Summary
rejecting the manifest injustice standard in favor of the “fair and just reason” standard based on the 1967 ABA standards
Summary of this case from State v. LopezOpinion
No. State 133.
Argued June 6, 1973. —
Decided June 29, 1973.
ERROR to review a judgment of the county court of Monroe county: JAMES W. RICE, Judge. Reversed and remanded.
For the plaintiff in error there were briefs and oral argument by Howard B. Eisenberg, state public defender.
For the defendant in error the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
This is a guilty-plea case. Plaintiff in error Richard J. Libke, hereinafter defendant, was charged in a criminal complaint with three counts of burglary contrary to sec. 943.10, Stats., and two counts of theft contrary to sec. 943.20(1) (a). Two days later defendant was further charged with three counts of burglary and three counts of theft.
Defendant was arraigned in county court and after waiving his right to a preliminary hearing and the reading of the information, he pleaded guilty to two informations which charged the six burglary counts. The trial court proceeded to ascertain that the pleas were knowingly and voluntarily entered and that a factual basis therefor existed. The court then accepted the pleas of guilty and ordered a presentence investigation.
Several days after defendant entered his guilty pleas he indicated dissatisfaction with his initially appointed counsel and received new counsel. Later, and before sentence was imposed, defendant, by his new attorney, notified the district attorney of his intention to move the trial court for an order permitting him to withdraw his pleas of guilty. The annexed affidavit to this notice alleged defendant's pleas were induced by a failure to fully understand the circumstances. A hearing was held before the trial court on defendant's motion to withdraw. At this hearing the defendant testified that his first court-appointed attorney had talked him into making a plea which he did not want to make. According to defendant, the attorney had promised to see what he could do to provide help for him if he pleaded guilty. Defendant stated he felt that he had been "led down the wrong way" with his first lawyer and wished to change his plea. The trial court denied the motion on the basis of the record of the plea hearing and the defendant's testimony during the plea-withdrawal hearing. In the words of the court:
"There is nothing in the record now on which I can change my mind and determine that there has been a manifest injustice as described in State against Reppin and I will, therefore, deny the motion to withdraw the plea of guilty."
The trial court then sentenced defendant to an indeterminate term of not more than five years on each of the three burglary counts in one information, which terms were ordered to run concurrent with each other. The defendant also received concurrent indeterminate terms of not more than two years on each of the three burglary counts in the other information; this sentence to run consecutively to that imposed in the first information.
The state public defender was appointed to represent the defendant in any postconviction remedies, and a writ of error was issued to review the judgment of conviction.
The office of the attorney general petitioned this court to approve a confession of error. This court, on December 12, 1972, denied the petition, stating:
"The petition of the defendant in error, by the attorney general, for approval of confession of error having been considered by the court, and the court having determined that the same standard should be applied by the trial court in considering a motion to withdraw a guilty plea whether before or after sentencing, although the grounds for withdrawal of the plea need be less compelling before sentencing than after,
"It is ordered that the petition is denied."
The single issue involved in this review is whether the same standard applies to the consideration of a motion to withdraw a guilty plea before sentence as after?
We conclude that trial courts should apply a somewhat different standard in assessing a motion to withdraw a guilty plea before sentence than after. It should be easier to withdraw a plea before sentence than after. The trial court erroneously applied the same standard in that he determined that a manifest injustice to the defendant must be established.
See Wilson v. State (1973), 57 Wis.2d 508, 510, 204 N.W.2d 508; State v. Reppin (1967), 35 Wis.2d 377, 384, 151 N.W.2d 9.
The different standard in assessing a motion to withdraw a guilty plea before sentence has been imposed has been spelled out in sub. (b) of sec. 2.1 of the American Bar Association Standards Relating to Pleas of Guilty, which this court expressly adopted in State v. Reppin. Sec. 2.1 (b) provides as follows:
Supra, footnote 1.
"(b) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty or nolo contendere as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow, the defendant to. withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea." (Emphasis added.)
American Bar Association Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty (Approved Draft, 1968), sec. 2.1 (b).
