Summary
In State v. Harrell, 40 Wis.2d 187, 161 N.W.2d 223 (1968), the Wisconsin Supreme Court has instituted a new rule requiring that an explanation of the sex crimes laws be made on the record.
Summary of this case from Burbey v. BurkeOpinion
No. State 10.
Argued September 6, 1968. —
Decided October 1, 1968.
APPEAL from an order of the circuit court for Milwaukee county: ROBERT F. PFIFFNER, Circuit Judge of the Nineteenth Circuit, Presiding. Affirmed.
For the appellant there was a brief and oral argument by Burton B. Polansky of Milwaukee.
For the respondent the cause was argued by Harold B. Jackson, Jr., assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and David J. Cannon, district attorney.
Defendant was arrested on March 5, 1966, and charged with violating sec. 941.30, Stats. (endangering safety by conduct regardless of life), and secs. 944.01 and 939.32 (attempted rape). Defendant was placed on $50,000 bond by CHRIST T. SERAPHIM, County Judge of Milwaukee county. Defendant was bound over to circuit court, Circuit Judge MARVIN C. HOLZ, presiding.
Defendant appeared in court on August 1, 1966, at which time Attorney Donald Haberman was appointed as defense counsel. At this time, Mr. Duski, assistant district attorney, indicated that a pretrial conference might be in order and advised the court that if defendant were willing to plead guilty to attempted rape the state would move to dismiss the "endangering safety" charge.
A pretrial conference was held on August 18, 1966, in Judge HOLZ'S chambers. No record was made of that proceeding.
On August 22, 1966, the defendant appeared in court to be arraigned. At that time Judge HOLZ summarized the events of the pretrial conference for the record:
" The Court: All right. I think we better establish a record of what has transpired here so that there's no question in the mind of the defendant and that the record is clear as to what has transpired. Mr. Harrell, you know that you are charged with two charges. One is endangering the safety by conduct — safety of another person by conduct regardless of life. That carries a five year sentence if you were to be found guilty. And the second charge is attempted rape which carries a fifteen year sentence if you were to be found guilty. Now, the court — sometime ago you were in court and at that time I gave you several days in which to determine whether you could retain your own counsel and you could not do that and I — at that time I informed you that I would appoint Attorney Donald Haberman to represent you, and I think we subsequently called you and you informed me that you could not retain your own counsel so therefore Mr. Haberman would represent you. I received a letter on August 11 from Mr. Haberman asking that there be a pretrial held between himself, Mr. Duski, representing the district attorney's office, and with you and myself. You were present at that pretrial which was held on August 18, 1966 in my chambers. At that time the court was advised of some of the facts upon which the charges were based. The district attorney advised the court that they were willing to drop the endangering charge upon a plea of attempted rape. There were —
" Mr. Haberman: Plea of guilty.
" The Court: Plea of guilty. You consulted with your counsel. At that time the court had benefit of your record and discussions with one of the officers in charge of the case, and based upon all the information that was brought before me I indicated that I thought that a sentence of five years would be appropriate. I did that because I was satisfied or impressed as much as I can believe I am right in that you were generally remorseful for what you had done and that you were ashamed of what you had done, and I was advised and there is evidence to indicate that this is the fact, that after you were — some attempt to stop you, you did stop and that you attempted to take this woman to a hospital and that you said thank God that you were stopped because you might have done more serious damage. I indicated to you I could not ignore the fact that this was a vicious crime involving an attack on this woman and that it was a most serious thing. Now, how old are you?" (Emphasis added.)
Thereupon defendant entered a plea of guilty to the attempted rape charge. The court then took testimony as to the events relating to the crime, after which the court stated:
" The Court: All right. Mr. Harrell, will you approach the bench. As previously indicated to you, that you stand — you now — you stand convicted of the attempt to violate section 944.01, namely, the crime of rape, and section 959.15 requires that a person so convicted, when so convicted the court must commit him to the state department of public welfare for a pre-sentence social, physical and mental examination. The court therefore makes that order and so does. After that time then you'll be returned to the court and the court will complete the sentence. Okay?"
This statutory reference was the first mention of the sex crimes law appearing on the record.
Defendant was returned to court on November 4, 1966, to be sentenced following his examination pursuant to the sex crimes law. The department of public welfare (now the department of health social services) recommended specialized treatment.
" The Court: Mr. Harrell, I know that Mr. Haberman has discussed the content of the investigation that was conducted and the results of the pre-sentence social, physical and mental examination which was ordered by this court under the provisions of section 959.15 (1) indicate that you are in need of specialized treatment and that treatment — or at the treatment facility located at the Wisconsin state prison. Therefore, I must commit you to the department of public welfare for an indeterminate term; however, in form, that must be for the maximum period which is fifteen years. . . ."
Later, on application of the defendant, this court appointed Burton Polansky counsel to assist defendant on the pursuit of his postconviction remedies.
On October 30, 1967, a motion was made before Circuit Judge MARVIN C. HOLZ to permit defendant to withdraw the guilty plea entered on August 22, 1966. Because Judge HOLZ was to be called as a witness, the matter was transferred to ROBERT F. PFIFFNER, Circuit Judge, Nineteenth judicial circuit. The purpose of the hearing on the motion was to determine if the defendant had entered his plea of guilty without knowledge that the sentence actually imposed could be imposed. Because the record is devoid of any explanation of the sex crimes law, the bulk of the hearing testimony focused on the events of the pretrial conference held in Judge HOLZ'S chambers on August 18, 1966.
