victim's witness. The trial court asked whether the victim or any member of her family wished to make a statement, and the prosecutor simply called Skinner to come forward. Defense counsel then objected to any questioning by the State, and the court immediately reassured defense counsel that it would be vigilant against violations of the agreement. The State underscored that it in no way was encouraging Skinner, or others, to make any sort of penalty recommendation. In our view, both the trial court and the State demonstrated an exemplary effort to honor the plea agreement.

¶ 42. We reject Harvey's argument on another basis as well. As the trial court aptly noted, Harvey's objections to statements by the victim's witnesses in essence asked the trial court to silence the victim and/or her family. The victim and her family members merely were afforded the same opportunity to speak as was offered, and accepted, by Harvey's family. Moreover, a victim of a crime has an absolute right to make a statement at sentencing, and it is within the trial court's discretion to "allow any other person to make or submit a statement" as long as the statement is relevant to the sentence. Wis. Stat. § 972.14(3)(a). Similarly, the "Basic bill of rights for victims and witnesses" statute guarantees a victim the right "[t]o provide statements concerning sentencing" and the right "[t]o have the court provided with information pertaining to the economic, physical and psychological effect of the crime upon the victim and have the information considered by the court." Wis. Stat. § 950.04(lv)(m) and (pm). Finally, we observe that Wis. Stat. § 950.11 provides for a forfeiture penalty against a public official who intentionally fails to provide a right specified under § 950.04(lv).

¶ 43. Skinner's statement offered the very kind of sentencing information contemplated by Wis. Stat. § 950.04(lv)(m) and (pm). Skinner related that her sister had to move from a house she loved because of the memories associated with the assault and that her sister now is fearful, sometimes telephoning Skinner because she "thinks she hears things, and she's afraid that someone is in her apartment." Skinner stated that because the actions of Harvey, their stepbrother, "really had serious repercussions on the family as a whole," such that "my sister and I have basically lost our family," she was asking the court to consider giving the maximum penalty. Courts are encouraged to consider the rights and interests of the public when imposing sentence. State v. Johnson, 158 Wis. 2d 458, 465, 463 N.W.2d 352 (Ct. App. 1990).

¶ 44. We disagree that Skinner's narrative intruded into the forbidden realm of a State-endorsed sentencing recommendation. We commend the State for its prompt and strenuous disavowal of any connection with not only Skinner's comments and sentencing request, but also those of the victim and her fiancé. We also commend the trial court for superintending the proceeding to assure that the State complied with the plea agreement. We see no erroneous exercise of discretion.

2. Alleged Erroneous Exercise of Sentencing Discretion

¶ 45. The trial court sentenced Harvey to a ten-year term on the third-degree sexual assault conviction, consisting of two years' initial confinement followed by eight years' extended supervision. The court also sentenced Harvey to nine months of consecutive county jail confinement on the fourth-degree sexual assault conviction. On appeal, Harvey challenges only the prison confinement portion of the sentence on the third-degree sexual assault conviction.

¶ 46. Our review on appeal is limited to determining whether the trial court erroneously exercised its discretion. State v. Gallion, 2004 WI 42, ¶ 17, 270 Wis. 2d 535, 678 N.W.2d 197. Discretion is erroneously exercised when sentencing is based on clearly irrelevant or improper factors. Id. This court follows a strong and consistent policy against interfering with the sentencing discretion of the court and indulges a strong presumption that the sentencing court acted reasonably. Id., ¶ 18. The defendant bears the burden of showing some unreasonable or unjustified basis for the sentence imposed. State v. Mata, 2001 WI App 184, ¶ 13, 247 Wis. 2d 1, 632 N.W.2d 872.

