Summary
In Weber v. State, 59 Wis.2d 371, 208 N.W.2d 396 (1973), the court addressed a similar situation where a recipient of public assistance failed to report the return of her husband to the home to the proper authorities.
Summary of this case from State v. KaufmanOpinion
No. State 170.
Argued June 6, 1973. —
Decided June 29, 1973.
ERROR to review an order of the county court of Dane county: ARCHIE E. SIMONSON, Judge. Affirmed.
For the plaintiff in error there was a brief 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.
Donna Weber was charged and found guilty of violating sec. 49.12 (9), Stats. 1969, which makes it a crime to obtain welfare payments without reporting a change in circumstances affecting eligibility. That conviction on March 31, 1971, followed a jury trial held before Judge RUSSELL J. MITTELSTADT in the Dane County Court. No direct appeal has been taken. However, a motion for postconviction relief was made to the Dane County Court under sec. 974.06. The appeal is from the order denying that motion.
The statutes involved are:
"49.12 (1) Any person who, with intent to secure public assistance under ch. 49, whether for himself or for some other person, wilfully makes any false representations may, if the value of such assistance so secured does not exceed $100, be imprisoned nor more than 6 months, if the value of such assistance exceeds $100 but does not exceed $500, be imprisoned not more than one year, if the value of such assistance exceeds $500, be imprisoned not more than 5 years, and if the value of such assistance exceeds $2,500, be punished as prescribed under s. 943.20 (3) (c)."
"49.12 (9) If any person obtains for himself, or any other person or dependents or both, assistance under this chapter on the basis of facts stated to the authorities charged with the responsibility of furnishing assistance and fails to notify said authorities within 7 days of any change in the facts as originally stated and continues to receive assistance based on the originally stated facts such failure to notify shall be considered a fraud and the penalties in sub. (1) shall apply. The negotiation of a check received in payment of such assistance by the recipient after any change in such facts which would render him ineligible for such assistance shall be prima facie evidence of fraud in any such case."
Donna Weber waived preliminary examination, and an information formally charging her was filed in the trial court. She pleaded not guilty to the information without objection to either the substance or the form of the information. The information provides:
". . . Donna Weber at the City of Madison in said county between the 1st day of January, A.D. 1970, to November 30, 1970, did feloniously and fraudulently obtain for herself Public Assistance in the sum of $1,396.00 by failing to report to the agency granting her Public Assistance, the Dane County Department of Social Services, a change in the originally stated facts within the required seven (7) day period and thereafter continued to receive Public Assistance based on the originally stated facts against the peace and dignity of the state of Wisconsin, and contrary to section 49.12 (9) of the statutes in such case made and provided."
At the trial, prior to taking testimony, defendant's attorney stipulated with the district attorney that between January 1 and November 30, 1970, defendant received "ADC funds; that is, aid to dependent children funds from the Dane County Department of Social Services in the amount of $3,263, based on the originally stated facts that her husband was not living in the home pursuant to court order." It was further stipulated that, at no time during the period from January 1 to November 30, 1970, did Donna Weber report to the welfare authorities that her husband, George, had moved back into her home.
The only factual issue tried was whether in fact defendant's husband had resumed living in her home. There was testimony by several of defendant's neighbors, who testified to seeing the husband's car parked in front of her house on numerous occasions. There was also testimony that he was frequently present at the defendant's home, was seen with the children, working in the garden, and attending to various domestic duties. After a report to the Dane County Department of Social Services of the husband's presence at the home, an investigator from the sheriff's department maintained surveillance over the defendant and her husband on various days during November of 1970. He testified that he had seen Donna Weber pick up her husband at work and return with him to her home. On these occasions defendant's husband entered the house and had not left when the lights were put out.
On November 23, 1970, the investigator and his partner visited defendant's home twice. On the first visit they confronted the husband, who refused to discuss the matter in the absence of Donna. Upon the return of Donna to the home, they confronted both the defendant and her husband. After informing Donna Weber of her rights under Miranda, she stated that her husband "had been back in the home or they had been living as man and wife in the home, but not any earlier than January of 1970." This admission was mutually corroborated by the investigators. The confession was not challenged as being involuntary. At trial, however, the defendant denied making this admission and denied that her husband had moved back into the home with her. She acknowledged that he frequently visited the home and on one occasion, at least, had stayed overnight to look after the children.
