Summary
In Luter v. State (1972), 53 Wis.2d 796, 803, 193 N.W.2d 649, defendant claimed to be highly disturbed and near hysteria at the time of the plea.
Summary of this case from Melby v. StateOpinion
No. State 56.
Argued January 6, 1972. —
Decided February 1, 1972.
ERROR to review an order of the circuit court for Milwaukee county: WILLIAM E. GRAMLING, Circuit Judge for the Twenty-second Circuit, Presiding. Affirmed.
The cause was submitted for the plaintiff in error on the briefs of Henry H. Luter of Waupun, pro se, and for the defendant in error on the brief of Robert W. Warren, attorney general, and Robert D. Martinson, assistant attorney general.
On October 8, 1968, the plaintiff in error, hereinafter defendant, pleaded guilty on two counts of armed robbery in violation of sec. 943.32(1)(b) and (2), Stats., one count of operating a vehicle without the owner's consent in violation of sec. 943.23, and one count of sexual perversion in violation of sec. 944.17. On that date the defendant was sentenced to concurrent indeterminate terms of not more than ten years on each of the armed robbery counts, not more than three years on the sexual perversion count, and not more than two years on the motor vehicle count.
The defendant was found to be indigent, and counsel was appointed. Together with a codefendant, a preliminary examination was held and defendant and the codefendant were bound over for trial.
On March 14, 1968, the defendant pleaded not guilty. Attorney Nathaniel Rothstein originally represented the defendant but, because he was also representing the codefendant in the robberies, he withdrew from the representation of Luter, and Attorney James Shellow was appointed to represent the defendant in these proceedings.
On October 8, 1968, the defendant appeared in court with his attorney and requested permission to withdraw his pleas of not guilty and to enter pleas of guilty to the four counts charged. The state stipulated that a fifth count — criminal damage to county property, which occurred while the defendant was awaiting trial in the county jail — would be dismissed. The defendant was questioned by his attorney as to his age, education, the voluntariness of his plea, and his understanding of the consequences of a plea of guilty. In open court his attorney explained the constitutional rights that the defendant was waiving by the plea of guilty.
The state introduced a prima facie case which tended to show that the defendant was guilty of the crimes charged. A detective testified that Luter, with his codefendant Gray, had robbed the Beverage Center on January 18, 1968, while armed with a rifle. Approximately $240 was taken in this robbery. There was testimony that the defendant had fired a shot at an employee in the liquor store. There was also testimony that the defendant robbed a food market on January 23, 1968, while armed with a shotgun. Fifteen dollars was taken in this robbery. The state's witness also testified that the defendant took an automobile without the owner's consent on September 11, 1967, and had it in his possession for approximately a day. There was further testimony to show that, while the defendant was in the county jail in Milwaukee county, he forced a male prisoner to submit to an unnatural sex act.
The defendant took the stand and testified that the facts recited in the state's prima facie case were correct. The court then found the defendant guilty of the four offenses charged. The trial judge asked the defendant if he wished to make any statement before the imposition of sentence. He replied in the negative. His attorney, however, advised the court that the defendant had spent nine months in jail while awaiting trial. Although the state recommended consecutive sentences on the robbery charges, the court imposed concurrent sentences on all charges. The defendant volunteered the statement that he appreciated the court's action in making the sentences concurrent rather than consecutive.
Subsequently, the defendant petitioned this court for the appointment of counsel to represent him in any postconviction proceedings. Counsel was appointed, and a motion was filed to withdraw the pleas of guilty, to vacate the sentences, and for a new trial. Defendant alleged that he had been coerced by his counsel to enter the pleas of guilty, that he was in fact innocent, but that he had been advised that he would be sentenced to no more than five years if he changed his pleas to guilty. The motion was heard on February 16, 1970.
The defendant's testimony was somewhat contradictory in that at one point he testified that a plea agreement had been entered to the effect that he would not receive more than ten years — the sentence that was in fact imposed. He then stated that ten years was unacceptable, and he stated that his attorney then said he would get credit for the time he had spent in the county jail and would not get more than five years. It was at this point, he stated, that he agreed to plead guilty.
On the state's cross-examination, he admitted that his attorney told him that he would get a ten-year sentence but that he would get a five-year credit for the time spent in the county jail. He acknowledged he had spent less than one year in the jail.
