Plea Colloquy and Ineffective Assistance of Counsel

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Adam R. Demerath

Case No.: 2017AP1431-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Plea Colloquy and Ineffective Assistance of Counsel

Adam Demerath appeals a judgment of conviction, entered upon his no-contest pleas, for first-degree sexual assault and attempted burglary. He also appeals an order denying his motion for postconviction relief. Demerath argues his pleas were not knowingly, intelligently and voluntarily entered because the circuit court’s plea colloquy was deficient and because he did not actually know the elements of the offenses to which he was pleading. Specifically, he alleges the court failed to apprise him of the definition of “sexual contact” within Wisconsin’s sexual assault statute. Demerath also argues he was denied the effective assistance of counsel when he entered his pleas because his attorney failed to provide him with the definition of that phrase.

We reject both of Demerath’s arguments because he has failed to demonstrate a manifest injustice warranting plea withdrawal. Following a postconviction hearing at which both Demerath and his attorney testified, the circuit court found that Demerath had been told essentially what “sexual contact” meant—i.e., that the touching was done for the purpose of Demerath’s sexual gratification or to humiliate the victim. The court rejected the notion that Demerath was not aware of the definition of “sexual contact,” and it also found “highly incredible” Demerath’s testimony that he had not touched the victim for his own gratification or to humiliate her.

Demerath does not directly challenge these factual findings on appeal. Accordingly, even assuming the plea colloquy was defective, we agree with the circuit court’s conclusion that the State met its burden of showing that Demerath’s pleas were nonetheless knowingly, intelligently and voluntarily entered. For the same reason, we reject Demerath’s assertion that he was prejudiced by his attorney’s alleged failure to provide him with the definition of “sexual contact,” as well as Demerath’s assertion that he would not have pled no contest had he received that information. We affirm.

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.