COURT OF APPEALS

DECISION

DATED AND FILED

December 28, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2021AP68-CR Cir. Ct. No. 2019CF311

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TOMMIE LEE CARTER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Milwaukee County: T. CHRISTOPHER DEE and JOSEPH R. WALL, Judges. 

Order reversed and cause remanded with directions. 

Before Brash, C.J., Dugan and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2021AP68-CR

2

¶1 PER CURIAM. Tommie Lee Carter appeals his judgment of 

conviction entered after he pled guilty to attempted robbery with the threat of 

force. He also appeals the order denying his postconviction motion without a 

hearing. Carter seeks to withdraw his plea on the grounds that it was not knowing, 

intelligent, and voluntary because the nature of the offense was never adequately 

explained to him. We agree, and therefore reverse the order denying his 

postconviction motion, and remand this matter for an evidentiary hearing on his 

claim.1

BACKGROUND

¶2 The charge against Carter stems from an incident that occurred at a 

gas station located on East North Avenue in Milwaukee. According to the 

complaint, J.J.R. was at the gas station to do some electrical repair work. When 

J.J.R. walked out of the gas station to his work van, a male followed him, 

produced a rifle from his clothing, pointed it at J.J.R. and demanded money. J.J.R. 

grabbed the barrel of the rifle and began struggling with the suspect. 

¶3 J.J.R. was able to get the rifle away from the suspect. Being a hunter 

and familiar with firearms, J.J.R. worked the pump to eject the shell from the rifle, 

but nothing came out. J.J.R. then pointed the gun at the ground and pulled the 

trigger, but the rifle did not discharge. J.J.R. threw the rifle on the ground away 

from the suspect, and told him to “just go away.” The suspect picked up the rifle 

and fled on foot, and J.J.R. then called the police. 

 

1

 While Carter appeals both his judgment of conviction and the order denying his 

postconviction order, we address only the order for the reasons set forth in this opinion.
No. 2021AP68-CR

3

¶4 The police were able to obtain video camera surveillance from the 

gas station, showing the incident as described by J.J.R. They released a picture of 

the suspect to the media, and received multiple calls identifying the suspect as 

Carter. The callers included Carter’s parole agent as well as a former prison guard 

who knew Carter from when he was previously incarcerated. The police then 

showed J.J.R. a photo array that included Carter, and J.J.R. identified Carter as the 

person who had attempted to rob him at the gas station. 

¶5 Carter was arrested and charged with attempted armed robbery with 

a habitual criminality repeater enhancer. Carter entered into a plea agreement 

whereby the charge was reduced to attempted robbery with the threat of force, and 

the habitual criminality repeater enhancer was removed. Carter subsequently 

entered a no contest plea pursuant to that agreement in September 2019.2

¶6 During the plea colloquy, the trial court explained the elements of 

the offense by referring to the plea questionnaire and the addendum to the plea 

questionnaire, which included the jury instruction listing the elements of the 

crime. The court confirmed that Carter’s counsel had gone over all of the plea 

paperwork with him, and that Carter understood it. However, the jury instruction 

that was attached to the plea paperwork was for robbery as a completed crime, as 

opposed to attempted robbery. 

¶7 The matter proceeded to sentencing in October 2019. The trial court 

imposed the maximum term of imprisonment of seven and one-half years, 

 

2

 The Honorable T. Christopher Dee took Carter’s plea and imposed sentence; we refer 

to him as the trial court. Due to judicial rotation, Carter’s postconviction motion was decided by 

the Honorable Joseph R. Wall; we refer to him as the postconviction court. 
No. 2021AP68-CR

4

bifurcated as five years of initial confinement followed by two and one-half years 

of extended supervision. See WIS. STAT. § 943.32(1)(b); WIS. STAT. § 939.32(1g); 

WIS. STAT. § 939.50(3)(e) (2019-20).3 

¶8 Carter subsequently filed a postconviction motion seeking to 

withdraw his plea. Specifically, Carter argued that his plea was not knowingly, 

intelligently, and voluntarily entered because he was unaware of the second 

element of attempted robbery—proving that Carter “did acts toward the 

commission of the crime of [robbery] which demonstrate unequivocally, under all 

of the circumstances, that [Carter] intended to and would have committed the 

crime of [robbery] except for the intervention of another person or some other 

extraneous factor.” See WIS JI—CRIMINAL 580. Carter asserted that the trial 

court erred by relying on the plea questionnaire which had the wrong jury 

instruction attached, and further, that the court never stated the correct elements 

for attempted robbery on the record, nor did it direct Carter’s trial counsel to state 

the correct elements for the record. 