In Reppin this court stated:
"Recently the American Bar Association Project on Minimum Standards for Criminal Justice issued a tentative draft on Standards Relating to Pleas of Guilty. These standards adopt the 'manifest injustice' test of Rule 32 (d) of the Federal Rules of Criminal Procedure and implements it with four factual situations which the advisory committee believes independently establish manifest injustice when proved by the defendant. We agree and adopt this standard. . . ." (Emphasis added.)
State v. Reppin, supra, footnote 1, at pages 385, 386.
The commentary to the ABA plea-withdrawal standard makes it unequivocally clear that the "manifest injustice" test or criterion was not intended to apply where the motion to withdraw a guilty plea is made before sentence is imposed. The commentary to sec. 2.1 (a) states that "[t]his language, it should be noted, says nothing about the standard to be employed before sentence." The commentary to the black-letter rule of sub. (b), quoted earlier, provides:
ABA Standards Relating to Pleas of Guilty, supra, footnote 3, Commentary, sec. 2.1 (a), at page 54.
Supra, footnote 3.
"The standard does recognize the generally acknowledged discretion of the judge to permit withdrawal before sentence even in the absence of a manifest injustice. This is a matter solely within the discretion of the judge; he may but need not grant the motion. In the federal system, it is common to refer to this discretion as covering cases in which the defendant offers any `fair and just reason' for withdrawal. . . . "(Emphasis added.)
Id. at page 58.
While the limits of the trial court's discretion and the meaning of the phrase "fair and just reason" are not adequately explicated in the ABA Standards themselves, a number of federal cases which apply Rule 32 (d) of the Federal Rules of Criminal Procedure (the acknowledged ancestor of the ABA plea-withdrawal standard) have discussed such rules.
The "fair and just reason" rule appears to have had its genesis in the federal system in Kercheval v. United States, wherein the United States Supreme Court held evidence of a guilty plea which is withdrawn cannot be introduced into evidence at a subsequent trial. In reaching its conclusion, the high court commented upon the nature of guilty pleas and observed that the timely withdrawal of such pleas does not raise the issue of guilt or innocence. According to the court:
(1927), 274 U.S. 220, 47 Sup. Ct. 582, 71 L.Ed. 1009.
". . . The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just."
Id. at page 224.
Although courts interpreting Federal Rule 32 (d) vary somewhat as to whether plea withdrawals ought or ought not be liberally permitted, they unanimously concur that the withdrawal of pleas is not a matter of absolute right. This principle was recently stated by the Second Circuit Court of Appeals in United States v. Fernandez:
(2d Cir. 1970), 428 F.2d 578, 580. See also: Kirshberger v. United States (5th Cir. 1968), 392 F.2d 782, 787; Callaway v. United States (10th Cir. 1966), 367 F.2d 140, 142.
" . . . As we have held on previous occasions, a defendant has no absolute right to withdraw a plea of guilty, an application for such withdrawal being addressed to the sound discretion of the trial judge . . . ."
A number of federal cases also place the burden of establishing the grounds for a plea withdrawal, even before imposition of sentence, upon the defendant. This was forcefully stated in Everett v. United States:
(D.C. Cir. 1964), 336 F.2d 979, 984. See also: Pitt v. United States (8th Cir. 1967), 378 F.2d 608, 611; Smith v. United States (8th Cir. 1967), 378 F.2d 608, 611; Smith v. United States (8th Cir. 1966), 359 F.2d 481, 483.
"A defendant who stands before a court freely admitting his attempted robbery does not remotely meet the standard of offering a 'fair and just reason' for withdrawing his plea of guilty prior to sentence. He must give some reason other than a desire to have a trial the basic purpose of which is to determine the very facts the defendant has just volunteered to the court on the record and while attended by his own counsel."
Professor Wright suggests this placing the burden upon the defendant to offer good reasons for withdrawing his plea is "of very dubious soundness," and urges that leave for such withdrawal should be "freely allowed."
Wright, Federal Practice and Procedure, sec. 538, at pages 473, 474. See also: Poole v. United States (D.C. Cir. 1957), 250 F.2d 396.
