Opinion
September 8, 1967. —
October 3, 1967.
ERROR to review an order of the circuit court for Milwaukee county: CLAIR VOSS, Circuit Judge of the Twenty-Second circuit, Presiding. Affirmed.
For the plaintiffs in error there was a brief by Frederick A. Muth, Jr., attorney, and Whyte, Hirschboeck, Minahan, Harding Harland of counsel, all of Milwaukee, and oral argument by Mr. Muth.
For the defendant in error the cause was argued by E. Michael McCann, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O'Connell, district attorney.
Plaintiffs in error James Thomas Cresci and Richard Allen Tolfa (hereinafter the "defendants") were each charged with two armed robberies in violation of sec. 943.32 (1) and (2), Stats. On August 4, 1965, they entered pleas of guilty to both charges, were adjudged guilty, and were each sentenced to two terms of not to exceed ten years in state prison, the sentences to run concurrently.
Upon defendants' request and proof of indigency, this court appointed Attorney Frederick A. Muth, Jr., as counsel to represent them in proceedings for postconviction relief. Thereafter, defendants served and filed motions to withdraw their pleas of guilty, set aside the judgments of conviction, and vacated the sentences. On September 9, 1966, a hearing was held on these motions. The facts hereinafter set forth are taken from the record made at this hearing and from the transcript of the proceedings had on August 4, 1965, at the time the pleas of guilty were entered, and defendants were adjudged guilty and sentenced.
On March 4, 1965, four men committed holdups at two Milwaukee taverns. There was a fifth man, Delarosa, who admitted driving the getaway car. Defendants, parolees from Green Bay state reformatory, were arrested in Milwaukee at about 5:15 p.m. on Saturday, March 6, 1965, and about 2 a.m., on Sunday, March 7, 1965, respectively. While there was interrogation by the police of defendants following their arrest, defendants made no admissions or incriminating statements. The testimony is in dispute as to whether during this questioning, defendants requested permission to contact counsel and were denied such request.
Defendants were brought before a magistrate for their initial appearances sometime after noon on Monday, March 8, 1965. Bail was set, which defendants were unable to provide, and the cases were continued to March 29, 1965. Preliminary hearings were held on that date, and both defendants appeared with counsel. Both were identified by eyewitnesses as having participated in the robberies. Defendants were bound over to circuit court for trial.
Cresci and Tolfa were arraigned on April 10 and 13, 1965, respectively, and both pleaded not guilty. Both also pleaded indigency, and the counsel who had represented them at the preliminary hearings were appointed as their attorneys. Aaron Tilton was appointed for defendant Cresci, Ralph Leasing was appointed for defendant Tolfa.
Both defendants were held by the Wisconsin department of public welfare to have violated their parole. On May 24 and 25, 1965, upon motions by their attorneys, both defendants were transferred from the Milwaukee county jail to the Wisconsin state reformatory at Green Bay, so they could begin serving their sentences as parole violators. Their cases, along with those of the two other men accused of committing the robberies on March 4, 1965, were consolidated for trial and the date of trial set for August 4, 1965. The other two accused were Timothy and William Fidler represented respectively by Attorneys John Wessel and Philip Murphy.
Defendants saw their counsel at various times, usually at court appearances, prior to the trial date. At no time prior to August 4th did the attorneys discuss with the defendants the possibility of changing their pleas of not guilty.
Before the proceedings in open' court commenced on August 4th, the attorneys discovered that Delarosa, the driver of the getaway car, had confessed and was present in court to testify against the four accused.
Attorney Wessel initiated the plea bargaining by approaching Aladin DeBrozzo, deputy district attorney, on the subject of changing his client's plea to guilty in exchange for a recommendation by DeBrozzo to the court for a sentence less than the maximum for two counts of armed robbery. Attorney Lessing also asked DeBrozzo whether he would consider a lenient sentence recommendation in exchange for a guilty plea by Tolfa. DeBrozzo stated that, in consideration of Tolfa's youth and some other factors, he would consider recommending a sentence of ten years. Lessing then conferred with Tolfa in the hallway behind the courtroom and Lessing testified that Tolfa agreed to change his plea.
Attorney Tilton also testified that he asked DeBrozzo about changing the plea and that DeBrozzo indicated he would recommend a sentence beneath the maximum if Cresci pleaded guilty. Tilton then conferred with Cresci, who thereupon agreed to change his plea.
