State v. Straszkowski

*309LOUIS B. BUTLER, JR., J.

¶ 99. (concurring). I respectfully concur with the majority's mandate affirming the circuit court's order denying Straszkowski's motion to withdraw his guilty plea. However, I write separately because I disagree with the majority's ruling "withdrawing] language in the case law that may be read as intimating that when a charge is read in a defendant must admit or is deemed to admit the read-in charge for sentencing purposes." Majority op., ¶ 95. I also disagree with the majority's related admonitions that circuit courts "should not deem a defendant's agreement to have a charge read in for consideration at sentencing and dismissed on the merits to be an admission of guilt of the read-in charge for purposes of sentencing," and that "prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid... the terminology 'admit' or 'deemed admitted' in referring to or explaining a defendant's agreement to read-in charges." Id., ¶¶ 91, 93.

¶ 100. A defendant's admission or acknowledgement of wrongdoing is an essential part of the read-in process. If a defendant who committed a crime has not acknowledged what he or she did wrong, why should the defendant benefit from having the charge dismissed with prejudice? On the flip side, an innocent criminal defendant should not be held responsible and accountable for conduct that may have been committed by someone else.

I.

¶ 101. Straszkowski's petition for review in this case presented a single issue: whether the trial court erred in denying Straszkowski's motion to withdraw his guilty plea on his assertion his plea was not knowingly and intelligently entered due to his lack of knowledge regarding the effect of a read-in offense. However, the majority has turned this case into a unilateral referen*310dum on the propriety of acknowledging the role of admissions in read-in procedures, despite any party having raised such an issue. This issue becomes the focus of the majority opinion, which ultimately undercuts the long-standing tradition of treating read-ins as admissions under Wisconsin law. I respectfully but strongly disagree with the majority opinion's analysis and conclusion.

A

¶ 102. The read-in procedure at issue in this case, although unique to Wisconsin, is well-established within this state. The read-in process provides a dual mechanism of, in some cases, helping make a victim whole through restitution to the extent reasonably possible, while in all cases providing the sentencing judge with helpful information about the defendant's rehabilitative needs. See State v. Sweat, 208 Wis. 2d 409, 422, 561 N.W.2d 695 (1997). Agreeing to have one's crimes read in for such purposes is an alternative method of accepting responsibility for criminal conduct in lieu of punishment following a full adjudication of the crime. See State v. Szarkowitz, 157 Wis. 2d 740, 753, 460 N.W.2d 819 (Ct. App. 1990).

¶ 103. A defendant's agreement to have his or her read-in crimes considered by a sentencing court is governed by Wis. Stat. § 973.20(lr), which requires all sentencing courts to either order restitution or explain why no such order is issued. See State v. Borst, 181 Wis. 2d 118, 122, 510 N.W.2d 739 (1993);1 State v. Ca*311nady, 2000 WI App 87, ¶ 7, 234 Wis. 2d 261, 610 N.W.2d 147. With every read-in case consequently beginning as a presumptive restitution case, a defendant's agreement to have his or her crimes considered for such purposes sends a message to the victim that the person who committed those crimes has acknowledged responsibility for his or her criminal conduct.

¶ 104. Although it has been well established in Wisconsin that agreeing to have one's crimes considered by a sentencing court through a read-in procedure constitutes an admission to those charges, the read-in agreement is only the first step in the process. The next step is that a sentencing court considers those uncharged crimes, along with other proven or unproven offenses, for limited sentencing purposes: "[i]n determining the character of the defendant and the need for his incarceration and rehabilitation, the court must consider whether the crime is an isolated act or a pattern of conduct." State v. McQuay, 154 Wis. 2d 116, 126, 452 N.W.2d 377 (1990). See also Austin v. State, 49 Wis. 2d 727, 729-30, 183 N.W.2d 56 Embry v. State, 46 Wis. 2d 151, 157, 174 N.W.2d 521 (1970); Annot., Court's right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant, 96 A.L.R.2d 768 (1964)). Because "[e]vidence of unproven offenses involving the defendant may be considered by the court for this purpose," McQuay, 154 Wis. 2d at 126, whether admitted to or not, the role of read-in agreements as constituting an admission to the charges is relatively minor at this point in the process.

¶ 105. It is during the next step in every read-in process that admissions become significant. In addition to being allowed to consider read-in charges for limited sentencing considerations, sentencing courts are also under a statutory mandate to consider restitution, *312either ordering the read-in defendant to pay restitution to the victim or explaining why such an order is not issued. Wis. Stat. § 973.20(lr).

¶ 106. In recognition of the fact that the primary purpose of restitution is to compensate victims, not punish defendants, courts are required "to construe the restitution statute 'broadly and liberally in order to allow victims to recover their losses as a result of a defendant's criminal conduct.'" State v. Madlock, 230 Wis. 2d 324, 332, 602 N.W.2d 104 (Ct. App. 1999)(cita-tion omitted). Although read-in crimes are not fully adjudicated, the plain text of Wisconsin's criminal restitution statute indicates that a defendant may be ordered to pay restitution for his or her read-in crimes which were "considered at sentencing" where that acknowledged criminal conduct resulted in compensable injury to the victim. See infra, ¶¶ 107-110 (discussing Wis. Stat. § 973.20(lg)(a), (lg)(b), (lr)). As such, it is at the point of a court's restitution deliberations that acknowledgement of that criminal conduct takes on a significant role, rendering admissions an integral part of the read-in and restitution process.

