Opinion
No. State 103.
Argued January 31, 1973. —
Decided February 27, 1973.
APPEALS from orders of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit Judge, and WILLIAM E. CRANE, Circuit Judge of the Third Circuit, Presiding. Affirmed.
For the appellant there was a brief and oral argument by Anthony K. Karpowitz, Legal Aid Society of Milwaukee.
For the respondent the cause was argued by Richard J. Boyd, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
On May 2, 1968, Ronald G. Fuller (hereinafter the "defendant") was arraigned on the charge of forgery, it being a violation of sec. 943.38(1)(a), Stats. On May 3, 1968, the defendant was arraigned on the charge attempted theft by false representation, it being a violation of sec. 943.20(1)(d). To both charges, the defendant entered a plea of not guilty before Circuit Judge HERBERT J. STEFFES. Affidavits of prejudice were filed against Judge STEFFES in both cases and Judge JOHN L. COFFEY was assigned to the cases on May 14, 1968.
Subsequently, on May 23, 1968, defense counsel moved that Judge COFFEY disqualify himself on the ground that he had been the sentencing judge in a similar case involving the defendant about five years earlier and at that time allegedly said that he would put the defendant away for a long time if he got the chance. Judge COFFEY denied the motion on the ground that one affidavit had already been filed.
October 14, 1969, an order from the court administrator's office was filed. This order cited the disqualification of Judge COFFEY and appointed WILLIAM E. CRANE of the third circuit to preside over defendant's trial. Although the order stated only that Judge COFFEY has been disqualified, Judge COFFEY stated on November 24, 1971, at the hearing on the motion for postconviction relief which was brought to challenge his jurisdiction to hear the probation revocation that he, himself, asked this court to assign another judge to hear the case and that he in no way disqualified himself. The reason given by Judge COFFEY for the assignment of another judge was that his calendar was overcrowded.
The cases proceeded to trial on the following day before Judge CRANE and on October 16, 1969, the jury returned a verdict of guilty on both charges. Defendant was sentenced to an indeterminate term of not more than five years on the conviction for forgery and an indeterminate term of not more than two and one-half years on the conviction of attempted theft with the sentences to run concurrently. The court stayed the execution of both sentences and placed the defendant on probation for a period of five years.
On January 5, 1971, Judge COFFEY ordered probation extended for three years from that date with the first six months to be served in the Milwaukee county jail pursuant to sec. 57.01(6), Stats. 1967 (now sec. 973.09(4)). The basis for the change in the condition of defendant's probation was that the defendant had been recently convicted of carrying a concealed weapon and had failed to report to his probation officer.
On March 18, 1971, the defendant again appeared before Judge COFFEY at a revocation hearing. After hearing evidence concerning defendant's not returning to the county jail since February 19, 1971, Judge COFFEY ordered probation revoked and the stay of execution vacated with the sentence to go into effect.
Subsequent to the revocation of his probation, the defendant filed two separate motions for postconviction relief pursuant to sec. 974.06, Stats. In the first motion, before Judge CRANE, the defendant contended that under the facts of his case, his right against double jeopardy had been violated by a conviction for both forgery and attempted theft by false representation. Judge CRANE, on October 12, 1971, denied the motion. Defendant's second motion was brought before Judge COFFEY on November 24, 1971, wherein he contended that since Judge COFFEY had been "disqualified" by an order of this court, he was without power or authority to thereafter re-enter the same case and revoke his probation. Judge COFFEY denied the motion on the ground previously stated: that Judge COFFEY had himself asked this court to appoint another judge and that he had not been disqualified. Defendant has appealed from the orders denying both motions together with the order revoking his probation.
Although defendant claims to be appealing from the order revoking his probation, his only argument is that Judge COFFEY was without power to re-enter the case and, therefore, it would seem that the two orders denying his sec. 974.06, Stats., relief are dispositive of all issues raised by defendant.
Additional facts will be stated in the opinion.
Two issues are presented on this appeal.
1. Did the October 14, 1969, order of this court which substituted Judge CRANE for Judge COFFEY to preside at defendant's trial prohibit Judge COFFEY from presiding over defendant's probation revocation hearing; and
2. Under the facts of this case, was defendant's conviction for both forgery and attempted theft by false representation really a conviction of both the forgery and uttering of the same instrument.
Probation revocation
. Despite the fact that the defendant in no way claims that Judge COFFEY was prejudiced against him in his ultimate decision to revoke probation, and despite the fact that he specifically consented to Judge COFFEY sitting in judgment at his revocation hearing, defendant, nevertheless, takes the position that he was without power to waive away the order of this court which was at the time outstanding, and which cited the substitution of Judge CRANE because of the "disqualification" of Judge COFFEY.As support for his proposition that his probation revocation was but another stage of his original criminal proceeding, defendant cites Mempa v. Rhay (1967), 389 U.S. 128, 88 Sup.Ct. 254, 19 L.Ed.2d 336. In Mempa, the United States Supreme Court said that the defendant's sixth amendment right to counsel applied since his actual sentencing was deferred and, therefore, contemporaneous with his parole revocation hearing.
The defendant in the case at bar was initially sentenced and the execution stayed and he was placed on probation. The Mempa rationale is in no way applicable to the issue presented before this court of whether a probation hearing is so closely related to the original conviction as to have the order of disqualification remain in effect to thereby prohibit Judge COFFEY from presiding at the hearing.
The fact that Mempa presented exceptional circumstances regarding the relationship of parole or probation revocations with the original criminal proceeding was most recently emphasized by the United States Supreme Court in Morrissey v. Brewer (1972), 408 U.S. 471, 480, 92 Sup.Ct. 2593, 33 L.Ed.2d 484. In reaching the determination that a parolee was entitled to a revocation hearing, grounded on the "due process clause" of the fourteenth amendment to the United States Constitution, the court stated:
"We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Cf. Mempa v. Rhay, 389 U.S. 128 (1967). Parole arises after the end of the criminal prosecution, including imposition of sentence."
