¶ 73. (dissenting). Lackershire moved to withdraw her plea on three grounds: (1) she did not understand the elements of the crime to which she pleaded guilty, (2) she was not made aware of the read-in charges, and (3) her pregnancy caused her to act involuntarily in entering her guilty plea.
*454¶ 74. When deciding Lackershire's motion, the judge addressed the grounds raised in it. For focusing on the motion made by the defendant, and failing to focus on the factual basis requirement that Lackershire herself did not even raise, the judge erred.
¶ 75. You did not misread that: for focusing on the motion made by the defendant, the judge erred in this case. The majority arrives at its odd result by imposing a new obligation on trial judges during the plea procedure. Now, regardless of the motion made by a defendant seeking to withdraw his or her plea, the judge is responsible for identifying any potential grounds for withdrawal (i.e., substantial questions that warrant further inquiry). This new obligation undercuts the burdens already in place during the well-established plea withdrawal procedure.
¶ 76. According to the majority, it is not just the judge that considered Lackershire's motion to withdraw that erred: the judge that conducted the plea colloquy failed to satisfy the factual basis requirement. Majority op., ¶ 38. On this more substantive issue, I also disagree with the majority. Accordingly, I respectfully dissent.
HH
¶ 77. The majority decides that Lackershire had an inadequate plea colloquy because the circuit court judge taking her plea did not satisfy the factual basis requirement. Before getting to the substance of that decision, it is worth articulating the effect of the majority even getting to the factual basis requirement in the first place.
*455A. Plea withdrawal procedure
¶ 78. The procedure for determining whether plea withdrawal is warranted is well established. State v. Brown, 2006 WI 100, ¶ 39-41, 293 Wis. 2d 594, 716 N.W.2d 906; State v. Bangert, 131 Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986). It begins with a motion by the defendant. Brown, 293 Wis. 2d 594, ¶ 39; Bangert, 131 Wis. 2d at 274. The legislature has defined "motion" in the context of a criminal proceeding:
(1) "Motion" means an application for an order.
(2) Unless otherwise provided or ordered by the court, all motions shall meet the following criteria:
(a) Be in writing.
(b) Contain a caption setting forth the name of the court, the venue, the title of the action, the file number, a denomination of the party seeking the order or relief and a brief description of the type of order or relief sought.
(c) State with particularity the grounds for the motion and the order or relief sought.
Wis. Stat. § 971.30. A motion to withdraw a plea must specifically do the following:
(1) make a prima facie showing of a violation of Wis. Stat. § 971.08(1)1 or other court-mandated *456duties2 by pointing to passages or gaps in the plea hearing transcript; and (2) allege that the defendant did not know or understand the information that should have been provided at the plea hearing.
Brown, 293 Wis. 2d 594, ¶ 39.
*457¶ 79. Once the defendant has filed a motion to withdraw his or her plea, the circuit court reviews it. Id., ¶ 40. If the motion establishes a prima facie violation and makes the requisite allegations, the defendant has met his or her burden. Id. The circuit court then holds an evidentiary hearing, which allows the state "to show by clear and convincing evidence that the defendant's plea was knowing, intelligent, and voluntary despite the identified inadequacy of the plea collo*458quy." Id. If the state meets its burden, the evidentiary hearing ends and the defendant may not withdraw his or her plea as a matter of right. Id., ¶ 41. If the state fails to meet its burden, the defendant may withdraw his or her plea as a matter of right. Id.
B. Procedural posture of this case
¶ 80. In this case, Reserve Judge Radcliffe presided over Lackershire's plea hearing, which occurred. March 16, 2004. At the plea hearing, Lackershire pleaded guilty to one count of second-degree sexual assault of a child.
¶ 81. Five months after Lackershire's plea hearing, Judge Morey presided over Lackershire's sentencing hearing. According to the sentencing hearing transcript, Lackershire was sentenced to "nine years and zero months. That is three years and zero months confinement in prison, and six years and zero months is the extended supervision time."
