Opinion
No. State 178.
Argued February 2, 1972. —
Decided March 2, 1972.
ERROR to review a judgment and an order of the circuit court for Milwaukee county: JOHN A. FIORENZA, County Judge of Milwaukee County, Presiding. Affirmed.
For the plaintiff in error there was a brief by Michael B. Rick and deVries, Vlasak Schallert, all of Milwaukee, and oral argument by Mr. Rick.
For the defendant in error the cause was argued by Richard J. Boyd, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
The plaintiff in error, Michael Lawrence Bressette, hereinafter defendant or Bressette, entered pleas of guilty to two separate informations charging him with robbery. The pleas were accepted and defendant was sentenced to two consecutive ten-year terms at the reformatory at Green Bay. He made a timely motion to withdraw his pleas and this motion was denied.
On May 13, 1970, during the early morning hours, the defendant Bressette and a companion forced James B. Thompson into an alley on West Greenfield Avenue, West Allis, Wisconsin. Bressette struck and beat Thompson about the face and body with his fists and after Thompson was on the ground Bressette kicked him in the body several times. They then forcibly took Thompson's wristwatch, his wallet, which contained $40, and his ring, and fled. Thompson had been severely beaten and was hospitalized for a few days.
On December 28, 1970, at about 11:15 p.m., Bressette knocked on the door of an apartment at 1700 West National Avenue, Milwaukee. The occupant, Olan Lucille Freer, was there alone; she opened the door just slightly and Bressette forced his way in. He immediately started beating her in the face and chest with his fists. He chased her to the bedroom and bathroom, broke down the door, knocked her down at least twice and dragged her back into the living room. Bressette demanded her money and took $507. Olan Freer was taken to the hospital where she was treated for a fractured nose and bruises of the face and body; she was released on December 29, 1970. Olan Freer was sixty-two years old at the time of this incident; the defendant was twenty-five or twenty-six years of age. Bressette had been a professional boxer and his last employment was as a nightclub bouncer.
The complaint filed against Bressette because of the May 13th Thompson incident was robbery by force contrary to sec. 943.32(1) (a), Stats.; the complaint against him for the December 28th Freer incident was armed robbery contrary to sec. 943.32(1) (a) and (2).
The defendant Bressette was arrested on the May 13th charge on May 14, 1970. He was found to be indigent and counsel was appointed for him. Bressette was out of jail on bail at the time of the second offense on December 28, 1970, and was arrested on this charge on February 2, 1971.
On February 4, 1971, Bressette appeared in circuit court for his initial appearance on the December 28th charge. The court again found he was indigent and appointed counsel for him. Later that day this counsel was discharged and the first counsel, Mr. Lind, was appointed to represent him on both charges.
In the afternoon of February 4th the court was advised that an assistant district attorney and the defendant and his counsel had entered into a plea bargain. In open court, in the presence of the defendant and his counsel, the assistant district attorney so advised the court. The state agreed to reduce the second charge from armed robbery to robbery and the defendant agreed to plead guilty. The assistant district attorney specifically stated as a part of the plea bargain that the state would recommend the maximum ten-year sentence for each offense and that the sentences should run consecutive to each other.
The defendant Bressette, in response to questions from the court, agreed that he understood a ten-year sentence could be imposed for each offense and that they could be consecutive so that the entire maximum time could be twenty years.
After the trial judge personally questioned the defendant as to waiver of his constitutional rights, his education, his understanding of the charges against him, and as to whether any threat, promises or force had been used against him, the court heard testimony of the investigating officers as to the details of the defendant's offenses.
Upon the defendant's pleas and the evidence adduced, the trial court found the defendant guilty of both counts of robbery. His previous criminal record was introduced which revealed a great number of convictions, many of a minor nature and some serious and akin to the present charges. Both the defendant and his counsel were afforded an opportunity to address the court on the question of the sentence, as was the district attorney. The court did impose the sentence recommended by the state — ten years on each count, the sentences to run consecutively.
The defendant, by postconviction motion, asked that he be allowed to withdraw his pleas of guilty. The basis for his motion was his claim that his counsel told him that if he entered pleas of guilty his sentences would be concurrent rather than consecutive. This motion was denied and the defendant appeals from the judgment of conviction and the order denying postconviction relief.
The defendant urges that he should be permitted to withdraw his plea and stand trial on the merits of the case.
A defendant must be allowed to withdraw his plea of guilty and the court must order a new trial only in those instances where a refusal to do so would result in "manifest injustice."
State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9.
An examination of the record convinces us that the trial court fully complied with all of the requirements for guilty pleas as set forth in Ernst v. State (1969), 43 Wis.2d 661, 674, 170 N.W.2d 713.
The trial judge did determine the defendant's age, education and general understanding. (A pretrial medical-mental examination was conducted.) Counsel was appointed to represent the defendant. The judge did establish that the accused understood that he was charged with robbery and that the defendant admitted conduct which constitutes robbery. The defendant was advised of the maximum penalty that could be imposed and that the sentences could be ordered to be served consecutively for a total of twenty years. The defendant in response to a question by the judge did acknowledge that no threats, promises or force had been used to obtain the pleas of guilty.
