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In Mueller v. State, 32 Wis.2d 70, 145 N.W.2d 84, cert. den. 389 U.S. 862 (1966), the defendant relied on Glasser and argued that he pleaded guilty only at the instigation of counsel, who, unbeknownst to him, represented his co-defendant.
Summary of this case from Harrison v. StateOpinion
September 9, 1966. —
October 4, 1966.
ERROR to review an order of the county court of Waukesha county: WILLIAM G. CALLOW, Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by Thomas S. Brenner of Waukesha.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, William A. Platz, assistant attorney general, and Roger P. Murphy, district attorney of Waukesha county.
On June 20, 1964, a complaint was filed against defendants Charles T. Koerner, Harry Mueller and Jane Adell Krueger charging them with armed burglary, injury by conduct regardless of life, endangering safety by conduct regardless of life and attempted first-degree murder. The details of the events from which these charges grew are set forth in State v. Koerner, decided today. Mueller hired Attorney Eugene Johnson of Waukesha to defend him. Johnson appeared for defendant Mueller at the preliminary examination on July 2, 1964, and waived such examination.
Ante, p. 60, 145 N.W.2d 157.
At the trial held on July 7, 1964, in Waukesha county court, branch II, WILLIAM G. CALLOW, judge, presided. Mueller was charged with four counts: No. 1 burglary, No. 2 armed burglary, No. 3 injury by conduct regardless of life, and No. 4 endangering safety by conduct regardless of life. (The attempted murder charge was dropped.) Mueller pleaded guilty to each of the four counts. Conviction and sentencing were delayed until July 13, 1964.
On July 13, 1964, defendant Mueller and his counsel, Johnson, appeared before Judge CALLOW, and Mueller reaffirmed his plea of guilty to each of the four counts. The court stated that probation, which had been ordered for Mueller pursuant to an extortion conviction, had been revoked. Mueller was sentenced to various terms in Waupun state prison on each count, the sentences to run concurrently with the maximum set at eight years. Mueller was also sentenced to three years for the extortion conviction and this sentence was imposed consecutively to the others.
On June 2, 1965, Mueller, through new counsel, Thomas S. Brenner, moved the county court to vacate the judgment and allow him to withdraw his plea of guilty.
Mueller averred (among other allegations not material here) that Johnson had not conferred with him prior to the date of trial, July 7, 1964; that his counsel never explained, nor did Mueller ever appreciate, the nature or serious consequence of the crimes.
A hearing was held on July 6, 1965, before Judge CALLOW and Mueller was present and represented at the hearing by Brenner. Mueller testified that Attorney Johnson never explained the nature of the charges, nor did he confer with Mueller concerning the crimes. Mueller testified that Johnson told him (Mueller) he might be sentenced to five years but would be out on parole in nine months.
At the hearing Mueller complained about the fact that Attorney Johnson represented both of the codefendants, Mueller and Koerner. He testified that he was not aware that Johnson was representing Koerner though "maybe subconsciously I was aware of it." He stated that Johnson never told him of the fact that Johnson was the attorney for Koerner.
On July 14, 1965, the court denied Mueller's motion for leave to withdraw his plea of guilty. The court found that at the time of trial Mueller fully comprehended the proceedings against him and ruled that the court could assume that defendant's attorney explained the nature and serious consequences of the crime with which he was charged. It found that Mueller's plea of guilty was freely and voluntarily made.
The court also found that Johnson had conferred several times with Mueller; that Mueller had the right, which he did not exercise, to inquire of Johnson whether he was representing Koerner; that Mueller had "subconscious" knowledge of the fact of the dual representation such that Mueller could have inquired of Johnson about this if, in fact, he had any objection to the dual representation. The trial court concluded that there was nothing "improper per se" in this corepresentation. The trial court denied the defendant's motion and entered an order to this effect. Defendant Mueller seeks review of this order.
The two issues presented on this review are:
1. Where the plaintiff in error was represented by counsel at his trial, did the trial court abuse its discretion in denying the plaintiff in error's post-conviction motion to withdraw his plea of guilty where the plaintiff in error testified he was not aware of the nature and seriousness of the offenses charged and was not informed on this matter by either the trial court or his lawyer?
2. Was plaintiff in error entitled to withdraw his plea of guilty as of right because his attorney also represented a codefendant?
Trial Court's Discretion.