¶ 82. Over six months after Lackershire's sentencing hearing she filed a motion to withdraw her guilty plea. Lackershire's motion to withdraw her plea listed three separate grounds:
She stated that there had not been a specific recitation of the elements of the crime to which she had pleaded. She also posited, based on a review of the [Pre-Sentence Investigation], that the dismissed charges had been treated as read-ins at sentencing, and that she had not understood that they would be treated that way. Further, she argued that her fear of harm to her pregnancy caused by the stress of trial served to coerce her into pleading guilty.
Majority op., ¶ 17. (Note that the majority's own summary of the grounds raised in Lackershire's motion does not include a reference to the factual basis requirement.)
*459¶ 83. During the motion hearing, Lackershire's attorney focused on the grounds raised in the motion. Judge Morey asked, "do you wish to supplement your brief with anything?" Lackershire's attorney responded, "Yes. Briefly, Judge. I set out most of the authorities in the actual motion." The attorney then went on to describe the grounds on which Lackershire's motion was based. During the motion hearing, the attorney made no reference to the factual basis requirement; nor did the district attorney or Judge Morey make any reference to it.
¶ 84. At the outset of oral argument before this court, Lackershire's attorney framed the issues of this case as follows: "There are three sets of issues concerning her plea that are being raised today. There are issues related to the existence of read-in charges, issues related to the elements of the crime to which she pled and the issues related to her pregnancy." The State recapped the issues being addressed in a similar way: "The Defendant seeks to withdraw her guilty plea on three grounds: the read-in charges, the elements, and her pregnancy." Neither attorney mentioned any issue related to the factual basis requirement.
¶ 85. The way that the parties framed the issues tracks the issues presented in Lackershire's petition for review. These were as follows:
1. Should the longstanding rule that read-in offenses that are part of a plea agreement must be set forth on the record at the time of the plea-taking procedure be reversed?
2. If read-in offenses are made part of a plea agreement, must the defendant have actual knowledge and understanding of those offenses and the consequences of the read-in procedure?
*4603. When a defendant has moved to withdraw a plea, and testified as to the confusion and/or misunderstanding about the elements or nature of the charge, must the state produce affirmative evidence in order to prevail?
4. Where the uncontroverted evidence shows that a pregnant defendant entered a plea with the understanding that she could not medically endure a trial without risking her health or the health of the unborn baby and that she believed she could not get an adjournment of the trial date, has the defendant shown that her plea was not voluntary, thereby entitling her to withdraw the plea?
Again, there was no mention of the factual basis requirement in Lackershire's petition for review. Given the procedural posture of the case, it is understandable that the factual basis requirement was not mentioned during oral argument by either party or any of the justices.
¶ 86. It was not until a supplemental brief, after this court heard oral argument on the questions presented, that Lackershire even mentioned the factual basis requirement. In an order seeking additional briefing in the case, we posed three questions. The second question asked the following:
If the phrase "either by the defendant or upon the defendant's instruction" provides an affirmative defense for the sexual assault crime to which Lackershire pleaded guilty, does the failure, during the plea colloquy, to discuss the claim by the defendant that she was raped, since that issue was raised in the probable cause portion of the criminal complaint and in the preliminary hearing transcript presented to support her plea, mean that her plea was not entered knowingly, voluntarily, and intelligently?
*461In her supplemental brief responding to the question, she stated the following:
Lackershire submits that it is almost irrelevant under the facts of this case whether the issue is viewed as a defective colloquy on the elements, or as the failure to find an adequate factual basis, or even under the manifest injustice test requiring her to show a lack of knowledge or understanding of a material element. Under any view, at the time of the plea Lackershire was not advised and did not understand that she was not guilty of any crime if, indeed, she was the victim of the boy's assault, as she claimed.
In essence, Lackershire invited the court to decide her case based on the grounds of the elements being misunderstood, the factual basis requirement not being satisfied, or the manifest injustice test. The grounds the court chose was "almost irrelevant."