Hon. CLAIR VOSS, circuit judge of the Twenty-Second circuit, had been assigned as trial judge. There followed conference in chambers among Judge Voss, Attorneys Wessel, Lessing, and Tilton, and DeBrozzo. DeBrozzo died prior to the September 9, 1966, hearing, but the other attorneys testified that the main purpose of the conference was to inform the judge of the change of plea and waiver of jury trial, so that the judge could discharge the jury which was sitting in the courtroom awaiting trial. They stated that DeBrozzo made no remarks during the conference as to a sentence recommendation. They further testified that the judge stated during the conference that there would still have to be a hearing with introduction of evidence, that no sentence recommendations could be made in chambers, but that at the end of the hearing the district attorney could make a sentence recommendation which the court would consider for what it was worth.
Both Leasing and Tilton testified that they then conferred privately with their respective clients in the hallway behind the courtroom and recommended a change of plea. Each told his client that, in light of the positive eyewitness identifications at the preliminary hearings and the intended testimony of Delarosa, he, from his experience as a lawyer in criminal matters, would recommend pleading guilty. Each stated that he informed his client that the change of plea had to be a voluntary act on the defendant's part. Each told his client that the district attorney had indicated that he would recommend concurrent sentences of ten years for the two charges; but that the judge had not made, and could not make, any promises.
Both Cresci and Tolfa testified that they had demanded from DeBrozzo a "guarantee" of a ten-year sentence and that, after the conference in the judge's chambers, DeBrozzo told them that it was guaranteed and the "deal was on."
The testimony is conflicting as to whether DeBrozzo ever spoke to the defendants.
Defendants in open court, before Judge Voss, changed their pleas from not guilty to guilty. Their attorneys and the judge examined them as to the voluntariness of their pleas. The prosecution introduced testimony concerning the defendants' participation in the two robberies. The attorneys had their clients testify as to their contrition for their acts. DeBrozzo recommended ten-year sentences. The attorneys asked the court for leniency in sentencing. The judge asked for no presentence investigation, and imposed sentence in accordance with DeBrozzo's recommendation.
Judge Voss also presided at the hearing held September 9, 1966, on defendants' postconviction motions. An order was entered November 22, 1966, denying these motions, and defendants have appealed.
In State v. Reppin this court adopted the "manifest injustice" test in regard to the withdrawal of guilty pleas. The court cited with approval the standards included in the tentative draft on Standards Relating to Pleas of Guilty prepared by the American Bar Association Project on Minimum Standards for Criminal Justice. One such standard provides:
(1967), 35 Wis.2d 377, 385, 386, 151 N.W.2d 9.
"(a) The court should allow the defendant to withdraw his plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.
". . .
"(ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant proves that:
". . .
"(3) the plea was involuntary. . . ."
American Bar Association Project on Minimum Standards for Criminal Justice — Pleas of Guilty (Tentative Draft, February, 1967), Part II, pp. 9, 10.
In the instant cases the issue of manifest injustice is confined to the question of the voluntariness of defendants' pleas of guilty.
The defendants contend that their pleas were involuntary because (1) they were deprived of their right to counsel and kept incommunicado for a lengthy period of time after arrest despite repeated requests to contact their attorneys; and (2) they were, suddenly on the day of trial, without prior consultation with their attorneys, presented with a plea bargaining proposal by the district attorney to plead guilty in exchange for a lesser sentence, after he had conferred in chambers with the trial judge and defense counsel concerning a change of plea.
Unreasonable Detention.
Defendants Cresci and Tolfa were allegedly held incommunicado for forty-two and thirty-four hours respectively before being brought before a magistrate. The trial court in its memorandum decision on the motions to withdraw the pleas of guilty did not resolve the dispute in the testimony with respect to whether during this period defendants requested permission to contact counsel and were denied such requests. For the purpose of this appeal we will assume such requests were made and denied. Defendants did have counsel of their own choice by the time the preliminary hearing was held later in the month of their arrest.
The issue is whether there is any causal connection between the incommunicado detention and denial of right to contact counsel during the first week of March, 1965, and the change of pleas from not guilty to guilty on August 4, 1965, five months later. We deem that Pulaski v. State is controlling on this issue. In that case even though this court deplored the defendant's incommunicado detention for thirty-six hours, it could find no causal connection between a detention on March 28th and 29th and a plea of guilty on May 5th, particularly when the defendant had pleaded not guilty at the arraignment on April 18th. The court stated:
(1964), 23 Wis.2d 138, 126 N.W.2d 625.
"This [the arraignment] was on April 18th. Between this date and May 5th when the defendant changed his plea to a plea of guilty we find nothing in the record which coerced the defendant or rejuvenated any fear which caused him to change his plea. We find no causal connection between the incommunicado detention and his treatment by the police on March 28th and 29th which caused him to change his not-guilty plea."
Id. at page 146.
Likewise in the instant case, defendants had pleaded not guilty at their arraignment after having been represented by counsel at their preliminary hearings. It would be stretching the court's credulity to the breaking point to hold that the prior incommunicado detention had any causal effect on the later change of pleas.
Involuntary Coercion as a Result of Plea Bargaining.