¶9 The postconviction court rejected Carter’s argument. It found that 

the record demonstrated that the trial court had explained to Carter “the essential 

elements the State would have to prove at a trial beyond a reasonable doubt to 

convict him of an attempt.” Therefore, the postconviction court denied Carter’s 

motion without a hearing. This appeal follows.

 

3

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2021AP68-CR

5

DISCUSSION

¶10 In seeking plea withdrawal after sentencing, a defendant “must 

prove, by clear and convincing evidence, that a refusal to allow withdrawal of the 

plea would result in ‘manifest injustice.’” State v. Brown, 2006 WI 100, ¶18, 293 

Wis. 2d 594, 716 N.W.2d 906 (citation omitted). One way to establish a manifest 

injustice is to show that the plea was not knowingly, intelligently, and voluntarily 

entered. Id. 

¶11 This is based on the requirement that before the trial court accepts a 

guilty or no contest plea, it must “[a]ddress the defendant personally and 

determine that the plea is made voluntarily with understanding of the nature of the 

charge and the potential punishment if convicted” and “[m]ake such inquiry as 

satisfies it that the defendant in fact committed the crime charged.” WIS. STAT.

§ 971.08(1)(a)-(b). This is a “mandatory requirement” which the trial court

undertakes with the defendant, through a personal colloquy, to “ascertain his 

understanding of the nature of the charge[.]” State v. Bangert, 131 Wis. 2d 246, 

260, 389 N.W.2d 12 (1986). A plea is not considered to be voluntary “unless the 

defendant has a full understanding of the charges against him [or her].” Id. at 257.

¶12 In that vein, a defendant’s motion to withdraw his or her plea on the 

grounds that it was not knowing, intelligent, or voluntary must meet a two prong 

test: the defendant must (1) “make a prima facie showing of a violation of WIS.

STAT. § 971.08 or other court-mandated duty”; and (2) “allege that the defendant 

did not, in fact, know or understand the information that should have been 

provided during the plea colloquy.” State v. Cajujuan Pegeese, 2019 WI 60, ¶26, 

387 Wis. 2d 119, 928 N.W.2d 590 (citation omitted). If the defendant satisfies

both of these prongs, “then that defendant is entitled to an evidentiary hearing, 
No. 2021AP68-CR

6

also known as a Bangert hearing.” Cajujuan Pegeese, 387 Wis. 2d 119, ¶27 

(internal quotation marks omitted). Whether a defendant has met those prongs are 

questions of law that we review de novo. Brown, 293 Wis. 2d 594, ¶21.

¶13 Pursuant to WIS. STAT. § 939.32(3), the attempt to commit a crime 

has two elements: “(1) an intent to commit the crime charged; and (2) sufficient 

acts in furtherance of the criminal intent to demonstrate unequivocally that it was 

improbable the accused would desist from the crime of his or her own free will.” 

State v. Stewart, 143 Wis. 2d 28, 34, 420 N.W.2d 44 (1988). Specifically, for the 

offense of attempted robbery, the State must prove that the defendant (1) intended 

to commit robbery; and (2) “did acts toward the commission of the crime” of 

robbery which “demonstrate unequivocally, under all of the circumstances, that 

the defendant intended to and would have committed” the robbery “except for the 

intervention of another person or some other extraneous factor.” WIS JI—

CRIMINAL 580. Because the incorrect jury instruction was included in the plea 

paperwork, it was incumbent on the trial court to fully explain the elements of the 

crime to which Carter was pleading—in particular, the second element, as it 

pertains to the attempt element of the crime—in order to comply with WIS. STAT. 

§ 971.08. See Brown, 293 Wis. 2d 594, ¶21. 

¶14 The State asserts that the trial court adequately explained the second 

element during the colloquy when it described that the State would have to prove 

that Carter, “with intent to steal ... attempted to take property from the person of 

J.J.R., the owner, by threatening the imminent use of force against that person, and 

with intent thereby to compel the owner of the property to acquiesce in the taking 

or carrying away of said property.” Indeed, the State points out that “[t]he 

intervention of another person or some other extraneous factor that prevents the 
No. 2021AP68-CR

7

accused from completing the crime is not an element of the crime of attempt.” See

Stewart, 143 Wis. 2d at 31. 

¶15 Rather, charging a defendant for an attempted crime seeks to 

“punish[] an individual for acts that further the criminal objective,” because “[t]he 

law does not ordinarily punish a person for guilty intentions alone.” Id. at 37. 

