### COURT OF APPEALS DECISION DATED AND FILED September 10, 2019

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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2017AP1871 Cir. Ct. No. 2014CF42 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

S TATE OF W ISCONSIN ,
P LAINTIFF -R ESPONDENT ,

V .
W ILLIAM T. P ETERSON ,
D EFENDANT -A PPELLANT .

APPEAL from an order of the circuit court for Eau Claire Coun ty: JON M. THEISEN, Judge. Affirmed

. Before Stark, P.J., Hruz and Seidl, 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 W IS . S TAT . R ULE 809.23(3).No. 2017AP1871

2 ¶1 PER CURIAM. William Peterson, pro se, appeals an order den ying
his W IS

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. § 974.06 (2017-18) 1 postconviction motion for plea withdrawal and sentence modification. Peterson argues that his plea was unknowing , thus entitling him to plea withdrawal, because the circuit court di d not inform him at the plea hearing that read-in offenses could be used to increase hi s sentence up to the maximum or that it could order him to have no contact with his biol ogical daughter. Peterson also contends he is entitled to sentence modifica tion because the court erroneously weighed sentencing factors. We reject these arguments and
affirm the order.

B ACKGROUND
¶2 The State charged Peterson with first-degree sexual assault of a child under the age of thirteen; first-degree sexual assault of a child und er the age of sixteen, by use of force or violence; first-degree sexual assault of a child under the age of twelve; incest with a child by a stepparent; felony in timidation of a victim; false imprisonment (domestic abuse); two counts of repeated s exual assault of a child; and three counts of exposing genitals or pubic area. In exc hange for his guilty pleas to one count of repeated sexual assault of a child an d one count of felony intimidation of a victim, the State agreed to cap its s entence recommendation at ten years’ initial confinement, but it remai ned free to argue the term of extended supervision. The remaining counts were dismiss ed and read in for sentencing purposes.

1 All references to the Wisconsin Statutes are to the 2017-18 versi on unless otherwise noted.No. 2017AP1871

3 ¶3 At the sentencing hearing, Jonathan Dickey, a licensed psychologi st from the Division of Community Corrections at the Wisconsin Depa rtment of Corrections, testified about a “Sex Offender Evaluation Report” he had prepared for the circuit court. Dickey opined that Peterson fell within the “moderate” risk range for sex offense recidivism, but that risk could be reduced through proper treatment and external controls. Dickey further explained that his assessment did not take into account the fact that Peterson had other alleged victim s, because the tools used did not account for charges occurring during the same time period that did not result in convictions, such as the dismissed and read-in char ges. When asked to discuss the dynamic factors affecting Peterson’s risk l evel, Dickey noted, among other things, that there was “partial evidence of sexual inte rest in children,” noting the victim was eleven years old. Apart from evaluating P eterson’s overall level of risk to sexually reoffend, Dickey did not offer a sentence
recommendation.
¶4 Defense counsel expanded on Dickey’s written report, emphasizi ng a statement therein that Peterson’s crimes were likely moti vated by a “confluence” of psychological problems rather than a pedophilic interest in children. Defense counsel recommended five years’ initial confinement and twenty t o twenty-five years’ extended supervision for the repeated sexual assault of a child count, with a concurrent sentence of two years’ initial confinement and two to thr ee years’ extended supervision for the intimidation of a victim count. Consiste nt with the plea agreement, the State recommended ten years’ initial c onfinement followed by twenty years’ extended supervision for the repeated sexual assault of a c hild count. For the intimidation count, the State recommended a withheld sentenc e and five years’ probation.No. 2017AP1871

4 ¶5 The circuit court ultimately followed the State’s sentenci ng recommendation. The court also ordered that Peterson “have no contact with anyone under 18 other than incidental contact,” adding that “the contact shoul d never be alone.” However, the court ordered that Peterson could have contact with his minor biological daughter if she requested contact and once it was screened by the Department of Corrections “for appropriateness.”
¶6 After the time for filing a direct appeal had expired, Pet erson filed the underlying motion requesting plea withdrawal and sentence modifi cation pursuant to W IS

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. § 974.06. Peterson also requested a Machner 2 hearing, though he did not allege a claim of ineffective assistance of counsel . After a postconviction hearing limited to argument, the court denied Pete rson’s motion. This appeal follows.