The defendant's complaint, as it appears from his postconviction motion and his petition for appointment of counsel in this court, is that he claims his trial counsel told him the sentences would be imposed to run concurrently if he pleaded guilty. This postconviction motion to withdraw the plea was denied by the trial court and properly so. The record reveals that the trial judge specifically informed the defendant that he could be sentenced to ten years on each count and that they could be ordered to run consecutively for a total period of twenty years. The record further reveals that the defendant affirmatively acknowledged that he knew he could receive such sentences.
Before the pleas of guilty were entered, in the presence of and within hearing range of the defendant, the assistant district attorney unequivocally stated that if the defendant entered pleas of guilty the state's recommendation would be that sentences imposed as to both counts be the maximum and that the sentences would be ordered to run concurrently. The defendant knew what the sentences could be and what the state's recommendation was going to be before he entered his pleas of guilty. The plea bargain was not breached and no manifest injustice appears on this score.
The brief filed in behalf of the defendant and the oral argument by counsel contend that because in the plea bargain a count of armed robbery was reduced to robbery, the court was obligated to satisfy itself that the defendant knew the elements of armed robbery. Neither of the informations filed, and to which he entered pleas, charged the defendant with armed robbery (one complaint did). The court is not obligated to be sure a defendant knows and understands the elements of a crime he is not charged with. The obligation of the court is to be sure that the defendant knows what the elements of the crime with which he is charged are and that the conduct which the defendant admits constitutes the crime charged. The record shows this obligation was fulfilled.
Defendant's appellate counsel also asserts that there was an element of judicial intimidation in accepting the defendant's plea. The basis for this assertion is that the trial judge was impatient when trial counsel for the defendant wanted the victim Thompson to testify rather than the complaining officer. When the trial counsel objected to the testimony of the officer, the court asked counsel if he wanted a jury trial and when counsel responded "No," the judge further advised counsel that he could call any witnesses (Thompson was in the courtroom) if he was not satisfied with the officer's testimony. The objection was then withdrawn, and in any event the right of confrontation is one of the constitutional rights waived upon a plea of guilty. We find no error or abuse of discretion, nor improper judicial conduct in this procedure.
Pointer v. Texas (1965), 380 U.S. 400, 85 Sup. Ct. 1065, 13 L. Ed. 2d 923.
We have carefully reviewed the entire record. The defendant was represented by adequate counsel, he was advised as to his waiver of constitutional trial rights, the crime he was charged with, and the maximum penalties that could be imposed. He acknowledged to the trial court that there were no threats, promises or force used to obtain the pleas. We conclude the pleas of guilty were voluntarily, knowingly and intelligently entered into. The testimony in the record leaves no doubt that he was guilty of the crimes charged. As noted by the trial judge at the time of sentence, the viciousness of the attacks was so extreme that he could have been charged with additional crimes. The plea bargain relieved the defendant of the detriment of being charged and tried on these additional offenses. These facts, combined with an extensive prior criminal record, justify the sentences imposed. We find nothing in this record that would lead us to conclude that it is necessary to permit the defendant to withdraw his pleas of guilty in order to correct a manifest injustice. To put it another way, we find no manifest injustice and the pleas of guilty and the sentences imposed are approved.
By the Court. — Judgment and order affirmed.
I disagree with the majority on their position relative to the central issue in this case: Should the defendant have been permitted to withdraw his plea of guilty to prevent a manifest injustice? In essence, because the court did not ascertain defendant's understanding of the plea bargain he had made, the defendant should have been allowed to withdraw his plea of guilty.
In our concurring opinion in Farrar v. State, Mr. Chief Justice HALLOWS and the writer of this opinion expressed the view that before a bargained plea is accepted in the trial court, the court should ascertain the defendant's understanding of the bargain, and if the bargain as understood by the defendant is not kept, the defendant should have the opportunity to withdraw his plea of guilty. Subsequently, the United States Supreme Court in Santobello v. New York declared that the prosecutor's failure to keep a plea bargain may form the basis for the withdrawal of a guilty plea.
(1971), 52 Wis.2d 651, 662-664, 191 N.W.2d 214.
(1971), 404 U.S. 257, 92 Sup. Ct. 495, 30 L. Ed. 2d 427.
In the instant case the defendant was charged with armed robbery contrary to sec. 943.32(2), Stats. This, despite the fact that he was never alleged to have been armed at the time and, in fact, was never armed with a weapon. The "plea bargain" in this case was a reduction of the charge from armed robbery to unarmed robbery. Clearly this defendant was not "armed with a dangerous weapon" (sec. 943.32(2)) and, therefore, could not possibly be convicted of armed robbery. Thus the plea bargain entered into by the defendant and the prosecution was completely illusory.
Under these circumstances I believe that the trial court was obliged to inform the defendant that his conduct did not constitute armed robbery. If, after understanding the law as it related to the crime, the defendant still wished to plead guilty, then the plea would be valid.
Ernst v. State (1969), 43 Wis.2d 661, 673, 170 N.W.2d 713; McAllister v. State ante, p. 224, 194 N.W.2d 639.
I would reverse the judgment and order and allow defendant to withdraw the guilty plea.