A majority of federal courts dealing with the question, regardless of where they place the burden of establishing cause for withdrawal of a guilty plea, concur with Professor Wright in opting for great liberality in permitting plea withdrawals requested before sentencing. In United States v. Young it was stated:
See e.g., United States v. Stayton (3d Cir. 1969), 408 F.2d 559, 561; Kadwell v. United States (9th Cir. 1963), 315 F.2d 667, 670.
"The liberal rule for withdrawal of a guilty plea before sentence is consistent with the efficient administration of criminal justice. It reduces the number of appeals contesting the `knowing and voluntariness' of a guilty plea, and avoids the difficulties of disentangling such claims. It also ensures that a defendant is not denied a right to trial by jury unless he clearly waives it."
(3d Cir. 1970), 424 F.2d 1276, 1279.
These cases, although adhering to the view that the issue is addressed to the sound discretion of the trial court, do stress that the withdrawal motions made before sentencing are to be "freely allowed."
United States v. Stayton, supra, footnote 13, at page 560.
The foregoing authorities make it quite clear that a different standard or criterion exists for guilty-plea-withdrawal requests which are made before rather than after sentence is imposed. The "manifest injustice" test is rooted in concepts of constitutional dimension. Thus, for example, the four situations of manifest injustice outlined in the ABA Standard all involve serious questions affecting the fundamental integrity of the plea. The "fair and just reason" criterion on the other hand contemplates the mere showing of some adequate reason for the defendant's change of heart. Indeed, a number of federal cases interpret this rule as requiring withdrawal of the plea as a matter of course when the motion is made before sentencing.
See ABA Standards Relating to Pleas of Guilty, supra, footnote 3, sec. 2.1 (a) (ii).
United States v. Roland (4th Cir. 1963), 318 F.2d 406, 409; McJordan v. Huff (D.C. Cir. 1943), 133 F.2d 408, 409.
In the present case it is undisputed that the trial court applied the manifest injustice test of the ABA plea-withdrawal standard to defendant's request for withdrawal permission. This was the wrong criterion. The trial court should have applied the fair-and-just-reason criterion of the Standard's sec. 2.1 (b), which was adopted by this court in State v. Reppin.
Supra, footnote 1, at pages 385, 386.
On this review, from our own independent examination of the record at the hearing on defendant's withdrawal motion, and in light of the proper standard, we are convinced that the trial court applied the wrong standard and since the defendant did present a "fair and just reason" to permit a plea withdrawal, the defendant should have been permitted to withdraw his guilty plea. This case is similar to McCleary v. State, where this court independently reviewed the record to determine whether the trial court abused its sentencing discretion. An independent review of the record in the instant case reveals that the defendant essentially presented one reason for his desire to withdraw the pleas. At the hearing on the motion to withdraw the plea defendant testified that it was never his intention to plead guilty. He stated that things were happening "too darn fast" and that out of confusion he agreed to make such a plea. Defendant also testified that his first attorney talked him into the plea by promising to see that he received "help." Summarizing the reason he desired to withdraw his plea defendant stated " I feel I was led down the wrong way with that lawyer."
(1971), 49 Wis.2d 263, 282, 182 N.W.2d 512.
By the Court. — Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.
The writer concurs with the majority holding that a defendant's request to withdraw a guilty plea, made before sentence is imposed, is addressed to the discretion of the trial court, with the defendant required to establish, not a "manifest injustice," but a "fair and just reason" for such request being granted. So reversal and remand are here required. However, the writer would remand for a new hearing and ruling on defendant's request with the "fair-and-just-reason" test to be applied. Instead the majority makes its own ruling on defendant's request. All that the defendant here has claimed is that his trial counsel "talked him into the plea by promising to see that he received 'help'." Only a hearing can determine what the reference to being "talked into" a plea involves. In addition to the issues of fact and credibility that only a hearing can resolve, the attorney whose professional conduct and good judgment are impugned should be allowed to testify as to what transpired and whether he "talked" his client into entering a plea of guilty. Only a hearing, followed by a decision based on a proper exercise of trial court discretion, can here determine whether or not the defendant has or can establish "fair and just reason" for his being permitted to withdraw his plea of guilty.