Ordinarily, the question of the withdrawal of a plea of guilty is addressed to the discretion of the trial court. The general rule is that the defendant must establish adequate grounds for the withdrawal, and the defendant has the burden of proof on this issue. The rule is stated as follows:
Gordon v. State (1922), 178 Wis. 205, 207, 188 N.W. 752; State v. Dowling (1931), 205 Wis. 314, 316, 237 N.W. 98; La Fave v. State (1940), 233 Wis. 432, 441, 289 N.W. 670; Pulaski v. State (1964), 23 Wis.2d 138, 143, 126 N.W.2d 625; State v. Payne (1964), 24 Wis.2d 603, 604, 129 N.W.2d 250.
Papalia v. United States (2d Cir. 1964), 333 F.2d 620; United States v. Napolitano (D.C.N.Y. 1963), 212 F. Supp. 743; Friedman v. United States (8th Cir. 1952), 200 F.2d 690, certiorari denied, 345 U.S. 926, 73 Sup. Ct. 784, 97 L.Ed. 1357.
Van Voorhis v. State (1965), 26 Wis.2d 217, 131 N.W.2d 833, held that if the court had complied with the requirement of advising defendant of his right to counsel, then defendant had the burden of showing a lack of intelligent waiver of counsel. If the court had not complied with this requirement, the burden was on the state to show intelligent waiver.
"Accused has the burden of showing adequate grounds for permitting the withdrawal of his guilty plea and of proving his allegations or showing cause for a change of plea; . . .
". . . The doctrines of `presumptive innocence' and `proof beyond a reasonable doubt' are inapplicable on such motion since accused by his plea has already admitted his guilt."
22 C.J.S., Criminal Law, p. 1160, sec. 421(5).
Mueller's sole basis for claiming an abuse of discretion on the part of the trial court is his contention that he was not informed by his attorney or by the trial court of the nature and seriousness of the offenses charged.
In State v. Strickland we said:
(1965), 27 Wis.2d 623, 631, 135 N.W.2d 295.
"Courts have the right to assume in such a situation [where defendant, with counsel, pleads guilty] that counsel has fulfilled his duty of proper representation by fully explaining to the accused the nature of the offense charged, the range of penalties, and possible defenses thereto, and satisfying himself that the accused understands such explanations, before permitting the accused to authorize the entry of a plea of guilty."
Defendant has the burden to overcome this assumption. Yet the only evidence on this point is defendant's own flat assertion that he was not told by Johnson of the "serious consequences" of his crimes. Yet he also testified that Johnson told him he would "get five years in Green Bay." This conflict in Mueller's testimony, plus the fact that the court was not bound to accept Mueller's contention as constituting fact, is sufficient to support the trial court's determination that the petitioner had failed to prove his allegations (1) that he was not informed regarding sentences and (2) that he was not told of the nature and consequences of the offenses.
"Questions of fact are for the trial court to determine and it is not required to give full credence to the testimony of accused. . . ." 22 C.J.S., Criminal Law, p. 1161, sec. 421(5).
Dual Representation by Counsel.
One exception to the rule that withdrawal of a plea of guilty is discretionary with the trial court is where the defendant establishes the fact of "a denial of a relevant constitutional right." In such a case withdrawal of the plea is a matter of right. In the instant case Mueller urges that the withdrawal of his plea of guilty should be permitted of right for the reason that his attorney also represented codefendant Koerner and that this dual representation, without the knowledge of plaintiff in error, deprived him of the effective assistance of counsel. Counsel relies on the case of Glasser v. United States. In Glasser, codefendants were charged with a conspiracy. Attorney Stewart was retained by defendant Glasser to defend him. The other defendant, Kretske, was unable to get an attorney so the court asked Stewart if he would represent Kretske. Both Attorney Stewart and codefendant Glasser raised objections, but the court appointed Stewart as Kretske's counsel. A joint trial was held and Glasser was convicted of conspiracy. The United States supreme court ruled that defendant Glasser was denied assistance of counsel contrary to the Sixth amendment of the constitution. The basis of the court's holding that counsel's dual representation deprived Glasser of assistance of counsel was the strong possibility of inconsistent interests, which was pointed out to the trial court. These inconsistent interests had demonstrably hindered the performance of counsel at trial. At one point the attorney refused to cross-examine a witness contra to Glasser's interests, because of a desire to protect Kretske. Stewart also allowed testimony which was inadmissible as to Glasser to come in because he desired to avoid prejudice to Kretske. Thus, the major element in the Glasser holding is the existence of a conflict of interests between the codefendants, which actually lessened the effectiveness of counsel's presentation.