B

¶ 107. The majority focuses on the definition of "read-in crime"2 in our state's criminal restitution statute, Wis. Stat. § 973.20(lg)(b), without addressing how *313that definition functions together with the substantive provisions of the statute. By interpreting subsection (lg)(b)'s definition of "read-in crime" without reference to related statutory provisions describing the substantive function of read-in acknowledgments in the restitution process, the majority fails to heed the rule that "[w]hen construing a statutory provision, the entire section and related sections of the statute should be considered," Sweat, 208 Wis. 2d at 416, and consequently misses much of the point of § 973.20.

¶ 108. There are many pertinent provisions of Wis. Stat. § 973.20, including those both immediately preceding and following subsection (lg)(b)'s read-in definition, that the majority fails to consider, and which illustrate the nature of a read-in acknowledgement as an admission. For example, the subsection immediately preceding the read-in definition defines a "crime considered at sentencing" as "any crime for which the defendant was convicted and any read-in crime." § 973.20(lg)(a) (emphasis added). Subsection (lr) then provides the explicit link between read-ins and restitution, mandating that:

[w]hen imposing sentence or ordering probation for any crime ... the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing [i.e., including read-in crimes. See subsection (lg)(a)] ... unless the court finds substantial reason not to do so and states the reason.

(Emphasis added.) The statute then proceeds to describe the procedural requirements for issuing restitu*314tion, including the mandatory consideration of such factors as the "amount of loss suffered by any victim as a result of a crime considered at sentencing." Wis. Stat. § 973.20(13)(a)l. (emphasis added). Subsection (5)(a) further provides:

(5) In any case, the restitution order may require that the defendant do one or more of the following:
(a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.

(Emphasis added.)

¶ 109. This description of a defendant's actions being acknowledged as his or her conduct in the commission of a crime by virtue of their having been considered at sentencing illustrates the nature of a read-in agreement as an admission. It is inconsistent with both common sense and the plain language of this statute to conclude, as the majority's approach requires, that a defendant's agreement to have a sentencing court consider "his or her" "conduct in the commission of a crime" does not necessarily include an implicit admission that such criminal conduct by the defendant actually existed. The reason for this is clear; a criminal defendant should not be held responsible and accountable for conduct committed by someone else. Such a ruling would have the practical effect of allowing the reed criminals to remain free to perpetrate other offenses on the unwitting public.

¶ 110. The role of deemed admissions may appear to be relatively insignificant in read-in cases such as this one where restitution was not ordered and an admission therefore was not required for the remaining *315sentencing considerations. However, a defendant's admission is a pertinent part of the read-in process as long as Wis. Stat. § 973.20(lr)'s restitution mandate, which applies to all read-in cases, remains pending in a case. Before restitution may be ordered, § 973.20 requires that:

a causal nexus must be established between the "crime considered at sentencing," Wis. Stat. § 973.20(2), and the disputed damage. In proving causation, a victim must show that the defendant's criminal activity was a "substantial factor" in causing damage. .. .
As contemplated by the restitution statute, the "crime considered at sentencing" is defined in broad terms.... The sentencing court should consider the defendant's "entire course of conduct."

Canady, 234 Wis. 2d 261, ¶¶ 9-10 (citations omitted) (emphasis added); see also State v. Johnson, 2005 WI App 201, ¶ 13, 287 Wis. 2d 381, 704 N.W.2d 625 (describing substantial factor proof required for ordering restitution in various ways, including the description that "[p]ut another way, a causal link for restitution purposes is established when 'the defendant's criminal act set into motion events that resulted in the damage or injury'"). There is no language in the restitution statute distinguishing read-in crimes from other "crimes considered at sentencing." Either way, a nexus must be drawn between the victim's injury and what is consistently described as the defendant's criminal conduct.3

*316¶ 111. Once Wis. Stat. § 973.20(lg)(b)'s definition of "read-in crimes" is considered, not in isolation but together with this surrounding statutory language, a plain reading of § 973.20 in its full context clearly indicates that by agreeing to a read-in, a defendant agrees to have his or her criminal conduct considered at sentencing, not just to have some words, devoid of such context and meaning, read out loud by a court. It is further clear that a defendant's agreement that his or her criminal conduct is to be considered must logically entail an implicit admission by the defendant that such criminal conduct by the defendant exists.

¶ 112. Although the court of appeals correctly observed in State v. Cleaves, 181 Wis. 2d 73, 80, 510 N.W.2d 143 (Ct. App. 1993), that sentencing courts are not mandated to obtain an express admission with every read in, the court suggested a preferred practice for purposes of clarifying the record: "we suggest that trial courts in the future ask the defendant if there is an admission to the read-in charge for purposes of sentencing consideration." Id. at n.l.