Thus, the second element in the attempt statute focuses on “what conduct, ‘when 

engaged in with a purpose to commit a crime or to advance toward the attainment 

of a criminal objective, should suffice to constitute a criminal attempt.’” See id.

(citation omitted). 

¶16 Put another way, an attempted criminal offense does not occur until 

“the accused’s acts move beyond ... the time during which the accused has formed 

an intent to commit the crime but has not committed enough acts and may still 

change his mind and desist.” See id. at 42. “The most difficult problem in the law 

of attempts has been to formulate a satisfactory approach or test to describe what 

constitutes culpable conduct” to prove that second element. Id. at 37. To that end, 

the language in WIS JI—CRIMINAL 580 explains how the second element is 

established: “the intervention of another person or other extrinsic force [that] 

prevents completion of the criminal act ... is indicative of the fact that the 

defendant intended to commit the crime because it shows that he did not 

voluntarily cease from completion of the crime[.]” Hamiel v. State, 92 Wis. 2d 

656, 665, 285 N.W.2d 639 (1979). However, “[t]he conduct element of 

[§] 939.32(3) is satisfied when the accused engages in conduct which 

demonstrates that only a circumstance beyond the accused’s control would prevent 

the crime, whether or not such a circumstance actually occurs.” See Stewart, 143 

Wis. 2d at 42. Thus, the second element of attempt “requires a judgment in each 
No. 2021AP68-CR

8

case that the accused has committed sufficient acts that it is unlikely that he would 

have voluntarily desisted from commission of the crime.” Id.

¶17 Therefore, the extraneous factor language of WIS JI—CRIMINAL 580, 

while not an element of attempt, assists in explaining the nature of a criminal 

attempt offense. Carter alleges that he was unaware of the second element of 

attempted robbery, and that the trial court’s description of the offense during the 

plea colloquy did not adequately explain the nature of that offense. 

¶18 The State contends that the “stop-the-film” test should be applied to 

resolve this issue. In that test, the accused’s acts are to be “viewed as a film in 

which the action is suddenly stopped, so that the audience may be asked to what 

end the acts are directed.” See Stewart, 143 Wis. 2d at 42. If it is determined that

there is “only one reasonable answer to this question then the accused has done 

what amounts to an ‘attempt’ to attain that end. If there is more than one 

reasonably possible answer, then the accused has not yet done enough.” Id.

(citation omitted). The goal of the “stop-the-film” test is to determine “whether 

the accused’s acts unequivocally demonstrate an intent to commit the crime 

rendering voluntary desistance from the crime improbable.” Id.

¶19 However, this test has been employed where the issue was the 

sufficiency of the evidence. See id. at 37; Hamiel, 92 Wis. 2d at 667. In contrast, 

here the issue is whether Carter understood the elements of the crime to which he 

was entering a plea. Therefore, the stop-the-film test is not applicable in this case.

¶20 Instead, we find State v. Howell, 2007 WI 75, 301 Wis. 2d 350, 734 

N.W.2d 48, instructive. In Howell, the issue before our supreme court was 

whether the trial court’s explanation during the plea colloquy of the offense, where 

the defendant was charged as a party to a crime, was sufficient. Id., ¶37. The 
No. 2021AP68-CR

9

supreme court held that it was not, stating that the trial court’s explanation by 

“[s]imply stating that the State would have to prove that [the defendant] ‘assisted’ 

or ‘intentionally assisted’ the shooter” was not sufficient to explain the nature of 

party to a crime liability. Id., ¶48.

¶21 We conclude that in this case, the trial court’s basic explanation of 

the nature of the offense of attempted robbery during the colloquy—that Carter 

intended to steal J.J.R.’s property—did not fully encompass the requirements of 

the second element relating to attempt. As a result, it did “not amount to a clear 

explanation of the charge.” See id., ¶48. 

¶22 Therefore, Carter has established a prima facie case that there was a 

violation of WIS. STAT. § 971.08, and has sufficiently alleged that he did not know 

or understand the information regarding the second element of attempt that should 

have been provided at the plea hearing. See Brown, 293 Wis. 2d 594, ¶39. 

Having satisfied both of these prongs, Carter is entitled to a Bangert evidentiary 

hearing. See Cajujuan Pegeese, 387 Wis. 2d 119, ¶27.

¶23 Accordingly, we reverse the order of the postconviction court 

denying Carter’s postconviction motion, and remand this matter for an evidentiary 

hearing. We note that with this instruction we are not determining whether the 

postconviction court should ultimately grant or deny Carter’s motion to withdraw 

his guilty plea.

By the Court.—Order reversed and cause remanded with directions. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.