¶ 87. There is a problem with Lackershire's invitation: she never moved the circuit court to withdraw her plea because of a failure to satisfy the factual basis requirement. According to the well-established procedure for plea withdrawal, Lackershire would have had to include her claim that Judge Radcliffe failed to satisfy the factual basis requirement in her motion to the circuit court. Judge Morey then could have assessed whether she had made a prima facie showing and the requisite allegations to satisfy her burden. However, Lackershire never made such a motion. The issue was not reviewed by the circuit court and should not be reviewed by any appellate courts.
C. The new plea withdrawal procedure
¶, 88. The majority accepted Lackershire's invitation to decide the case based on the factual basis requirement. Majority op., ¶ 5 n.4.
*462¶ 89. The majority not only accepted Lackershire's invitation to decide the case on the factual basis requirement, it makes it seem as though the factual basis requirement has been one of Lackershire's primary arguments all along. For example, in explaining Lackershire's arguments, the majority states the following: "[S]he argues that the circuit court failed to satisfy the 'factual basis' requirement under Wis. Stat. § 971.08(l)(b)." Majority op., ¶ 2; see also id. ¶ 5 n.4 ("In addition to [Lackershire's] factual basis argument..."), id., ¶ 26 ("Lackershire asserts that her plea colloquy was defective ... in two ways.... Second, the circuit court failed to satisfy the 'factual basis' requirement..."), and id., ¶ 30 ("In her second argument, Lackershire advances that the circuit court did not satisfy the factual basis requirement...").
¶ 90. The record in this case tells a different story: Lackershire never alleged that the plea-taking court failed to satisfy the factual basis requirement. Lacker-shire failed to present any argument related to the factual basis requirement in her motion to the circuit court. Having failed to raise it in her motion to the circuit court, not surprisingly she did not make any such argument to the court of appeals. Similarly, she did not petition this court to review an issue about the factual basis requirement. Lackershire sensibly did not make an argument related to the factual basis requirement in her primary briefs to this court, given that we did not grant a petition to review for such an issue. Only in a supplemental brief answering a question about whether rape constitutes an affirmative defense to the crime to which she pleaded guilty did Lackershire stumble upon the factual basis requirement.
¶ 91. In the face of the well-established plea withdrawal procedure that requires that the defendant *463make a motion with a prima facie showing of a violation of § 971.08(1) or other court mandated duty, the majority decides that a prima facie showing may spring from the record itself. Majority op., ¶ 38. It stated that:
there is a substantial question as to whether these facts, which form the basis of Lackershire's plea, constitute the offense charged. That substantial question obligated the circuit court to make additional inquiry, pursuant to § 971.08(l)(b), to ensure that Lackershire in fact committed the crime charged. Resolving that question is vital to fulfill the purpose of the factual basis requirement.
Id., ¶¶ 41-42. No need for a motion that raises the "substantial question." The presence of a "substantial question" somewhere in the record seems to be enough to obligate a judge reviewing a plea colloquy to address it.3 (Such a new procedure makes one wonder if a new claim is around the corner: ineffective assistance of judge.)
*464¶ 92. Previously, the plea withdrawal procedure empowered defendants to make a motion alleging how a plea-taking court failed to satisfy a plea colloquy duty. That motion permitted the defendants to have the court deal with their allegation directly. Now, judges considering defendants' motions have the added obligation to be on the lookout for substantial questions and red flags in the record of the plea colloquy. That role used to be fulfilled by the defendants and their counsel.
¶ 93. It seems the majority fails to completely grasp the change it is making. Majority op., ¶ 42 n.ll. While noting that bringing to light the new obligation on judges is a "disservice," "conjecture" and "hyperbole," the majority states the following: "The requirement that judges establish a factual basis is statutory, Wis. Stat. § 971.08(l)(b), and does not come from this opinion." Id. This misses the point.
¶ 94. A judge having an obligation to satisfy the statutory and other court mandated duties when taking a plea is not new. However, the new obligation I am pointing out has nothing to do with the taking of a plea.
¶ 95. The new obligation affects judges considering a defendant's plea withdrawal motion. Before, such a judge would focus on the allegations made in the defendant's motion. Now, such a judge will have to be on the lookout for substantial questions and red flags in the record, even if the defendant did not raise them.
