Summary
In Nelson v. State, 53 Wis.2d 769, 193 N.W.2d 704 (1972), the defendant contended that the state failed to live up to its plea bargain when, in asking for dismissal of two felony theft charges, it moved that they be dismissed without prejudice, despite the fact that the district attorney had agreed there would be no subsequent prosecution on those charges.
Summary of this case from State v. BondOpinion
No. State 158.
Argued January 6, 1972. —
Decided February 1, 1972.
ERROR to review judgments of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by C. Michael Hausman of Milwaukee.
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.
The writ of error was issued to review two judgments of the circuit court for Milwaukee county by which the defendant was found guilty on March 12, 1970, after his pleas of guilty to a charge of burglary in violation of sec. 943.10(1)(a), Stats., and a charge of the use of heroin in violation of sec. 161.02(3). On March 26, 1970, he was sentenced to indeterminate terms of not more than eight years on the burglary charge and not more than five years for the use of heroin. The sentences were to run concurrently.
On this appeal the defendant asserts that the conviction for burglary is invalid because he had previously been placed in jeopardy for the same offense.
The defendant was charged with a burglary that occurred on August 6, 1968. Initially, a not-guilty plea was entered, but on February 17, 1969, the defendant, with his attorney, appeared before Acting Circuit Judge JOHN A. FIORENZA and moved to change his plea to guilty and for waiver of his right to jury trial. The defendant took the stand and freely admitted the burglary. After proceedings in which the judge determined that the change of plea was voluntary and that a prima facie case had been presented, the guilty plea was accepted.
During these proceedings, it became apparent that the defendant blamed his predicament on heroin addiction. Defendant's attorney contacted the office of the United States Attorney in Milwaukee to determine whether Nelson could be placed on probation and be civilly committed to the United States narcotic rehabilitation center at Lexington, Kentucky. It was determined, however, that the federal authorities would not accept an addict who was on probation or had criminal charges pending against him. In order to permit the defendant to avail himself of the federal rehabilitation facilities, the assistant district attorney suggested that the defendant move to vacate his guilty plea. The motion by the defendant was granted, the plea was vacated, and the complaint was dismissed without prejudice. The court advised the defendant, "If you don't apply for it, the State probably will issue again." The defendant made application to the federal hospital, but after a thirty-day examination period, he was released with a record notation that his addiction was incurable.
On May 19, 1969, a new complaint and warrant were issued for the defendant's arrest on the burglary charge. After numerous adjournments, a preliminary examination was held, at which he asserted the defense of double jeopardy. Probable cause was found, and the defendant was bound over for trial in the circuit court. On January 12, 1970, Nelson appeared before Circuit Judge JOHN L. COFFEY, and a plea of not guilty was entered. He at that time again asserted the defense of double jeopardy on the burglary charge on which the court had initially found him guilty on February 17, 1969. The court granted permission to file a motion asserting the double-jeopardy defense and set the date for argument for February 9, 1970. The motion was not filed or argued. In the interim, the defendant was out on bond. During this period of release, the defendant was arrested and charged with the use of heroin. The preliminary examination in the heroin case was waived, and the defendant was bound over for trial. In addition, the defendant was charged with two felony theft counts.
On March 6, 1970, the defendant requested permission to withdraw his plea of not guilty to the burglary charge and to enter a plea of guilty. At that time a plea agreement was spread upon the record, whereby the defendant agreed to plead guilty to the burglary and the use-of-heroin charges and the state agreed to dismiss the two pending theft charges. It was agreed that the theft cases were to be read into the record and the court could consider them when imposing sentence. The trial judge questioned the defendant extensively to determine whether his plea of guilty to the burglary charge was entered intelligently and voluntarily. On March 12, 1970, a plea of guilty was entered on the heroin charge, and again the court satisfied itself that the plea was voluntarily and knowledgeably made. Pleas of guilty were accepted on both the burglary and use-of-heroin charges. The theft charges were read into the record. After the finding of guilty, the district attorney moved for dismissal of the two "read-in" charges without prejudice, and the court proceeded to enter such dismissal without prejudice.
