01-1290-CR State v. Maday

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Theodore Maday, Jr., appeals from a conviction for having sexual intercourse with a seventeen-year old. Maday pled no contest to the charge, reserving his right to appeal two issues: (1) whether he should be able to present a defense that the seventeen-year old had falsely indicated that he was of legal age and had pursued the sexual intercourse as part of a scheme to extort money; and (2) whether it is unconstitutional for a seventeen-year old to be a child victim pursuant to sec. 948.09, when Wis. Stat. sec. 938.02(1) defines one who is seventeen years of age as an adult for violations of any state criminal law. Maday seeks an order vacating his judgment of conviction and either granting a new trial on grounds that he should have been entitled to raise the mistake-of-age defense or dismissing the case on grounds that the statute is unconstitutional as applied.

When Maday pled no contest, he waived his right to appeal the first issue. However, because it is apparent from the record that all parties recognized that Maday intended to appeal this issue when he entered his plea, we conclude that Maday should be given an opportunity to withdraw his plea.

We remand the case to afford Maday this opportunity, and therefore we decline to address Maday’s second issue.

Not recommended for publication in the official reports.

Dist III, Sazama, J., Cane, C.J.

Attorneys:

For Appellant: Harry R. Hertel, Eau Claire

For Respondent: Karen E. Timberlake, Madison; Kathleen A. Pakes, Ladysmith