Opinion
No. State 111.
Argued February 6, 1970. —
Decided March 3, 1970.
ERROR to review an order of the county court of Bayfield county: WALTER H. CATE, County Judge of Ashland county, Presiding. Affirmed.
For the plaintiff in error there was a brief by Richard F. Wartman and Wartman Wartman, all of Ashland, and oral argument by Richard F. Wartman.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Robert W. Warren, attorney general, and Robert N. Ledin, district attorney of Bayfield county.
Plaintiff in error, Wayne F. Meunier (hereinafter defendant), was convicted May 29, 1967, on his plea of guilty to one count of burglary (sec. 943.10(1), Stats.), and was sentenced to five years in the state prison at Waupun. The defendant's motion to vacate his guilty plea and grant a new trial was denied in an order dated June 26, 1969. This writ of error is prosecuted to review that order.
In the early morning hours of May 11, 1967, the defendant and a companion, James Susens, were arrested for burglary near the unincorporated village of Iron River in Bayfield county. Earlier that night, at approximately 2:35 a.m., a break-in had been discovered at the Farmers Union Coop store in the village of Cable. The investigating police officers testified that they followed the only auto tracks in the freshly fallen snow from the point of the break-in to near Iron River where they apprehended Meunier and Susens. The car being tracked and subsequently stopped was identified by a resident Cable, Tom Frels, who first alerted the police because he noticed a strange car stopped in his yard. From his home it was tracked to the Coop and the break-in discovered, whereupon the search continued until the car was sighted by Frels.
Following the arrest the officers proceeded to take the prisoners and their car from Iron River to the Bayfield county jail at Washburn. The testimony of Officer Fredericks indicates that the defendant's car then ran out of gasoline about four miles from the point of arrest. The auto was left on the shoulder of the road and the defendant and Susens were transported to Washburn and placed in the county jail. Deputy Fredericks stated that two officers shortly thereafter returned to remove the car from the highway. The arrest was made about 4:10 a.m., and Officers Sorenson and Embertson returned to pick up the car about 6 a.m., on May 11, 1967.
Officer Embertson testified that he was unable to pour the gasoline directly from the can into the car's tank. He then opened the trunk with defendant's keys looking for a hose or funnel. He found two hoses and used one to put the gas in the car. In the trunk of the car he also found a crowbar. When Embertson and Sorenson unlocked the car doors they looked in the glove compartment and found a sack of coins allegedly taken from the Farmers Coop store, as well as a .32-caliber pistol. Both the crowbar and the sack of coins were admitted into evidence at the preliminary hearing over the defendant's objections that the exhibits were the fruits of an illegal search and seizure.
Three counts of burglary (all in Cable on the night in question) and one of carrying a concealed weapon were lodged against the defendant. After a determination of indigency was made, Attorney Walter Norlin was appointed to represent defendant. A preliminary hearing was held May 17, 1967, before County Judge LAWRENCE K. BLANCHARD, acting as a magistrate. A finding of probable cause that defendant had committed a felony was made and he was committed to await trial.
Before the preliminary hearing was held the defendant was charged with damaging jail property in an attempted escape. A plea of nolo contendere was entered and he was adjudged guilty and sentenced to four months in the county jail. Subsequent to the preliminary hearing, May 23, 1967, defendant was charged with a second count of criminal damage to property as a result of another escape attempt. The defendant asserted at the sentencing hearing that his behavior in the jail was attributable to his sense of frustration and cruel treatment by the jailers. In particular he charged them with threatening and cursing him.
On May 29, 1967, an arraignment was held on an information alleging only one count of burglary. Defendant entered a plea of guilty to the one charge. It is apparent from both the arraignment transcript and the hearing on the plea withdrawal motion that a plea bargain was made between the defendant and the district attorney. Following the entry of the guilty plea all other charges pending were dismissed on motion of the prosecutor.
By order dated June 3, 1968, this court appointed Attorney Richard Wartman of Ashland to represent Meunier in his postconviction remedies. On May 20, 1968, the defendant filed in the county court of Bayfield county a pro se motion to vacate his plea. A subsequent motion was filed June 7, 1968, by Attorney Wartman to withdraw the plea of guilty.
A hearing on the motion to withdraw the plea was held before Judge WALTER CATE on August 8, 1968. It was the contention of the defendant that his guilty plea was not freely and voluntarily made because of threats by Undersheriff Francis Peloquin that Meunier would be implicated in the murder involving the gun found in his car, and furthermore because the defendant was under the impression there was overwhelming admissible evidence against him that had been seized from his car.
Judge CATE denied the motion and this writ of error was taken from that order.
Additional facts will be set forth in the opinion.
Two issues are presented:
(1) Did the defendant timely file an adequate motion for leave to withdraw his guilty plea?