¶ 113. I agree with the Cleaves court that the best practice is for such clarification to be obtained on the record, by either the defendant's attorney or by the court. It is sufficient to clarify that the defendant has been informed that his or her acknowledgment of read-in charges may be taken as an admission.4

*317c

¶ 114. The majority attempts to supplement its analysis with a reference to a Department of Justice Memorandum5 that describes the legislative intent underlying the 1995 amendments to Wis. Stat. § 973.20 incorporating read-in crimes into the criminal restitution process, including the new "read-in crime" definition in subsection (lg)(b). However, while providing helpful guidance to Wisconsin's read-in and restitution laws, the Memorandum does not support the majority's conclusion.

¶ 115. Rather, the Memorandum expressly describes the legislature's intent to codify Szarkowitz, which the Memorandum describes as affirming that "where a defendant agrees to the read-in offenses he is presumed to have admitted the charges." DOJ Memorandum at 1-2 (citing Szarkowitz, 157 Wis. 2d at 753). Furthermore, the Memorandum not only concludes by recommending a specific definition of "read-in" crimes, but it also explains that the purpose of the proposed *318statutory amendments was to make restitution available for read-in crimes.6 DOJ Memorandum at 1-2. The majority does not acknowledge any of this language from the Memorandum affirming the relationship between read-in admissions and restitution.

¶ 116. The majority does describe the DOJ Memorandum as citing Szarkowitz and Cleaves as grounds for objecting to proposed legislative language that would have required a defendant to admit to a read-in offense personally and specifically. Majority op., ¶ 82. However, the majority fails to acknowledge that in rejecting Cleaves' personal admission suggestion as too confusing in light of the different types of read-in cases that require admissions to varying degrees (or not at all), the Memorandum expressly describes the legislature's intent to codify Szarkowitz. Specifically, the Memorandum warns of the confusion arising from dual processes in which special efforts must be made to seek personal admissions in only restitution cases where personal admissions are required. To ward off such confusion, the Memorandum recommends that rather than go to the extreme of either requiring a personal admission in every case or ignoring the need for admissions entirely, the restitution legislation be drafted to change "the 'admits' language to reflect that a personal admission is not required, as opposed to simply agreeing that the charges be read-in." DOJ Memorandum at 2 (emphasis added). Thus, to establish a standard practice appropriate for various scenarios, the Memorandum proposes *319the solution eventually enacted by the legislature: the adoption of statutory language comparable to but less stringent than actual personal admission requirements, i.e., statutory language defining a read-in crime in part as a "crime" that the defendant "agrees to" for limited purposes, thereby codifying Szarkowitz's deemed admission approach to read-in crimes. Id. at 1-2.

¶ 117. The legislature, following the DOJ's recommendations, similarly embraced the concept of deemed admissions, as evident in the text of the amended statutory language read in its full context. By including within the definition of "read-in crime" the agreement of a defendant to have his or her uncharged or dismissed crimes considered for limited sentencing purposes, this language of Wis. Stat. § 973.20(lg)(b) complements subsection (5)(a), which describes the restitution paid by defendants as corresponding with "his or her conduct in the commission of a crime." As previously discussed, a defendant's agreement to have the court consider "his or her [criminal] conduct" under Wis. Stat. § 973.20, read as a whole, logically entails a defendant's acknowledgement of the existence of his or her criminal conduct. In this manner, the statutory language suggested by the Memorandum and embraced by our legislature preserves the important role assumed admissions generally play in restitution cases, while alleviating the need for separate personal admissions in every case.

¶ 118. To the extent the majority recognizes that the legislature adopted the DOJ Memorandum, the majority should defer to the legislature's intent to codify Szarkowitz by spelling out the relationship between read-in crimes and restitution and by describing the read-in agreements in terms of implicit, not express, admissions. The majority does not do so. Rather, *320the majority contends that because the text of Wis. Stat. § 973.20(lg)(b)'s definition of "read-in crime" does not use the word "admission," then reading that statute together with Austin and "the subsequent cases" leads to the conclusion that Wisconsin's read-in procedure neither requires admissions, nor even allows a circuit court to deem such an admission from a defendant's agreement to have read-in charges considered at sentencing. Majority op., ¶¶ 91-92.

¶ 119. Not only does the majority's approach to the read-in process fail to take into account pertinent statutory and case law authority related to the relationships among read-ins, restitution, and admissions, but it also fails to recognize the actual problem which the DOJ and legislature intended to remedy through the new statutory "read-in crime" definition. The DOJ Memorandum exhibits no substantive concerns with the concept of deemed admissions, but rather addresses the procedural problems related to inconsistent applications of admission requirements in read-in cases due to a diminished need for admissions in cases where restitution is not ordered. The Memorandum resolves the procedural problem created by the variation among types of read-in cases and corresponding admission requirements by implementing a standard definition of read-in crimes as crimes acknowledged for sentencing consideration purposes without requiring more explicit admissions in every read-in case.

