Summary
In Gregory, we pointed out there was no attempt by the judge to urge or coerce the defendant into confessing guilt but, rather, the judge was concerned over the fact that Gregory, who had a long criminal record, claimed that he was rehabilitated but refused to admit his guilt.
Summary of this case from Scales v. StateOpinion
No. State 190.
Argued May 7, 1974. —
Decided June 4, 1974.
ERROR to review a judgment and an order of the circuit court for Milwaukee county: ROBERT W. LANDRY, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief by Patrick J. Devitt, and oral argument by Laurence E. Norton II, both of Legal Aid Society of Milwaukee.
For the defendant in error the cause was argued by Christine M. Wiseman, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
The plaintiff in error, Lemont Gregory, hereinafter "defendant," was charged with being a party to a crime of armed robbery, contrary to secs. 939.05 and 943.32 (1) (b) and (2), Stats. On November 22, 1972, a jury returned a verdict of guilty and defendant was sentenced to a term of three years in the State Reformatory at Green Bay.
At approximately 8:30 p.m. on May 25, 1972, Mrs. Susan Burke heard her doorbell ring. Mrs. Burke left her three daughters and her mother who were then upstairs and went to answer the door. She peered out through the door but could not identify the persons at the door and proceeded to open the inner door, leaving a screen door in front of her. Two men were at the door, one of whom was positively identified by Mrs. Burke to be the defendant. The defendant opened the screen door and forced his way into the home. Both the defendant and his companion were, at that time, brandishing pistols.
Once in the home, the defendant's companion held his weapon at the base of Mrs. Burke's neck while holding her arm behind her. Mrs. Burke testified that she was then dragged throughout the house in search of things.
The defendant asked Mrs. Burke if there was anyone else present in the home. Mrs. Burke stated that her mother and children were upstairs. Mrs. Burke was then forced upstairs and gave to the defendant $39 which she removed from her purse. Mrs. Burke was taken back downstairs. Once downstairs, the defendant and his companion began removing a stereo set. Mrs. Burke's mother was, at this time, summoning the police on the upstairs phone. The defendant and his companion left through the back door, noticed the arrival of the police and fled. Patrolman Wayne Dobbratz pursued the defendant into a wooded area and found the defendant hiding in a tree.
The defendant testified that he went to the Burke residence to purchase marijuana as he had a dozen times before. Upon arrival, the defendant stated that the robbery was already in progress. He stated that the other individual pointed a gun at him and asked if he wanted a piece of the action. The defendant remained for a period of five or six minutes and then left by the back door. Upon leaving, the defendant testified that he grabbed a packet of hash and another of grass located on the kitchen table and fled.
At the sentencing hearing, testimony and a presentence report were introduced from Mr. John A. Terek of the Wisconsin department of health social services. Mr. Terek testified to the defendant's rather substantial juvenile record and his adult convictions for shoplifting and operating an automobile without the owner's consent. He testified that because of defendant's present employment and job record that he felt defendant was a candidate for probation. The district attorney recommended incarceration because of the defendant's record, the violence of the crime and the defendant's lack of candor in denying his involvement in the crime.
The following colloquy transpired between the defendant and trial judge:
" The Court: Mr. Gregory, do you have anything that you would care to say about this matter or is there any reason why sentence should not be pronounced?
" Defendant Gregory: Yes, I have something to say about this matter, your honor. I feel that if I would be incarcerated right now that it will take a whole lot of potentials out of my future. I have been out at the institution almost two years and I have just now really found out what life is really all about. I have been trying to adjust myself to society the best way I am fitted. I have stumbled, but I was capable of picking myself up after the stumble. I just don't think it would be right.
" The Court: What about this particular incident of armed robbery?
" Defendant Gregory: As I stated, I was there, but I did not commit armed robbery. I have did some things in my juvenile time but if you can look at the record you would never see armed robbery or me getting involved with any kind of arms on the record. It was mostly for car theft. But I have been trying to better myself as I go along. I am sure I am capable of proving if I am given one more chance.