(2) Did the trial court abuse its discretion in failing to allow Meunier, under the circumstances of this case, to withdraw his plea?
In Pulaski v. State (1964), 23 Wis.2d 138, 126 N.W.2d 625, we held that it would normally be an abuse of discretion for a trial court to entertain a motion to withdraw a guilty plea made beyond one year after conviction. The court said that the motion need only be served and filed within the year; the hearing of the motion could be had later.
The pro se motion filed May 20, 1968, by Meunier alleged two grounds upon which he sought relief from his plea of guilty. Defendant's motion was filed nine days before the one-year period from date of conviction expired. A subsequent motion by Attorney Wartman was filed June 7, 1968. Meunier asserted that his constitutional right to be secure from unreasonable search and seizure had been violated and that his plea was not knowingly entered.
The lower court entertained the motions as timely made and held a hearing August 8, 1968, on the request. It is submitted that the hearing of the application for withdrawal of the plea was not an abuse of discretion under Pulaski, supra. The motion filed by the defendant was within the one-year period, and furthermore the application made by Attorney Wartman was filed within four days of his appointment by this court. The first request for appointment of counsel was received by this court April 23, 1968. Due to the inability of the first two attorneys appointed to serve, Mr. Wartman was finally appointed June 3, 1968. Mr. Meunier should not be penalized for these delays which resulted in Attorney Wartman's motion being filed nine days after the year expired. Under these circumstances we hold the motion to withdraw the plea of guilty and for a new trial was timely made.
The standards governing the withdrawal of a plea of guilty in Wisconsin were recently summarized by this court in Brisk v. State (1969), 44 Wis.2d 584, 586, 587, 172 N.W.2d 199:
"To withdraw a plea of guilty in Wisconsin, it must be shown that a manifest injustice would exist if the plea were allowed to stand. We originally said in recognizing the procedure to withdraw a plea of guilty in Pulaski v. State (1964), 23 Wis.2d 138, 126 N.W.2d 625, that the motion was addressed to the discretion of the court in the interest of justice and the court had inherent power to hear and determine such a motion. This remedy was further developed in State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9, wherein the court adopted the manifest-injustice test for allowing the withdrawal of a plea of guilty approved in the standards of the American Bar Association Project on Minimum Standards for Criminal Justice relating to Pleas of Guilty.
"In Reppin, four illustrative situations were set forth which constituted manifest injustice. Those situations were:
"`"(ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant proves that:
"`"(1) he was denied the effective assistance of counsel guaranteed to him by constitution, statute, or rule;
"`"(2) the plea was not entered or ratified by the defendant or a person authorized to so act in his behalf;
"`"(3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; or
"`"(4) he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement."' We expressly pointed out in Reppin that these situations were not exclusive and other facts could constitute a manifest injustice which would require the granting of the withdrawal of the plea of guilty. The burden of proving manifest injustice is on the person seeking the withdrawal of his plea."
Reviewing the record of this case as to the four illustrative situations set forth in Reppin, only two of them were argued by Meunier or his counsel. It is intimated that he was denied the effective assistance of counsel because he was under the impression the evidence seized in an allegedly illegal manner from his car was admissible against him, thus convincing him to plead guilty. Secondly, it is charged that the threats and abuses rendered by Undersheriff Peloquin coerced the defendant into involuntarily entering his plea. It is further asserted that defendant's false impression about the admissibility of the seized evidence caused him to enter his plea misunderstandingly, thus constituting "manifest injustice."
On the issue of effectiveness of counsel, the lower court found:
"As to the effectiveness of the assistance of defendant's counsel, the court appointed attorney in this case was Mr. Walter T. Norlin who has long been one of the leading attorneys in Northern Wisconsin. He has himself been a district attorney for twenty years and since has served frequently as defense counsel. We think he is well qualified in this field. In the instant case he conferred frequently with the defendant, he appeared with him in court on at least four occasions, he conferred with the district attorney and was able to negotiate the dismissal of four other criminal charges. Bearing in mind that at the time of his sentencing, the defendant Meunier admitted the offense for which he was sentenced, we feel he was very adequately represented."
In support of the trial court's finding, the record reveals that defendant's counsel made the following stipulation at the motion hearing:
"Your Honor, to simplify this matter, in the brief memorandum which we have submitted today, we stated for the record that we felt that Mr. Norlin was both an experienced and able attorney. We don't feel there is any necessity of going into it now."
It is clear to us that the defendant was not deprived of the adequate assistance of counsel.
The testimony of Meunier at the motion hearing related several alleged incidents involving Undersheriff Peloquin while the defendant was being held for trial. It was claimed that Peloquin swore at, the defendant, removed cigarettes from his reach, and twice handcuffed him to the bars. He further testified that Peloquin mentioned two or three times that he was going to involve Meunier in a murder charge relating to the use of the gun found in defendant's car. He asserts that all these factors convinced him he had no choice but to plead guilty.