¶ 96. Nonetheless, the majority of this court has decided that spotting all the potential grounds for withdrawal in the record is an acceptable obligation. We are, after all, discussing protecting defendants' constitutional rights. Reading the majority opinion, one may even be left with the impression that this record raised such an obvious red flag and substantial question that *465the new obligation can hardly be labeled an obligation. See majority op., ¶¶ 4, 38, 41, 46. That would be a mistake.
¶ 97. Consider the actions of those involved with this case that did not benefit from hindsight. First, Lackershire's own attorney did not spot the red flag. He even received the two extensions he requested to file Lackershire's motion to withdraw. The extra time to review the record apparently did not help him identify the seemingly substantial issue related to the factual basis requirement.
¶ 98. During oral argument to this court, Lackershire's attorney did mention a red flag:
Certainly I just think this is less than a routine case and there are enough red flags here on the element issue that I think in this case the plea-taking itself didn't go far enough to satisfy the trial judge or to inform this particular defendant as we find her with her various difficulties, also which were noted in the record.
The red flag mentioned related to Lackershire's understanding of the elements, not the judge's satisfaction of the factual basis requirement. A red flag, but apparently the wrong one for the majority. Majority op., ¶ 5 n.4.
¶ 99. Only after this court requested supplemental briefs on an unrelated issue, did Lackershire's attorney mention the factual basis requirement. If the factual basis requirement were such an obvious grounds for further inquiry, why did Lackershire's own attorney not stumble upon it until after oral argument before this court?
¶ 100. Lackershire's attorney was not the only one who failed to spot the red flag that the factual basis *466requirement purportedly presented. A panel of three court of appeals judges did not identify the factual basis requirement as one that needed to be addressed.4 Additionally, none of the seven justices on this court noted the factual basis requirement during the oral argument. The court even issued an order after oral argument that requested supplemental briefing on three questions, none of which mentioned the factual basis requirement.
¶ 101. If the defendant, the circuit court judge, three court of appeals judges, and seven supreme court justices failed to spot the substantial question in this case, it seems the majority is imposing a more unrealistic obligation on circuit court judges than it appreciates. The unrealistic obligation also unnecessarily undercuts the burdens already in place for the plea withdrawal procedure.
II
¶ 102. The court bases its decision on the existence of enough evidence in the record to make a prima facie showing that the plea was invalid because the judge failed to satisfy the factual basis requirement. The fact that Lackershire did nothing to make that prima facie showing and satisfy her burden in the plea withdrawal procedure aside, the record reflects that Judge Radcliffe did satisfy the factual basis requirement.
¶ 103. To satisfy the factual basis obligation, a judge must "determine to the court's satisfaction that *467the facts, if proved, 'constitute the offense charged and whether the defendant's conduct does not amount to a defense.'" Morones v. State, 61 Wis. 2d 544, 552, 213 N.W.2d 31 (1973) (quoting Edwards v. State, 51 Wis. 2d 231, 236, 186 N.W.2d 193 (1971)). In this case, the judge did both: (1) the facts that Lackershire admitted to, if proved, constitute second-degree sexual assault of a child and (2) Lackershire's conduct did not amount to a rape defense. Accordingly, Judge Radcliffe satisfied the factual basis requirement.
A. Facts that constitute the offense charged
¶ 104. During the plea colloquy in this case, the following exchange occurred:
THE COURT: Can you tell me what charge - what the charge is that you're going to enter a plea to?
LACKERSHIRE: I believe it's the sexual assault of a child under the age of sixteen.
THE COURT: The Information in this case ... alleges that, in August of 2003 — that would have been last August — in this county, you had sexual intercourse with a child under the age of sixteen years.
Do you understand that?
LACKERSHIRE: Yes.
THE COURT: Is that true?
LACKERSHIRE: Yes.
THE COURT: Do you understand it's alleged that this is a violation of Section 948.02 of the Wisconsin Statutes?
LACKERSHIRE: Yes.