D ISCUSSION
¶7 As a threshold matter, the State asserts that this court l acks jurisdiction to review this matter because there is no writt en order in the record on appeal. A judgment or order must be reduced to writing and filed wi th the clerk of the circuit court before an appeal can be taken. Ramsthal Advert. Agency v. Energy Miser, Inc. , 90 Wis. 2d 74, 75, 279 N.W.2d 491 (Ct. App. 1979). The transcript of the hearing does not satisfy the requirement that a written judgment
or order be entered. See State v. Powell , 70 Wis. 2d 220, 222, 234 N.W.2d 345 (1975).

2 See State v. Machner , 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).No. 2017AP1871

5 ¶8 The circuit court orally denied Peterson’s W IS

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. § 974.06 motion at a June 23, 2017 hearing. Peterson subsequently wrote the cour t requesting a “written judgment” so that he could file a notice of appeal. In an October 26, 2017 letter signed by the judge, the court responded to Pe terson’s request stating it was “unclear as to which motions that [i t] denied, that [Peterson] believe[d] do not include an order.” The court further stated that “[a ]n appeal should go to the appellate court,” suggesting its belief that all requests for relief had been denied at that point. Ambiguities should be liberally c onstrued to preserve the right to appeal. See Wambolt v. West Bend Mut. Ins. Co. , 2007 WI 35, ¶50, 299 Wis. 2d 723, 728 N.W.2d 670. We therefore construe the October 26, 2017 letter as the order denying Peterson’s § 974.06 motion.
¶9 Although the order was filed after the notice of appeal, the notic e of appeal is deemed filed on the date of entry of the order on appeal. See W IS

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. § 808.04(8). To the extent the notice of appeal does not identify the Octo ber 26, 2017 order, the failure of the notice of appeal to correctly identify the final appealable document is not fatal to appellate jurisdiction. See Carrington v.
St. Paul Fire & Marine Ins. Co. , 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267 (1992).
¶10 Turning to the merits of this appeal, Peterson contends he should b e allowed to withdraw his plea because it was not knowingly entere d. In a postsentence motion for plea withdrawal, the defendant carries the heavy burden of establishing, by clear and convincing evidence, that plea withdra wal is necessary to correct a manifest injustice. See State v. Thomas , 2000 WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d 836.No. 2017AP1871

6 ¶11 The manifest injustice standard requires the defendant to show “a serious flaw in the fundamental integrity of the plea.” Id. (citation omitted). One way for a defendant to meet this burden is to show that he or she did not knowingly, intelligently, or voluntarily enter the plea. State v. Brown , 2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906. Whether a plea is knowing, intelligent, and voluntary is a question of constitutional fact. Id. , ¶19. We accept the circuit court’s findings of historical and evidentiary fact unle ss they are clearly erroneous, but we determine independently whether those facts demonst rate that the defendant’s plea was knowing, intelligent, and voluntary. Id.
¶12 Where, as here, a defendant moves to withdraw his or her plea b ased on an alleged error in the plea colloquy, the defendant must: (1) ma ke a prima facie showing of a violation of W IS

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. § 971.08 or another court-mandated duty; and (2) allege that he or she did not, in fact, know or understand the information that should have been provided during the plea colloquy. State v. Bangert , 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986). If the defendant satisfies these obligations, the burden shifts to the State to prove by clea r and convincing evidence that the defendant’s plea was knowing, intelligent, and volunta ry despite the inadequacy of the plea colloquy. Id. The State may utilize any evidence in the record “to show that the defendant in fact possessed the constitut ionally required understanding and knowledge which the defendant alleges the inadequate plea colloquy failed to afford him [or her].” Id. at 274-75.
¶13 Citing State v. Sulla , 2016 WI 46, 369 Wis. 2d 225, 880 N.W.2d 659, Peterson first contends the circuit court was required to inform him at the plea hearing that the read-in offenses could be used to increase his sentence up to the maximum possible penalty. Peterson, however, has misinterpr eted Sulla