At that time defendant testified that if he had understood the sex crimes law he would not have entered a plea of guilty. He further testified that he was led to believe by counsel and the court that his sentence would be a five-year prison term and that he was not aware that the suggested five-year sentence would be changed if he were found to be a sex deviate.
Attorney Haberman, defendant's trial lawyer, testified that he had explained the sex crimes law to defendant's mother. He also stated that during the pretrial conference Detective Koehler brought up the matter of the sex crimes law and that at that time he informed the defendant that the sex crimes law would apply if he were found to be a deviate.
Judge HOLZ testified that at the pretrial conference he went to his file and took out a three- or four-page document which explained the sex crimes law. He stated that he went through the document (which was made an exhibit) carefully with the defendant for about fifteen to twenty minutes. The judge also testified that this had been his first experience with that law.
Attorney Haberman was then called back to the stand. He stated that:
"I do not specifically recall the judge referring to this on August 18th at the pretrial conference August 18, 1966, and I cannot be sure as to whether or not a conference was held on August 22nd in the judge's chambers before we proceeded to the trial and that that was discussed at that time. I do not know."
Based on the testimony at the hearing Judge PFIFFNER made findings of fact which included a finding that Judge HOLZ did in fact read the sex crimes instructions to the defendant and further informed defendant that if he was deviated the court "could not tell the length of the term that would be involved." Thus the trial court found that defendant was aware that the sentence in question could be imposed upon him, and the motion was denied. Thereupon, an order was entered denying defendant's motion to withdraw the guilty plea, and defendant appeals.
Two issues are presented for this court's consideration.
(1) Whether the defendant was informed that the sentence actually imposed could be imposed.
(2) Whether State v. Reppin requires a complete record of the advice given to a defendant concerning the sentence that could be imposed.
(1967), 35 Wis.2d 377, 151 N.W.2d 9.
In State v. Reppin this court stated:
Id. at pages 385, 386.
"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."
The court also added that "a court would abuse its discretion if it denied a request to withdraw a plea of guilty when any one of these four grounds was proved."
Id. at page 386.
The standards adopted by the court provide in part:
"(a) The court should allow the defendant to withdraw his plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.
". . .
"(ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant proves that:
". . .
"(3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed, . . ." (Emphasis added.)
Id. at page 385, note 2, quoting from American Bar Association Project on Minimum Standards for Criminal Justice — Pleas of Guilty (Tentative Draft, February, 1967), Part II, pp. 9, 10. (Since approved by the Board of Governors.)
Defendant contends that he was not informed that the sentence actually imposed could be imposed. The record fails to indicate that the sex crimes law was adequately explained to defendant. This being so it is necessary to determine if events that occurred off the record sufficiently informed defendant as to the potential consequences of a guilty plea.
At the arraignment Judge HOLZ summarized for the record the events which transpired at the pretrial conference. Although this summary contains no reference to an explanation of the sex crimes law, the summary does include a statement that the attempted rape charge carried a possible fifteen-year sentence. Also, based on hearing testimony regarding what transpired at the pretrial conference, Judge PFIFFNER determined that Judge HOLZ had in fact fully explained the sex crimes law including the fact that if defendant were found to be deviated, the trial court (Judge HOLZ) could not determine the length of the possible prison term. Thus, there is credible evidence to support the finding of Judge PFIFFNER that Judge HOLZ had properly instructed defendant concerning the sex crimes law.
Notwithstanding this court's affirmance of this finding of Judge PFIFFNER'S, defendant still argues that as a matter of law he can withdraw his plea because the alleged explanation of the sex crimes law was not on the record. Defendant's argument rests on his contention that Reppin requires a record of this matter and cites an article in the December, 1967, issue of the Wisconsin Bar Bulletin which concludes that:
Smith, Withdrawal of Guilty Plea, Wisconsin Bar Bull., December, 1967, 49, 52.
"Thus by adopting the American Bar Association standards, the defendant's rights will be further protected in that the court and district attorney must make a complete record of their advice to the defendant or will face a trial at a later date because defendant will be allowed to withdraw the guilty plea."
However, in Reppin it is clear that this court adopted only the "manifest injustice" test and made no determination with regard to the necessity of a record. The state concedes that a record should have been made but properly contends that a record on this matter is not required.
State v. Reppin, supra, footnote 1, at page 386.
This whole controversy could have been avoided if Judge HOLZ had made a record of what transpired at the August 18, 1966, pretrial conference at the time of that conference.
Henceforth a record should be kept, as recommended by sec. 1.7 of the aforementioned ABA tentative draft on Pleas of Guilty, where important portions of the "court's advice to the defendant" take place at a pretrial or other in-chambers conference, or in open court.
See Jones v. State (1967), 37 Wis.2d 56, 69, 154 N.W.2d 278, 155 N.W.2d 571; Sparkman v. State (1965), 27 Wis.2d 92, 98, 133 N.W.2d 776.
American Bar Association Project on Minimum Standards for Criminal Justice — Pleas of Guilty, supra, footnote 4.
Id. Part I, at page 8.
By the Court. — Order affirmed.