*468Lackershire admitted that she had sexual intercourse with a child under the age of sixteen. Second-degree sexual assault of a child has only two elements: "that the accused had sexual contact or intercourse with the victim, and that the victim was under the age of sixteen." State v. Jadowski, 2004 WI 68, ¶ 12, 272 Wis. 2d 418, 680 N.W.2d 810. Lackershire's admission establishes facts that, if proved, would constitute the offense charged.
¶ 105. After questioning Lackershire, Judge Radcliffe also had the following exchange with Lackershire's attorney:
THE COURT: Now, you have heard the questions that I have asked of your client this afternoon.
Based on your discussions with her in this case, do you believe that she's answered those questions truthfully and accurately?
ATTORNEY: I do, Your Honor.
THE COURT: Are you satisfied that she understands the nature of the charge?
ATTORNEY: I am, Your Honor.
THE COURT: And you indicated that you have explained the elements of the offense to her?
ATTORNEY: I have, Your Honor.
THE COURT: You have explained how the evidence that would be available to the State at a trial in this matter relates to each of those elements?
ATTORNEY: I have, Your Honor.
*469Later in the exchange, the following was stated:
THE COURT: Do you stipulate to a factual basis for the first count based on the criminal complaint and the testimony taken at the preliminary hearing?
ATTORNEY: I do, Your Honor.
THE COURT: Your client has indicated that she thought that that did provide sufficient reason for that charge.
Are you satisfied that it does, in fact, do so?
ATTORNEY: I agree, Your Honor.
Not only did Lackershire's admission establish facts that, if proved, would constitute the offense charged, but her attorney and advocate gave his assessment that that is what she had done.
B. Conduct that does not amount to a defense
¶ 106. A significant difference exists between a defendant admitting to conduct that amounts to a defense and a defendant having a defense. While it is the court's responsibility to ensure that the defendant is not admitting to conduct that amounts to a defense, it is the responsibility of the defendant's attorney to discuss defenses with his or her client. See State v. Froehlich, 49 Wis. 2d 551, 559, 182 N.W.2d 267 (1971). This case presents a situation where Lackershire may have had a defense, not one where she admitted to conduct that amounts to a defense.
¶ 107. Lackershire may have ha.d a defense, versus having admitted to conduct that constituted a defense, because admitting to having "sexual inter*470course" pursuant to § 948.02 and alleging rape relate to different underlying conduct, at least according to § 948.01(6). Having "sexual intercourse" requires that the activity be done "either by the defendant or upon the defendant's instruction." Wis. Stat. § 948.01(6). The definition of "sexual intercourse" provided in § 948.01(6) "establishes that, in order for sexual intercourse, as defined, to occur, the defendant has to either affirmatively perform one of the actions on the victim, or instruct or direct the victim to perform one of them on him- or herself." State v. Olson, 2000 WI App 158, ¶ 10, 238 Wis. 2d 74, 616 N.W.2d 144. When Lackershire admitted to having sexual intercourse, the judge followed up with her by confirming that she was acknowledging that she violated § 948.02. Wisconsin Stat. § 948.02 makes sexual intercourse, as defined by § 948.01(6), a crime.
¶ 108. Unlike admitting to having sexual intercourse in violation of § 948.02, alleging rape entails a person claiming he or she was the victim of a sexual assault. A person that is a victim of sexual assault does not have "sexual intercourse" because they neither affirmatively perform a necessary act on the other person, or instruct or direct the other person to perform a necessary act on them. Accordingly, Lackershire's admission that she had sexual intercourse (i.e., affirmatively acted or directed action) means that her admitted conduct did not amount to a rape defense. The court did not err in fulfilling its obligation to ensure that the defendant's conduct does not amount to a defense.
I — I hH HH
¶ 109. The majority reached a decision on the factual basis requirement with which I cannot agree. *471More troubling though, because of the impact it will have on other plea withdrawal cases, is the ill-advised new obligation the majority has placed on circuit court judges. See e.g., State v. Howell, 2007 WI 75, 301 Wis. 2d 350, 734 N.W.2d 48.