On this appeal the defendant contends that his constitutional rights were violated in that he was placed in jeopardy a second time for the burglary offense. He contends that the "read-in" charges should have been dismissed with prejudice, and that in the interest of justice the heroin charge should be set aside and a new trial granted.
In respect to the double-jeopardy claim, without determining whether it had any merit when initially asserted, it is apparent that the defense was waived. After the defendant's assertion of the double-jeopardy defense in the circuit court and after the motion was set down for hearing, the defendant elected to plead guilty to the burglary and heroin charges in exchange for the state's agreement to dismiss the two felony theft charges. Defendant throughout these proceedings had counsel, and it is apparent that both defendant and counsel knew of the possible defense of double jeopardy and asserted it in court. This defense was, however, intelligently and voluntarily waived by the guilty plea. In State v. Schmear (1965), 28 Wis.2d 126, 135 N.W.2d 842, this court recognized that the defense of double jeopardy was nonjurisdictional and could be waived. This court has consistently held that claims of constitutional violations, if nonjurisdictional, may be waived by a plea of guilty intelligently and voluntarily entered. Edwards v. State (1971), 51 Wis.2d 231, 235, 186 N.W.2d 193; State v. Guiden (1970), 46 Wis.2d 328, 332, 333, 174 N.W.2d 488; Hawkins v. State (1965), 26 Wis.2d 443, 448, 132 N.W.2d 545; see also: Hawkins v. State (1966), 30 Wis.2d 264, 140 N.W.2d 226.
It is apparent that, in the instant case, the eventual plea to the burglary charge was motivated by defendant's desire to have the felony theft charges dismissed under a plea agreement. There was a conscious, calculated, voluntary waiver of the defense of double jeopardy in exchange for the benefits that would accrue by having the theft charges dismissed. We need not determine whether or not jeopardy was initially waived at the original hearing when the defendant elected to withdraw his plea of guilty in exchange for the opportunity to apply to the federal narcotics facility. It is sufficient for the purposes of disposing of this appeal to conclude that, if the defendant had a double-jeopardy defense, it was knowingly and intelligently waived.
Defendant also asserts that he should be allowed to withdraw his plea of guilty to the heroin charge. He alleges that his rearrest on the burglary charge, after he had in good faith made application to the federal narcotics facility, so unnerved him that he lost faith in the system of criminal justice and that this precipitated his use of heroin. This assertion is made for the first time on appeal. This issue cannot be raised on appeal as a matter of right, although under this court's discretionary power this court may, under appropriate circumstances, consider the request if the interest of justice would be served thereby. State v. Guiden, supra, at pages 330, 331. While defendant's brief contends that his plea of guilty to the heroin charge was involuntary, the record totally fails to support this contention. The heroin charge was separately considered by the trial judge, and the plea of guilty was taken only after exhaustive questions which determined that the plea of guilty was voluntarily and intelligently entered. There is absolutely no evidence to show that justice has miscarried by the acceptance of defendant's plea of guilty on the heroin charge.
Defendant also contends that the state failed to live up to its plea bargain when, in asking for the dismissal of the two felony theft charges, it moved that they be dismissed without prejudice. The defendant contends, and the record supports the contention, that the district attorney agreed that there would be no subsequent prosecution on those charges. Defendant's argument is premature, for the record fails to show that further prosecution on either of these counts has been instituted or threatened. We point out, however, that this court has held that a subsequent reprosecution of a charge dismissed as a result of a plea bargain is barred by elementary due process. Mallon v. State (1970), 49 Wis.2d 185, 181 N.W.2d 364; Austin v. State (1971), 49 Wis.2d 727, 183 N.W.2d 56. If, in fact, there has been a valid plea bargain in which the state agreed to dismiss the charges and abstain from further prosecution, the agreement is binding and the state is barred from bringing a subsequent prosecution, irrespective of the language used by the court in dismissing those charges.
By the Court. — Judgments affirmed.