. There, as relevant to this appeal, our supreme court held that t he circuit courtNo. 2017AP1871

7 “should” advise a defendant that the read-in charge will be considere d by the sentencing court, but the maximum penalty will not be increased. Id. , ¶35. Such an advisement, however, is not mandatory. See also State v. Straszkowski , 2008 WI 65, ¶93, 310 Wis. 2d 259, 750 N.W.2d 835 (discussing the better practice of informing defendants about the implications of a read-in offense, but never declaring that a court is required to do so).
¶14 In any event, Peterson signed a plea questionnaire form that described the possible effects of read-in offenses, thereby a cknowledging his understanding that: (1) although the judge may consider read-in charges whe n imposing the sentence, the maximum penalty will not be increas ed; (2) he may be required to pay restitution on any read-in charges; and (3) the Sta te may not prosecute him for any read-in charges. To the extent Peterson nevertheless asserts
he did not know the read-in offenses could be considered to increase his sentence up to the maximum, his claimed lack of understanding does not entitle him to relief because the circuit court was only required to advise Pe terson of direct consequences of his plea. See State v. James , 176 Wis. 2d 230, 238, 500 N.W.2d 345 (Ct. App. 1993). There is no requirement that a defendant entering a plea be informed of indirect or “collateral” consequences of conviction. Id.
¶15 “A direct consequence of a plea is one that has a definite, immediate, and largely automatic effect on the range of a defendant’s punishme nt.” State v. Byrge , 2000 WI 101, ¶60, 237 Wis. 2d 197, 614 N.W.2d 477. In contrast, a collateral consequence is indirect, does not automatically flow fr om the conviction, and may depend on the subsequent conduct of a defendant. Id. , ¶61. If the circuit court fails to disclose a direct consequence of a plea, a defendant may withdraw the plea as a matter of right. State v. Merten , 2003 WI App 171, ¶7, 266 Wis. 2d 588, 668 N.W.2d 750. However, if the court does not disclose a col lateralNo. 2017AP1871

8 consequence of a plea, a defendant may not withdraw his or her plea on the basis
of that lack of information. Id.
¶16 The potential impact of a read-in offense at sentencing is a collateral consequence of the plea because the circuit court maintains discr etion in determining how or if it will use a read-in offense. The mere possibility that the court may consider a read-in offense at sentencing does not create a definite, immediate, and largely automatic effect on the range of a defe ndant’s punishment. We likewise reject Peterson’s assertion that the court was required to inform him that he may be required to pay restitution on the read-in charge s. Because the
decision whether restitution will be ordered and in what amount is left to the circuit court’s discretion, see State v. Madlock , 230 Wis. 2d 324, 329, 602 N.W.2d 104 (Ct. App. 1999), the chance a defendant may be required to pay restit ution on read-in charges does not establish a definite, immediate and a utomatic effect on the sentence. The court, therefore, had no mandatory duty to inform Pet erson of
the effects of the read-in offenses.
¶17 Next, Peterson argues the circuit court was required to inform hi m that it could order no contact with Peterson’s biological daughter. Peterson asserts that such a restriction is punishment constituting a direct conseque nce of his plea. As an initial matter, we note that the court did inform Peters on that a no-contact order was possible. Specifically, when ascertaining Peters on’s understanding of the plea agreement, the court stated: “It’s going to entail no contacts. It’s going to—And I would say no contacts certainly with [the victim] my gues s would be.” The court added it “assume[d] that it also [was] going to include no contacts with minor children. Something like that.” The court ultimately ordered that Peterson have no contact with minors, but it specifically exempted Peter son’s biological daughter from that order, noting he could have contact at his daughter’s requestNo. 2017AP1871