D

¶ 120. The majority describes Austin as the first Wisconsin case extensively describing read-in procedures. Majority op., ¶ 59. Austin describes a growing number of appeals addressing the read-in procedure, and proceeds to engage in what it describes as a *321"review" of those cases. Austin, 49 Wis. 2d at 729. Austin singles out one such case from the previous year describing the read-in procedure; in that case, Austin stated, "we explained the read-in procedures as follows:"

[The read-in procedure is] a practice in this state, especially in Milwaukee, of charging a multiple offender with two or more offenses for which the evidence is most conclusive and bringing the judge's attention to additional uncharged offenses prior to sentencing. Upon agreement between the state and the accused, the judge may take these offenses into consideration and the prosecution agrees not to prosecute. It is expected the uncharged crimes will influence the length of the sentence for the crime or crimes the defendant has been found guilty of or to which he has plead guilty. The advantage of this technique to the accused is that he can clean his slate of several uncharged crimes with the safety of only receiving at the most the maximum sentence on the one or two crimes of which he is convicted.

Austin, 49 Wis. 2d at 730 (quoting Embry, 46 Wis. 2d at 157-58). The read-in process was similarly described in a 1969 case in which this court explained that a defendant may expressly agree

to allow the judge to consider unproven offenses so that, should the state later attempt to prosecute him, he could successfully assert the defense of double jeopardy.... [Ujnder this agreement [a judge cannot], under any circumstances, sentence him for the proven crimes to a term longer than that permitted by statute.

State v. Smith, 45 Wis. 2d 39, 42, 172 N.W.2d 18 (1969).

¶ 121. Austin also identifies Wisconsin's read-in procedure as akin to the long-standing English practice of "taking into account" uncharged offenses at the request of the accused, while not issuing a conviction for such (read-in) offenses. Austin, 49 Wis. 2d at 732 *322(citation omitted). See also United States v. Haygood, 502 F.2d 166, 170 & n.10 (7th Cir. 1974). Austin's acknowledgement of the English procedure as akin to Wisconsin's is significant because the older English procedure to which our state's read-in roots can be traced describes pleas alternatively as "admissions" and as "asking for offenses to be taken into consideration," with these two phrases being used synonymously. See Haygood, 502 F.2d at 170 & n.10 (citation omitted).

¶ 122. The majority then misidentifies the 1990 court of appeals Szarkowitz decision as the turning point at which Wisconsin courts began recognizing read-in acknowledgements as deemed admissions. See majority op., ¶ 69. The recognition that a read-in agreement is in and of itself a type of presumptive admission did not originate with Szarkowitz's holding that "when a defendant agrees to crimes being read in at the time of sentencing, he makes an admission that he committed those crimes." Szarkowitz, 157 Wis. 2d at 753. Szarkowitz explains that this distinct procedure of allowing courts to consider offenses without charges being brought "has long been recognized," particularly "where the defendant's guilt of such other offenses was admitted or was not denied." Id. at 753-54 & n.3 (citation omitted)(emphasis added).

¶ 123. This court also explained the role that admissions play in read-in restitution cases in Garski v. State, 75 Wis. 2d 62, 248 N.W.2d 425 (1977). In that case, this court contrasted an older restitution statute which had required defendants either to have been convicted or to have "freely admit [ted]" their wrongs before restitution could apply with the new restitution statute, Wis. Stat. § 973.09(1), under which requirements were relaxed, allowing restitution where "reasonable and appropriate." Id. at 71. Garski further cited *323State v. Gerard, 57 Wis. 2d 611, 205 N.W.2d 374 (1973), which explains that it is only in cases where the face of the record does not already establish the amount of losses caused by the defendant's criminal acts that the defendant's personal and explicit admission pertaining to the amount of restitution is also required. Garski, 75 Wis. 2d at 71.7

¶ 124. In addition, the cases interpreting Wis. Stat. § 973.20 illustrate that it is because a defendant pays restitution for those injuries arising from "his or her conduct in the commission of a crime" that some sort of acknowledgement of those crimes must usually be made prior to restitution.8 Perhaps being overly focused on the case before it which does not involve a restitution order,9 the majority suffers from a bad case of tunnel vision which prevents it from seeing the important role admissions generally play in read-in cases as a result of statutorily required restitution considerations.

*324¶ 125. Furthermore, the majority relies on an alleged conflict between Austin and other cases to justify curtailing the role of admissions in the read-in process. Majority op., ¶¶ 88-92. However, the majority's perception of such a conflict appears to be based on a misinterpretation of Austin as generally requiring explicit personal admissions from read-in defendants, unlike other cases which recognize that admissions may be deemed through the read-in ac-knowledgement.

¶ 126. Contrary to the majority's suggestions, Austin does not contain any language either requiring a personal admission or precluding deemed admissions. Rather, Austin describes read-in charges synonymously with "admitted" charges, explaining that under our read-in procedures, a defendant "does not plead to any charges and therefore is not sentenced on any of the read-in charges but such admitted uncharged offenses are considered in sentencing him on the charged offense." Austin, 49 Wis. 2d at 732 (emphasis added). In Szarkowitz, 157 Wis. 2d at 753, which interpreted and applied Austin, the court of appeals similarly observed that " '[i]n Wisconsin, when a defendant agrees to crimes being read in at the time of sentencing, he makes an admission that he committed those crimes."

¶ 127. In Cleaves, the court of appeals interpreted these passages from Austin and Szarkowitz as indicating that a read-in constitutes an admission: "when a defendant agrees to the read-in, he or she admits that the crimes occurred." Cleaves, 181 Wis. 2d at 78 (emphasis added). Consequently, the court concluded, because the defendant in that case "did not object to the crimes being read in, he admitted them." Id. at 79.