George Weber's mother testified that her son had been living at her home during the entire period in question. This testimony was corroborated by the defendant's seventeen-year-old son, who also lived in the grandmother's home.
On this disputed testimony, the jury returned a verdict of guilty, and on May 26, 1971, Judge MITTELSTADT sentenced her to two years' probation, with the condition that for the first ninety days she spend the hours between 8 p.m. and 6 a.m. in the county jail. During the pendency of the proceedings in this court, the portion of the sentence that required confinement was stayed.
Upon the application of Donna Weber, this court appointed the state public defender to represent her. A writ of error was timely issued to appeal from the conviction, but subsequently that appeal was dismissed for the purpose of presenting motions for postconviction relief under sec. 974.06, Stats. Following the hearing on the motion, Judge ARCHIE E. SIMONSON, successor to Judge MITTELSTADT, denied defendant's motion in its entirety. A writ of error has been taken to review that order.
The relief sought is under sec. 974.06, Stats. The issues that can be raised on that motion in the trial court and reviewed on appeal here are limited by the scope of the postconviction remedy statute. We said in Peterson v. State (1972), 54 Wis.2d 370, 381, 195 N.W.2d 837:
"The postconviction motion under sec. 974.06, Stats., is not a substitute for a motion for a new trial. A sec. 974.06 motion can be made only after the defendant has exhausted his direct remedies which consist of a motion for a new trial and appeal. A sec. 974.06 motion is limited in scope to matters of jurisdiction or of constitutional dimensions. . . . Such issues as sufficiency of the evidence, jury instructions, error in admission of evidence, and other procedural errors cannot be reached by a sec. 974.06 motion." Accord, State v. Langston (1971), 53 Wis.2d 228, 191 N.W.2d 713.
Defendant's initial contention — that the information failed to state any crime defined by the statutes falls within the scope of sec. 974.06, Stats., for if that contention is correct, the trial court has no jurisdiction to proceed with trial on the information. Christian v. State (1972), 54 Wis.2d 447, 459, 195 N.W.2d 470; State v. Lampe (1965), 26 Wis.2d 646, 648, 133 N.W.2d 349. A defect of that nature cannot be waived, nor can a verdict or sentence based on a void information be sustained. Champlain v. State (1972), 53 Wis.2d 751, 754, 193 N.W.2d 868.
If the defects are merely technical or formal in nature, objections must be timely made or be deemed waived. Craig v. State (1972), 55 Wis.2d 489, 493, 198 N.W.2d 609; Huebner v. State (1967), 33 Wis.2d 505, 515, 147 N.W.2d 646; Christian v. State, supra, at 460.
Sec. 971.26, Stats., provides:
"No indictment information, complaint or warrant shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of any defect or imperfection in matters of form which do not prejudice the defendant."
Sec. 971.31 (2), Stats., provides:
". . . defenses and objections based on . . . insufficiency of the . . . information . . . shall be raised before trial by motion or be deemed waived. . . ."
While acknowledging that the issue raised by the defendant can properly be reviewed by this court, we see no basis to support the contention. The state public defender argues that the crime charged in the information was that the defendant fraudulently obtained for herself public assistance in the sum of $1,396. The state public defender claims that an essential element of a crime, the fraudulent failure to report a change of facts, was not charged and that the information, therefore, was void. Our reading of the information fails to reveal such omission. Both elements of the crime were charged: The obtaining of public assistance funds for herself and the failure to report a change in the originally stated facts. Both of these elements of the crime are required to be stated and both are.
Considering defendant's argument in its most favorable light, the most that can be said for it is that the information appears to emphasize the fraudulent obtaining of the money rather than the fraudulent failure to report a change in the originally stated facts. This objection, however, is trivial and has no legal significance. The objection is merely to the stylistic and organizational form of the information. As we stated in State ex rel. Schulter v. Roraff (1968), 39 Wis.2d 342, 354, 355, 159 N.W.2d 25:
"It is not necessary to charge a crime in the exact words of the statute; if the substance of all the elements of the crime is alleged, that is sufficient."
