Opinion
October 30, 1964 —
November 24, 1964.
ERROR to review two judgments and an order of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the plaintiff in error there were briefs by Mount Keck of Milwaukee, and oral argument by Herbert L. Mount.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, and Ben J. Wiener, deputy district attorney of Milwaukee county, with whom on the brief were George Thompson, attorney general, William A. Platz, assistant attorney general, and William J. McCauley, district attorney.
William Lee Myartt pleaded guilty and was convicted on February 25, 1963, of two offenses: Possession of marijuana and sale of marijuana. On March 8, 1963, he was sentenced to imprisonment for not less than two nor more than six years for each offense. The terms were to run concurrently with each other and with a federal sentence which had recently been imposed if the latter were ordered to be served in the same institution. Myartt was represented up to this point by attorneys Nathaniel Rothstein and Alvin Eisenberg.
On June 26, 1963, Myartt applied to the circuit court for permission to withdraw his plea of guilty. He alleged that he had been arrested February 19, 1962, had not been brought to trial because the evidence was insufficient for conviction, and had been tricked into a plea of guilty. He alleged that Mr. Rothstein had told him that Rothstein had met with Deputy District Attorney Ben Wiener and Judge STEFFES and it had been decided that if Myartt would change his plea to guilty, he would be placed on probation, but if he refused to change his plea he would receive five years in prison. He presented an affidavit in which his mother stated that Mr. Rothstein had given her the same information and that she persuaded her son to plead guilty although he told her he was not.
Affidavits were filed in opposition. Mr. Rothstein denied making the alleged statements. He said that Eisenberg and he had conferred with Wiener about the case and Wiener said he would recommend probation on a plea of guilty because of the long period Myartt had been in jail. Rothstein informed Myartt and his mother accordingly and recommended that Myartt plead guilty. Rothstein stated that he clearly informed Myartt and his mother that the recommendation was not binding on the court and the court could follow the recommendation or reject it.
Mr. Eisenberg corroborated Mr. Rothstein's statements.
Mr. Wiener stated that he and defense counsel had discussed with Judge STEFFES the question whether Myartt was subject to a statute prohibiting probation and parole under certain circumstances, and the matter of a federal charge then pending against Myartt, but that Judge STEFFES made no indication of the ultimate disposition of the case; that Wiener did tell Rothstein he would recommend probation and did so recommend in open court.
The record shows that on February 25, 1963, when Myartt changed his plea to guilty, Judge STEFFES informed him as to each charge that under a plea of guilty he would be subject to a possible penalty of not less than two nor more than ten years in prison. Myartt said he understood that. Mr. Wiener made his recommendation of probation. The court ordered a presentence investigation, and imposed sentence March 8, 1963. On March 4th, Myartt had received a two-year sentence in the federal district court for forgery.
The circuit court appointed Herbert Mount, Esq., counsel for Myartt on the application to withdraw his plea and arranged for Myartt to be present at the hearing. On November 12, 1963, the court denied the application.
We issued writs of error to review the judgments and the order of denial, and appointed Mr. Mount as Myartt's counsel here.
Further facts will be referred to in the opinion.
In denying Myartt's application, Judge STEFFES emphatically stated that neither in Myartt's case nor any other had he indicated in advance what the disposition of a case would be. He noted Myartt's substantial past criminal record and the resulting impeachment of his credibility as well as the inference therefrom that Myartt was not misled. He pointed to the advice given Myartt in open court as to possible penalties. He expressed his confidence in the conduct of the attorneys involved. We are satisfied that Judge STEFFES was not a party to any promise of probation or leniency, and that counsel did not misrepresent the situation to Myartt.
Aside from the claim of coercion or improper inducement,
"The question of the withdrawal of a plea of guilty or of nolo contendere is addressed to the discretion of the trial court. A decision to grant or deny a motion for withdrawal will not be disturbed on appeal unless it is shown to have been an abuse of discretion."
State v. Payne (1964), 24 Wis.2d 603, 604, 129 N.W.2d 250.
We find no abuse of discretion here. Although Myartt had been in jail for about one year when he pleaded guilty, the record shows the preliminary examination on the possession charge was held February 26, 1962, and arraignment February 28, 1962. Thereafter there were frequent appearances in court and continuances, some on the motion of defense counsel, some by consent, and some without opposition. Notice of motion to suppress evidence was filed July 17th, and was heard and decided August 15, 1962. The complaint on the sale charge was filed August 20, 1962, this offense having allegedly occurred September 1, 1961. After a similar series of adjournments, the preliminary examination was held December 12, 1962, and arraignment occurred February 25, 1963.
Counsel for Myartt argues that the transcripts of the preliminary examinations indicate that the state's evidence may have been insufficient to prove Myartt guilty beyond a reasonable doubt. We do not know whether the state had evidence which was not introduced on the preliminary examination. Assuming, however, that it did not, the transcripts contain testimony of law-enforcement officers which, fully credited, would have supported conviction.
Although our writs of error brought the judgments here for review as well as the denial of leave to withdraw the plea of guilty, there was no separate challenge of the judgments.
By the Court. — Judgments and order affirmed.