¶ 128. Cleaves further explains that this process of deeming admissions from read-in agreements is a *325natural extension of deeming restitution amounts from a defendant's failure to object to them. Cleaves highlights the following passage from Szarkowitz which explains the parallels between a court's ability to assume that read-in crimes not objected to are admitted, and its corresponding ability to assume that restitution amounts not objected to are similarly admitted:

The use of the word "stipulate" in sec. 973.20(13)(c) does not imply a requirement of a formal written stipulation, signed by the defendant, as to the amount of restitution claimed. We hold that, in the absence of any objection to amounts claimed on a court-ordered restitution summary accompanying a presentence investigation, where a defendant has been given notice of the contents of that report and summary, the trial court is entitled to proceed on the understanding that the claimed amount is not in dispute, and so order restitution under sec. 973.20(13)(c).

Szarkowitz, 157 Wis. 2d at 749. As Cleaves explains, "the same reasoning applies" to deemed assumptions through read-in, in which, "[i]n the absence of any objection to the crimes being read in, the court may assume that the defendant admits them for purposes of being considered at sentencing." Cleaves, 181 Wis. 2d at 80.

¶ 129. These cases clearly describe the parallel relationship between admissions and objections at the initial read-in stage and at the restitution hearing stage, with a failure to object to either read-in crimes or restitution amounts potentially sufficing as a deemed admission of the crime, in the one case, or the restitution amount in the other. However, the majority maintains that, contrary to the interpretation of Cleaves' (and the DOJ's) description of Austin, Austin describes the read-in process as requiring that a defendant must *326make an additional express admission during the read-in process, beyond merely agreeing to have the read-in crimes considered. Majority op., ¶ 66.

¶ 130. The majority does acknowledge that Austin leaves open the possibility that, as cases interpreting Austin have explained, a defendant's admission may be deemed from the defendant's agreement to have the read-in charges considered. Majority op., ¶ 72. However, the majority also rejects that interpretation, concluding that Austin's description of read-in agreements in terms of admissions must have been referring only to express, not assumed, admissions because Austin, a decision cited by Austin (Pulaski v. State, 23 Wis. 2d 138, 126 N.W.2d 625 (1964)), and another read-in case we have discussed (Gerard, 57 Wis. 2d 611) contained procedural histories mentioning actual admissions by defendants. Majority op., ¶¶ 63-67, 91-92. Therefore, the majority appears to conclude, Austin's holding must have been only as broad as the facts of that particular case; Austin's general description of read-in procedures could not have been so inclusive as to allow admissions to be encompassed implicitly through the read-in ac-knowledgement itself in other cases. See majority op., ¶¶ 63-67, 91-92.

¶ 131. In its description of Austin as describing actual, not deemed, admissions, the majority also focuses on a passage in Szarkowitz describing Austin as holding that "when a defendant agrees to crimes being read in at the time of sentencing, he makes an admission that he committed those crimes." Majority op., ¶ 71 (quoting Szarkowitz, 157 Wis. 2d at 753). The majority offers that this sentence is not clear on its face but can potentially be interpreted as referring either to an implicit or an express admission. Majority op., ¶ 72.

*327¶ 132. This passage from Szarkowitz, as well as the original language in Austin, is much more clear than the majority contends and does not require the type of separate express admission the majority describes. First, the DOJ Memorandum, as previously described, explicitly explains that it was the legislature's intent to codify Szarkowitz's holding, which the Memorandum describes in part as clarifying that "where a defendant agrees to the read-in offenses he is presumed to have admitted the charges." DOJ Memorandum at 1-2 (citing Szarkowitz, 157 Wis. 2d at 753).

¶ 133. Second, the language in Szarkowitz is clear on its face. The statement that when a defendant agrees to read-in "he makes an admission" is purely descriptive, not proscriptive, language. If it had the proscriptive meaning urged by the majority, i.e., describing what a defendant must do during the read-in process as opposed to describing a read-in agreement as itself being an admission, Szarkowitz would have stated that when a defendant agrees to have charges read-in, he must also make an explicit admission of guilt.

¶ 134. Szarkowitz simply does not contain such language. After identifying the legislative intent of Assembly Bill 467 as the codification of Szarkowitz, the DOJ Memorandum aptly explains:

As stated in Szarkowitz, "When a defendant agrees to the crimes being read in at sentencing, he makes an admission that he committed those crimes." Szarkow-itz, 157 Wis. 2d at 753. The question is only whether the defendant agreed to the crimes being read-in. Szarkow-itz, 157 Wis. 2d at 753. Thus, where a defendant agrees to the read-in offenses he is presumed to have admitted the charges.

DOJ Memorandum at 1-2 (emphasis added).

*328¶ 135. Similarly, nothing in Austin contradicts the complementary holdings of later cases such as Cleaves, Garski, or Szarkowitz, which illustrate that in read-in cases, a court may deem a defendant to have admitted his or her crimes when the defendant agrees to have those read-in crimes considered for limited sentencing and restitution purposes. The majority's interpretation of Austin might be more persuasive if the majority were correct that Austin was this court's first decision extensively describing Wisconsin's read-in procedure, and if Austin also specified that it was setting forth a read-in procedure which requires an personal admission separate from the agreement to have one's read-in crimes considered by a sentencing court. However, Austin contains neither the first description of Wisconsin's read-in procedure nor any language requiring an additional explicit admission of guilt beyond the agreement to have one's crimes read-in and considered.