Van Voorhis v. State, supra, footnote 4, at page 223.
See State v. Strickland, supra, footnote 6.
(1942), 315 U.S. 60, 62 Sup. Ct. 457, 86 L.Ed. 680.
In Glasser the court makes the following statement:
"There is yet another consideration. Glasser wished the benefit of the undivided assistance of counsel of his own choice. We think that such a desire on the part of an accused should be respected. Irrespective of any conflict of interest, the additional burden of representing another party may conceivably impair counsel's effectiveness."
Glasser v. United States, supra, footnote 10, at page 75.
Petitioner argues that this holding requires an attorney dedicated solely to his interests, regardless of whether any conflict of interest exists. This interpretation of Glasser is too broad. Petitioner must make a showing that the dual representation impaired the effectiveness of his counsel. In Glasser the element of conflict of interest was essential to a showing that dual representation impaired the effectiveness of counsel.
In a recent Wisconsin case on the problem of dual representation, Massey v. State, Attorney McGrath was appointed by the trial court as counsel for codefendants Sullivan and Massey. Massey was convicted and claimed prejudicial error because of this dual representation. The Wisconsin supreme court distinguished Glasser on the grounds that no protest had been made by either Massey or the attorney to the appointment, that no conflict of interest appeared, and that testimony tending to exculpate one defendant would not inculpate the other.
(1965), 28 Wis.2d 376, 137 N.W.2d 69.
Thus, both Glasser and Massey are in accord with the general rule that one attorney may represent two defendants indicted for participation in the same crime, unless the interests of the defendants are shown to be in conflict.
21 Am. Jur.2d, Criminal Law, p. 348, sec. 319.
Defendant Mueller alleges that his interests were in conflict with those of codefendant Koerner. The basis of this contention is that the acts of defendants Mueller and Koerner were not the same, and that there would have been more difficulty in identifying defendant Mueller at trial. This is not sufficient to support a finding of conflict as a matter of law.
In People v. Bopp the codefendants had separate alibis which were inconsistent. The court held that conflict existed because testimony tending to exculpate one would tend to inculpate the other.
(1917), 279 Ill. 184, 116 N.E. 679.
In People v. Lanigan counsel could not represent codefendants in a joint robbery trial because of the conflict in tactical considerations as to whether each defendant should take the stand.
(1943), 22 Cal.2d 569, 140 P.2d 24.
State v. Karston involved a conflict because both defendants pleaded guilty to murder which carried a penalty of life imprisonment or death by hanging. The common counsel pleaded for leniency on behalf of one defendant, impliedly throwing the other defendant on the mercy of the court.
(1955), 247 Iowa 32, 72 N.W.2d 463.
In all these cases, a situation was encountered in which the attorney could not efficiently represent both people because differences in trial strategies dictated conflicting interests. Standing alone, mere variances in facts as to the actions of the codefendants in the alleged crime do not come within the requirement of conflicting interests.
In State ex rel. Favors v. Tucker counsel represented two codefendants, pleading one guilty. The other pled not guilty and counsel zealously pursued his defense. The court found no impropriety or conflict. People v. Fernandez found no conflict where the attorney had given capable, zealous and industrious representation and the trial court had instructed the jury on the possibility of conflict.
(1957), 143 W. Va. 130, 100 S.E.2d 411.
(1950), 301 N.Y. 302, 93 N.E.2d 859.
Mueller shows no actual conflict between representation of Koerner and himself. In the final analysis he contends that the mere fact of dual representation is the denial to him of effective counsel. Yet he was "subconsciously" aware of the dual representation at the time of trial and made no complaint about it at the time. There must be shown either some actual conflict or some other persuasive reason why Johnson did not effectively represent both defendants. Mueller has not met this burden.
Finally, Mueller requests the court to invoke its discretionary power under sec. 251.09, Stats., to prevent this alleged miscarriage of justice. We do not believe justice has miscarried and will not order a new trial pursuant to sec. 251.09. By the Court. — Order affirmed.
Lock v. State (1966), 31 Wis.2d 110, 142 N.W.2d 183.