¶ 110. For the reasons stated, I respectfully dissent.
¶ 111. I am authorized to state that Justices DAVID T. PROSSER and PATIENCE DRAKE ROGGENSACK join this opinion.
Wisconsin Stat. § 971.08(1) provides the following:
Before the court accepts a plea of guilty or no contest, it shall do all of the following:
(a) Address 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.
Ob) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.
*456(c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."
Understanding of the nature of the charge and the potential punishment, as addressed in § 971.08(1)(a), has been interpreted as requiring" 'an awareness of the essential elements of the crime.'" State v. Lange, 2003 WI App 2, ¶ 17, 259 Wis. 2d 774, 656 N.W.2d 480 (quoting State v. Brandt, 226 Wis. 2d 610, 619, 594 N.W.2d 759 (1999)).
Distinct from § 971.08(1)(a), § 971.08(l)(b) requires that the circuit court be satisfied that the defendant in fact committed the crime charged. In State v. Thomas, 2000 WI 13, ¶ 14, 232 Wis. 2d 714, 605 N.W.2d 836, we referred to this requirement as the "factual basis" requirement. To satisfy the factual basis requirement, a judge must "determine to the court's satisfaction that the facts, if proved, 'constitute the offense charged and whether the defendant's conduct does not amount to a defense!'" Morones v. State, 61 Wis. 2d 544, 552, 213 N.W.2d 31 (1973) (quoting Edwards v. State, 51 Wis. 2d 231, 236, 186 N.W.2d 193 (1971)).
In State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716 N.W.2d 906, the court provided the following list of duties a circuit court judge has during a plea hearing:
(1) Determine the extent of the defendant's education and general comprehension so as to assess the defendant's capacity to understand the issues at the hearing;
(2) Ascertain whether any promises, agreements, or threats were made in connection with the defendant's anticipated plea, his appearance at the hearing, or any decision to forgo an attorney;
*457(3) Alert the defendant to the possibility that an attorney may discover defenses or mitigating circumstances that would not be apparent to a layman such as the defendant;
(4) Ensure the defendant understands that if he is indigent and cannot afford an attorney, an attorney will be provided at no expense to him;
(5) Establish the defendant's understanding of the nature of the crime with which he is charged and the range of punishments to which he is subjecting himself by entering a plea;
(6) Ascertain personally whether a factual basis exists to support the plea;
(7) Inform the defendant of the constitutional rights he waives by entering a plea and verify that the defendant understands he is giving up these rights;
(8) Establish personally that the defendant understands that the court is not bound by the terms of any plea agreement, including recommendations from the district attorney, in every case where there has been a plea agreement;
(9) Notify the defendant of the direct consequences of his plea; and
(10) Advise the defendant that "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense [or offenses] with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law," as provided in Wis. Stat. § 971.08(l)(c).
Id., ¶ 35 (footnotes omitted).
This is not an isolated comment by the majority. It also stated the following a few paragraphs later:
Here, the preliminary hearing transcript and the complaint, which formed the factual basis upon which the circuit court relied, should have raised a red flag prompting further inquiry. Such inquiry is required in order to protect Lackershire from pleading guilty without realizing that the conduct she admitted does not constitute the offense charged. Because a substantial question exists whether this is a sexual assault of or by Lackershire, and because the colloquy did not establish that Lackershire realized that if the underlying conduct was an assault upon her, she could not he guilty of the offense charged, the circuit court failed to satisfy the factual basis requirement.
Majority op., ¶ 46. Again, no need for a motion by the defendant that raises the "substantial question." Circuit court judges are not only obligated to satisfy the requirements of a valid plea, but when reviewing a plea colloquy they are now also responsible for identifying any defects.
Of course, the court of appeals focused on the questions presented on appeal. See State v. Lackershire, 2005 WI App 265, 288 Wis. 2d 609, 707 N.W.2d 891. But, apparently, that will no longer be sufficient when the court of appeals reviews a circuit court's denial of a motion to withdraw a plea.