¶ 136. Nor should Austin be read as implicitly requiring such explicit admissions merely because the background facts of Austin happened to include an actual admission. Austin itself explicitly states that "[u]nder our read-in procedure, the defendant does not plead to any charges," and describes the read-in procedure by quoting Embry, which does not describe a personal admission requirement. Austin, 49 Wis. 2d at 732, 729-30 (quoting Embry, 46 Wis. 2d at 157).

¶ 137. Consequently, the existence of an actual admission in the background facts of any given case does not translate to a rule requiring that all read-in cases involve such an actual admission. The only reasonable reading of Austin is to continue reading it exactly as Wisconsin courts have read it over the years: as establishing that by agreeing to a sentencing *329court's consideration of read-in crimes, a defendant may be assumed to be admitting to those crimes.

¶ 138. The majority acknowledges that recent cases have described the read-in procedure as involving either deemed or actual admissions. See majority op., ¶ 89 (citing State v. Lackershire, 2007 WI 74, ¶ 27 n.7, 301 Wis. 2d 418, 734 N.W.2d 23; State v. Martel, 2003 WI 70, ¶ 26, 262 Wis. 2d 483, 664 N.W.2d 69; State v. Floyd, 2000 WI 14, ¶ 25, 232 Wis. 2d 767, 606 N.W.2d 155). However, the majority's subsequent description of these cases as being in conflict with each other, to the point of calling into question the entire practice of deeming admissions from read-in agreements, is unfortunately overstated.

¶ 139. Rather, each of these three cases describes read-ins as admissions. Floyd explicitly describes read-ins in such terms, as the majority acknowledges by quoting Floyd's language that "read-ins constitute admissions by the defendant to those charges." Majority op., ¶ 89 (quoting Floyd, 232 Wis. 2d 767, ¶ 25). As the majority further acknowledges, Lackershire similarly states that "[wjhen charges are read in during sentencing, the defendant admits to having committed the underlying crimes." Id. (quoting language in Lacker-shire, 301 Wis. 2d 418, ¶ 27 n.7, which is nearly identical to Szarkowitz's deemed admission language). See. supra, ¶¶ 35-38 (discussing language in Szarkowitz, 157 Wis. 2d at 753, that "when a defendant agrees to crimes being read in at the time of sentencing, he makes an admission that he committed those crimes"). Even Martel, in a passage omitted from the majority opinion, similarly describes Austin as holding that "offenses that are dismissed and read in are admitted by the defendant for purposes of consideration at sentenc*330ing on the crimes or crimes for which the defendant is convicted." Martel, 262 Wis. 2d 483, ¶ 21 (emphasis added).

¶ 140. In another attempt to identify conflict among read-in cases, the majority cites Robinson v. West Allis, 2000 WI 126, ¶ 42, 239 Wis. 2d 595, 619 N.W.2d 692, and describes that case as holding that read-ins "are not otherwise treated as adjudications of guilt." Majority op., ¶ 90. Robinson, however, is not inconsistent with the other read-in cases. Adjudication of guilt is not the same thing as a voluntary admission of one's criminal conduct for read-in purposes.

¶ 141. The majority ultimately concludes that the role of admissions in read-in cases is too confusing to allow courts and attorneys to even mention admission in reference to read-in procedures. However, while claiming such an irreconcilable conflict exists, the majority has failed to point to a single case that holds that personal admissions are expressly required; that holds that read-in agreements are not deemed admissions; or that in any way implies that no type of admission, either express or implicit, is required in the read-in process, as the majority concludes.

¶ 142. It may be true that not every read-in case discusses read-in admissions in exactly the same way, largely because of the varying degree to which restitution may or may not be considered in a given case. For example, Cleaves and Szarkowitz both involved actual restitution orders, making it more necessary for the decisions in those cases to spell out the exact nature of the admission required as a prerequisite in such cases. In cases such as Austin, in contrast, where restitution was not at issue, the role of admissions was not as pertinent. In those cases, it was not therefore necessary to spell out with as much specificity.

*331¶ 143. What is consistently described in our statutes, legislative history and case law, however, is that in all read-in cases, admissions are to some degree a part of the process. Furthermore, those cases and statutory provisions addressing restitution specifically make it clear that by acknowledging that one's criminal conduct may be considered for read-in purposes, as required for restitution, a read-in defendant is admitting that such criminal conduct exists.

¶ 144. Consequently, I am not troubled by some decisions discussing the role of deemed read-in admissions more explicitly than others, considering the fact that not all cases involve restitution orders. I also accept without any trouble our legislature's chosen accommodation of such variety through a path that grants sentencing courts the flexibility necessary to accommodate different types of read-in cases with correspondingly different degrees of admission requirements for restitution purposes.

