Summary
In Quinn v. State (1972), 53 Wis.2d 821, 193 N.W.2d 665, this court recently reaffirmed the "representation amounting to no representation at all" test by which effectiveness of counsel is determined.
Summary of this case from Swonger v. StateOpinion
No. State 30.
Argued January 6, 1972. —
Decided February 3, 1972.
ERROR to review a judgment and orders of the circuit court for Milwaukee county: DAVID V. JENNINGS, JR., County Judge of Milwaukee County, Presiding. Affirmed.
For the plaintiff in error there was a brief and oral argument by Eugene L. Kaluzny of Milwaukee.
For the defendant in error the cause was argued by Michael R. Klos, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
On November 23, 1969, plaintiff in error Eddie Lee Quinn and Lavelle F. Rudd were arrested by Dane county authorities as they approached the city of Madison on Interstate Highway I-94. Quinn was charged in Dane county with aggravated battery, in violation of sec. 940.22, Stats. The charge arose out of a stabbing incident which occurred in Madison on May 19, 1969. Quinn and Rudd were subsequently transferred to the Milwaukee county jail and charged with two counts of armed robbery (party to a crime), being violations of secs. 943.32 (1) (b) and 939.05. These charges resulted from armed robberies occurring on November 23, 1969, at the Safari Motel in Milwaukee and the Nite Rest Motel in Oak Creek.
Both defendants took the oath of indigency. The trial court appointed Attorney Jack L. Goodsitt to represent Quinn and Attorney Lloyd A. Barbee to represent Rudd. On March 12, 1970, Attorney Barbee appeared before the trial court to argue motions to dismiss and to suppress evidence. Although Attorney Goodsitt was in court with defendant Quinn at the time the motions were heard, he neither joined in the motions nor submitted motions of his own. The trial court denied all the motions made by Attorney Barbee, but reserved to time of trial a hearing on the admissibility of Rudd's statements against interest.
During the months of March and April, Quinn filed a number of pro se motions, questioning the jurisdiction of the court and indicating dissatisfaction with his appointed counsel. Circuit Judge HARVEY L. NEELEN declined to consider the petitions on the ground that the pro se motions were out of order, inasmuch as Quinn was represented by competent counsel. Following a conference with his attorney on April 19, 1970, Quinn wrote two letters retracting his statements regarding Attorney Goodsitt and apologizing for the accusations of incompetency made during a moment of anger. Copies of the letters were sent to the Milwaukee Bar Association, the trial court, this court, the federal district court and Attorney Goodsitt.
On May 18, 1970, Attorney Barbee and Rudd again appeared before the trial court to argue motions to dismiss based upon an alleged want of probable cause to arrest and upon an alleged delay of the preliminary hearing beyond ten days without the consent of the defendant. These motions were denied by the trial court. The record reveals that defendant Quinn was present in court with Attorney Goodsitt, but did not participate in the proceedings in any way.
Following denial of the motions on May 18, 1970, both Rudd and Quinn agreed to change their pleas from not guilty to guilty. Both defendants were convicted. Sentencing of Quinn was delayed in order to incorporate the aggravated battery charge pending in Madison. Quinn pleaded guilty to that charge as well and was sentenced to an indeterminate term of eight years' imprisonment for each count of armed robbery and an indeterminate term of four years for the aggravated battery charge, all sentences to be served concurrently.
On October 28, 1970, this court appointed Attorney Eugene L. Kaluzny to represent Quinn in postconviction remedies. Motion was made to set aside the convictions and to permit Quinn to withdraw his guilty plea, alleging, as a basis for the motion, the denial of effective assistance of counsel. The trial court denied this motion on February 15, 1971. The motion was renewed and denied on June 7, 1971. Writs of error were taken from the orders denying these two motions, as well as from the judgment of conviction.
Additional facts will be stated in the opinion.The sole issue presented on this review is whether the trial court erred in denying defendant's postconviction motions to withdraw his pleas of guilty.
This court frequently has been asked to review questions based on the alleged incompetency or inadequacy of counsel. The standard for determining whether adequate representation has been given an accused was stated in Pulaski v. State (1964), 23 Wis.2d 138, 148, 126 N.W.2d 625, as follows:
". . . Often after trial, charges of incompetency are directed toward counsel because it appears other tactics than those chosen might have been more helpful to the accused. Criminal as well as civil cases cannot be retried at the instance of the loser because he is more hopeful of success on a second try. Unless the representation of counsel is so inadequate and of such low competency as to amount to no representation, a new trial cannot be granted on that ground. . . ."