In contradiction of, the defendant's testimony, Peloquin denied all the allegations relating to the threats testified to by Meunier. He admitted placing handcuffs on the defendant twice to restrain him when damage to the cell was being inspected. He denied ever handcuffing the defendant to the cell bars. On cross-examination he admitted having called the defendant a "punk," but denied ever cursing him. He further denied ever advising the defendant concerning any charges pending against him or that might be brought against him.
Clearly the matter of threats by Peloquin presented a question of credibility for the lower court. If the undersheriff was believed the accusations of Meunier had no merit. Judge CATE chose to believe the testimony of the officer and not that of Meunier. It is clearly within his province as trier of the fact on this matter to so find. Mueller v. State (1966), 32 Wis.2d 70, 75, 145 N.W.2d 84. There is nothing in the record to show that such a determination constituted an abuse of discretion.
In an attempt to show manifest injustice aside from the four situations specified in Reppin, the defendant asserts that his plea was not "knowledgeably" made. It seems apparent that under Reppin and Brisk, supra, the defendant has the right to prove situations other than those set out as examples in the Reppin decision of course the burden of persuasion on the defendant remains the same, namely, by evidence that is clear and convincing.
In this case it is urged that the admission into evidence of the bag of coins and the crowbar at the preliminary hearing convinced Meunier that these matters would also be admitted at his trial. He claims their impact would be so overwhelming he might just as well plead guilty. It is further asserted that he was never informed the evidence might not be admissible against him, at the trial. These arguments are partially governed by the issue of adequacy of counsel, especially in regard to what advice was given the defendant. It is well settled in Wisconsin that a ruling on admissibility of evidence at a preliminary hearing is not res. judicata at the trial. State ex rel. Durner v. Huegin (1901), 110 Wis. 189, 85 N.W. 1046. Therefore, Meunier was not foreclosed by the action at the preliminary hearing from reasserting his challenge to the evidence.
Since the adequacy of counsel was conceded by Meunier it would appear that he had waived any right to object to constitutional errors occurring prior to the guilty plea. State v. Biastock (1969), 42 Wis.2d 525, 167 N.W.2d 231. Yet, it was specifically noted in Biastock, at page 532:
". . . if a defendant was not fully aware of a potential challenge to possible violations of his constitutional rights and his plea of guilty was the direct result of and caused by these possible constitutional violations, Hawkins would permit the defendant, in this limited situation, to raise such constitutional objections in the petition for the withdrawal of the guilty plea."
This passage is the reference point for Meunier's claim that his plea was not "knowledgeably" made. Thus, before ruling that the defendant waived his right to object to what might have been an illegal search and seizure it is necessary to inquire whether he was aware of a potential challenge. Defendant's trial counsel testified that he did discuss with Meunier the possibility the evidence might still be excluded, but that his impression was it probably would be admitted. It is submitted that the testimony of Attorney Norlin indicates Meunier was fully aware that a further challenge to the seized evidence could be made at the trial. The trial judge so held. Any question as to the validity of Norlin's speculation that the exhibits would be ruled admissible goes only to the adequacy of counsel, a matter conceded by the defendant. Therefore, we conclude the waiver theory of Biastock is applicable and forecloses the defendant from claiming manifest injustice.
In addition to the testimony of defendant's trial counsel respecting his advice about the questioned evidence, cognizance must be taken of the plea bargain entered into between Meunier and the district attorney. Subsequent to the entry of a plea of guilty to an information alleging one count of burglary the district attorney moved to dismiss two other burglary charges, one count of carrying a concealed weapon, and one count of criminal damage to property resulting from the second attempted jailbreak. The very existence of this plea bargain raises an inference that the guilty plea was knowledgeably made.
Judge CATE'S appraisal of the defendant is also significant:
"The defendant in this case is a man of twenty-five years of age. While he has only an eighth grade education, this does not mean he is ignorant. He handled himself well in court, giving the appearance of being sell possessed and assured and expressed himself well on both direct and cross examination. He seems to be a person of at least average intelligence and sophistication. Judging by his record, he has had considerable courtroom experience. Placing this all together, we do not feel that his plea of guilty was the result of ignorance or lack of awareness of his circumstances. We think his plea was made knowingly, understandingly, and voluntarily."
It is clear that the policy behind the "manifest injustice" rule is a desire for fairness in criminal procedure. It is arguable that a plea bargain creates an inference which gives rise to the conclusion that the defendant fully comprehended the significance of his plea. It seems quite apparent from the record of this case that Meunier knowledgeably chose to enter a plea of guilty to one count burglary in consideration for dismissal of the other charges.
We are convinced that there has been no showing of manifest injustice and that the trial court did not abuse its discretion in refusing to order the withdrawal of the plea of guilty.
By the Court. — Order affirmed.