¶ 145. The majority, on the other hand, seems surprisingly troubled by the variation among cases, which overwhelmingly apply the same broad principles to different sets of facts, as is standard in any area of the law. The majority does not recognize that any variation in read-in cases is largely one of emphasis and different factual backgrounds; the cases are consistent in their recognition of read-in acknowledgements as admissions of one's criminal conduct, as described by Wis. Stat. § 973.20.

¶ 146. By instead focusing on isolated cases and statutory language read out of their full context, the majority appears to have missed the critical role that criminal accountability and acceptance of responsibility play in the history of the read-in procedure. Our state did not establish read-in procedures for the purpose of *332creating just another negotiation chip and bargaining tool for case settlement. To the contrary, our legislature has explicitly described read-in as part of the restitution process, and consequently, a method of allowing defendants to compensate victims for acknowledged criminal conduct without having those crimes fully adjudicated. See especially Wis. Stat. § 973.20(5)(a) (specifying that restitution orders may require a defendant to pay special damages that could be recovered in a civil action "against the defendant for his or her conduct in the commission of a crime considered at sentencing")(emphasis added). This is not just an important principle for general purposes of ensuring constitutional justice, but it is a policy the legislature explicitly endorsed, and which therefore should not be undermined by this court.

hH

¶ 147. I have set forth the reasons why I disagree with the majority's analysis. I now return to the reason I concur: I agree with the majority's conclusion that Straszkowski has failed to demonstrate any manifest injustice resulting from the circuit court's refusal to let him withdraw his plea.

¶ 148. Straszkowski argues that under either a Bangert or a Nelson/Bentley analysis, his plea was not knowingly and intelligently entered because the circuit court failed to notify him of the effects of the read-in offense during the plea bargain. See also majority op., ¶ 30; State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996); State v. Bangert, 131 Wis. 2d 246, 270-72, 389 N.W.2d 12 (1986); Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972). In support of this argument, Strasz-kowski primarily cites what he describes as the circuit *333court's failure to notify him that the read-in sexual offense was deemed admitted for purposes of sentencing.

¶ 149. However, the circuit court expressly ruled that it was not deeming the read-in offense an admission or awarding restitution. In addition, informing a defendant that admissions may be deemed is not informing a defendant of an "effect," but is rather a description of a general precondition for granting restitution. The actual effects of agreeing to read-in charges were clearly explained and consented to, as evidenced by the plea questionnaire and waiver of rights form signed by Straszkowski, indicating that he understood "that if any charges are read-in as part of a plea agreement they have the following effects," followed by an accurate description of the ways in which read-in charges may affect sentencing, restitution and future prosecution. Furthermore, as the State correctly points out, "[i]t is simply not credible that Straszkowski knew that the court could take his conduct in committing the read-in sexual assault into consideration at sentencing, in other words assume his guilt for that offense, [while at the same time did not know] that agreeing to a read-in involved an admission of guilt for that offense."

¶ 150. This case parallels Garski with respect to the issue of whether the circuit courts in each case failed to inform defendants about the effect of their read-ins. In this case, Straszkowski argues that the circuit court erred in not informing him it could deem his read-in charges admitted at sentencing. In Garski, the defendant had similarly argued that the trial court never informed him that it could order restitution. See Garski, 75 Wis. 2d at 75. Citing Austin, this court in Garski did recommend that courts advise defendants of *334the effect of read-ins, "including that the judge may take these offenses into consideration when sentencing," but this court also concluded that the information given to the defendant had been sufficient, there being no additional requirement that courts explain to offenders prior to accepting pleas that restitution may be imposed. Id. at 76-77.

¶ 151. In this case, Straszkowski received more information about the effects of read-ins than the defendant in Garski, even conceding he was told that he could be ordered to pay restitution for the read-in crime. If under Garski we concluded that less information was adequate, the information given to Straszkowski in this case, which described the effects of read-in in the context of restitution, was adequate as well.

¶ 152. As such, any error in this case was harmless. Under Wis. Stat. § 805.18(2), we will not reverse the judgment of a circuit court unless an examination of the record reveals that the error was not harmless, but had affected the defendant's substantial rights. We determine whether there has been harmless error by looking at the totality of the circumstances. State v. Harris, 2008 WI 15, ¶ 48, 307 Wis. 2d 555, 745 N.W.2d 397. We have previously applied the harmless error test to review denied requests to withdraw guilty pleas, explaining that in such cases, the standard is whether the alleged error "sufficiently undermines the court's confidence in the outcome of the judicial proceeding." See id., ¶ 42 (citing State v. Harris, 2004 WI 64, ¶¶ 27, 30-31, 33, 34, 272 Wis. 2d 80, 680 N.W.2d 737).

HH HH

¶ 153. In sum, I concur with the majority's affirmation of the circuit court's order denying Straszkowski's motion to withdraw his guilty plea, due to *335Straszkowski's failure to establish any prejudicial error or manifest injustice resulting from the circuit court's denial of his plea withdrawal request. However, I strongly disagree with the majority's statement and related analysis that circuit courts "should not deem a defendant's agreement to have a charge read in for consideration at sentencing and dismissed on the merits to be an admission of guilt of the read-in charge for purposes of sentencing," and that "prosecuting attorneys, defense counsel, and circuit courts should hereafter avoid ... the terminology 'admit' or 'deemed admitted' in referring to or explaining a defendant's agreement to read-in charges." Majority op., ¶¶ 92, 94.