This standard of "representation amounting to no representation at all" has been repeatedly applied by this court in passing on the question of competency of counsel.
Rather than listing the cases in which ineffectiveness of counsel has been alleged and in which the well-established standard has been applied by this court, it appears more appropriate to quote from this court's opinion, written by Mr. Justice ROBERT W. HANSEN, in the recent case of Ameen v. State (1971), 51 Wis.2d 175, 186 N.W.2d 206, in which the following was stated at pages 185 and 186:
"Par for the course these days is an attack upon the competence of trial counsel on appeal of criminal court convictions. Even the ablest of attorneys in the criminal law field are accustomed to having their judgment as to trial tactics challenged by postconviction counsel. The implication seems to be that something must have been wrong with trial strategies that were followed by a conviction. The implied suggestion is that a different game plan would have led to a different result. Not necessarily so. If the Monday morning quarterback's substitute strategy were to have been followed in Saturday's football game, the result might well have been the same — but the margin of defeat far greater. . . ."
Of course, there is no doubt that an accused is entitled to the effective assistance of counsel. Denial of this right would entitle a defendant to withdraw his guilty plea under the "manifest injustice" test enunciated in State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9.
Plaintiff in error first urges this court to change the standard by which competency of counsel is tested, contending that the Pulaski criterion calls for nothing but a minimal effort on the part of defense counsel. As an alternative to that test, he suggests that this court adopt the Michigan standard, as set forth in People v. Armstrong (1970), 28 Mich. App. 387, 391, 184 N.W.2d 531:
"An accused is denied effective assistance of counsel, `only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.' People v. Degraffenreid (1969), 19 Mich. App. 702, 710 [ 173 N.W.2d 317, 321]. This standard focuses the attention of the appellate court upon the entire representation of defendant by his attorney. Even where the lawyer makes an egregious mistake which conceivably convicted his client, ordinarily it cannot properly be said that the trial was a sham if, putting that mistake aside, the case was well handled or even adequately handled by the lawyer. . . ."
Obviously, this proposed test, at the very least, is substantially identical to the present standard in this state, as expressed in Flowers v. State (1969), 43 Wis.2d 352, 365, 168 N.W.2d 843:
". . . The test, as we have said, is whether the representation was so inadequate as to amount to no counsel at all and to reduce the trial to a sham and a mocker of justice. . . ."
Clearly, when representation is "only perfunctory, in bad faith, a sham, a pretense," it does amount to no representation at all. We think that the Pulaski test clearly and concisely establishes a workable standard for the review of claims of incompetency of counsel and should be retained.
Using this standard, plaintiff in error's claim that he was denied effective assistance of counsel can be examined. The only respect in which trial counsel was allegedly ineffective is that he failed to make any motions whatsoever. Undeniably, the effective practice of criminal law depends to a great extent upon "motion practice." And, in a given case, the failure to make appropriate motions could very well indicate such ineffectiveness of counsel as to require reversal of a conviction. However, in the instant case, counsel's failure to make motions does not appear to demonstrate ineffectiveness in any respect.
It must be remembered that there were two defendants in this case, and, although their cases were not consolidated, they were heard together to expedite proceedings preliminary to trial. Rudd's counsel, Attorney Barbee, made numerous motions, all of which were denied. Quinn, being involved in the same crimes and the same proceedings, had the same defenses which were unsuccessfully raised by Rudd in his pretrial motions. Therefore, for Attorney Goodsitt to have raised the same questions as those previously rejected by the trial court would have been an exercise in futility. Of course, if the trial court had granted any of Rudd's motions, Attorney Goodsitt would have been remiss if he had not presented the same motions to the court. That situation, however, is not presented here.
The mere failure to make any motions prior to plaintiff in error's plea of guilty in this case does not demonstrate ineffectiveness on the part of trial counsel. The record demonstrates that Attorney Goodsitt did act effectively and in his client's best interests. He negotiated a plea bargain under which Quinn was sentenced to concurrent terms of eight years,' eight years' and four years' imprisonment, whereas the maximum exposure amounted to sixty-five years' imprisonment for these crimes. Post-conviction counsel conceded at oral argument that this was an excellent plea bargain. Defendant's trial counsel is a competent, experienced criminal defense lawyer and has so demonstrated in prior appearances before this court.
We conclude that plaintiff in error has failed to prove ineffectiveness of trial counsel and should not be allowed to withdraw his guilty plea, either as a matter of right or under the "manifest injustice" test.
By the Court. — Orders and judgment affirmed.