" The Court: . . .
"[T]his court likes to use guidelines, and this case has been a very difficult one for the court because, like Mr. Terek and like Mr. Reiher, I have been more than a little impressed with the defendant's demeanor, but there is one aspect that concerns me and I cannot put it aside. I think that it is a crucial and cardinal element in this whole business of rehabilitation, and that pertains to the aspect of making a reasonable breast of things.
"The jury in this instance has found the defendant guilty of a most heinous offense based upon the evidence in the case. I was not the trier of fact, but I am persuaded that the evidence in the case was overwhelming to establish guilt in this case, an offense which is punishable by 30 years. The defendant has been consistent in one thing: of asserting his innocence in the case, and up to a certain point I suppose that this is not only constitutionally correct but no penalties whatsoever should be imposed against him for taking this particular position, but at this time of sentencing, where a defendant is faced with such an accumulation of evidence and circumstance, where jury has found him guilty of the offense charged, it makes it a matter of much easier disposition where the defendant at this time makes a declaration of his complicity in the offense with which he has been charged, so that the judge is satisfied that rehabilitation has at least taken the first step. Without this I believe that the defendant psychologically is a poor candidate for rehabilitation on a probation basis for the reason that he still harbors resentment, he is under a delusion and wants everybody else to enjoy the delusion that he is innocent of the offense charged, and this delusion will result in hostility towards his probation officer, towards any program that is arranged for by the State.
"There is no way that this court can compel a person, or should even attempt to compel a person psychologically to come around to this particular point of conceding his complicity in an act. It simply is an indication to the court when he voluntarily resigns himself to this position that he is in a true, legitimate stance to take really forward steps toward rehabilitation.
"On the basis of the record that this defendant has compiled in the past, on the basis of the record in this particular case, and in view of the circumstance of his present posture, the court imposes a sentence of three years in the State Penitentiary. . . ."
On April 11, 1973, the defendant was returned to court. After a hearing, the court denied the defendant's motion for a modification of sentence. The reasons given by the court were the defendant's lengthy juvenile and adult record, the seriousness of the crime and the defendant's need for rehabilitation treatment.
The defendant obtained writs of error to review the judgment of conviction and sentence and the order denying the postconviction motion for a modification of sentence.
The sole issue to determine on appeal is whether the actions of the trial court herein are constitutionally infirm for reliance in sentencing on the defendant's declaration of noncomplicity in the crime alleged during the sentence hearing.
The defendant contends that the trial court erred in relying on defendant's failure "to make a clean breast of things" in sentencing him. such trial court action, he contends, penalized him for exercising his fifth amendment privilege against self-incrimination.
Here the trial court granted the defendant his statutory right of allocution. The colloquy that followed between the defendant and trial judge regarding the defendant's perpetration of the crime of armed robbery resulted only from the defendant's assertion that he had reformed. We characterize the actions of the trial court as a mere interruption in a continued proclamation by the defendant of his desire for probation because of his lack of complicity in the armed robbery. While the actions of the trial court could be characterized as a statement of its belief as to the incredulity of the defendant, we find no evidence that the court's statements influenced the judge's discretion or that the judge abused his discretion in imposing sentence. The record fails to disclose any request by the trial judge that the defendant in fact admit his guilt.
The quoted statements of fact indicate that the trial court was concerned with the defendant's volunteered statements that he was innocent of the crime for which the jury convicted him. The trial court explained that such statements indicated that the defendant was not sufficiently rehabilitated at the point of sentencing to be a candidate for probation.
On at least two occasions the trial judge stated that there was no way in which he could compel a person, or should even attempt to compel a person psychologically to concede his complicity in an act. We find no evidence that the trial judge did not observe the defendant's constitutional rights.
We do not think the trial judge's imposition of sentence constituted an abuse of discretion. Armed robbery carries a penalty of not more than thirty years. The judge imposed only one tenth of the legislative maximum.
By the Court. — Judgment and order affirmed.