9 and with the approval of the Department of Corrections. We there fore conclude
the court did inform Peterson that it could order he have no contact wi th his biological daughter.
¶18 In addition, to the extent Peterson is asserting that any limi tation on contact with his daughter is punishment, the State acknowledges that a circuit court has a mandatory duty to inform a defendant of any potential punish ment. See W IS

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. § 971.08(1). However, the question remains whether the limited contact order in this case constitutes punishment. Whether such a l imitation is punishment is determined by the intent-effects test. See State v. Muldrow , 2018 WI 52, ¶35, 381 Wis. 2d 492, 912 N.W.2d 74. Under that test, the threshold question is whether the challenged limitation is a form of punish ment or a non-punitive, regulatory scheme. See State v. Rachel , 2002 WI 81, ¶18, 254 Wis. 2d 215, 647 N.W.2d 762.
¶19 First, the court looks to whether the express or implicit “int ention of the legislature was to impose punishment.” Smith v. Doe , 538 U.S. 84, 92 (2003). If the legislature intended to impose punishment, the inquiry e nds. Id. However, if the legislature did not intend to impose punishment, the second inqu iry is whether the law should nonetheless be deemed punishment based on i ts effect. Id. This showing requires the “clearest proof” that the law is not what it purports to
be. Id.
¶20 The second inquiry involves the consideration of seven factors: (1) whether the limitation involves an affirmative disabi lity or restraint; (2) whether it has historically been regarded as a punishment ; (3) whether it comes into play only on a finding of scienter; (4) whether its operation wi ll promote the traditional aims of punishment—i.e., retribution and deterrence; (5) whether theNo. 2017AP1871

10 behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose ass igned. Muldrow , 381 Wis. 2d 492, ¶31.
¶21 Here, Peterson’s biological daughter was a witness, as she c onfirmed that Peterson was in the victim’s bedroom on the night of his arr est. W ISCONSIN S TAT

. § 973.049 applies to restrictions placed on contacting a victim, witness , or co-actor, and it specifically states that the prohibition on conta ct of a witness is permitted if it is “in the interest of public protection.” The stated intent of the statute, therefore, is not punitive; it is designed for the protect ion of others, not to punish the offender. We therefore turn to above-referenced factors to determine whether the statute nevertheless has a punitive effect.
¶22 First, the limitation on contact with Peterson’s daughter is not an affirmative disability or restraint. Under ex post facto c ases, if the effect on a defendant is a minor or indirect disability or restraint, its e ffect is unlikely to be punitive. Smith , 538 U.S. at 99-100. The punishment of imprisonment is “the paradigmatic affirmative disability or restraint.” Id. at 100. Any disability or restraint imposed by the limited contact order in this case is very minor when compared to the restraint of imprisonment. Thus, the first f actor does not support a finding of punitive effects.
¶23 Second, an order limiting contact is not a traditional form of punishment. Third, the imposition of such an order is not reliant on a n independent scienter element. Fourth, the limited contact order here does not serve to promote the traditional aims of punishment (retribut ion and deterrence). Rather, it is concerned with public protection. While the S tate concedes it mayNo. 2017AP1871

11 have some deterrent effect on future crimes, that is not disposi tive, as “[a]ny number of governmental programs might deter crime without impo sing punishment.” Smith , 538 U.S. at 102.
¶24 Fifth, while the violation of a limited contact order may result in punishment, the behavior of simply being in contact with someone is not necessarily a criminal act. Thus, while there is a potential punishment associated with violating the subject order, that does not render the order itself punishment.
¶25 Sixth, the limited contact order at issue in this case has a r ational connection to a non-punitive purpose—namely, protection of a victim or witness against intimidation or further victimization. Id. Because there is a rational connection between the limited contact order and the need for protecti on of victims and witnesses, the statute does not have a punitive effect.
¶26 Finally, the limited contact order is not excessive with res pect to its non-punitive purpose. This particular factor concerns “whether the regulatory means chosen are reasonable in light of the non-punitive objective.” Id. at 105. When it comes to orders restricting contact, such an order is n ot automatic. Rather, the circuit court has discretion in determining whether and how such restrictions will be imposed if the court determines that the restriction “would be in the interest of public protection.” W IS