We see no defect in the information and, if there be any, it is one of form and not substance and was waived by the failure to make a timely objection. Christian v. State, supra, page 460.
The defendant also claims that she was denied due process of law because the state failed to produce evidence relating to the two major elements of the offense. As pointed out in Peterson, supra, the question of sufficiency of the evidence cannot be reached on a review of a trial court's denial of a motion brought under sec. 974.06, Stats. Sufficiency of the evidence in the sense of the weight of the evidence does not raise a constitutional or jurisdictional question. The argument of the state public defender, however, goes to a constitutional question, that there was an utter failure to produce any evidence. That contention raises an issue of constitutional proportions, since a conviction with no evidence of guilt would constitute a denial of due process. The United States Supreme Court in Thompson v. Louisville (1960), 362 U.S. 199, 206, 80 Sup.Ct. 624, 4 L.Ed.2d 654, said:
"Thus we find no evidence whatever in the record to support these convictions. Just as `Conviction upon a charge not made would be sheer denial of due process,' so is it a violation of due process to convict and punish a man without evidence of his guilt."
While the issue argued by the state public defender is one of due process, we find no substance in the claim in light of the record.
The principal contention is that there was no proof that the "facts originally stated" showed that the husband was not living at home. If so, the defendant argues, she cannot be guilty of failing to report a change in those original facts upon the return of her husband to her home. The record is not barren of proof in this respect. The testimony of the welfare worker assigned to Donna Weber's case showed that it was the policy of the department to require a statement of the facts every six months. A statement of the facts dated September 14, 1970, was submitted into evidence. Without objection, the welfare worker testified that the form submitted at that time, which was entered into the record as an exhibit, showed that defendant's husband was living at a separate address and that he was not listed as a family member living in the home. In addition, it carried the entry that the parties were separated by court order. The welfare worker was permitted to testify that this declaration form filed in September, 1970, restated the facts upon which the welfare grant was originally based, with the exception that it reported the birth of a new child.
A prerequisite for Donna Weber's continued receipt of aid for a family with dependent children was the "continued absence from the home" of the father of her children under the provisions of sec. 49.19 (1) (a) and (4) (a), Stats. The statements contained in the declaration form filed in September, 1970, together with the welfare worker's testimony that this form was identical to the facts originally filed, constituted evidence that the absence of the husband from the home was a fact originally stated and upon which the grant of assistance was based.
The defendant also claims on this appeal that the information charged that she had received public assistance "for herself," but that there was no evidence to support the charge. The argument on this appeal seems to be that any money received was only for the dependent children and not for her. The argument is factually incorrect. The defendant's case worker testified that Donna Weber received aid to a family with dependent children. Aid to a family with dependent children is defined as: ". . . including such aid to meet the needs of the relative with whom any dependent child is living . . . ." Sec. 49.19 (1) (c), Stats. The declaration form filed in September, 1970, included her own name in response to the question therein:
"I am requesting that money and medical assistance be continued for the following members of my household: (Be sure to include yourself and all family members in your home who need help)."
Part of the aid, the record shows, was toward the payment of $130 monthly mortgage installments on the home owned partly by her. There was evidence that the defendant received funds for herself.
We are not in this case permitted to inquire into the sufficiency of the evidence. The only question raisable on the appeal from the denial of the postconviction motion is whether there is a total lack of any evidence as to constitute a denial of due process. The record contains sufficient evidence to satisfy the due process requirement.
The state public defender also argues that sec. 49.12 (9), Stats., is unconstitutionally vague. It is the duty of the trial judge to decide constitutional issues that are presented. However, until the recent case of Just v. Marinette County (1972), 56 Wis.2d 7, 201 N.W.2d 761, that responsibility was not placed squarely upon the trial judge, and this constitutional issue was not decided on the postconviction motion. The test of vagueness for constitutional purposes was recently summarized by this court in Jones v. State (1972), 55 Wis.2d 742, 746, 200 N.W.2d 587:
"The question of vagueness then is whether the statute describes the offense with sufficient definiteness and gives ascertainable standards of guilt. Is the statute sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties? If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional." See also: State v. Mahaney (1972), 55 Wis.2d 443, 447, 198 N.W.2d 373; State v. Zwicker (1968), 41 Wis.2d 497, 507, 164 N.W.2d 512; Bouie v. City of Columbia (1964), 378 U.S. 347, 351, 84 Sup.Ct. 1697, 12 L.Ed. 2d 894; Lanzetta v. New Jersey (1939), 306 U.S. 451, 453, 59 Sup.Ct. 618, 83 L.Ed. 888.