Later, addressing itself specifically to the factual inquiry into the basis for revocation, the court again made reference to the relationship of the hearing to the original case.
"We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense." (Emphasis added.) 408 U.S. at page 489.
This court in State ex rel. Johnson v. Cady (1971), 50 Wis.2d 540, 185 N.W.2d 306, had an opportunity to comment on the overall relationship between an initial criminal conviction and a subsequent parole revocation. Commenting on the type of hearing necessary, this court quoted with approval language from Johnson v. Stucker (1969), 203 Kan. 253, 453 P.2d 35, 42, certiorari denied, 396 U.S. 904, 90 Sup.Ct. 218, 24 L.Ed.2d 180, at page 549 of its decision:
"`A revocation hearing is not a trial in the traditional sense, nor is the board necessarily concerned with the commission of a criminal offense. As a matter of fact, a prisoner having been granted conditional freedom on parole, the primary question before the board is whether within its discretion the parolee is still a good parole risk. . . .'"
The only question before Judge COFFEY was whether or not the defendant, given his past conduct of violating the conditions of his probation, was still a "good risk." Such a determination was completely independent from defendant's original conviction for the crimes charged. Since both the defendant and his attorney did not challenge Judge COFFEY as the presiding judge at either of the two revocation hearings he should now not be heard to complain.
We conclude that the order of October 14, 1969, which substituted Judge CRANE for Judge COFFEY to preside at defendant's trial did not prohibit Judge COFFEY from presiding over defendant's probation revocation hearings on January 5, 1971, and March 18, 1971.
Question of included crime
. The defendant contends now that where one is charged with both forgery and attempted theft by false representation, only one conviction may be had where the attempted theft under the particular set of facts present in this case merges or is included within the uttering of the document forged in the same transaction; that is to say, the attempted theft by false representation is the included crime of uttering and is, therefore, barred.While there is no question that there cannot be a conviction for both forgery (sec. 943.38(1), Stats.) and uttering (sec. 943.38(2)), where they are part of the same transaction, State v. Nichols (1959), 7 Wis.2d 126, 95 N.W.2d 765, it need not necessarily follow that the crime of attempted theft by false representation (sec. 943.20(1)(d)), is an included crime of uttering (sec. 943.38(2)). The actual facts disclosed at trial must be considered.
At about 3:15 p.m. on March 15, 1968, Mr. Joe L. Eison parked his 1963 silver-gray Buick Riviera at his place of employment, Western Metal, in the city of Milwaukee. After completion of his work and his return about midnight, Mr. Eison discovered his car missing and he had not given anyone permission to take or use it. In the car at the time of its theft was the certificate of title and other personal papers of Mr. Eison. On the following day, the defendant Fuller and one Donald E. Voight, a codefendant as to the attempted theft charge, drove into the parking lot of Venus Ford in Cudahy, Wisconsin, in a 1963 green and gray Riviera which, it is admitted, was the Eison automobile. The defendant and Voight indicated to Mr. Pius Selensky, a salesman for Venus, that they were interested in a 1964 Ford owned by Venus and after a short period of negotiations settled on an even trade of the two automobiles. Throughout negotiations, the defendant identified himself as Joe Eison. The deal for the even exchange of the two automobiles was reflected in a sales contract and uncontradicted testimony disclosed that the defendant had in fact signed the contract in the presence of Selensky, using the name of Joe L. Eison.
Although Selensky was uncertain as to whether the automobile title was signed in the office or already signed when he received it, the reverse side of the title was signed Joe L. Eison. The owner, Mr. Eison, testified that when his car was taken with the title inside, it was unsigned and that the signature on the title was not his nor had he given anyone permission to sign it.
The transaction never went through because there was lien on the Buick. The defendant told Mr. Mach of Venus Ford that the lien had been satisfied the day before and that this fact could be confirmed by calling his personal friend, Bob Adams, whose name in fact appeared on the lien stamp and at a number supplied by defendant. Only after speaking to a man purporting to be Bob Adams, did Mach become suspicious of the fact that the Buick might be stolen.
The state contends that the signing of the purchase contract and the forging of the title were distinguishable acts and distinguishable crimes even though they occurred during the same general transaction or were close in time. State v. Driscoll (1972), 53 Wis.2d 699, 707, 193 N.W.2d 851.
We think the Nichols rationale relied upon by defendant applies only to the making and uttering of the same instrument. Here the defendant falsely signed the name of Joe L. Eison to the purchase contract, purporting that it was in fact signed by Joe L. Eison. The intent was to defraud Venus out of the 1964 Ford which they owned and that the purchase contract itself was evidence of the property rights in the automobile transferred to Venus, all of which constituted forgery pursuant to sec. 943.38(1)(a), Stats. Defendant was not charged with forgery on this count but rather with attempted theft by false representations. Under this view, even if one assumes that the numerous verbal misrepresentations that the defendant was Joe L. Eison might somehow be merged in the offense of uttering as defendant contends, they were made for the purpose of uttering the sales contract and not the certificate of title. In view of such evidence, clearly two separate and distinct crimes have been charged arising out of two separate and distinct transactions. The forgery and theft charges were based upon two separate instruments. Even if the acts of the defendant were considered as a single transaction, separate charges may be based upon a single act if it involves violation of several provisions of the statutes. See sec. 939.65, Stats., State v. Chacon (1971), 50 Wis.2d 73, 183 N.W.2d 84.
We conclude that defendant's conviction for both forgery and attempted theft by false representation was not a conviction of both the forgery and uttering of the same instrument.
By the Court. — Orders affirmed.