In the instant case, while the trial judge properly did not participate in the plea bargaining, defendants received the identical sentences which the deputy district attorney promised to, and did, recommend in return for the entry of the guilty pleas.
It has been stated by the authorities that roughly 90 percent of all criminal convictions in the United States stem from pleas of guilty. Newman, Conviction — The Determination of Guilt or Innocence Without Trial (Little-Brown, 1966), p. 3; President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts (1967), p. 4. Plea discussions and plea agreements have been recognized as proper, when certain safeguards are observed, by the American Bar Association Project on Minimum Standards for Criminal Justice in its Tentative Draft of Standards Relating to Pleas of Guilty issued February, 1967, Part III, at pp. 10 et seq. These proposed standards relating to plea agreements have recently been favorably cited by the Fifth Circuit Court of Appeals and the New Jersey Supreme Court. Brown v. Beto (1967), 377 F.2d 950; State v. Taylor (1967), 49 N.J. 440, 231 A.2d 212.
This court's holding in Myartt v. State is relevant. In that case the defendant pleaded guilty in exchange for the prosecutor's promise to recommend probation. The defendant was informed by his counsel that such recommendation was not binding on the court. The prosecutor kept his promise. The trial judge, who had not participated in the bargaining, did not follow the recommendation and imposed a prison sentence. This court held that the defendant had not been coerced or improperly induced to plead guilty by the plea bargaining.
(1964), 25 Wis.2d 634, 131 N.W.2d 371.
We agree with the statement made by the federal court of appeals for the Ninth circuit in Cortez v. United States. The court stated:
(1964), 337 F.2d 699.
"The important thing is not that there shall be no `deal' or `bargain,' but that the plea shall be a genuine one, by a defendant who is guilty; one who understands his situation, his rights, and the consequences of the plea, and is neither deceived nor coerced."
Id. at page 701.
Defendants do not urge that all pleas of guilty arrived at as a result of plea negotiations are inherently coercive but contend that the "last minute" nature of their plea bargaining rendered their pleas involuntary. However, before accepting the prosecutor's proposal, the defendants did confer with their own counsel who recommended that such acceptance was advisable.
Counsels' recommendations were grounded on the fact that, not only had eyewitnesses to the two robberies identified defendants at the preliminary examination, but that the alleged driver of their getaway car was also prepared to testify against them and to implicate them as participants. Thus, the chances of securing an acquittal before a jury were almost hopeless, and each defendant was faced with a possible maximum sentence of sixty years in prison. With these odds against them, defendants, in all probability, made a wise decision in deciding to plead guilty in return for the prosecutor's recommendation of maximum concurrent sentences of ten years each.
When a plea of guilty has been entered, the trial judge must objectively determine the voluntariness of the plea. After defendants had entered their guilty pleas, in response to questions from the court or counsel, defendant Cresci stated that he had discussed the change of plea with his attorney and that there had been no promises or threats; that he had changed pleas of his own free will; and that he had a high-school education. Likewise, defendant Tolfa stated that he had discussed the matter with his attorney, that no promises or threats were made to him, and that he voluntarily changed his plea. The court asked Tolfa if he understood that a prison sentence could result from his guilty plea. Tolfa answered in the affirmative. Nothing in the record indicates that Cresci had left the court at this time, and it is only reasonable to assume he heard the court's question. Also, while Cresci was being questioned, DeBrozzo intervened with the following statement:
See State ex rel. Burnett v. Burke (1964), 22 Wis.2d 486, 126 N.W.2d 91. Cf. Standard 1.5 of Tentative Draft of Standards Relating to Pleas of Guilty, supra, footnote 2, at pages 7, 8.
"In each instance I want to say that the defendants are aware that each charge carries up to twenty-five years [actually it was 30 years] to the State Prison at Waupun."
The trial court, in denying the motions to withdraw the pleas, found that defendants' pleas had been entered "freely, voluntarily and understandingly." We find nothing in this record which would require this court to hold to the contrary as a matter of law. The shortness of time, within which defendants were obliged to make their decision with respect to accepting or rejecting the proposal resulting from the plea negotiations between defense counsel and DeBrozzo, was not coercive in the sense of rendering defendants' guilty pleas involuntary.
Last minute plea negotiations have been condemned by the President's Commission on Law Enforcement and Administration of Justice in its Report, The Challenge of Crime in a Free Society (Feb. 1967), p. 135, wherein it declared: "Negotiations should be more careful and thorough, broader, and preferably held early in the proceedings. It does not contribute to the soundness of the practice when negotiations are held on the eve of trial or in the public atmosphere of the courtroom hallway." However, this criticism does not deal with the aspect of the problem here confronting the court, viz. the voluntariness of the plea.
By the Court. — Order affirmed.