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. § 973.049(2); see also State v. Campbell , 2011 WI App 18, ¶23, 331 Wis. 2d 91, 794 N.W.2d 276. Here, the limited contact order provided Peterson with the ability to ha ve contact with his daughter in a reasonable way, given the nature of the offenses. The restrictions imposed by the limited contact order were reasonably necessa ry for the protection of Peterson’s daughter. Under the intents-effects test, Peterson ha s not met his burden to show “by the clearest proof” that the order limiting hi s contact with hisNo. 2017AP1871

12 biological daughter has a punitive effect or otherwise constitutes criminal punishment. See Smith , 538 U.S. at 92. Thus, the court was not required to inform Peterson during the plea hearing that it could impose limit ations on contact with his daughter.
¶27 To the extent Peterson alternatively attempts to character ize the limited contact order as a “waiver” of his constitutional right t o contact his daughter, we are not persuaded. Citing Oneida County Department of Social
Services v. Therese S. , 2008 WI App 159, 314 Wis. 2d 493, 762 N.W.2d 122, Peterson asserts that a parent must have knowledge of the const itutional rights given up by a plea. Therese S. , however, is distinguishable on its facts, as it involved a plea to the grounds for termination of an individual’s parental rights. The discussion in that case is therefore inapplicable to the pl eas entered in this
criminal matter.
¶28 In any event, Peterson did not waive any right to contact his daughter but, rather, voluntarily entered a plea with knowledge that the circuit court could impose a no-contact condition. Because the court had no manda tory duty to either explain the impact of the read-in charges or inform Peterson that it could limit contact with his daughter, the court properly denied Pet erson’s motion for plea withdrawal without an evidentiary hearing. See Nelson v. State , 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972) (no hearing required when defendant presents only conclusory allegations or when record conclusi vely demonstrates that he or she is not entitled to relief).
¶29 Next, Peterson argues the circuit court erred by denying his motion for sentence modification. A circuit court has inherent authority to modify
criminal sentences in certain limited circumstances. State v. Harbor , 2011 WI 28,No. 2017AP1871

13 ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. One such circumstance is when a new
factor warrants modification. Id. Even where no new factor is presented, a circuit court has authority to modify a sentence when the court determines that the sentence is illegal or void, or when the court determines that the sentence is unduly harsh or unconscionable. Id. , ¶35 n.8. A court also has authority to vacate
a sentence and resentence the defendant if the court relied on ina ccurate information when originally sentencing the defendant. State v. Tiepelman , 2006 WI 66, ¶31, 291 Wis. 2d 179, 717 N.W.2d 1.
¶30 Here, Peterson does not argue there is a new factor warranting sentence modification, nor does he claim his sentence is illegal , void, unduly harsh, or unconscionable. Instead, he argues his sentence was based on “inaccurate information.” Peterson, however, identifies no inaccur ate information considered by the circuit court at sentencing. Rather, he argues t he court erred by rejecting Dickey’s assessment that the crimes were not motiva ted by pedophilic interest and by expressing its belief that the five-year se ntence recommended by defense counsel would not be sufficient given the harm caused to the vi ctim. Thus, Peterson’s actual complaint is with how the court exercise d its discretion in weighing sentencing factors, and he specifically asserts on appeal that the sentencing court “abused its discretion.”
¶31 A challenge to the circuit court’s sentencing discretion, howe ver, cannot be raised in a W IS

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. § 974.06 postconviction motion. Smith v. State , 85 Wis. 2d 650, 661, 271 N.W.2d 20 (1978). “[P]ostconviction review under sec. 974.06 is applicable only to jurisdictional or constitutional matte rs or to errors that go directly to the issue of the defendant’s guilt.” Id. Because none of Peterson’s arguments are “jurisdictional or constitutional,” they cannot be r aised in aNo. 2017AP1871

14 § 974.06 motion. The court, therefore, properly denied his motion for sentenc e modification.
By the Court. —Order affirmed.
This opinion will not be published. See W IS

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. R ULE 809.23(1)(b)5.