Defendant contended at this hearing that the transcript had not fully recorded the events of the hearing. He testified that when asked whether he wanted to plead guilty, he answered, "No." He also contended that, when his attorney asked him if anyone told him to plead guilty, he answered, "Yes, you did." He stated that the judge then said, "I can't plead this man guilty under these circumstances." He alleged that his attorney then asked for a short recess, in which he told him that he was obliged to go along with the proceedings and to plead guilty. He did so, and Judge GRAMLING told the reporter to strike the previous interchange from the record. He also claimed that at the time of sentencing, he told Judge GRAMLING, "I thought I was getting five years."
Judge GRAMLING denied the motions to vacate the convictions and to withdraw the pleas of guilty on February 27, 1970. He found that there was no basis whatsoever for the defendant's allegations and stated that they were "complete fabrications," that the transcript accurately reflected everything that happened in the courtroom, and that nothing had been stricken. He pointed out that the testimony of the defendant showed that the codefendant and his attorney were present at the time the alleged plea bargain was proposed to the defendant, and that, although Gray and his attorney, Nathaniel Rothstein, could have been produced at the hearing, they were not. In addition, Attorney Shellow was present in the courtroom at the time of the hearing on the motion, but he was not called.
The writ of error has been taken from the order denying the motion.
This case is governed by the "manifest injustice" test laid down in State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9. Procedures of Ernst v. State (1969), 43 Wis.2d 661, 170 N.W.2d 713, are inapplicable, inasmuch as they apply only to guilty pleas accepted after June 2, 1969. Under Reppin, the defendant has the burden of showing by clear and convincing evidence that the withdrawal of the plea is necessary to correct a "manifest injustice." Reppin, page 385, n. 2.
Under the provisions of the Minimum Standards for Criminal Justice adopted by the American Bar Association, the "manifest injustice" test is satisfied when a defendant proves that he was denied effective counsel, that the plea was not ratified by the defendant, that the plea was involuntary, or that he did not receive the charge or sentence concessions contemplated by a plea agreement.
In the instant case, Luter does not contend that his counsel was ineffective. He rather argues that he did not ratify the plea entered by his attorney, that it was involuntary in that it was coerced by his attorney, and that the plea agreement, which he understood to have been made, was not kept. All of these contentions must fail for lack of proof.
Defendant's position is founded solely on his assertions of the nature of the conversation had with his attorney prior to the time of the pleas of guilty. There is no evidence whatsoever to corroborate his claim that he was promised concurrent sentences not to exceed five years. The validity of the defendant's assertion was dependent entirely on the credibility given to his testimony. All of his statements are flatly contradicted by the record and the stenographic transcript made of the proceedings at the time the pleas of guilty were accepted.
The record bears the court reporter's certification that the transcript is a true and correct transcript of the original notes taken at the time of the hearing. The trial judge stated that every word was in that transcript. The face of the transcript indicates that the pleas were specifically made by the defendant and ratified by him, that he acknowledged that he was aware of the sentences that could be imposed, and in fact it shows that he expressed appreciation to the court for its leniency in imposing concurrent rather than consecutive sentences.
On the basis of the ample support for the judge's assertion that the defendant's story was a "complete fabrication," it was not an abuse of discretion for the trial judge to conclude that Luter's testimony was incredible.
Defendant's brief also contends that Judge GRAMLING cut short the defendant's hearing. That statement misrepresents the facts of record. There is nothing to show that Judge GRAMLING cut short the hearing or refused to hear further testimony of the defendant, his trial attorney, or of other possible witnesses. Rather, the record shows that, at the conclusion of the defendant's testimony at the hearing on the motion, defendant's attorney stated, "That is all."
It is also apparent that defendant's contention that for the time spent in the county jail he would be given five years credit toward the serving of his sentence is patently incredible when less than one year was spent in jail.
Defendant also asserts that it was prejudicial error not to set forth the plea bargain in the record. It should be pointed out that only the defendant asserts that there was a plea bargain. Moreover, at the time the plea was entered, the mandates of this court did not require that plea bargains be set forth in the record. Mallon v. State (1970), 49 Wis.2d 185, 181 N.W.2d 364; Shavie v. State (1971), 49 Wis.2d 379, 182 N.W.2d 505; Austin v. State (1971), 49 Wis.2d 727, 183 N.W.2d 56.
The defendant also claims that at the time of the plea taking, he was highly disturbed and near hysteria. The record shows the contrary. He appeared to be in full command of his faculties at the time the plea was entered, and, as stated above, volunteered the statement that he appreciated the judge's leniency.
We are obliged to concur in the trial judge's conclusion that the defendant's assertions are in toto incredible and complete fabrications.
The defendant failed to show by clear and convincing evidence that a "manifest injustice" has resulted by the acceptance of his pleas of guilty. The trial court did not abuse its discretion in denying the motion to withdraw them.
By the Court. — Order affirmed.