¶ 47. Harvey correctly states Gallion's teaching that probation should be considered as the first sentencing alternative. Gallion, 270 Wis. 2d 535, ¶ 25. Here, the trial court expressly addressed probation. Nearly ten pages of the sentencing transcript are devoted to evaluating the factors a court must consider in fashioning a sentence. See id., ¶ 43 n.ll. The court specifically noted Harvey's work ethic, his helpfulness to his elderly parents, and the effect imprisonment would have on Harvey's wife and children. The court nonetheless found that several factors weighed in favor of a prison sentence: Harvey's "very high" level of culpability, the aggravated nature of the offense, his high need for rehabilitative control, and the fact that the public is "generally horrified" by the idea of "an unwanted stranger" entering a woman's house at night and committing a sexual assault. In sum, the court concluded that probation would unduly depreciate the offense. Moreover, we take note that the court considered and rejected the requests for a maximum sentence registered by the victim and the others who spoke on her behalf.

¶ 48. Probation should be the disposition unless confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or probation would unduly depreciate the seriousness of the offense. Id., ¶ 44. Of these factors, only the need for treatment in confinement gave the trial court some pause. But since the rule is stated in the disjunctive, all factors need not be satisfied. See State v. Schumacher, 144 Wis. 2d 388, 401, 424 N.W.2d 672 (1988) (applying the principle that where two statutory approaches are stated in the disjunctive, either approach may be employed). The court sufficiently explained the rationale underlying the bifurcated sentence and how the sentence would advance the specified objectives. See Gallion, 270 Wis. 2d 535, ¶ 45. We see no erroneous exercise of discretion.

CONCLUSION

¶ 49. We hold that the criminal act of sexual intercourse by cunnilingus does not require stimulation of the victim's clitoris or vulva, but requires only oral contact with the victim's genital area. The criminal complaint and the preliminary hearing evidence established a factual basis for such oral-genital contact, and therefore Harvey was not entitled to withdraw his guilty plea to this charge. We further hold that Harvey did not otherwise establish a "fair and just reason" for withdrawal of his pleas.

¶ 50. We also reject Harvey's argument that the information presented by the victim and others on her behalf at the sentencing violated the State's promise under the plea agreement to not make a specific sentencing recommendation. Finally, we hold that the trial court did not misuse its sentencing discretion.

By the Court. — Judgments and order affirmed.

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

       Harvey does not challenge the factual basis for the fourth-degree sexual assault conviction.

       Under Wis. Stat. § 940.255(5)(b)l. "sexual contact" means:
      Intentional touching by the ... defendant, either directly or ... by the use of any body part... of the complainant's . .. intimate parts if that intentional touching is either for the purpose of sexually-degrading; or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant....

       This case illustrates the recurring problem of what we might call "anatomical approximation," often encountered when nonmedical people describe female genitalia. The vagina, an internal structure, is the canal that leads from the uterus to the external orifice (vulva). See WebsteR's ThiRD New InteRnational DictionaRY, 2528, 2567 (unabR 1976). While an act of cunnilingus might involve the victim's vagina, we commonly see prosecutors, defense attorneys, judges, victims and witnesses refer to the "vagina" when the evidence does not show involvement with that specific structure, but rather only with the victim's genital area. We urge all concerned to be more descriptively accurate in the future.

       The sexual assault statutes in the Criminal Code are part of Wis. Stat. ch. 940, titled "Life And Bodily Security" and are included under Subchapter II titled "Bodily Security."

       Subsequent editions of Black's Law Dictionaey do not define cunnilingus.

       We may look to other jurisdictions for persuasive authority where there are no Wisconsin cases directly on point. See State v. Frey, 178 Wis. 2d 729, 740, 505 N.W.2d 786 (Ct. App. 1993).

       The persons who gave statements at the sentencing were not sworn as witnesses and, for the most part, presented narrative statements in response to questions by the trial court and the attorneys. Thus, we hesitate to label these persons as "witnesses." For the same reasons, we do not view the questioning and answering process as the equivalent of formal "direct" and "cross" examination.

       The same can be said for the information provided by the victim's fiancé.