The statute is not vague. The statute under which the defendant is charged, sec. 49.12 (9), Stats., refers to the receipt of "assistance . . . on the basis of facts stated to the authorities . . . ."
Sec. 49.19 (1) (a) and (4) (a), Stats., detail the factual conditions requisite to the furnishing of assistance. It must be shown that there is a "dependent child who is living with the person charged with its care and custody . . . ." (Sec. 49.19 (4) (a).) Sec. 49.19 (1) (a) defines a dependent child as being one "under the age of 18 who has been deprived of parental support or care by . . . continued absence from the home . . . of a parent . . . ."
It is thus clear from the statutes themselves that a condition of eligibility is the continued absence of a parent from the home. The statutes are not vague.
As we have pointed out above, there was evidence that the fact of the husband's absence from home was originally stated. Under the statute, that fact was a sine qua non of eligibility for assistance. It cannot be argued that the statute was vague because there was no notice of this statutory requirement for continued eligibility. The form which Donna Weber filled out required a statement in respect to members of her household and the whereabouts of her husband. At six-month intervals, she was required to reiterate these declarations, and each declaration form carried with it the admonition that the applicant was to report within seven days any family conditions that might affect her eligibility.
From the statutes and from the record, it is apparent that the pertinent laws are not unconstitutionally vague. They gave precise notice of what facts were to be used as a basis of eligibility. Moreover, the defendant was repeatedly notified by the local public assistance authorities of the possible effect of a change in these facts on her eligibility and specifically required to report any change in those facts within seven days.
The defendant further argues that the statute is vague because it fails to indicate how the amount of assistance fraudulently obtained is to be computed. The amount of assistance so obtained triggers various penalties imposed by sec. 49.12 (1), Stats. The statute is clear on its face. No crime can occur until the seven days have elapsed without reporting a change of circumstances. Only the funds received thereafter would be the result of fraud and computed in the determination of the penalty. The fact that changed in .the instant case — the return of the husband to the household — would totally eliminate the eligibility for assistance under the statute. Under the circumstances here, the total amount of the aid received after the seven-day period of grace would be computed in determining the penalty. We are not here confronted by any unreported change of facts that might alter the amount of aid without totally destroying eligibility. This court in Jones v. State (1972), 55 Wis.2d 742, 746, 200 N.W.2d 587, stated:
"The defendant cannot hypothesize fact situations but is confined to the conduct charged when it is so obviously within the zone of prohibited conduct that no reasonable man could have any doubts of its criminality. State v. Driscoll (1972), 53 Wis.2d 699, 193 N.W.2d 851; Jordan v. De George (1951), 341 U.S. 223, 71 Sup. Ct. 703, 95 L.Ed. 886."
The defendant argues also that the penalties to be imposed are dependent on the vigilance of the public assistance authorities and, if fraud is not promptly discovered, the assistance received will force her into the range of higher penalties. She argues that there is uncertainty as to the consequences of her criminal act. Where, as here, the conduct is fraudulent and the penalty is dependent in part upon the period during which the fraud is practiced, the defendant's argument is bizarre indeed. It is predicated upon the theory that, either by design or negligence, the public assistance authorities could permit the fraud to run for such period as to impose higher penalties. It is argued that the degree of crime for which the defendant may be liable is not within her own control but within the control of others. The argument mistakes the nature of the crime. The crime is fraud. It is a knowing misrepresentation of material facts. It was fully within the control of the defendant to promptly report any changes which would affect her receipt of assistance funds. The recipient had it fully within her power to comply with the law and to avoid any fraudulent conduct and penalties.
By the Court. — Order affirmed.