¶ 154. I also respectfully but strongly disagree with the majority's ruling that "withdraw[s] language in the case law that may be read as intimating that when a charge is read in a defendant must admit or is deemed to admit the read-in charge for sentencing purposes." Majority op., ¶ 95. The history of Wisconsin read-in law reflects a consistent recognition by all three branches of our state government — represented by our courts, the legislature, and the Department of Justice, who have all weighed in on this issue — that an agreement to have one's crimes read in may be interpreted as an admission of those crimes. It is unclear how the majority's opinion will affect our state's longstanding traditions and precedents related to read-in procedures. In the end, however, we remain constrained by the legislative mandates of Wis. Stat. § 973.20 which clearly describe restitution in terms of a defendant's payment for his or her criminal conduct, which the defendant necessarily acknowledges by virtue of agreeing to the sentencing court's consideration of his or her crimes. A defendant, quite simply, cannot agree that his or her conduct in the commission of a crime may be considered without *336clearly implying (and thereby implicitly admitting) that such conduct existed in the first place. The majority, unfortunately, insists on such a semantic distinction, contrary to Wisconsin's statutory and case law to date.

¶ 155. We should not send the message to victims that those who injured them can pay off their crimes monetarily without ever acknowledging responsibility for their actions. It would be anathema to our system of justice and truth-seeking to eliminate the requirement that a person either be proven guilty or acknowledge one's criminal conduct before paying a victim restitution for that crime.

¶ 156. For the foregoing reasons, I respectfully concur.

¶ 157. I am authorized to state that Justice ANNETTE KINGSLAND ZIEGLER joins this concurrence.

State v. Borst, 181 Wis. 2d 118, 122, 510 N.W.2d 739 (1993), addresses the substantially identical language of Wis. Stat. § 973.20(1) (1991-92), which was later renumbered as subsection (lr).

The majority refers to "read-in crime," "read-in offense," and "read-in charge" interchangeably. Majority op., ¶ 58 n.33. Such terminology does not fairly reflect the legislature's intent, in choosing the phrase "read-in crime," to clarify that the subject of a defendant's read-in agreement is not just a "charge" typed out on a form, but is the actual criminal conduct by that defendant which the defendant agrees to have considered for *313limited sentencing and restitution purposes. See 1995 Wis. Act 141; Wis. Stat. § 973.20(lg)(b), (lg)(a), (5)(a).

These provisions answer any suggestion from the majority that a deemed admission may be too fictitious in nature to serve a proper foundation for restitution. As these additional statutory provisions illustrate, the read-in agreement is> only the first step in the process under Wis. Stat. § 973.20; subsequent steps require additional admissions or proof, e.g., of a nexus between *316the defendant's criminal conduct and the victim’s injury, and of the restitution amount. See also Garski v. State, 75 Wis. 2d 62, 248 N.W.2d 425 (1977); State v. Gerard, 57 Wis. 2d 611, 205 N.W.2d 374 (1973). Thus, for restitution purposes, a defendant's acknowledgement of his or her read-in crimes is only the first admission that may be required for a restitution order.

Prior to the read-in proceeding, attorneys for read-in defendants have a mandate of ensuring that their clients *317understand the nature and consequences of the agreements they make in court. The opening preamble of our Rules of Professional Conduct for Attorneys, SCR ch. 20, emphasizes the fundamental principle that a primary responsibility of an attorney is that of an advisor who must "provided a client with an informed understanding of the client's legal rights and obligations and explainQ their practical implications." SCR ch. 20 Preamble at [2] (2007). See also SCR 20:1.4(b)("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."). Notably, Straszkowski does not allege a violation of these rules or ineffective assistance of counsel in this case.

Drafting File, 1995 Wis. Act 141, Correspondence/ Memorandum, Department of Justice, August 11, 1995 (hereinafter "DOJ Memorandum" or "Memorandum"), Legislative Reference Bureau, Madison, Wis.

The Memorandum concludes: "DOJ should support the proposed bill with the suggested changes. First, allowing for dismissed read-in charges to be considered for restitution. Second, to change the 'admits' language to reflect that a personal admission is not required, as opposed to simply agreeing that the charges be read-in." DOJ Memorandum at 2.

Thus, admissions play a dual role in read-in cases, which (1) must always establish general grounds for restitution in the form of a defendant's acknowledgment of the sentencing court's consideration of his or her criminal conduct (i.e., the criminal conduct the defendant engaged in), which courts may deem to be the equivalent of an admission for sentencing and restitution purposes; and (2) only in some cases; for example where the record alone does not clearly establish the restitution amount, require a more express personal admission of the grounds for and/or amount of restitution.

See Wis. Stat. § 973.20(5)(a); State v. Johnson, 2005 WI App 201, ¶ 13, 287 Wis. 2d 381, 704 N.W.2d 625; State v. Canady, 2000 WI App 87, ¶ 9, 234 Wis. 2d 261, 610 N.W.2d 147.

This would not be a problem if the majority's decision focused on the narrow issues presented by this case, rather than issuing a sweeping ruling that affects all read-in cases, and most detrimentally affecting those involving restitution orders.